SW52P4
on UC />04oO
?/EPA Proposed Hazardous
Waste Regulations
Volume 4
March 14, 1979
San Francisco
California
Transcript
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TRANSCRIPT
Pub! ic Hearing
on Proposed Rules for Controlling Hazardous Wastes
Resource Conservation and Recovery Act
Sections 3001 - 3004
Volume IV
March 14, 1979, San Francisco, California 94105
This hearing was sponsored by EPA, Office of Solid Waste,
and the proceedings (SW-52p) are reproduced entirely as transcribed
by the official reporter, with handwritten corrections.
U.S. ENVIRONMENTAL PROTECTION AGENCY
1979
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This prepublication copy of this transcript does not include
printed matter submitted at the time of the hearing. This material
will be included in the final printing.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C.
--- oOo ---
PUBLIC HEARING
on
PROPOSED RULES FOR CONTROLLING HAZARDOUS WASTES
RESOURCE CONSERVATION AND RECOVERY ACT
SECTIONS 3001 - 3004
VOLUME IV
Pages 653 - 947
8:35 a.m.
March 14, 1979
U.S. ENVIRONMENTAL PROTECTION AGENCY
REGION IX
215 Fremont Street
San Francisco, California 94105
Reported by:
THOMAS R. WILSON, CSR, CM
(CSR No. 2052)
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1 INDEX
Pa.£e
2 KIERAN D. BERGIN, Hazardous Waste Engineer,
Los Angeles County Sanitation Districts 665
3
BERNARD L. SIMONSEN, Regional Vice President,
4 IT Corporation, Martinez, California 674
5 ARTHUR DINSMOOR, Wilson Oil Company - Santa
Fe for the Independent Petroleum Association
6 of America 700
7 S. L. ZWICKER, Senior Environmental Engineer,
Corporation Environmental Sciences Depart-
8 ment, Union Oil Company of California, Los
Angeles, California 713
9
WILLIAM M. DAVIS, County of San Diego 735
10
KAREN SHEWBART, Environmental Services Depart-
11 I ment, Texas Division of Dow Chemical Company 746
12 ! JAMES W. COLLINS, Cities Service Company, Tulsa,
Oklahoma, for the American Petroleum Insti-
13 tute 765
14 JAY SNOW, Industrial Solid Waste Unit, Texas
Department of Water Resources for the National
15 Governors Association Task Force on Hazardous
Waste Management 792
16
A. W. DILLARD, Permian Basin Petroleum Associa-
17 tion, Midland, Texas 818
18 ARNE ROVICK, Phelps-Dodge Corporation, Phoenix,
Arizona 830
19
GREG McCLINTOCK, Counsel, Western Oil and Gas
20 Association, Los Angeles, California 840
21 H. L. HANRIGHT, Petroleum Equipment Suppliers
Association, Houston, Texas 870
22
GEORGE FRED RHODES, Texas Coastal and Marine
23 Council, Port Lavaca, Texas 885
24 EDWARD G. GLADBACH, Department of Water and
Power, City of Los Angeles and USWAG 904
25
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1 INDEX (Cont'.
Page
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J. C. SCHWEGMANN, Director of Environmental
3 Services, Kaiser Aluminum and Chemical
Corporation 922
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WILLIAM F. JOPLING, State of California
5 Department of Health Services, Sacramento,
California 926
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1 HEARING PANEL
2
DOROTHY DARRAH
3 Office of General Counsel
U.S. Environmental Protection Agency
4 Chairperson
5 JOHN P. LEHMAN
Director, Hazardous Waste Management Division
6 Office of Solid Waste
U.S. Environmental Protection Agency
7
HARRY TRASK
8 Desk Officer - Sections 3002, 3003
Hazardous Waste Management Division
9 Office of Solid Waste
U.S. Environmental Protection Agency
10
ALAN CORSON
11 Chief, Guidelines Branch (Section 3001)
Hazardous Waste Management Division
12 Office of Solid Waste
U.S. Environmental Protection Agency
13
AMY SCHAFFER
14 Office of Enforcement
U.S. Environmental Protection Agency
15
ALFRED LTNBSEY
16 Chief, Implementation Branch
Hazardous Waste Management Division
17 Office of Solid Waste
U.S. Environmental Protection Agency
18
TIM FIELDS
19 Desk Officer - Section 3004
Hazardous Waste Management Division
20 Office of Solid Waste
U.S. Environmental Protection Agency
21
JAMES STABLER
22 Senior Environmental Engineer
Air and Hazardous Materials Division
23 U.S. Environmental Protection Agency, Region IX
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1 MR. LEHMAN: Good morning, ladies and
2 gentlemen. Could you take your seats, please and let'
3 get started. My name" is John Lehman. I'm Director
4 of the Hazardous Waste Management Division of EPA's
5 Office of Solid Waste in Washington, D. C. On behalf
6 on EPA, I would like to welcome you to the public
7 hearing which is being held to discuss the proposed
8 regulations for the management of hazardous waste. We
9 appreciate your taking the time to participate in the
10 development of these regulations which are being
11 issued under the authority of the Resource Conservation
12 and Recovery Act, better known by its acronym R-C-R-A
13 or RCRA.
14 The Environmental Protection Agency on
15 December 18th, 1978, issued proposed rules under
16 Sections 3001, 3002 and 3004 of the Solid Waste
17 Disposal Act as substantially amended by RCRA, Public
18 Law 94-580. These proposals respectively cover, first,
19 criteria for identifying and listing hazardous waste;
20 identification methods and a hazardous waste list.
21 Second, standards applicable to generators
22 of such waste for record keeping, labeling, using
23 proper containers, and using a transport manifest.
24 And, third, performance, design and operating
25 standards for hazardous waste management facilities.
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These proposals, together with those
already published pursuant to Section 3003 on April
28th, 1978, Section 3006 on February 1st, 1978, Section
3008 on August 4th, 1978, and Section 3010 on July
llth, 1978, and that of the Department of Transporta-
tion pursuant to the Hazardous Materials Transportation
Act on May 25th, 1978, along with Section 3005
regulations for hazardous waste management facility
permits, which will appear soon as proposed rules under
40 CFR, Parts 122, 123 and 124, all of these taken
together constitute the hazardous regulatory program
under Subtitle C of the Act.
This hearing is being held as part of our
public participation process in the development of
this regulatory program. I'd like to introduce to you
now the panel members who share the rostrum with me.
From your left, they are Harry Trask, Program
Manager for the Guidelines Branch, or in the Guidelines
Branch -- Excuse me -- Hazardous Waste Management
Division, EPA in Washington. Harry is the principal
staff member responsible for Sections 3002 and 3003
regulat ions.
Next is Alan Corson, Chief of the Guideline
Branch, Hazardous Waste Management Division, EPA,
Washington. Alan is the principal staff member for
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1 Section 3001 regulations.
2 Amy Schaffer, from our Office of Enforcement
3 EPA headquarters in Washington.
* Dorothy Darrah, from our Office of General
5 Counsel, EPA in Washington.
6 Fred Lindsey, Chief of the Implementation
7 Branch, Hazardous Waste Management Division, EPA,
8 Washington.
9 Tim Fields, Program Manager in our Assess-
10 ment and Technology Branch, Hazardous Waste Management
11 Division, EPA, Washington. Tim is the principal staff
12 person for Section 3004 regulations.
13 And Jim Stabler, Senior Environmental
14 Engineer of the Air and Hazardous Materials Branch in
15 Region IX, here in San Francisco.
16 As noted in the Federal Register, our planned
17 agenda is to cover Section -- cover comments on
18 Section 3004 today. The comments received at this
19 hearing and the other hearings as noted in the Federal
20 Register, together with the comment letters we receive,
21 will be a part of the official docket in this rule-
22 making process. The comment period closes on March
23 16th for Sections 3001 through 3004, except for a
24 recent development where we have extended the comment
25 period for a very limited section of Section 3001
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1 regulations, namely that dealing with the extraction
2 procedure. We have extended the comment period on
3 that very narrow part until May 15th, 1979.
4 This docket may be seen during normal
5 working hours in Room 2111D, Waterside Mall, 401 M
6 Street Southwest, Washington, D. C. In addition, we
7 expect to have transcripts of each hearing within
8 about two weeks of the close of the hearing. These
9 transcripts will be available for reading at any EPA
10 library, and a list of those locations is available at
11 the registration table.
12 With that as a general background, I would
13 like to lay the groundwork and rules for the conduct
14 of this hearing.
15 The focus of a public hearing is on the
16 publi'c response to a regulatory proposal of an agency,
17 or in this case agencies, since both EPA and the
18 Department of Transportation are involved. The
19 purpose of this hearing is to solicit comments on the
20 proposed regulations, including any background infor-
21 mation used to develop the comment. This public
22 hearing is being held not primarily to inform the
23 public nor to defend a proposed regulation but,
24 rather, to obtain the public's response to these
25 proposed regulations and thereafter revise them as may
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1 seem appropriate.
2 All major substantive comments made at the
3 hearing will be addressed during preparation of the
4 final regulations.
5 This will not be a formal adjudicatory
6 hearing with the right to cross-examine. The members
7 of the public are to present their views on the
8 proposed regulation to the panel, and the panel may
9 ask questions of the people presenting statements to
10 clarify any ambiguities in their presentations. The
11 Chairman reserves the right to limit lengthy questions,
12 discussions or statements. We would ask that those
13 of you who have a prepared statement to make orally
14 to please limit your presentation to a maximum of ten
15 minutes so we can get all statements in a reasonable
16 time. If you have a copy of your statement, please
17 submit it to the Court Reporter.
18 Written statements will be accepted at the
19 end of the hearing. If you wish to submit a written
20 rather than an oral statement, please make sure the
21 Court Reporter has a copy. The written statements will
22 also be included in their entirety in the record.
23 Persons wishing to make an oral statement
24 who have not made an advance request by telephone or
25 in writing should indicate their interest on the
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registration card. If you have not indicated your
intent to give a statement and you decide to do so
later on, please return to the registration table,
fill out another card and give it to one of the staff.
As we call an individual to make a statement
he or she should come to the lectern and identify
himself or herself for the Court Reporter and deliver
his or her statement.
The Chairperson will inquire as to whether
the speaker is willing to entertain questions from the
panel. The speaker is under no obligation to do so,
although within the spirit of this information-
sharing hearing, it would be of great assistance to
the agency if questions were permitted.
Our day's activities as we currently see
them appear like this. We will break for lunch at
approximately 12:15 or 12:30; reconvene about 1:30 or
2:00 o'clock. Then, depending on our progress, we
will either conclude the day's session or break for
dinner at about 5:00 p.m. and reconvene at 7:00 p.m.;
continue on until we have received all statements.
There are some general housekeeping aspects.
Restrooms arid drinking fountains are located on the
6th floor here. You can refer to a floor map located
behind the reception desk in the 6th floor lobby for
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1 : their location.
2 Similarly, there are vending machines for
3 snacks, coffee, soda pop and so forth located on this
4 floor. And, again, you can determine their location
5 by reference to the floor map.
6 Public phones are available in the first
7 floor lobby. If you need to call another government
8 agency, you may use the FTS phone, which is located
9 near the registration table in this room. These are
10 the only phones designated for conference use. EPA's
11 office phones are extremely busy during the day, and
12 we do not have the facilities to take phone messages
13 for people attending conferences in this building.
14 There are handouts at the rear of the room
15 partially listing nearby restaurants; also, information
16 on airport bus lines and taxis and other transportation
17 matters.
18 If you wish to be added to our mailing list
19 for future regulations, draft regulations or proposed
20 regulations, please leave your business card or name
21 and address on a three-by-five card at the registration
22 desk.
23 The regulations under discussion at this
24 hearing are the core elements of a major regulatory
25 program to manage and control the country's hazardous
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1 waste from generation to final disposal. The Congress
2 directed this action in RCRA, recognizing that disposal
3 of hazardous waste is a crucial environmental and
4 health problem which must be controlled. In our
5 proposals, we have outlined requirements which set
6 minimum norms of conduct for those who generate,
^ transport, treat, store and dispose of hazardous waste.
8 In our hearing today, we will concentrate
9 on Section 3004, which addresses standards affecting
10 owners and operators of hazardous waste treatment,
11 storage and disposal facilities. These standards
12 define the levels of human health and environmental
13 protection to be achieved by these facilities and
14 provide the criteria against which EPA or state
15 officials will measure applications for permits.
16 Facilities on a generator's properties, as
17 well as offsite facilities, are covered by these
18 regulations and do require permits. Generators and
19 transporters do not otherwise need permits under our
20 proposal.
21 EPA intends to promulgate final regulations
22 under all sections of Subtitle C by December 31st,
23 1979. It is important for the regulated communities
24 to understand, however, that the regulations under
25 Sections 3001 through 3005 do not take effect until
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1 six months after promulgation. That would be
2 approximately June of 1980. Thus, there will be a
3 time period after final promulgation during which
4 time public understanding of the regulations can be
5 increased.
6 And during this same period, notifications
7 required under Section 3010 are to be submitted and
8 facility permit applications required under Section
9 3005 will be distributed for completion by applicants,
10 With that as a general summary of Subtitle
11 C and the proposed regulations to be considered at
12 this hearing, I will return the meeting to our
13 Chairperson, Dorothy Darrah.
14 MS. DARRAH: Thanks, Jack.
15 For the last time, let me go through the
16 rules that we are using for the hearing.
17 When I call your name, if you do have an
18 extra copy of your statement, we would appreciate it
19 if you would give it to the Court Reporter. If you
20 have more than one extra copy, the panel would be
21 happy to receive an additional copy. If you do not
22 have an extra copy but you would be willing to let us
23 Xerox your handwritten or typed version, we would
24 appreciate that so that -- in order to better insure
25 the accuracy of the transcript.
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By the way, I think Jack mentioned that
copies of the transcript will be available in the EPA
.1W m
regional libraries^in Washington. If you do want to
purchase copies, you should speak to the Court Reporter
I will again be enforcing fairly strictly the
ten-minute time limit for each presentation. For your
information, we heard 18 witnesses on Monday, 23
witnesses on Tuesday, which was 8:30 in the morning to
10:15 at night. We have 22 witnesses scheduled for
. today. That's 6 people in addition to the 16 who
preregistered. I cannot tell you whether all of the
16 who are preregistered are here, but I'm sure many
of them are.
We will be trying to limit our questions
insofar as possible. If it appears to me that one
witness — that we are, you know, spending too much
time asking questions of a witness, I will inquire of
that person if he or she would be willing to respond
to written questions, because we certainly realize
that many of you have planes to catch, and we certainly
will try to get through everyone in as orderly and
as equitable a manner as possible.
The first person today is a representative
of the County Sanitation Districts of Los Angeles.
MR. KIERAN D. BERGIN Thank you.
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1 I would like to apologize for not having a
2 transcript ready, but it was revised forcibly by my
3 boss last night.
4 And I'd like to start- off with something a
5 little bit unique and congratulate EPA --
6 MS. DARRAH: Do you want to give your
1 surname, please?
8 MR. BERGIN: I'm Kieran Bergin, Hazardous
9 Waste Engineer for the Los Angeles County Sanitation
10 Districts.
11 We operate two Class I hazardous waste
12 disposal sites in the Los Angeles region.
13 I would like to start off with something
14 a little bit unique and, in general, congratulate EPA
15 on what I think is a very good first attempt at the
16 regulations, which I don't think anyone else has done.
17 Now, if the panel hasn't fainted, I would
18 1 ike to go on .
19 The first major concern the districts have
20 is with the 200-foot proposed barrier around hazardous
21 waste sites. We feel that, while this may provide
22 adequate protection for gaseous difusion of airborne
23 contaminants during routine operation of a site, it
24 may not provide adequate protection in the event of
25 the worst possible case that could occur at a site.
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A chemical fire, an uncontrolled reaction, that type
of thing.
In the case of an existing site, such as
our Calabasa land fill, it would take up approximately
250 per cent of the site acreage. Since Class I
disposal in California and the nation in general is
going to be in short supply, we feel that this should
be closely evaluated for existing facilities.
Now, Section 3004 also gives EPA somewhat
general authority to promulgate standards regarding
the location of hazardous waste facilities. It does
not appear that EPA has done anything regarding that
except the 200-foot barrier. And it may seem ironic
for a local government agency to say that EPA has
failed to use its authority, but we feel that this is
the case. The intense attack that hazardous waste
facilities are under around the nation is going to make
it imperative that there be either federal or state
governmental support of existing sound hazardous waste
disposal facilities.
There have been bills introduced in Congress
to require EPA, in coordination with the National
Academy of Sciences, to find locations for hazardous
waste disposal facilities. We feel that the general
authority already given in Section 3004 regarding
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1 location of sites may well cover this.
2 As regards the site closure fund, the
3 districts feel that it is not imperative that the
fund be put on deposit as a condition of permit for
the existing sites in California, which are well
established businesses that have been in business for
a long term, as well as the governmental agencies
that are in business. We feel that a staggered
9 payment over the life of the site or a five-year
10 period will provide adequate protection to the public
11 against a site that would be abandoned without closure
12 The second concern we have with the finan-
13 clal responsibility is the fact that, as written, they
14 will provide serious cash flow problems during the
15 post-closure period. The reason for this is that no
16 monies wil] be reimbursed to the sites until the
17 closure has been completed. This will essentially
18 require the operator to have the money on deposit for
19 closure, and then to have that money either on hand or
20 borrow it to do closure.
21 i The same type of procedure will apply to the
22 post-closure operation and maintenance.
23 The districts feel that this type of cash
flow problem simply need not exist because it will
only cause higher disposal prices with no concurrent
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environmental benefit.
The Los Angeles Region has been notably
absent of large-scale hazardous waste health problems,
for a couple of reasons. Most obvious and the first
one is the fairly recent influx of heavy industry to
the area. And. we feel the second reason is that the
area has historically had good, sound disposal at a
low cost. There has not been the economic incentive
that produces things like mud canals or the Valley of
the Barrels.
The EPA's present regulations, proposed
regulations, as written would ban the disposal of
volatile reactive and flyable wastes to land fills
unless the operator can meet the equivalent exposure
that is promulgated in the regulations, similar to the
OSHA requirements.
The districts feel that this standard is
unrealistic for several reasons.
Under the Clean Air Act, the Los Angeles
Region is an area of noncomp1iance with that Act. As
a result, open burning and incineration is virtually
impossible to set up in that region, since, as Mr.
O'Morrow of the Oil and Solvents Process Company said,
his company has been unable to convince the South
Coast Air Quality Management District to allow a
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1 trade-off of pollutants to enable the company to
2 recycle more materials. The only legal method for
3 disposal of many materials is to land fill. If EPA
4 does succeed in banning the disposal of these material
5 to land fills, there will be no legal disposal method
6 for many materials that are presently in heavy use by
7 industry in the Los Angeles Region.
8 The districts feel that this policy is
9 unrealistic and should be re-evaluated.
10 And I will be glad to entertain any question
11 MS. DARRAH: Okay. Thank you.
12 MR. FIELDS: I wasn't quite sure, Mr. Bergin
13 what your position was on the buffer zone requirement.
14 You said the 200-foot buffer zone might not be
15 adequate and that we need -- that you also said we
16 need to consider existing facilities. I'm not sure
17 exactly what your exact position on our standard was.
18 MR. BERGIN: I think you could say our
19 position is that the 200-foot barrier is an arbitrary
20 number. It should be — I feel it should be put down
21 in a note as a possible suggested standard rather than
22 an absolute standard and can be looked at on a case-by
23 case basis for facilities.
24 MR. FIELDS: Okay. You also indicated that
25 our standard for reactives, volatiles, etc., you know,
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1 we -- we were in that light, I guess, considering the
2 degree of hazard. We felt there should be certain
3 sort of controls on putting volatiles, uniteables,
* reactor type wastes into a land fill or other disposal
environment. Evidently, you differ with that. We
think the note would allow the disposition of these
' things in certain instances.
Q
0 But what would -- how would you recommend
we write a standard for land fill disposal, for
example, of these volatiles and reactives? I mean
11 there should be some additional control, we feel, than
12 for other types of "hazardous wastes.
13 MR. BERGIN: The districts don't feel that
a land fill is the perfect disposal place for any
15 materials. Long-life toxic organics, we do not feel
that we should be putting them in land fill, which is
17 essentially long-term storage. We would advocate a
18 more integrated approach, with the Air Disposal and
19 Water Disposal Acts in particular, to allow incinera-
20 tion and controlled reaction of some of these material
21 if an analysis indicates that such treatment is in the
22 best interests of the total environment, rather than
23 having a policy which has banned disposal to air, land
24 and water.
25 MR. FIELDS: Basically, I think our
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1 regulations would discourage, you know, land filling
2 impoundment of some of these things.
3 MR. BERGIN: I certainly agree.
4 MR. FIELDS: But the options of incineration
•> and treatment is also there in the regulations. So
" I don't know if the regulations really don't do what
' you are advocating.
8 MR. BERGIN: The regulations, the preamble
9 to the regulations, states that EPA intends to
10 encourage incineration; but, in stating simply that
11 all incineration facilities must comply with all of
12 the Clean Air Act, for Los Angeles essentially means
13 no incineration. I think there should be -- possibly
14 it may be beyond the scope of this panel here, but
15 there should be some integration with the Clean Air
16 Act to integrate the total environment rather than
17 separately looking at air, land and water.
18 MR. FIELDS: Okay.
19 MR. LEHMAN: Mr. Bergin, I'm a little
20 confused about that. If I may follow up on that
21 general point, if you can't get an air variance for
22 incineration and you can't get an air variance for
23 recycling, why — you know, why are you able to get
24 a variance for land fill? In other words, there — if
2^ you land fill volatiles or surface impound volatiles,
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you are going to get release into the air, obviously.
Now, are you just saying that landfills are not
currently regulated by the Clean Air Act? Is that
what the point is?
MR. BERGIN: I don't believe that we have
had any enforcement by the Air Quality Management
District since we would essentially be a nonpoint
source. We have not been enforced on by those people.
We don't think that the landfill is the perfect place
for disposal, and we don't think that most landfills
will qualify under those standards co continue the
disposal of volatile wastes.
There are 401 compounds listed in the
appendices of Section 3004 that must be accounted for
in that analysis. We don't think that's a small task.
MR. LEHMAN: Okay. Thank you.
MR. LINDSEY: One final point, if I may.
You indicated that you felt we hadn't done
enough concerning the location criteria, which we
called the general site selection criteria. But then
you went on to talk about the problem of citizen
opposition and difficulty in obtaining facilities,
that is locating facilities, and felt that there
should be some federal assistance here. I'm not sure
I follow the train of your thinking.
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1 Were you saying that, through having, shall
2 we say, more stringent or more specific standards here
with regard to location, that we would in some way
assist that, or were you trying to make some other
point there?
MR. BERGIN: No. I think you've gotten the
' point there .
8 MR. LINDSEY: In other words, if we had
more specific standards, what would you like to see,
10 then, if I can follow that a little further?
11 MR. BERGIN: Ideally, some type of large
12 area geological survey which would pinpoint sites
13 that may be facilities -- that may be useful for
hazardous waste disposal and integration with the
local government in assuring that there may be
hazardous waste disposal available in the future,
17 possibly through zoning.
18 MR. LINDSEY: That wouldn't be a regulatory
activity, then; that would be some other sort of a
20 study perhaps that Uncle Sam would take to locate
21 ideal areas; is that what you mean?
22 MR. BERGIN: It may well be. We are not
23 proposing any specific actions there, but we do feel
that, with the what we feel is broad authority in
RCRA concerning EPA's promulgating standards regarding
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1 location, that there could be more done in this area.
2 I must admit we haven't taken that to the
3 obvious next step and worked it out.
4 MR. LINDSEY: Well, if you have some last
5 minute thoughts on this general site selection
6 standards, if you would have us add something specific
7 to that or some group of things specific, if you
8 could postmark them by Friday night, that might be
9 helpful to us.
10 MR. BERGIN: We will turn off the clock on
11 the postal meter until Friday's over.
12 MR. LINDSEY: You don't want to say that on
13 the record.
14 MS. DARRAH: If you are going to postmark
15 it, you can do it with the Post Office.
16 Any more questions?
17 MR. TRASK: No.
18 MR. CORSON: No.
19 MS. DARRAH: Okay. I guess there's no more
20 questions. Thank you.
21 Bernie Simonsen, IT Corporation?
22 MR. BERNARD L. SIMONSEN: My name is Bernard
23 Simonsen. I'm Regional Vice-President for IT Corpora-
24 tion. We operate two of the Class I disposal
25 facilities in the State of California.
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1 The comments that I will be making will be
2 directed primarily to the provisions of the proposed
3 regulations dealing with financial responsibility of
4 hazardous waste management facilities.
5 I have been participating in the submission
6 of comments on this section, both as a member of the
1 National Solid Waste Management Association and on
8 behalf of our company for about the last 18 months.
9 I'd like to first preface my comments with
10 a description of the environmental impairment insurano
11 policy that we have had in force for approximately the
12 last two years and what I perceive its strengths and
13 weaknesses to be. This policy can potentially meet
14 the requirements of the financial resonsibility sectioi
15 for site operation, but I want to make sure that
16 everyone's aware of some very definite problems and
17 limitations of it.
18 It is available through various insurance
19 brokers in the United States. Basically, it's being
20 underwritten through the Lloyds group in London.
21 I have listed in the prepared comments 15
22 of the exclusions that are covered, and I'll just
23 highlight a few of them.
24 One is any occurrences outside of the United
25 States.
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1 Anything to do with nuclear fuel, wastes or
2 weapons.
3 Unemployment disability, personal injury to
4 an employee.
5 A significant one is any loss where an
6 officer, director, or responsible employee was aware
7 of noncompliance with any regulations.
8 Anything arising out of ownership or use of
9 land motor vehicles, vessels, oil or gas drilling
10 platforms, deep water ports or airports.
11 Sudden unexpected happenings.
12 Genetic damage.
13 Damage to property owned or used by the
14 insured.
15 Punitive damages or fines.
16 Preexisting conditions.
17 Neutralizing, restoring, cleaning up or
18 inactivating any waste disposal site used directly or
19 indirectly by the insured.
20 Or any clean-up considered to be routine
21 and normal in connection with the business of the
22 insured.
23 This policy is on a claims-made basis for
24 the term of one year. By "claims-made," it means
25 that the coverage is in place if a claim is made
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during the policy period, not if the accident, injury
or incident occurred during the policy. That's a
distinction that I will get back to later.
It's issued after the prospective insured
agrees to pay for an engineering survey of the company,
its facilities and equipment by an engineering firm
retained by the insured company.
Q
This survey cost approximately $6,000 in
" 1977, and can be applied to up to 10 per cent of the
**' premium if the insurance is closed. I have no
information at all on the criteria utilized by the
12 insurer in accepting the risk or on how the premium
is developed.
" Premiums for our policy are approximately
$90,000 a year for sudden and nonsudden coverage. We
did get a deletion of the exclusion for nonsudden or
1' for sudden, if that makes any sense.
The coverage is for 2 million per occurrence
1° 4 million per year. It covers all operations of our
2" company, including the vacuum truck hauling, the two
21 Class I site operations, tank cleaning and chemical
22 and oil spill cleanup.
23 The quotation for a 4 million/8 million
rtj
policy was received for approximately $125,000. No
nc
quotation was offered for any higher limit, and the
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1 material that's on the street indicates that no
2 higher limits are currently available.
3 Potential problems may exist under some of
4 the following circumstances which could make this
5 policy difficult to obtain or more expensive.
6 One is the existence of other on-site
7 [ storage, manufacturing, or processing facilities which
8 might be a potential emissions source and, hence,
9 might be required to be included in the policy
10 coverage, even though not required under these regula-
11 t ions .
12 Secondly, low-volume facilities, which would
13 be faced with a more significant impact due to the
14 cost -- on their cost of operation due to minimum
15 premiums, since this does cover legal defense and
16 nuisance suits must be viewed as a potential.
17 Third, sites with underground drinking
18 water under the facility might be viewed as an
19 extreme liability.
20 Fourth, inadequate assets or history to
21 justify coverage of the risk to the $10 million
22 required limit.
23 The policy we have in force is substantially
24 the one that I think the EPA has received testimony
25 on from the Lloyds brokers.
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1 Basically, the comments I'll make will be organized
2 around the four operational phases of the regulations
3 -- the regulations have addressed.
4 First is the operational phase, which will
5 be where most of the comments will be directed.
6 The proposed regulations require evidence
7 of $5 million of general liability and five/ten for
8 multiple facilities for environmental impairment or
9 nonsudden coverage.
10 During the site operations, a hazardous
11 waste management facility is similar to any other
12 facility handling hazardous materials, except that,
13 upon ceasing business, the potential materials -- the
14 potential risks from the materials being in the
15 ground or in storage would continue, whereas at most
16 manufacturing facilities, the ability would be to
17 remove them from the premises.
18 Due to the fact that insurance is the only
19 realistic option to our firm as well as most off-site
20 facilities, most of my comments will be in that area,
21 and that is also true for many smaller on-site
22 disposal facilities.
23 Basically, the following issues are
24 unresolved or present problems as contained in the
25 proposed regulations.
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* First -- And I mention this because there
2 is only one source of insurance. There are a number
3 of brokers that are involved in it, but really it's
4 Lloyds of London is the only ultimate source. And
5 that is what action is anticipated or required -- going
" to be required by the EPA if that policy is cancelled
' or is not renewed.
° Since it is only offered through one source,
° any decision to cancel would be final unless a sale of
10 the facility were to occur to an owner/operator who
11 could obtain the coverage or self-insurance under the
12 provisions of these regulations. Basically, this puts
13 the operation in the position guaranteeing the
14 existence of insurance, which is a reversal of the
15 traditional roles. The risk of loss of insurance
16 would have two negative impacts.
17 One, the threat of permit cancellation would
18 eliminate many potential investors or developers from
19 expanding or creating new disposal facilities or
20 continuing existing ones.
21 And, secondly, once canceled, the facility
22 would be without revenue. And since this is a claims-
23 made policy, without insurance coverage, this means
24 the EPA would be increasing the risk of site abandon-
25 ment or bankruptcy. And once abandoned or bankrupt,
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1 there would be no insurance coverage for any future
2 claims made.
3 The second area, what coverage is intended
4 under the regulations?
5 I have listed the 15 exclusions that are
6 contained in our policy. Some of these can be voided
7 by paying additional premiums, as I indicated, but
8 which of these are intended or acceptable under the
9 regulations since the regulations are silent on the
10 content of the insurance policy which would be
11 acceptable ?
12 The reason I bring this up is the expecta-
13 tions of the public and the regulatory agents must be
14 consistent with the available or required insurance
15 policies, and the limitations must be known by all the
16 parties that are going to be involved.
17 The third area, what types of claims or
18 liabilities are required to be covered? Under various
19 proposals, under the oil spill laws that are being
20 considered by Congress, such things as loss of income,
21 loss of profits, genetic damage, loss of resources
22 and so forth could be considered a claim but are
23 currently not covered by this form of insurance.
24 The fourth area, the limitations of a claims-
25 made policy must be known. Upon failure to make
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1 premium payments, site closure, change in ownership,
2 bankruptcy or a number of other conditions, the policy
3 may be canceled, resulting in no coverage for prior
4 operat ions.
5 The fifth area, a specific exclusion of
6 the policy is as follows, and I will just summarize it.
7 But basically it means that, if anyone in a responsible
8 position is aware of any noncompliance with any
9 applicable statute or regulation or instruction
10 relating to environmental impairment issued by
11 competent authority, the policy coverage is voided.
12 The only way that that does not occur is if the insurec
13 is operating under conditions of noncompliance under
14 a permit or order of such authority with good faith
15 efforts to comply as soon as reasonably can be
16 expected.
17 What this boils down to is that the
18 restrictions imply that, upon Issuance of a Notice of
19 Violation or the serving of any legal action, all
20 coverage would cease for losses resulting from that
21 act or omission unless this good faith effort can be
22 documented, i.e., the EPA can cause voiding of the
23 insurance policy or any other regulatory agency could
24 do so.
25 Next, there is an indication -- there is no
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1 indication in the regulations as to the basis for
2 either the $5 million coverage or the 10 per cent
3 limitation on net equity fo,r sel f-insurance. Both of
4 these levels limit the resources available to provide
•> adequate hazardous wast4 management facilities by
6 discouraging or disqualifying participants. The $5
7 I
' million insurance levelispecified for nonsudden is
8 currently above that available, although higher limits
_
° may become available wha|n the regulations are promul-
10 gated.
11 A couple of other comments that are not in
12 the prepared statement.
13 At this point, it's unclear whether the
14 provisions of the regulations would require the
15 operator to register witjh the state as a self-insurance
16 company or whether the Regulations would merely be
17 waived if the owner-operator could present evidence
18 ' of assets to the EPA. TJhis would again make it
19 I extremely difficult if you had to comply with all the
20 various seIf-insurance regulations and requirements
21 under the insurance commissions of the various states.
22 And, lastly, we would indicate that, due to
23 the significance of this and several of the other
24 provisions to the economics of a site, that the
25 requirements be consistently applied to all facilities,
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1 public and private, on site and off site. The alterna-
2 tives as presented, self-insurance or insurance, appea]
3 to be acceptable; but if, as has been indicated,
4 exempting a public facility due to taxing authority
5 is authorized under your other acceptable conditions,
" we would be very concerned. The R and D study per-
' formed indicated that the -- or performed for the EPA
° indicated that a hundred million dollar claims are
9 potential, although they could not describe a
10 probability. And since virtually since in all the inci
11 dents to date promulgated by tbe EPA, the government ir
12 general has been unable to approve payments of even
13 $200,000 to several million dollars, it's highly
14 unlikely that this taxing authority would be effective
15 j as a means of financial responsibiIty.
16 The second area would be the site closure.
17 In this area, the proposed regulations for requiring
18 funding through an engineering study of the closure
19 cost prior to issuance of a permit, the concept of
20 eliminating public burden in case of site abandonment
21 is valid; however, the sole means for refunding of
22 that closure, we feel, is unduly restrictive.
23 Alternates which we could propose would be:
24 First, a lien against the land and/or real
25 improvements.
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Second, providing a deposit only of the
amount required for closure of the facility on each
anniversary, i.e., if the cost of closure during the
first year was $10,000, then only $10,000 would be
required during that first year. If, for the second
year, it was 20,000, then an additional 10,000 would
be required to be deposited, and so forth. This could
be updated upon change in operations or every five
years through another engineering study to insure
that current closure costs are appropriate.
Third, posting of other securities or assets
to satisfy the provisions.
Or, fourth, phasing the deposit as was
indicated by the LA County Sanitation Districts over
five to ten years.
We would also like to reemphasize that the
question of the tax deductibility of these deposits
be addressed through concurrence with the IRS. These
should be tax-deductible expenses of operation.
The third phase, that of post-closure
monitoring of maintenance, we have no conceptual
problems with the proposed regulations. We concur
that the funding occur over the entire site life, as
we are proposing in the site closure, and that a 20-
year post closure maintenance monitoring, we feel, is
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effective for burial and injection facilities.
We might bring your attention to the fact
that a much shorter six-month to one-year monitoring
might be valid for certain storage or treatment
facilities to insure no potential liabilities due to
seepage from tanks or spillage.
Again, the question of tax deduction of the
8 deposits we feel is relevant.
9 The last phase, long-term liability, we
10 concur with EPA analysis that there is no acceptable
11 alternative available for satisfying this objective.
12 We have worked extensively on this, and the proposal
13 which we would make is similar to one the EPA is
14 considering and the National Solid Waste Management
15 Association is proposing, that of a national fund to
16 handle claims on a no-fault basis for sites under the
17 j following circumstances:
18 One. The site was permitted under RCRA.
19 Second, it was operated substantially within
20 the permit conditions.
21 Third, that the site was closed appropriatel
22 under RCRA standards.
23 The key elements of this program should
24 include :
25 Release from liability for the generator who
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1 properly manifests and sends the materials to an RCRA-
2 permitted hazardous waste facility. This creates
3 the incentive for the generator to participate in the
4 plan and gives him a benefit for doing so and incurring
5 the higher cost involved.
6 Secondly, release from liability for a
7 hazardous waste management facility operated and
8 closed substantially in compliance with RCRA.
9 Third, a fund contributed to by producers
10 of hazardous wastes to pay for claims against sites
11 which have been closed in accordance with this — with
12 suitable rules of evidence on a no-fault basis.
13 And, fourth, full liability for the facility
14 operator or the generator in perpetuity if it can be
15 established that he acted in a negligent or willful
16 manner in violation of his permit and that caused or
17 resulted in the damage or a claim.
18 Again, this is the -- both the carrot and the
19 stick approach. There is something in it if you do it
20 right, and you can't get out from under your liability
21 if you do it wrong.
22 A few other comments that I had in general
23 on the hazardous waste, the general provisions.
24 One, I feel that it's imperative that two
25 levels of ha.zard as are — occur in the State of
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California be allowed: a hazardous and an extremely
hazardous category. This becomes important for two
reasons.
One, when you start approaching the
hazardous, the funding under this national fund concepl
you run into the problem of some facilities producing;
very large quantities of virtually innocuous wastes,
whereas other materials such as PCB's, defoliants, and
so forth, are produced in very small quantities but ar«
high hazard.
Secondly, it allows for more stringent
controls on certain facilities, while allowing
facilities that handle the more innocuous materials
to be much less stringently regulated.
Secondly, there is a need for uniform and
rapid application of the processing of permits, for
two reasons.
No. 1, competitive advantage will occur for
facilities which are permitted last, and the numbers
which I have heard are like five years to complete the
permitting process. The costs incurred under this
program will be fairly significant, and the competitive
advantage will be substantial.
Secondly, there is a potential for lawsuits
against those facilities which are not permitted. And
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there is basically an extensive period of uncertainty.
2 Both of these factors will tend to dissuade
3 the investment or continuance of these types of
facilities.
We would also like to indicate our support
for the comments made by Dr. Johnson in Washington,
' D. C., on behalf of the National Solid Waste Manage-
° ment Association.
9 A couple other brief comments that I have —
10 MS. DARRAH: Mr. Simonsen, if they could be
11 extremely brief, we would appreciate it.
12 MR. SIMONSEN: One -- Just a series of
13 observations.
In our interaction with the insurance
15 companies -- And I'm not speaking on behalf of them;
I haWe no relationship to them whatsoever. But a
17 couple comments that do indicate the reluctance or
18 problems that will be encountered in insuring under
19 the operational phase of this as well as any post-
20 operational liability coverage.
21 One, the history of past incidents is poorly
22 documented as to frequency, cause, responsibility, and
23 the amount of the claims. This makes evaluation of
24 past losses very speculative.
25 Second, the laws covering environmental
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1 damage are dated, do not relate to present conditions,
2 are being continuously altered by juries, court
3 decisions, and very drastically between states and
4 regions. This makes future projections of losses
5 very difficult.
6 Third, there is no absolute agreement upon
7 the impact of these regulations upon claims experiencec
8 in the future. Public — Increased public awareness
9 and availability of funds could increase litigation,
10 whether substantial or not, resulting in increases in
11 j legal defense costs or claims, while the technical
12 requirements might make losses less severe, more
13 | controllable or less frequent than historical data.
14 Lastly, the short lead time to prepare the
15 data, make engineering studies required and provide
16 the coverage, may cause severe disruption of the
17 insurance market, and it can occur due to a significant
18 influx in premiums which can require a major increase
19 in reserves. And we are talking in the neighborhood,
20 if you presume 10,000 policies that would have to be
21 issued at $50,000 premium per policy, on the order of
22 $500 million in premiums potentially within the one-
23 to five-year permit period.
24 Thank you.
25 MS. DARRAH: Okay. Thank you.
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1 Will you answer questions?
2 MR. SIMONSEN: Yes.
3 MR. LINDSKY: Mr. Simonsen, you expressed a
4 number of concerns concerning the insurance provisions.
5 Let me ask you the $64 question.
6 What would you have us do? You listed
7 concerns, but you didn't suggest to us what changes
8 we should make in your opinion in that particular
9 provision. I'm talking about the site life liability
10 part.
11 MR. SIMONSEN: Well, first of all, I think
12 the limitations of insurance have to be known. The
13 regulations as promulgated merely gloss over in one
14 sentence that insurance is required without giving any
15 specifications as to the form of the insurance, what
16 coverage is or is not necessary, and so forth, so
17 that--
18 MR. LINDSEY: You mean such things as claims
19 made, what exclusions would be acceptable or not
20 acceptable, that sort of thing should be written in
21 the regulations?
22 MR. SIMONSEN: Yes. I can give you an
23 insurance policy that won't insure anything by having
24 appropriate exclusions.
25 MR. LINDSEY: I see.
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1 MR. SIMONSEN: And there is no indication
2 in there as to what the intent of the coverage is. If
3 it is promulgated in that form and somebody not
4 experienced with the insurance in this area takes it
5 and says, "Gee, they are insured against everything;
" let's let them next door."
' Then the first claim comes in and he says,
° "I'm sorry, but that's Exclusion No. 12."
9 Then you have got an expectation mismatch
10 that could be very significant.
11 MR. LINDSEY: But if we were to spell those
12 out, then you might still have some qualms about the
13 availability of this insurance on a broad scale but —
14 MR. SIMONSEN: It still may not be available
15 for certain types of facilities. In our case, we were
16 successful. I don't know what the basis for — for
17 denying coverage might be. But under this set of
18 regulations, a facility of -- you know, of our size,
19 if it were denied coverage by this source would have
20 no other alternative but to cease operations. And I
21 think that needs to be at least acknowledged in the
22 preparation of these requirements.
23 MR. LINDSEY: Okay. Slightly different
24 subject. We are, or our intention is that the self-
2^ insurance provisions, the 10 per cent of equity, would
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be -- probably be used most frequently as a deductible
on the insurance. In your policy now, do you self-
insure to some point and use the deductible approach9
MR. SIMONSEN: The policy, as written, has,
I believe, a $5,000 deductible on each claim and a
co-insurance of 10 per cent of any loss up to, but not
exceeding, $50,000. This was the year-ago policy. I
think they changed it slightly. I think it's 75,000
now.
MR. LINDSEY: Given that our regulations
are written the way they are, do you expect that most
people would use the 10 per cent of equity as a
deductible? Is that the way they tend to use it?
MR. SIMONSEN: I would -- I would think that
probably this was not optional; you had to accept
that type of deductible. So the question might come
up as to whether if a facility taking this type of a
deductible were faced with under a half a million
dollars of equity, he would be disqualified again under
the EPA regulations.
But, again, if you are talking self-insurance
as opposed to equity to allow a deductible, then,
again, you may be faced with complying with state law
for self-insurance as opposed to a business decision
to accept a deductible on policy.
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1 MR. LINDSEY: Okay. I think the latter, a
2 business decision to accept the deductible, is where
3 we were coming from. In other words, if a company
4 has certain assets, we feel that that should be
5 sufficient demonstration that they have the financial
6 wherewithal to at least go part way on this.
7 MR. SIMONSEN: But those words will stagger
8 state insurance commissions.
9 MR. LINDSEY: What you are saying is we
10 better watch the wording we use on this?
11 MR. SIMONSEN: Yes.
12 MR. LINDSEY: Okay. Maybe we will have to
13 talk further about that.
14 Youdidprovide -- youdidtalkto --
15 specifically to one of the exclusions which -- which
16 is here', which is on your Page 3, No. 5, concerning --
17 Let's see if I can find it. Maybe that's not it. No.
18 I don't remember which one it was.
19 But, anyway, the point was that if an
20 officer or employee of the company knew they were in
21 violation, then the -- of a -- of a permit condition,
22 then the -- the policy would be -- not be applicable
23 to that condition unless the facility was making a
24 good-faith effort to comply or something to that
25 nature.
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1 MR. SIMONSEN: Yes.
2 MR. LINDSEY: And you said -- then followed
3 that up by saying that any action, any enforcement
4 action by EPA then might create a problem where the
5 insurance would be lost for that problem.
6 Is that the way you read it?
7 MR. SIMONSEN: Again, I'm not an attorney,
8 so I -- I would at least view that as a potential -- a
9 potential situation.
10 Again, it's a distinction between a claims-
11 made and an occurence policy, and I'm not totally
12 familiar with the legal implication, but it appears
13 that that could occur in the case of violation being
14 issued if no action were taken by the company.
15 MR. LINDSEY: In most cases, I think we
16 would issue a compliance order which would have some
17 definite date, you know, change this or remedy this
18 particular situation by such and such a date. And,
19 based on your policy now, if that were the case and
20 that were the kind of compliance order we issued, and
21 then the company were complying with that, do you
22 feel that your insurance would be jeopardized --
23 MR. SIMONSEN: No. If -- if --
24 MR. LINDSEY: -- as long as you met the
25 dates?
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1 MR. SIMONSEN: If, in our case, we were to
2 take action, which we would intend to do, to maintain
3 the permit and so forth, then the coverage would
4 remain in force.
5 But, again, what I'm referring to is if the
6 intent of the EPA is to have coverage to protect the
1 public from anybody, including somebody who might be
8 in trouble or running a less-than-acceptable site,
9 then the bad guy may not have coverage , even though he
10 has a policy.
H And, again, that needs to be an awareness of
12 the -- of how this thing would interact which may not
13 be perceived.
14 MR. LINDSEY: Okay.
15 MR. FIELDS: I have some questions of back-
16 ground on your policy and your experiences with the
17 insurance industry.
18 How long has the policy been in effect that
19 you currently have?
20 MR. SIMONSEN: I believe since June 1st,
21 1977.
22 MR. FIELDS: Okay. Does that policy cover
23 only the disposal area at your facility1?
24 MR. SIMONSEN: No. It covers the entire
25 company operations.
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1 MR. FIELDS: Do you know of any other
2 companies in California or — that have or — or are
3 in the process of getting this type of insurance that
4 you have?
5 MR. SIMONSEN: I don't have any direct
6 knowledge of anyone having any policy. Our indication
' are that none were in.existence for hazardous waste
8 facilities per se, but I have got some feedback that
9 one other party may have received a quotation for a
10 facility.
11 MR. FIELDS: Well, I know -- I guess you are
12 the first one in California that's got even this. Do
13 you favor demonstration of the limits — You know, you
14 had some disagreement with those. But do you favor
15 this type of insurance nationally for hazardous waste
16 facilities?
17 MR. SIMONSEN: We, as a company, need a
18 business decision to insure the risk.
19 Again, it raises the issue of whether it
20 should be required or is a business decision. In our
21 case, we did -- we were able to obtain it. My question
22 is whether at this point jumping in at this amount as
23 a mandate for a very peculiar type of insurance which
24 is not available by any U. S. carriers will produce a
25 very disruptive effect or whether it will provide the
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1 public protection that is being sought by the EPA.
2 And I don't have the answer to that question. We have
3 been looking for it for about the last year and have
4 not been able to get anybody to commit one way or the
5 other.
6 MR. FIELDS: Thank you.
7 MR. TRASK: Mr. Simonsen, you mentioned a
8 couple of situations where generators might be tied
9 into a national fund to — as a, I guess, an alterna-
10 tive to the insurance responsibility thing. Would
11 the current regulations for generators provide for
12 that, or are some changes needed?
13 MR. SIMONSEN: As we perceive it, I don't
14 believe that the Resource Conservation and Recovery
15 ' Act authorizes that. The only alternative on that
16 would be a legislative activity.
17 The reason we proposed it was basically to
18 indicate the -- that we don't feel there is any action
19 that can be taken under the law as -- as written that
20 can address the issue. Insurance doesn't get you
21 there because it -- you have got to pay for it for --
22 on a claims-made policy. You have got no way of
23 predicting the premiums. And basically that's only as
24 good as the policy and for the duration of the policy.
25 Some sort of a proposal of this nature would
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be needed on a legislative avenue if appropriate.
MR. TRASK: Is this underway by NSWMA now?
MR. SIMONSEN: NSWMA has been working on a
prospective legislative package for this.
MR. TRASK: Okay.
MR. LEHMAN: Mr. Simonsen, just a couple of
hopefully quick questions here.
You mentioned a premium of $90,000 a year
for both sudden and nonsudden coverage at the amount
you mentioned for two facilities, plus other opera-
tions. Do you have any way of splitting that out as
to, you know, how much of that premium has to do with
the sudden and accidental part of your coverage versus
the nonsudden or environmental impairment side?
MR. SIMONSEN: No. We were never given any
quotation prior to that.
The reason we included the sudden was that
our normal, general liability insurance carrier had
been progressively making the sudden coverage so
restrictive that we viewed that we had no coverage
whatsoever. So we had it deleted from — in its
total from our general liability coverage and had the
exclusion deleted from the environmental impairment
policy. So we just shifted the sudden on to the
other simultaneous with -- containing the first
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1 quotat ion.
2 MR. LEHMAN: Okay. Well, thank you.
3 MS. DARRAH: I guess that's all our questions
4 Thank you very much.
5 Arthur Dinsmoor, Wilson Oil Company for the
* Independent Petroleum Association.
7 MR. ARTHUR DINSMOOR: My name is Arthur
° Dinsmoor. I'm from Midland, Texas. I'm District
9 Manager of Young Oil Company. I'm speaking this
10 morning as a representative of the Independent
11 Petroleum Association of America.
12 in the interest of brevity, I will not
13 repeat qualifications or the industry statistics that
14 were read into the record yesterday.
15 This statement that has been submitted is
16 subject to revision. I will read partly from the
17 prepared testimony, and I will depart from it at some
18 t ime .
19 I do not envy the panel their job, and I do
20 appreciate their long suffering and patience.
21 I also don't envy them the fact that this
22 has to be done over again when 3005 and 3006 come up.
23 in our statement, in addressing Section
24 3004, ostensibly on Page 15, ostensibly Section 3004
25 compliance burden for explorer-producers will be less
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because drilling muds and oil production brines have
been designated special wastes and, therefore, com-
pliance with parts of 3004 have been deferred pending
further analysis. A close look at the applicable
standards that remain, however, indicate that any
thought that the deferral means significant interim
relief is simply illusory.
The comments, or the following comments,
are offered on those general facility standards
specifically applicable to muds and brines.
In waste analysis, the requirements will
be extremely difficult for most small producers who
do not now have in-house technical capacility to carry
out these hundreds of thousands of tests, or we do not
feel that commercial laboratory capacity is currently
available or at a cost that would be -- bring any real
benefit. The analysis of these oil field-produced
brines should not be required.
On site selection, our reading of the general
site selection requirements indicates that many
current drilling and production sites would be off
limits under the criteria enunciated. For example,
most of the Gulf Coast area, one of the country's most
active and vital oil and gas regions, would come withir
the wetlands prohibition. Also, the active fault zone
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prohibition would pose a problem for some California
producers, as would the highly restrictive 500-year
floodplain limitation restrict development in many
areas throughout the country.
As a side comment, I would ask where the
industry might get 500-year floodplain weather data
since we just celebrated our bicentennial in 1976.
This section clearly -- and on site security
this section clearly demonstrates the problem of
trying to regulate a drilling or production site on
the same basis as a permanent plant or large, well-
staffed facility. Requirements for fences -- Deviatior
is allowed only upon showing a satisfactory substitute
— gates and security personnel are not practical at
most of these locations. Where precautions are needed
they are taken. Producers have always been liable to
landowners and others with access to and surface use
rights to areas surrounding drilling and production
sites.
The manifest system and recordkeeping and
reporting requirements are giving us a lot of complex
thought problems, and we are in the process of.
revising that section. Suffice it to say that there if
a very difficult interplay of legal liabilities that
may or may not be able to be resolved.
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1 Certification of reports should be based on
2 one's best knowledge for the reasons previously
3 noticed. Also, if an emergency does occur, it should
4 not be — will not be of the kind contemplated.
5 For example, should a leak or spill occur
6 at a tank or pit site, evacuation of communities would
7 not be necessary. Spill prevention control and
8 countermeasure plans, which are already required under
9 federal law, would cover most of these situations.
10 Regardless of the legal complexities, the
11 excessive administrative burdens inherent in this
12 subsection will be monumental for the average
13 independent producer, who is a small businessman. As
14 stated previously repeatedly throughout our comments,
15 he generally operates by himself or with a small staff
16 and is able to succeed in large part because of his
17 ability to move quickly where opportunity presents
18 itself. Needless to say, his movement will be greatly
19 impeded if his attention must be devoted to endless
20 paper work, and especially of the detail specified
21 here .
22 In the section on visual inspection, since
23 personnel are not permanently stationed at production
24 sites, visual inspections on a daily basis are
25 unrealistic. Most production facilities are located
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in unpopulated areas. They are run by automatic
systems and, hence, are ieft unattended except for
periodic visits to make sure operations are running
smoothly. When drilling operations cease, the
associated facilities might also remain unattended for
a period of time. Therefore, inspections less
frequent than daily should be approved.
Under the section requirements of closure anc
post-closure, given the type and amount of waste
involved and the extraordinarily large number of
facilities, it is difficult to justify the need for
certification of proper closure by a registered
professional engineer and recordation of a survey
plaque certified by a registered professional land
surveyor showing the type and location of hazardous
waste disposed of.
Twenty years of post-closure care is requirec
for those facilities from which hazardous waste is not
removed. This 20-year period may be reduced only upon
a satisfactory showing that a shorter period of care
is needed.
Again, lack of evidence of contamination in
the long history of the oil and gas industry does not
justify this excessively long period of monitoring and
reporting. Also, this requirement ignores the unique,
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1 temporary nature of drilling operations and the
2 relationship between the owner and — the landowner
3 and the operator. Once drilling or production opera-
4 tions cease, the land, usually including access roads,
5 is reseeded by the operator, who only holds a mineral
6 interest in the land. Continued surveillance and
7 monitoring could raise not only logistical and
8 practical problems, but also signficant legal
9 problems if the landowner is unwilling to extend
10 access to his property.
11 Finally, even though the financial responsi-
12 bility requirements have been deferred, we think the
13 catastrophic effects these requirements would have'
14 on the oil and gas exploration and production industry
15 deserve immediate attention. Cash deposits of the
16 size contemplated would surely cripple most indepen-
17 dents. If financial responsibility is ultimately
18 determined necessary for these operations, it should
19 be managed through a bonding or letter-of-credit
20 system rather than a cash deposit system. There are
21 currently sufficient number of state bonding programs
22 in existence with which producers are familiar. That
23 is, posting bonds secured prior to the commencement
24 of drilling and which are secured on either an
25 individual well basis or a statewide basis and from
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1 which EPA could draw experience.
2 In conclusion, the IPAA appreciates the
3 magnitude of EPA's mandate to protect the environment
4 from hazardous waste pollution. Nevertheless, we do
5 not believe all hazardous wastes should be regulated
6 with the same level of intensity. The hazard should
7 be clearly established and the degree of hazardous
8 risk then considered in formulating appropriate
9 hazardous waste management programs.
10 We do not believe that there is any evidence
11 of contamination caused by drilling muds and oil
12 production brines or crude oil wastes that warrants
13 their inclusion in the hazardous waste regulator
14 program. Accordingly, we urge the agency to defer all
15 regulation of these substances until it has completed
16 its special waste study and until it has demonstrated
17 need for regulation. Otherwise, we fear this nation's
18 ability to produce vital energy resources and to
19 maintain a stable economy will have been greatly under-
20 mined, at great cost and with no appreciable benefit
21 to the environment.
22 in this matter of degree of risk, I would
23 like to touch on the matter of — matter of basic
24 thinking. All of us tend to at some time during every
2$ day in our normal working life be touched by the
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1 problem of tunnel vision. We have trouble sometimes
2 seeing the forest for the trees. And we are all
3 subject to making some mistakes.
4 I would say, though, that zero particle
5 emission or particulate emission is something that is
6 not possible in the United States today in many areas
7 of our environmental problems. As a statement of this
8 nature exceeds in some areas existing air quality
9 standards of the Environmental Protection Agency.
10 Also, a risk-free society is an impossibility in this
11 day and age. I would mention an article by Aaron
12 ; Wlldofski, published in the February Journal of
13 American Scientists and in which he concludes that
14 fear of risk has become a kind of disease in the
15 United States. And I quote:
16 "How extraordinarily," Wildofski said, "the
17 richest, longest lived, best protected, most
18 resourceful civilization with the highest degree
19 of insight into its own technology is on its way
20 to becoming the most frightened. Chicken Little
21 is alive and well in the United States."
22 I do not say this in levity. I say it in
23 true honesty and with great concern. This country
24 was built by free men in a country of large natural
25 resources, led on by the hope of profit. Profit is
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not guaranteed. Profit is not a dirty word, and I
will never apologize for it.
A study of the background of most of these
panel indicates a high level of education. Profita-
bility built the schools that they were privileged to
attend. It built your museums; it built the life that
we enjoy in this country today.
Economics is the only gauge we have of succes
We may not agree that it is a perfect gauge, but it
is the one that we have and the one we are stuck with.
It is the only one we have that is readily available.
I question in my own mind where or what
measure of success we have in many governmental
functions. Who is personally responsible in govern-
ment for its actions?
I have served in various -- on various
governmental boards at the local and interlocal level
| One thing that I did notice is the first thing we do
is hire a consultant firm of experts; and then if the
mistake is made later on, we have a scapegoat.
And I don't want to be -- I'm not trying to
say this in a matter of levity. I think it is of
great importance. The enormous impact of the proposed
regulations, as our competent counsel read them, will
produce some of the following actions. This could
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1 well plug 50 per cent of the proven domestic reserves
2 of oil and gas deposits in the United States today.
3 Can we afford to give that away? It would
4 trigger massive unemployment. Today, we cannot pay
5 for the imported amounts of energy that we are
6 bringing into our country, except by printing more
7 money. And one reason that the OPEC countries are
8 going up is to try to maintain their buying power
9 against a shrinking and devaluing dollar. With this
10 loss, we couldn't do it.
11 Also, we feel, or I personally feel, that
12 this -- if this act is implemented as currently
13 proposed, it would bring us into an impossible defense
14 situation for our country. We would no longer be
15 the country that I had the privilege of serving in
16 World War II.
17 Again, I don't want to hurt anybody's
18 feelings. I don't -- I'm not suggesting this in a
19 matter of levity. As we grow older, we do attend more
20 funerals of our friends and neighbors. We often hear
21 the words, "The Lord giveth; the Lord taketh away.
22 Blessed be the name of the Lord."
23 I can accept that in blind faith. I cannot
24 accept the propositions that have been brought forth
25 by the agency.
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I have lived in and amongst oil-producing
wells for 30 years. I have been involved in a day and
night operational capacity in the oil and gas-producin&
industry for 30 years. And we do not deliberately
set out to foul the area that we live in.
I would beg and plead with this panel to
become acquainted with the facts as we honestly
believe they are and to avoid any action on imple-
menting these proposed regulations to the oil and gas-
producing industry until such time as they can become
thoroughly informed and the degree of risk can be
properly assessed and the degree of regulation that
the industry truly needs can be studied out.
The industry stands ready to come forward
and work with this agency at any time. We are used to
working seven days around the clock, and we are
avai1 able.
Thank you.
MS. DARRAH• Thank you, Mr. Dinsmoor.
I take it you will accept questions from the
panel?
MR. DINSMOOR: Yes, ma'am, I will try.
MS. DARRAH: Okay.
MR. LINDSEY: Mr. Dinsmoor, your Independent
Petroleum Producers Association, you have members in
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1 California?
2 MR. DINSMOOR: Yes, sir.
3 MR. LINDSEY: I am led to believe, or I
4 understand that, in California, the kinds of materials
5 we are talking about here, muds and production brines
6 and so forth, are controlled under the California
7 waste, hazardous liquid waste regulations, and that
8 they do go to Class I or Class II-I facilities. Can
9 you confirm that? Do you know about that?
10 MR. DINSMOOR: I have no operating experienc
11 in California. All of my operating experience is in
12 the Midwest.
13 I think that you are probably correct. I'm
14 not familiar with the exact details of California
15 regulations.
16 MR. LINDSEY: Okay.
17 MS. DARRAH: Tim? Do you have anything?
18 MR. FIELDS: Mr. Dinsraoor, one bit of good
19 news, I guess, is that we -- we have, you know,
20 published a correction notice in the Federal Register,
21 and we are not going to -- we are not proposing to
22 require that all your facilities close in accordance
23 with the 3004 closure standards. That correction has
24 been published in the Federal Register, but it wasn't
25 in the December 18th notice.
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1 MR. DINSMOOR: I make that statement on this
2 basis. The long-term cost liability is such that we
3 could not afford to leave open or have on production a
4 single well that would be classified as strip or
5 marginally economic the day the regs were implemented,
6 because then we would be into the 20-year surveillance
7 after it has ceased to produce revenue, so that if we
8 have a well that will not generate adequate revenue
9 in advance, then we have to plup it the day before
10 the regs are implemented.
11 Now, I spent 11 months with another agency
12 of the government, the DOE, in a.n effort to secure
13 relief. It was based on hope. Unfortunately, we were
14 not successful. We did — Our company did invest a
15 good deal of money trying to keep one well available
16 for production of safe domestic reserves for the
17 country. "We did not receive meaningful relief. No
18 business can leave itself open for these long-term
19 liabilities based on hope so that something could or
20 might happen down the line is not good enough.
21 As manager for our small company, I would
22 have to make the hard decision to plug those wells
23 the day before the regs would be implemented, and I
24 would become liable under these things, or I should be
25 fired and -- and a more competent manager put in my
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1 place because I would be leaving the company open to
2 predictable bankruptcy.
3 MR. FIELDS: Okay. You also commented on
4 the burdensome nature of our waste analysis require-
5 ments, I guess for these muds and brines. As a
6 manager of various wells, etc., you know, drilling
7 wells around the country, do you have a pretty good
8 feel -- I know you use certain chemicals from well to
9 well, I guess. Do you have a pretty good knowledge
10 generally of what's in those muds without doing any
11 analysis? I mean --
12 MR. DINSMOOR: In general, yes. But, you
13 know, the regulations as proposed are so specific
14 that we would have to get into a detailed basis, say
15 area by area, or in a given field area based on the
16 depth of well that would be -- control the components
17 that we might be using.
18 MR. FIELDS: Okay. Thank you.
19 MS. DARRAH: I guess that's all the questions
20 Thank you.
21 Mr. Wes Atwood , Occidental Chemical Company?
22 is Mr. Atwood here?
23 Mr. S. L. Zwicker, Union Oil Company of
24 California?
25 MR. S. L. ZWICKER: Good morning.
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1 Before I start, Mr. Lindsey , the answer to
2 your question on the muds and brines in California is
3 a II-I site, to the best of ray knowledge.
4 MR. LINDSEY: Okay.
5 MR. ZWICKER: My name is Stanley Zwicker,
6 and I am a Senior Environmental Engineer in the
7 Corporate Environmental Sciences Department of the
8 Union Oil Company of California in Los Angeles.
9 I'm appearing here today to highlight some
10 of our concerns with the regulations. We have
11 additional detailed written comments in preparation
12 which will be submitted for the record.
13 I will make five general comments on the
14 regulations as a whole before I touch on certain
15 aspects of the 3004 regulations.
16 Our first concern is the degree of risk.
17 EPA's proposed regulations contain a major flaw in
18 that they fail to take into account the degree of
19 risk associated with various hazardous wastes. By its
20 approach in Section 3001, EPA has simply made nearly
21 everything hazardous and in Section 3004 has called
22 for waste management measures that far exceed the
23 precautions needed for proper management of most
24 wastes. It is interesting to note, however, the
25 agency does justify its use of special waste
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categories in Section 3004 by using: a degree of risk/
quantity argument, yet refuses to recognize this
argument on a general basis.
In adopting this worst case approach to the
regulation of hazardous wastes, the agency has, in
effect, developed a generic approach which fails to
acknowledge the need to analyze on a case-by-case
basis particular site locations, types of wastes to
be handled, and the quantities of waste to be handled.
The proper management of hazardous wastes
should be accomplished by providing for a maximum
degree of flexibility which takes into account all of
the above factors. Failure to provide such flexibilit
will result in closure of existing sites and few, if
any, new sites to handle the volume of wastes that
will be designated as hazardous. Many operators will
simply not be able to meet, either technically or
economically all of the requirements to operate a
hazardous waste disposal facility.
Much has been said about the public's
resistance to the location of hazardous waste
facilities in their communities. Based on recent
revelations on several specific past instances, this
fear may have some justification. I think the
classification of wastes by degree of hazard could
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help solve this problem.
Those facilities which would be operated
and designated to receive only the lesser of hazardous
wastes would probably be much more acceptable to the
public. Since it is these less hazardous wastes which
make up the majority of the volume of waste to be
disposed of, the wider availability of such disposal
sites that would be possible under the degree of risk
approach would insure sufficient disposal sites for
most hazardous wastes.
The degree of hazard approach already
exists in several state programs for hazardous waste
management. As mentioned before, we have hazardous
and extremely hazardous in California. I'm also told
that Texas and Washington have this type of approach,
and we think that EPA should examine these programs
in this regard.
The second point is the overlap of regula-
tions .
Despite requirements to the contrary, many
of the proposed rules overlap into areas already
regulated under other federal environmental programs.
In regulating activities, such as NPDES permitted
treatment facilities and emissions from incineration,
the RCRA is placing unnecessary additional burdens
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1 on facilities which are already adequately controlled
2 to meet the RCRA goal of protection of human health
3 and the environment. These RCRA-imposed burdens add
4 no additional protection and, therefore, should be
5 eliminated for these and any other facilities similar!
6 regulated.
7 Extraction procedure.
8 You have attempted to develop a simple and
9 inexpensive test. However, in many instances, the
10 proposed procedure which has been developed does not
11 represent the real world action of wastes in the
12 environment. In earlier testimony provided in Denver
13 by our company, we provided an example of this based
14 on our mining experience.
15 Waste oils.
jg EPA has singled out waste oils as hazardous
17 because waste oil is a potential carrier of other
lg hazardous substances. Some waste oils, such as those
19 from crude oil production operations, have tradi-
20 tionally been used for road resurfacing and dust
2i suppression. These waste oils, the crude waste oils
22 I'm talking about, do not contain the hazardous
23 substances found in other waste oils.
24 EPA offers no evidence why a disposal
25 method which has been proven environmentally safe
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1 should be abandoned.
2 EPA has also not extended the retailer
3 exemption to service stations because of the so-called
4 waste oil problem. It must be pointed out that the
5 major problem associated with improper disposal of
6 waste oil comes not from service stations where we
7 have a controlled situation and the waste is col-
8 lected, but from the do-it-yourselfers. Service
9 stations, in fact, provide an outlet where these do-
10 it-yourself individuals can properly dispose of waste
11 oils.
12 If administrative -- If the administrative
13 burden as contained in the proposal is adopted,
14 service station operators could well become reluctant
15 to accept any outside waste oils and improper disposal
16 of waste oils by individuals may actually increase.
17 We believe the whole approach to waste oil
18 management needs reevaluation with a fresh look at
19 defining different types of waste oils and also an
20 evaluation of the current practices of service
21 stat ions.
22 Storage.
23 The proposed regulation limits the time
24 allowed for storage by a generator to a maximum of
25 90 days, after which the facility must comply with
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1 storage requirements of Section 3004 and the permit
2 regulations. This time limit simply is too short for
3 many operations. On-site storage by a generator
4 should be allowed for a period of up to twelve months.
5 This would allow smaller operators to accumulate
6 quantities of waste which can be economically collects 1
7 It would also allow collections from generators who
8 are located in rural areas to be scheduled on a more
9 regular basis than could be done with the shorter time
10 period.
11 Let me now get into Section 3004, and I will
12 try and hurry through.
13 No. 1, we are concerned about the note
14 system.
15 In Section 3004, EPA has proposed a rather
16 i stringent series of design and operating standards
17 which must be met by any and all facilities handling
18 hazardous wastes. EPA has also created within the
19 regulation a note system which would permit variances
20 from established design and operating standards.
21 Because of the unnecessarily stringent
22 nature of the standards and the large volume of wastes
23 included under the system which are of a minimal
24 hazardous nature, there will be a large number of
25 facilities seeking relief through the note system.
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Each application under the note system, therefore,
will require a case-by-case review, resulting in long
delays in permitting and the risk of widely varying
interpretations.
We think EPA should abandon the note system
and designate alternative standards within the body
of the regulation. Such an approach would provide an
operator with a degree of certainty that the note
system simply cannot provide.
An additional concern is the possibility
that insurance carriers might not be willing to
provide the necessary coverages LI the operating
permit were based on a note variance rather than on a
specified design standard.
I would like now to talk about the special
waste categories.
We believe the concept is good but needs to
be expanded in several ways.
No. 1, the special waste category seems,
as I read it, only to apply to a waste if it has
hazardous characteristics under 250.13. What about
those wastes that are listed or processes listed under
250.14, shouldn't they also be eligible for treatment
under special waste, or you seem to have precluded
that from ever happening the way you have written the
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1 regulat ion.
2 By far, a very strong concern in California
3 comes from our tertiary oil recovery problem. Under
4 your utility waste category, you have established
5 special waste for flu gas desulfurixation wastes from
6 utility power plants. These are siriilar in nature to
7 flu gas desulfurization wastes from tertiary oil
8 recovery steam generators, yet these are apparently
9 excluded from the utility special waste category.
10 Without such a designation, the disposal of these
11 sludges would be fully regulated under Section 3004
12 requirements. Costs for this could be so great so as
13 to prevent the development of these valuable oil
14 reserves.
15 I must say that, in case you are unfamiliar,
16 there is a very large issue in California about steam
17 generation tertiary recovery. There will be -- We are
18 being required to install sulfur -- SO removal
19 ; devices on all of this equipment, and we are going to
20 be generating a very large volume of waste, which is
21 probably being handled now in a II-I facility. It
22 would probably have to go to a Class I facility under
23 your regulation.
24 Mining wastes are another category on
25 special wastes that we have some concern aboui We
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1 believe that a special waste approach is proper for
2 mining. However, any mining waste regulations should
3 be delayed until the studies required by the statute
4 are completed and the need for such regulations is
5 , just if led.
6 Several miscellaneous issues.
7 , We think the use of OSHA work place standard
8 is inappropriate. These standards were not designed
9 j as standards to be applied to the ambient air.
10 Second, you have a "no discharge" require-
H ment from the storage of organic wastes. When you
12 look at the emissions to the air, it's an impossible
13 criteria to meet. If it were possible to have no
14 discharges, then the air regulations under the Clean
15 Air Act would require that. Instead, there are
16 specific emission limits required from storage tanks.
17 Emission levels consistent with regulations under the
18 Clean Air Act State Implementation Plans should be
19 allowed.
20 The inclusion of accidental discharges such
21 as oil spills under RCRA requirements is not warranted
22 We think the RCRA regulations should appropriately be
23 directed only to intentional disposal of waste. We
24 have them under the Water Act Section 311 for accidental
25 spills, and we think they will be adequately regulated
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1 there.
2 The inclusion of surface impoundments
3 designed to meet NPDES requirements under RCRA will
4 result in necessitating costly facility upgrading whic
5 will have little environmental benefit. On this
6 issue, we support the American Petroleum Institute
7 position of not regulating these impoundments under
8 RCRA at this time but conducting, instead, an in-depth
9 study of the number of impoundments involved and the
10 costs and benefits to be derived. An alternative
11 would be to designate these types of facilities under
12 special waste categories.
13 Requirements to return the soil to its
14 original condition may work to discourage land farming
15 The only requirement should be that the remaining
16 soil not cause environmental harm.
17 Finally, I don't think it would be complete
18 without talking about financial aspects.
19 We believe EPA has grossly underestimated
20 the costs associated with closure and monitoring of
21 hazardous waste facilities. The requirements in the
22 regulations are defined for large-scale facilities
23 operated by companies in the waste management business
24 They are applied, however, to all companies, including
25 those for whom waste disposal is an incidental part of
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1 the business.
2 The cash deposits that would be required for
3 all the small single-purpose facilities that we as a
4 company might operate could seriously affect the
5 amount of capital available for normal business
6 activity. We believe EPA should allow the site
7 liability self-insurance optior to be made applicable
8 to closure and post-closure requirements also.
9 We fully recognize the need for regulating
10 hazardous waste disposal practices. However, we
11 believe the current proposal does not reflect the
12 best way to accomplish this need.
13 We hope that these remarks and any written
14 material we will submit will help you to develop a
15 better regulation.
16 I will be happy to try to answer any
17 questions you might have.
18 MS. DARRAH: Okay. Thank you, Mr. Zwicker.
19 MR. LINDSEY: Mr. Zwicker, two points
20 quickly.
21 Waste oils, you attacked the fact that we
22 have not allowed road oil without a permit and said
23 that there was -- we had no basis for -- to do that.
24 I would just like to ask if you are aware -- Yesterday
25 __ I think it was yesterday. It may have been Monday
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1 -- we had testimony from someone whom I can't remember
2 that -- concerning a study that -- that showed that
3 only one-half of one per cent of the material applied
4 to roads and road oiling remained on the roads; the
5 rest of it presumably washed off into the streets or
6 leached into the ground.
7 Are you aware of that study, or do you know
8 anything about that sort of thing?
9 MR. ZWICKER: No, I'm not. My comments are
10 strictly — on this issue are dealing with the crude,
11 waste crude oils is what I am saying should be used,
12 and we are talking about rural areas in the oil fields
13 where this is done as a very common practice. I don't
14 think one would say you should take some of the
15 transformer oils which we know have some bad substance
16 in them and use them on road oils. What I am saying
17 is there are different types of waste oils and we
18 should start looking at them as separate types of
19 waste, not one generic term of "waste oil."
20 MR. LINDSEY: Another point which you made
21 which was a little interesting -- which was interestin
22 to us because I think it's the first time we have
23 heard this approach. You essentially said that the
24 note system was too flexible and that what you would
25 rather see -- or left too much up in the air and it
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726
1 was too flexible and that what you would rather see
2 was a set of some number of alternative regulations
3 for facilities. Do you think it's -- so by so doing,
4 if we followed your approach, [ would assume we would
5 have six, eight, ten different sets of alternates,
6 regulatory, alternate design standards. Do you think
7 it's possible to anticipate all the potential
8 acceptable situations we might run into?
9 It seems to me that ;;he potential for
10 acceptable combinations of siting and design and waste
11 characteristics and so on is virtually limitless, and
12 without a great degree of flexibility, I don't know
13 how we can accommodate those sort of things.
14 MR. ZWICKER: I'm certainly not one to argue
15 about limiting flexibility. I'm concerned that, under
16 a note system, we are going to have a lack of certaint
17 in what's going on.
18 MR. LINDSEY: That's true. Any time you
19 have flexibility, there is a lack of certainty.
20 MR. ZWICKER: But I think some specific
21 alternate standards whereby an operator can say, "If
22 I do this, I'm going to be okay," and not have to go
23 back to EPA with some proposals that are going to
24 require a rather extensive review and a lot of delays
25 in processing any permits.
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727
1 I think if there -- in many instances, if
2 there were three or four choices, an operator could
3 pick one that he could meet and thereby streamlining
4 the process considerably.
5 MR. LINDSEY: But you would not have us
6 do away with a note or note system as part of that,
7 would you?
8 MR. ZWICKER: I really don't know if you
9 could totally do away with it. I guess what I am
10 saying is that the note system provides the flexi-
11 bility but, at the same time, it provides a great deal
12 of uncertainty to an operator in designing his
13 facility, something that's going to be, I think,
14 detrimental to an operator.
15 MR. LINDSEY: Another problem with the
16 note system, and let me just have -- ask you -- one
17 more comment on that.
18 I mean with a very stringent set of alterna-
19 tives that we would be afraid we would be stifling
20 innovation, that is fhe development of new and perhaps
21 most effective or more effective techniques.
22 Again, that's another what we think is a -- the degree
23 of flexibility in this sort of thing and that we don't
24 intend to stifle innovation.
25 MR-. ZWICKER: I think part of my difficulty
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1 in answering your question is it has to go back to the
2 degree of risk concept. You simply don't have to have
3 all of these standards complied with from the majority
4 of the wastes. They are all not that hazardous.
5 If you go back and come up with a scheme
6 that's based on a degree of risk approach, you could
7 have facilities that are permitted for only certain
8 degree of risk wastes. If you try and make every
9 facility good for the most hazardous of wastes, you
10 are going to have a lot of problems. And that's why
11 I'm saying the degree of risk approach is so necessary
12 to make this whole process workable.
13 MR. LINDSEY: Okay.
14 MR. LEHMAN: Can I follow up on that, Mr.
15 Zwicker?
16 Earlier on in your testimony, you indicated
17 that you felt the California, Texas and Washington
18 systems assuming a degree of risk were laudable or
19 we ought to look at them.
20 MR. ZWICKER: I didn't say "laudable." I
21 think I said you ought to look at it.
22 MR. LEHMAN: The implication was that they
23 were certainly on the right track when we were off
24 the track, or words to that effect, if I may paraphrase
25 that .
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729
1 MR. ZWICKER: That was our position. Okay.
2 MR. LEHMAN: And over the last several days,
3 we have had a number of people testify, both from
4 industry and from the State of California government,
5 about the California system, which is based on two
6 degrees of two different classifications. But one of
7 the principal things that came out of that testimony
8 is that under -- as we understand it from this
9 testimony, under the California system, which does
10 have two degrees of classification of waste, that each
11 and every permit which is issued under that extremely
12 hazardous category is done on a case-by-case basis.
13 Now, your statement in here leaves me very
14 confused because you are basically saying that this
15 case-by-case review based on a degree -- based, you
16 know, without any degree of hazard situation gives you
17 a lot of problems and you want us to abandon -- Your
18 statement says EPA should abandon the note system, and
19 yet that's exactly the system that you are operating
20 under here in California as far as I can tell.
21 I'm a little confused as to how --
22 MR. ZWICKER: What I am -- What I was trying
23 to get at is many of the wastes in the petroleum
24 industry are adequately handled and treated in a II-I
25 facility right now. Some of our -- And that's a
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1 flexibility that's because of the degree of hazard
2 concept. It --
3 Under your system, it would have to be a
4 Class I site. I am not sure that there will be an
5 adequate number of Class I sites in the State of
6 California to handle all the waste.
7 MR. LEHMAN: Well, we don't have any Class
8 I, Class II; we have hazardous waste facilities.
9 MR. ZWICKER: You have a hazardous waste
10 which is effectively a Class I site.
11 MR. LEHMAN: Okay. I guess we are not
12 getting very far with this discussion. But I just —
13 I frankly am -- I just really don't understand how you
14 can object to -- You know, you want flexibility, you
15 want case-by-case review, and yet you are saying you
16 don't want the note system, which is the way we have
17 done it, so . . .
18 MR. ZWICKER: Let me try, in our written
19 comments, to try and clarify that a little bit more.
20 MR. LEHMAN: All right. Okay.
21 MR. FIELDS: Mr. Zwicker, one comment.
22 In your discussion of overlap, you identifie
23 two areas. One was NPDES permit facilities, which we
24 have heard several people comment about.
25 But the second one, if you could help me
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1 define that a little bit, you indicated that RCRA was
2 not adequately considering existing regulations in the
3 area of emissions from -- from incinerators.
4 Are you suggesting that we should not -- not
5 write hazardous waste incinerator regulations or
6 write different standards or what?
7 MR. ZWICKER: I think very simply you should
8 leave the regulation of emissions from incinerators to
9 the Clean Air Act. I think they are adequately
10 regulated by the Clean Air Act, by SIP's and the new
11 source performance standards.
12 MR. FIELDS: Well, the Clean Air Act, the
13 regulations were not written with hazardous waste
14 incinerators in mind.
15 MR. ZWICKER: No, but they regulate what
16 comes out of those stacks very rigorously.
17 MR. FIELDS: All right. Thank you.
18 MS. DARRAH: Let me, Harry, just follow up
19 on that .
20 Under your comment on the NPDES facilities,
21 are you suggesting that under the Clean Water Act, you
22 believe we can adequately regulate discharges or
23 leaking to ground water from ponds in the treatment
24 train, or are you saying that you don't believe such
25 leaking poses an environmental problem"7
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1 MR. ZWICKER: I think I'm endorsing what
2 API said. Let's study the problem. We have regula-
3 tions. We have built a lot of facilities to -- under
4 the Water Act. And now before we regulate, impose
5 additional burdens in upgrading these facilities, let';
6 see what the problem is.
7 MS. DARRAH: All right. But you are not
8 saying that we could necessarily under the Clean
9 Water Act, should we find or believe that there is an
10 environmental problem, that we necessarily could
11 ! adequately regulate them under the Clean Water Act?
12 MR. ZWICKER: There may be a need to regulat
13 under this act, but I think we have to study that
14 and demonstrate it clearly first.
15 MS. DARRAH: Okay. I just wanted to clarify
16 that. Thank you.
17 Harry?
18 MR. TRASK: Yes. Mr. Zwicker, if I might
19 ask a few questions on this waste oil, and I'm refer-
20 ring now to used lubricating oil, not to what comes
21 out of your well.
22 You indicated that -- I think you said that
23 the major problem associated with disposal of waste
24 oil came from do-it-yourselfers.
25 MR. ZWICKER: That's what I am led to believ
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1 MR. TRASK: What is -- specifically is that
2 problem?
3 MR. ZWICKER: Well, I think there is a lot
4 of home mechanics around who change their oil and
5 don't have any place to put it, and it gets discarded
6 either into storm drains or somehow put in some kind
7 of containers and just put out with the regular trash.
8 MR. TRASK: Well, you see, that's a little
9 I different than what we had been led to believe
10 previously, that the waste oil was used as a carrier
11 for chemicals and got spread on the roads and in horse
12 arenas and caused horses to die and this sort of thing
13 and so that didn't seem to us to come from do-it-
14 yourselfers; it seemed to have come from waste oil
15 collectors who then took it and did not re-refine it.
16 So that was one of the reasons we are dealing here.
17 In the area of 90-day storage as it applies
18 to waste oil collection and storage, what is the
19 current practice here in California regarding size of
20 tank, frequency of pickup9
21 And one other thing I'm wondering, does your
22 company, or do other oil companies pick up from their
23 own stations sometimes, or is it all by some
24 independent?
25 MR. ZWICKER: I'm going to have to check int
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734
1 that, Mr. Trask. I'm not sure of the details of that.
2 I will get back to you on that information. I would
3 rather check out than make an erroneous statement
4 here.
5 MR. TRASK- You are submitting --
6 MR. ZWICKER: Yes, we are.
7 MR. TRASK: -- a written statement?
8 MR. ZWICKER: Yes, we are.
9 MR. TRASK: If you could add some of that
10 data and information in there, we would appreciate it.
11 MR. ZWICKER: Thank you. I will.
12 MR. TRASK: Thank you.
13 MS. DARRAH: Okay. Thank you very much.
14 We will recess for ten minutes; reconvene at
15 10:35.
15 If Mr. William Davis is here, he will then
17 be the next speaker. Otherwise, Ms. Karen Shewbart
ig will be the next speaker at that time.
19 (Short recess. )
20 MS. DARRAH: One announcement. People have
21 been inquiring as to how to get copies of the hearing
22 transcript. As I announced earlier this morning, if
23 you do want to purchase copies rather than reading
24 them in the EPA Library, please contact the Court
25 Reporter.
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735
* Mr. William Davis, County of San Diego?
2 MR. WILLIAM M. DAVIS: My name is William
3 Davis, better known as Bill Davis, from the County of
4 San Diego.
5 Forgive me if I sound just a little croaky.
6 That Mexican food finally got to me.
7 And when I arrived, I see that we have a
8 Madame Chairman -- Chairwoman, Chairperson rather than
9 a Mr. Chairman, so I will address you as Madame
10 Chairperson.
11 MS. DARRAH: Thank you. That's better than
12 some people have done.
13 MR. DAVIS: I am a little out of breath. I
14 just arrived.
15 On behalf of the San Diego County Board of
16 Supervisors, I would like to present comments
17 pertaining to the Environmental Protection Agency's
18 supposed rule under Section 3004, Subsection
19 250.43.9(b) of the Solid Waste Disposal Act as
20 substantially amended by the Resource Conservation
21 and Recovery Act of 1976. We are concerned with the
22 financial responsibility ramifications of the proposed
23 rules.
24 The County of San Diego is both owner and
25 operator of a small-scale hazardous waste, or
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736
1 California designation Class I, disposal site. The
2 facility was established in 1961 in conjunction with
3 the county's Otay sanitary landfill to serve the
4 environmental needs of the industry. I was personally
5 involved in establishing that facility.
6 It is one of ten such sites presently
? approved by the state for the confinement of most typet
° of industrial and toxic chemicaJ wastes.
9 The service area includes San Diego and
10 Imperial Counties and a portion of Orange County. The
11 site is underlain with a thick layer of low
12 permeability bentonite clay which has been determined
13 by the state as suitable for the containment of
14 environmentally dangerous wastes. Also, geological
15 studies have shown that confinement of hazardous
16 wastes at this location is not considered an endanger-
17 ment to undergound water supplies or to the environ-
18 ment.
19 The area climate is se-niarld, with an
20 average annual rainfall of 10 inches.
21 In addition to the county's Otay site, the
22 BKK Corporation of Wilmington, California, currently
23 operates a large-scale liquid industrial waste
24 transfer station in the San Diego metropolitan area
25 for transshipment to its major disposal facility at
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737
1 West Covina in Los Angeles County.
2 In regards to the recently published
3 Environmental Protection Agency's proposed hazardous
4 waste guidelines and regulations, the County of San
5 Diego believes that the requirement under Subsection
250.43.9(b), Financial Responsibility, that owners/
operators of hazardous waste disposal facilities
maintain financial responsibility in the annual
9 aggregate of $10 million would be unrealistic,
10 unreasonable, and would be prohibitively expensive.
Premium costs for such liability insurance, even if
12 available, would be extremely costly, more particularl
13 umbrella coverage.
14 It is estimated by the county's risk manager
15 that financial ramifications of the annual premium
16 costs would be $500,000, nearly a half million, and
17 possibly more. Costs of providing the proposed amount
18 of liability insurances would, of course, be passed on
19 in the form of higher disposal fees.
20 During the first six months of Fiscal Year
21 78-79, gross revenues from the county's hazardous
22 waste disposal operations amounted to only $52,500.
23 Projected revenue for the year would be about $100,000
24 Because of this narrow revenue base, the fees would be
25 prohibitively higher.
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738
1 I wish to add at this point that at the
2 recent conference held in San Diego on hazardous
3 materials management, annual insurance premiums were
* quoted as probably being somewhat less than the
5 $500,000 figure we just quoted.
6 For your information the County of San Diego
' is presently self-funded and se2f-administrates its
" general liability exposures. In other words, self-
9 insured.
10 Funding for exposures is budgeted for each
11 fiscal year based upon actual actuarial and experience
12 data. Catastrophic losses that might exceed the
13 fiscal budget are backed by a reserve liability
14 contingency fund that is specifically reserved for
15 this purpose.
16 in addition to that fund, the county's
17 unallocated reserve would be a source of funding in
18 the event of an unlikely contingency.
19 The county's reserve liability fund is
20 currently at a $1 million level, and will be
21 incrementally increased over ensuing years to reach
22 a $3 million level, which is believed more than
23 adequate to meet any unforeseen or unsuspected jury
24 verdict.
25 Since the county undertakes its own claims
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739
1 administration with insurance industry trained claims
2 personnel and defense attorneys, the financial burden
3 of an unexpected claim would be minimized. This would
4 be particularly true when consideration is given to
5 the fact that cases of this magnitude would be in
6 litigation which presently requires approximately five
7 years to resolve through the courts in this area of
8 the country. This would constitute a buffer in that
9 there would be adequate advance time to properly
10 reserve funds to cover a potential loss.
11 I Parenthetically, the County of San Diego's
12 tax base is presently $8.06 billion and expanding.
13 Ten per cent of equity, if applied to the tax base as
14 qualifying under the proposed regulation for the
15 level of self-insurance, would be $800 million.
16 In substance, it is felt that the County of
17 San Diego's self- insurance program is consistent with
18 and equivalent in effect to EPA's proposed regulations
19 and would be adequate for any legitimate damage claim
20 that may arise from operations of the county's
21 hazardous waste disposal site.
22 Suffice it to say the county was established
23 as a governmental entity in 1850 and it is not likely
24 to close its doors or sidestep its financial responsi-
25 bilities as could be the case with private industry.
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740
It is a distinct possibility, however, that the county
could be faced with the alternative of closing the
only site south of Los Angeles County approved for the
disposal of environmentally dangerous wastes if
required to provide financial responsibility which
would exceed present fiscal capabilities.
Closure of the site could result in illegal
disposal of these wastes in unapproved areas, with
9 concomitant adverse effects on the environment and
10 public health, and in hardships to local agencies and
11 to industries generating environmentally dangerous
12 wastes.
13 Furthermore, the resulting long haul
14 distance's and lack of competition could result in
15 higher disposal costs which would ultimately be passed
16 on to the consumer.
17 In the Environmental Protection Agency's
18 own words, "EPA must take into account the need for
19 more hazardous waste management capacity as it develop
20 the regulatory program because public health and the
21 environment will not be well protected if one of the
22 results of the program is to shut down most of the
23 facilities currently available."
24 We are just as concerned, and perhaps more
25 so, as the Environmental Protection Agency with respect
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741
1 to safeguarding the public and the environment from
2 improper disposal of hazardous wastes. While it is
3 understandable and agreed that some form of financial
4 responsibility is necessary, it is our feeling that
5 the requirement of such financial responsibility in
6 the amount of $10 million annual aggregate upon a
7 government agency would impose an undue financial
8 burden upon the community and threaten closure of the
9 county's only hazardous waste disposal facility.
10 In summary, the San Diego County Board of
11 Supervisors believes that the county's self-funded
12 liability program would adequately provide for any
13 legitimate claim which might arise in operation of its
14 OTAY hazardous waste disposal site. It is, therefore,
15 respectfully requested that this statement be taken
lg into consideration in EPA' s final rule-making.
17 Thank you for the opportunity to let you
lg know of our feelings, and I will accept any questions.
19 MS. DARRAH: Thank you very much.
20 MR. LINDSEY: Bill, just one point of
2i clarification.
22 You are aware, I think, of the provision
23 under the site life liability insurance provisions
24 for self-insurance and liability insurance, but also
25 this phrase which says "other evidence of financial
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742
* responsibility acceptable to the Regional Administra-
2 tor."
3 MR. DAVIS: Yes, Fred, I'm well aware of
4 that, as you and I have discussed in the past, and
5 hopefully that our self-funded insurance program will
6 be taken into consideration at the time that we appliec
7 for --
8 MR. LINDSEY- Okay.
9 MR. DAVIS: -- a permit to operate.
10 MR. LINDSEY: Let me ask a couple of
11 questions about that.
12 This self-funded self-insurance , the reserve
13 fund, what is that? Does that bank money, this
14 reserve fund, which is available to handle any
15 contingencies that the city might come up with? Is
16 that what it is?
17 MR. DAVIS: Unfortunately, Fred, I can't
18 give you a direct answer on that. But there is a
19 reserve fund in the amount of the $1 million, and
20 which is available immediately.
21 Now, whether that's in a bank or not or in
22 cold cash, I don't know.
23 MR. LINDSEY- But it is readily available?
24 MR. DAVIS: It is readily available, yes.
25 MR. LINDSEY: And there is no liens or
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743
1 anything like that?
2 MR. DAVIS: No liens against it.
3 MR. LINDSEY: You also made the suggestion
4 that you had, what was it, $8 billion in tax -- a tax
5 base?
6 MR. DAVIS: As a gross tax base.
7 MR. LINDSEY: A lot of times these
8 facilities like this are set up as authorities in
9 such a manner that the tax base of the city and the
10 other resources of the city are not — or county or
11 whatever are not available to settle claims against
12 that authority. Is that the case in your situation?
13 In other words, is your operation -- would the tax
14 base of the city and the other -- other resources of
15 the city be available to settle a claim against the --
16 against the facility?
17 MR. DAVIS: I'm not sure, Fred. I was
18 interpreting the 10 per cent of equity, and I assume
19 if applied to private industry, it would be 10 per
20 cent of the equity that they have in the business.
21 Now, that was the best cross-reference I
22 could make. But what I was attempting to say was that
23 I doubt that we will go out of business. I think we
24 will -- we will have the -- the — the -- the financia
25 means to stand behind any possible damage claim that
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744
1 might be filed against the county. Whether or not we
2 could tap that $8. billion or not, 1 don't know.
3 MR. LINDSEY: I think the -- in trying to
4 assess whether or not a city or a county had -- was
5 able to show other evidence of financial responsibility]
6 I think we would have to be assured, it would seem to
7 me, at least under these regulations, that the -- ther^
8 was -- that the resources were available to -- to such
9 a suit as opposed to simply being there. If they
10 weren't available, it wouldn't do us much good, I
11 wouldn't imagine.
12 MR. DAVIS: Yes. I think the point I was
13 attempting to make, Fred, was that for every $100,000
14 of insurance, we would have to increase our rate by
15 10 cents per gallon.
16 Now, I'm not dealing in metric tons this
17 time, but gallons.
18 Added to our present operating cost of 4
19 cents, that would be about 14 cents a gallon. And
20 then, of course, if the insurance premium goes higher
21 than that, we would just be forced out of business,
22 and those who have small amounts of service waste to
23 dispose of would just simply have to find alternative
24 means, and that would take them longer haul distances.
25 MR. LINDSEY: Okay.
-------
745
1 MS. DARRAH: I had a question.
2 You mentioned sort of parenthetically that
3 at the San Diego meeting last week, you had heard
4 information that some of the insurance premiums might
5 not be as high as apparently your estimate --
6 MR. DAVIS: That's true.
7 MS. DARRAH: -- have been. Can you give us,
8 or could you submit in writing the assumptions that
9 your county's risk manager is going on and whether —
10 the information you've received in San Diego and
11 perhaps here today, whether your estimate would change
12 MR. DAVIS: It probably would. However, it1
13 doubtful that the county would be willing to go out of
14 the United States to obtain any kind of insurance
15 premium. We have heard Lloyds of London and others
16 as well. We are hopeful that our self-insurance
17 program would be approved.
18 However, in response to your question, there
19 were some figures that might range from 5,000 to
20 80,000. I haven't seen anything in black and white
21 insofar as that's concerned. It was just strictly a
22 job on situation. It would depend upon how secure the
23 city is. The engineer would have to determine that.
24 And, of course, one problem in that that
25 concerns us is that, if we are dealing with a private
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746
1 insurance company, they could conceivably cancel your
2 policy on a moment's notice on a year-to-year basis.
3 That concerns us, and I think that would concern the
4 entire industry. That's one reason why the county is
5 self-insured.
6 We do have a source of constant funding.
7 But insofar as how the risk manager arrived at this,
8 he made several phone calls, I'm told, and actually,
9 quoting what he told me, was that they just laughed at
10 him. I don't know. I'm just quoting.
11 MS. DARRAH: Okay. I guess we have no
12 further questions.
13 I have changed the order slightly of the
14 next speakers based on the fact that some people say
15 they do have earlier plane reservations.
16 ] I have also informally been told that there
17 j are perhaps at least three people who had preregisterec
18 who will not be speaking. But let me just tell you
19 the next three speakers I will call in this order:
20 Karen Shewbart, Jim Collins and Jay Snow.
21 Ms. Shewbart from Dow Chemical.
22 MS. KAREN SHEWBART: Good morning. I am
23 Karen Shewbart, Environmental Services Department,
24 Texas Division of Dow Chemical Company.
25 I wish to summarize some of our concerns in
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747
1 response to the agency's solicitation for a compre-
2 hensive review of all issues raised by the agency in
3 the preamble and proposed regulations, those addressing
4 standards applicable to owners and operators of
5 hazardous waste treatment, storage and disposal
6 facilities, and the associated background documents.
7 We have worked closely with the agency and
8 with various trade associations, professional societies
9 and standard-setting groups over the past two years
10 to help develop a consistentset of meaningful regulation;
11 for hazardous waste management that will provide
12 adequate benefits in protection of human health and
13 the environment from reasonable risks, while demanding
14 realistic expenditures of resources.
15 Towards this goal, we have provided comments
16 pertaining to all major aspects of the draft regula-
17 tions and those previously proposed. Today, we wish
lg to highlight our major concerns regarding:
19 First of all, the general regulatory
20 structure of Section 3004.
21 Secondly, general facility standards; and
22 i Third, standards for treatment and disposal.
23 First, the regulatory structure.
24 I Specifically, the use of specific design and
25 operating standards versus performance standards.
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748
1 One major concern with the proposed Section
2 3004 regulations is the overspecification of design
3 and operating standards by the agency. We believe thai
4 the regulations would be greatly streamlined by
5 prescribing what performance is required and allowing
6 flexibility in what specific procedure is used. Over-
7 specification of procedural standards complicates the
8 regulations and restricts flexibility of choice. The
9 combined effect is the suppressed development of new
10 technologies and more cost-effective solutions.
11 The use of rigid design and operating
12 standards is especially burdensome and unreasonable
13 when applied equally to new and existing facilities.
14 Proposed standards should recognize and provide a
15 reasonable mechanism for allowing the continuing
16 operation of existing facilities which are adequately
17 protecting human health and the environment.
18 The use of notes as a mechanism to mitigate
19 the technology-suppressing eflect of specific design
20 and operating standards, is certainly a step in the
21 right direction. However, the relief provided to the
22 regulated community by the use of notes is seriously
23 undermined by the agency's determination that alterna-
24 tive requirements may only be substituted for those
25 design and operating standards accompanied by notes.
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749
1 We urge the use of notes be generalized to
2 allow a facility to substitute an alternate requirement
3 for all design and operating standards if the facility
4 can demonstrate that the proposed alternative meets the
5 human health and environmental standards, or that it
6 provides the same degree1 of performance as the
7 prescribed standard for which it is to be substituted.
8 Under general facility standards, this is
9 another area of considerable concern to us.
10 First of all, under site selection, the
11 proposed restrictions for general site selection shoulc
12 not be applied equally to all hazardous waste manage-
13 ment facilities.
14 For example, there is no reason to prohibit
15 the siting of an incinerator or other destructive
16 device in a floodplain, floodway or near an active
17 fault, where there is no risk of the release of
18 harmful amounts of hazardous wastes.
19 In addition, the location of storage and
20 treatment facilities should be based on a classifica-
21 tion of wastes by degree of hazard. This would
22 result in a more realistic siting procedure based on
23 protection of human health and the environment.
24 We strongly recommend that the agency
25 modify its proposed siting location restrictions to
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13
14
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750
fully recognize appropriate exemptions.
The 500-year floodplain is another area of
concern.
Proposed Section 250.43-l(d) prohibits the
location of a facility in a 500-hundred year flood-
plain. This provision is overly stringent for
practically all waste disposal areas and bears no
demonstratable relationship to the protection of human
health or the environment.
Moreover, the proposed regulation is not in
the public interest since it might require many well-
designed and environmentally sound facilities, such
as in the Gulf Coast area, to close.
We recommend that all site restrictions
predicated on the use of the 500-year floodplain be
removed the regulation.
Concerning the regulatory floodway, based
on the way this regulation is written relating to
locating a regulatory floodway, new facilities are not
allowed to locate in the regulatory floodway and
existing facilities must be closed.
In many areas of the country, the designatio
of regulatory floodways is not complete today and was
not in existence when present waste disposal
facilities were built.
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1 This requirement is unfairly rigorous for
2 existing facilities, and some exceptions should be
3 allowed. Not to allow some exceptions for existing
4 facilities could harm the overall objective of RCRA
5 by creating a serious shortage of acceptable hazardous
6 waste disposal facilities.
7 Old facilities should not be forced to close
8 or relocate in order to meet the selection criteria
9 outlined in this section if these facilities pose no
10 threat to human health or the environment.
11 Groundwater and leachate monitoring is
12 another area of concern.
13 Proposed Section 250.43-8(c)(4) states that
14 if after the comprehensive analysis has been performed
15 and background levels for groundwater and leachate
16 monitoring are established, analyses show that the
17 quality of the groundwater or the water in the zone of
18 aeration is statistically different from background
19 quality, the facility must discontinue operation until
20 the Regional Administrator determines what actions
21 are to be taken.
22 It is unreasonable to require a facility to
23 suspend operations within seven days of analysis,
24 because many of the parameters measured by the
25 comprehensive analysis are not, of themselves, toxic
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1 and would not evidence any endangerment to human
2 health or the environment. Only in cases where human
3 health and the environment are endangered should a
4 facility be required to modify or suspend operations.
5 We recommend that a statistically significant
6 monitoring deviation from background levels should
1 cause additional investigative testing and evaluation,
8 but that such a condition in itself should not be
9 justification for termination of operations.
10 Under standards for treatment and disposal,
11 incineration.
12 Effective destruction of hazardous wastes
13 wherever viable is preferable to perpetual care. The
14 overly stringent proposed procedural standards for
15 incinerators, however, may force the disposal of waste
15 by less preferable modes.
We are concerned about the excessive
lg specifications for trial burns and various operating
19 parameters, as well as the oveilanping with other
20 environmental regulations.
The agency, in its development of Subtitle
22 C regulations, should only address the proper
23 disposition of hazardous wastes. Thus, destruction
24 efficiency is the only meaningful parameter for
25 establishing performance for the incineration of
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1 hazardous waste.
2 We contend, however, that the proposed
3 destruction level of 99.99 per cent is unreal 1stical1y
4 high and will further discourage the use of incinera-
5 t i o n .
6 The proposed 99.99 per cent appears to be
7 based upon highly controlled test burns, spot deter-
8 minations under ideal conditions, and in some cases
9 with less than cost-effective requirements.
10 For example, most of the referenced test
11 burns in the incineration background document, Back-
12 ground Document No. 25, involved a ratio of auxiliary
13 fuel to waste quantities of over 100 to 1.
14 Furthermore, the 99.99 per cent destruction
15 efficiency has not been demonstrated to be cost-
16 effective or to be consistently achievable on day-to-
17 day operations, especially for those units experiencing
18 variable waste loads and fuel composition.
19 In particular, we dispute the conclusion of
20 the agency that halogenated aromatic hydrocarbons are
21 more thermally stable and require more stringent
22 operating conditions for their destruction. We contenc
23 that the temperature of 1200 degrees centigrade
24 specified by the agency is not supported by o;ther th
25 temperatures for complete combustion of many
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1 halogenated pesticides and other case histories
2 reported in the background document, or by the
3 literature cited in the Environmental Impact Statement,
* Appendix M.
5 Furthermore, it is readily accepted that
6 excessively high temperatures can adversely affect
7 incinerator operation by:
8 First, forming nitrogen oxides which are
9 designated pollutants.
10 Secondly, increasing corrosion and shortenin;
11 incinerator life.
12 Third, by increasing energy requirements;
13 and
14 Fourth, by increasing capital and operating
15 costs.
16 Any specified combustion criteria for
17 hazardous incinerators should be allowed if a facility
18 owner-operator can demonstrate adequate destruction
19 efficiencies.
20 We recommend that the regulations for
21 incineration be generalized by excluding all reference
22 to halogenated hydrocarbons and by requiring a
23 realistic level of destruction efficiencies.
24 Landfills. The agency states that the
25 owner/operator of a landfill must demonstrate that no
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1 direct contact will occur between the landfill and
2 the water table. This standard is unnecessarily
3 stringent in many cases for the protection of the huma
4 health and the environment.
5 The human health and environmental standard
6 states that all facilities shall be located, designed,
7 constructed and operated in such a manner as to
8 prevent :
9 a. Endangerment of an underground drinking
10 water source beyond the facility property boundary, or
11 b. Endangerment of an aquifer which is
12 designated as a sole or principal aquifer.
13 It is necessary to assess each situation on
14 its individual merits. For example, a unique
15 situation exists in the Gulf Coast area, which is
16 described in the Texas Department of Water Resources
17 Technical Guidelines for Hazardous Waste Disposal.
18 The situation is one of a low permeability clay and
19 high water table as typified by the Beaumont clay
20 formation. Pill placed below the water table could
21 cause localized saturation of the clay liner, but
22 extremely slow movement of the groundwater together
23 with attenuation and/or biodegradation precludes
24 harmful distribution of materials from the landfill.
25 We do not believe that a landfill built in
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1 the area described above should be placed several feet
2 above ground. The hydraulic head which would develop
3 would cause considerably higher rates of permeation
4 to occur than those associated with a below-ground
5 faci1 it y.
6 There is also the additional hazard due to
7 the potential for slumping and disintegration of the
8 walls of the facility. On balance, the hazards
9 associated with this above-ground facility would be
10 much greater then the hazard potential of n facility
11 contacting groundwater in a thick impermeable clay bed
12 We, therefore, maintain that direct contact
13 of the landfill with groundwater be selectively
14 permitted, where due to unique soil characteristics,
15 harmful contamination of groundwater will not occur,
16 and there is no endangerment of human health or the
17 envi ronment.
18 We recommend that unique area characteristic
19 i be recognized and addressed at the state level, as
20 have permafrost areas, consistent with what is
21 feasible and necessary to protect human health and the
22 environment.
23 We will be submitting detailed comments by
24 March 16th.
25 j Thank you for the opportunity to address som
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1 of our concerns today.
2 MS. DARRAH: Thank you.
3 Will you answer questions from the panel0
4 MS. SHEWBART- Yes.
5 MR. LINDSEY- Okay.
6 MR. FIELDS- Ms. Shewbart. first concerns
7 regarding your comments on that, that we have a
8 generalized note mechanism, that we allow deviation,
9 provide a deviation from any standard. It would help
10 us when you submit your written comments if you could
11 I identify specifically -- You know, we have made a
12 decision, a conscious decision, that certain standards
13 should not have a deviation, you know, in any case.
14 It would help us, when you provide your written
15 comments, that -- if you would indicate to us for
16 certain selected standards that we ha\e not allowed a
17 note deviation why you feel there should be situations
18 where generalized deviation is appropriate.
19 MS. SHEWBART- All right.
20 MR. FIELDS: The other thing was that you
21 felt we should remain -- remove the 500-year floodplain
22 requirement. It wasn't clear to me as to whether you
23 were advocating that we have a different floodplain
24 requirement, like a 100-year floodplain, or did you
25 feel we should have no floodplain requirement? I
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758
1 wasn't sure what your position was on that. You
2 indicated a 500-year floodplain was too stringent.
3 MS. SHEWBART: Yes, that's correct.
4 MR. FIELDS: What is your -- I mean what is
5 your -- what is your position regarding the standard
6 ; in that area9 That wasn't clear to me. What is the
7 alternative you were --
8 MS. SHEWBART: Okay. The calculation, I
9 think this has been addressed already this morning.
10 The most reliable data that is available for floodplair
11 calculations has only been around for about 120 years,
12 and technical background for a 500-year floodplain is
13 extrapolated data, and I don't think it's technically
14 defensible data for what level you have to protect to.
15 So a 100-year floodplain is a more realistic,
16 we think, performance standard.
17 MR. FIELDS: All right. The next question
18 is regarding the destruction efficiency requirement
19 for incinerators. Your recommendation was that the
20 agency develop a realistic number. I was wondering
21 in your written submission, were you going to provide
22 a -- some -- what you felt was a realistic number for
23 destruction efficiency for incinerators? Your comment
24 was that ours was too stringent.
25 MS. SHEWBART: Yes. I think this was touchec
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1 on yesterday by Mr. Beale. I think you explored this
2 with him quite a bit, and we said it might be 96 per
3 cent, it might be 95 per cent, but it's got to be
4 determined realistically what is a realistic per-
5 formance standard for an incinerator. It's got to be
6 based on a cost-benefit ratio.
7 MR. FIELDS: Okay. That's all I have.
8 MR. LINDSEY: One more point on the incinera-
9 tion, or two more points on the incineration area, if
10 I might.
11 One of the other points you made was that
12 halogenated hydrocarbons are not inherently as stable
13 as other materials.
14 MS. SHEWBART: Thermally.
15 MR. LINDSEY: Pardon me?
16 MS. SHEWBART: Thermally stable.
17 MR. LINDSEY: Thermally stable. Do you have
18 information which — You have incinerators. Do you
19 have information that -- test burn information which
20 shows destruction efficiencies and the light and
21 emissions and so forth from halogenate_d hydrocarbons
22 that you would be willing to share with us?
23 MS. SHEWBART: I was quoting from your
24 background document that had tables listing the
25 thermal destruction of halogenated aromatic carbons.
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That was the data that I was referring to, and
t emperatures.
MR. LINDSEY: Seems to me, if I remember
correctly, all the testing we did was above 1200
degrees. Okay.
In another -- in another area on incinera-
tion, you indicated that the test burn procedure was
too oporessive, too stringent or too -- too much or
something. Can you expand on that? What is it about
the test burn, the provision for running test burns
to demonstrate equivalent destruction, that gives you
prob1 ems?
MS. SHEWBART• Well, we do -- we do consider
that to have to test every waste would be -- would be
burdensome beyond the benefits that could be achieved.
MR. LINDSEY: All right. Our concern, I
guess, would be that -- that test burns be run then
on the -- I guess on the most thermal ly stable waste
mixture that a company runs. Do you feel that it's
possible for us to identify what the most thermally
|
stable waste or waste mixture would be? That
suggestion was made at another -- at another hearing,
come to think of it, and the question we have is' Is
it going to be possible for us to identify what the
most thermally stable mixture is and then test that
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I instead of testing everything?
2 MS. SHEWBART : Now, that's an interesting
3 notion. I really can't comment on that.
4 MR. LINDSEY: Okay.
5 MR. TRASK: Ms. She*bart, you talked about
6 this Beaumont clay formation a couple of times, and
7 one time you said it was impermeable and another time
8 you said it had low permeability. Do you know what
9 the permeability of that is9
10 What I am getting at here is is there some
11 number that we ought to be looking at where we can
12 change things?
13 MS. SHEWBART- Yes. This is described in
14 the technical guidelines of the Texas Department of Water
15 Resources, and the numbers that they are using are a
16 permea'b i li t y of a tenth to 5/10 of a foot per year is
17 the -- the -- is the groundwater movement, water
18 movement
19 MR. TRASK: You think then, that with clay
20 of that permeability, then perhaps we would have more
21 flexibility in the things we could do compared to what
22 the standards were suggesting9 Do I understand that
23 to come out of your comment?
24 MS. SHEWBART: You would have more
25 flexibility9
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1 MR. TRASK : Well, we are laying down some
2 standards on landfill, construction and site location
3 and that sort of thing. And I sense that you are
4 suggesting that, if you have a clay with this
5 permeability, then we might not need to be as stringent
6 with those standards?
7 MS. SHEWBART: Yes, I think that's correct.
8 MR. TRASK: Okay. In another area, you also
9 indicated that old facilities that are located in
10 regulated floodways should not be forced to close if
11 they pose no threat to human health or the environment.
12 Do you have some --
13 MS. SHUBART: That's true.
14 MR. TRASK: -- way in which we could -- that
15 could be shown?
16 MS. SHEWBART: First of all, the floodplain
17 guidelines, management guidelines, for implementing
18 Executive Order 11-988 address only proposed actions
19 in regulatory floodways, not existing facilities. And
20 the calculations for determining regulatory floodways
21 are based on what proposed action -- what -- what
22 impact a proposed action would have.
23 So I think in the existing -- in addressing
24 old sites or existing sites through Executive Order
25 11-988, it's not really plain in the guidelines that
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1 those should be addressed.
2 MR. TRASK: Well, your statement, though,
3 said that they should not be forced to close if they
4 pose no threat and --
5 MS. SHEWBART: Yes.
6 MR. TRASK: — I am wondering how you would
7 show that they pose no threat.
8 MS. SHEWBART: Well, this would be through
9 the same types of things that you could do with
10 hundred-year/five-hundred year floodplains, dyking
11 requirements, so that they would not be inundated.
12 MR. TRASK: Okay. That's what you had in
13 mind. All right. Thank you.
14 MS. DARRAH: I wanted to just question you
15 a little bit on your idea that the use of notes be
16 expanded.
17 I saw both of you smiling as we heard a
18 previous speaker who was giving us a diametrically
19 opposed position. We also heard an interesting --
20 Okay. So the basis obviously for the previous
21 speaker's suggestion that we include more specific
22 design and operating requirements was his belief that
23 I guess particularly small companies don't want to
24 be faced with showing the permit writer or the
25 Regional Administrator or, indeed, headquarters at
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764
1 EPA that their proposed design somehow meets our
2 human health and environmental standard or meets an
3 equivalent degree of performance. So he wanted more
4 design and operating requirements.
5 And you say no, don't give us design and
6 operating requirements; give us performance standards.
7 And, indeed, I guess under either system, under a
8 design and operating or performaace system, allow us
9 essentially a variance from anything that you tell us
10 to do. And I understand all that.
11 I wanted to gel, you to comment on one
12 suggestion we heard in another hearing, which was
13 that, indeed, we write more design and operating
14 standards. But if someone chose to propose a sort of
15 a totally different design for a facility, thai that
16 be submitted to EPA headquarters. They didn't specify
17 it. I assume to the Administrator. And then, you
18 know, some person in the office would review it, so
19 that we were not leaving it up to each Regional
20 Administrator or, indeed, to the local nermit writers
21 to approve a totally new design, but I think this
22 person's feeling was those people might not be willing
23 to do that; they might not feel that they had the
24 expertise and they would -- they would tend to stick
25 too stringently to our requirements.
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I What do you think of sort of this dua]
2 system idea of design and operating1 requirements with
3 use of notes, either the way we have it now or more
4 extensive notes, but a provision that, with a large
5 or sort of a new design that isn't mentioned in the
6 regulations, that we have some sort of a central
7 approval system?
8 MS. SHEWBART : Again, I would say that that's
9 an interesting idea that someone's proposing, and I
10 haven't thought about it enough to make any comments.
11 I really wouldn't want to comment on that.
12 MS DARRAH : I realize there is a very short
13 time between now and Friday; but, given that we have
14 heard really opposite reactions to our proposal, if
15 you could expand in your written comments on your
16 suggestions here, I think it would be useful to us.
17 MS. SHEV.'BART: Well, of course, the main
18 thrust of the comments here is performance, performancd
19 s tandards.
2Q MS. OARRAH: Okay. I guess we have no more
21 questions. Thank you.
22 Jim Collins, Cities Service Company, repre-
23 senting the American Petroleum Institute.
24 MR. JAMES W. COLLINS: Thank you.
25 I was hit by a pigeon on the way over this
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morning, and I hope everything is going to go uphill.
My name is Jim Collins. I am the Manager of
Environmental Affairs for Cities Service Company, and
I am also a member of the API Committee on Environ-
mental Conservation in Production Operations. I am
presenting comments for the Production Committee of
API on EPA's proposed hazardous waste regulations.
API believes the potential impact of the
proposed hazardous waste regulations on oil and gas
drilling and production operations would be catas-
trophic. Strictly interpreted, the proposed regula-
tions appear certain to have a major negative impact
on existing domestic oil and gas production; would
seriously impede drilling for essential new energy
supplies; would be significantly inflationary, and
would require an enormous commitment of resources and
people in an industry without any measurable offsetting
benefits to human health or the environment.
The proposed regulations in the first year
would pose an unrealistic cost burden on oil and gas
drilling estimated at SI0.8 billion. 3.9 of this --
billion dollars would be used to construct facilities
to comply with the proposed regulations, and the
remaining 6.9 billion would be used to monitor the
facilities for 20 years.
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767
1 The $10.8 billion requirement would be
2 regenerated every year.
3 The oil and gas production industry would
4 be forced to spend an additional $34.7 billion. 10.2
5 billion of the 34.7 billion would be spent to bring
6 existing facilities into compliance. The remaining
7 24.5 billion would be required to satisfy the future
8 monitoring requirements of the proposed regulations.
9 The cost burden inevitably would impact all
10 of us as energy consumers, and all this assumes that
11 the added cost doesn't put such operations out of
12 business.
13 The economic impact will have two major
14 effects on the United States energy supply.
15 First, it will cause a tremendous diversion
16 of capital from exploration for new oil and gas
17 reserves and research and development aimed at
18 increasing oil and gas recovery from existing
19 reservoirs.
20 Second, it will cause marginal producing
21 properties to be closed down prematurely.
22 For example, virtually all stripper produc-
23 tion will be unable to meet the requirements of these
24 regulations due to the economics of operation. The
25 average production for stripper wells in the United
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States is only 2.9 barrels of oil per day. 71.5 per
cent of the oil wells in the United States are strippei
wells. Stripper wells account for -- in '77 accounted
for about a million barrels a day of production, which
is equal to about" 12.3 per cent o^ our total domestic
crude oil production. A great lumber of wells with
producing rates above stripper rate production would
also be closed down prematurely because of the same
economic impact.
The problem basically arises because the
EPA has either not correctly interpreted the definitior
of hazardous waste as stated in the Act. or the
regulations established by EPA co define hazardous
wastes are far too inclusive.
Crude oil wastes, for example, are inappro-
priately classified as hazardous waste because they
fail the ignitability test. However, on-site crude
oil wastes do not present a fire hazard.
Crude oil spill spill cleanup residue is
inappropriately classified as a hazardous waste
because it contains trace amounts of benzene or
toluene. These trace level pollutants pose no hazard.
Also, because of trace amounts of other
contaminants, the proposed regulation inappropriately
classifies most oil and gas dri ling mud wastes and
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1 production brine wastes as hazardous. And, again,
2 these trace level contaminants present no hazard to
3 human health or the environment.
4 Finally, the final regulation should only
5 be concerned with truly hazardous wastes and not
6 classify wastes such as those generated in drilling
7 and production operations as hazardous.
° It is inappropriate — The inappropriate
9 inclusion of these nonhazardous wastes in the hazardous
10 classification places unnecessary burdens on generators
11 of nonhazardous wastes. More importantly, it prevents
12 promulgation of good workable hazardous waste regula-
13 tions which really protect the human health and the
14 environment.
15 We believe the EPA understands this problem
16 as seated in their preamble. They said:
17 "By attempting, initial coverage of waste,
18 generators, and disposers that is quite broad,
19 the whole program including addressing the
20 problem brought on by the most hazardous will
21 become bogged down."
22 We agree with this idea.
23 Site selection criteria for surface impound-
24 ments included in the regulations are particularly
25 inapplicable to the oil and gas drilling operations.
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1 The criteria specifically excludes areas within a
2 500-year floodplain and faulted areas or in coastal
3 high hazard areas.
4 Oil is found where it's placed -- where
5 nature placed it, and a great deal of our nation's
6 potential onshore energy resources are in these
7 prohibited areas. Inappropriate application to our
8 industry of site selection criteria designed for
9 facilities with hazardous wastes would prevent the
10 development of energy reserves vital to our nation.
11 This would be particularly unfortunate when one
12 considers the excellent performance record of our
13 industry in these sensitive areas.
14 If the regulations are to be effectively
15 managed -~ effective and manageable, the API recommends
16 they be rewritten with the following particularly in
17 mind. That:
18 1. Only truly hazardous wastes come under
19 the purview of the regulation.
20 Naturally occurring crude oil, production
21 brine and oil and gas drilling mad wastes should be
22 excluded from the hazardous waste regulations.
23 EPA, in its attempt to be inclusive, has
24 extended hazardous waste management and disposal
25 practices to wastes which only require normal solid
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1 waste management and disposal techniques. Alleviating
2 unnecessary impacts by numerous notes allowing
3 administrative discretion or by special categories
4 granting partial exemptions represents a Band-Aid
5 repair approach in attempting to make an overall
6 regulation proposal workable.
7 This overall — this overinclusive technique
8 jeopardizes the regulation's goal of protecting human
9 health and the environment from hazardous wastes.
10 RCRA meets a real national need. And with
11 changes, the proposed regulations can work; and
12 without changes, the regulations will be unmanageable
13 and ineffective.
14 Thank you.
15 MS. DARRAH: Thank you, Mr. Collins.
16 I compliment you on the succinctness 6f your
17 statement to us.
18 MR. COLLINS: Less than ten minutes?
19 MS. DARRAH: Yes, much less.
20 Will you answer questions for us?
21 MR. COLLINS: You bet.
22 MS. DARRAH: Okay.
23 MR. LEHMAN: Mr. Collins, two things.
24 You quoted some very large economic cost
25 burdens as a result of these regulations. Are you
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prepared to provide us the background for those
figures, because we would be very much interested in
the data behind those estimates as to how you arrived
at those figures.
MR. COLLINS: Yeah. The calcu1 at ions are in
our written statement, plus the scenario of how this
was deve]oped.
MR. LEHMAN: All right. Fine.
The second point I wanted to get at is that
you were claiming in your statement that virtually
all stripper production wells will be unable to meet
the requirements of these regulations due to economics
of operation, and go on to quote what the production
numbers are. Could you expand on that' It's not at
all clear to me why an existing stripper well, produc-
tion well, would be significantly impacted by these
regulat ions.
MR. COLLINS Well --
MR. LEHMAN: One that's already in produc-
tion is what I mean.
MR. COLLINS: Well, every -- virtually every
impoundment in oil and gas production operations will
be classified as a hazardous waste facility because of
the four things that I mentioned. Every lease or
every well is on a lease that has some type of
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1 impoundment. If it produces into a tank battery,
2 there is a dyked area around the tank battery. There
3 could be an emergency runover pit. Some type of —
4 Some type of impoundment is going to be on the lease,
5 whether Jt be a one-well lease or a 50-well lease.
6 There would be some -- there will be a number of
7 impoundments, and we calculated -- we submitted that
8 per impoundment would cost approximately $250,000 to
9 bring this -- bring the impoundment into specifications
10 with the regulations.
11 MR. LEHMAN: Excuse me. What are these
12 impoundments for? You mean for the produced crude?
13 MR. COLLINS: They are contained -- Some --
14 There will be -- One type of impoundment would be a
15 dyked area around a tank battery. Another might be
16 a temporary holding impoundment for emergency overflows
17 It could be a spill containment area.
18 MR. LEHMAN: These are production wells now,
19 right?
20 MR. COLLINS: That's right. That's in a
21 production facility.
22 MR. LEHMAN: What you are producing is
23 crude oil, which is not a waste by our definition.
24 That's what I don't understand here. We are only
25 talking about waste management, right?
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1 MR. COLLINS: That's right.
2 MR. LEHMAN: What is the waste from an
3 existing producing stripper well?
4 MR. COLLINS: Within a -- Within a dyked
5 area, there is crude oil spill cleanup residue that
6 we would not be able to predict that, with any one
7 spillover, any type of frequency, that there wouldn't
8 be more than 20, 30 gallons recovered, which would be
9 the — which would fail the criteria to be exemoted on
10 a low spill within, or a minimum amount during any —
11 any one month. And the -- because of the -- because
12 of trace amounts of benzene and toluene, this -- this
13 automatically classifies these impoundments as
14 hazardous waste facilities.
15 MR. LEHMAN: Excuse ire. I'm not seeing --
16 You are talking about a spill is the waste; is that
17 what you are saying?
18 MR. COLLINS: There is a part in the regula-
19 tion that addresses spill cleanup residue, oil spill
20 cleanup residue.
21 MR. LEHMAN: But that's not part of your
22 normal operation, right? I mean you don't have
23 impoundments set aside for spilled cleanup residue,
24 do you?
25 MR. COLLINS: We have impoundments to
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1 contain spill, and then we wouldn't be able to recover
2 the total spill. There would be some residue in the
3 impoundment, unrecoverable residue, which we feel it
4 would be difficult to predict whether the amount of
5 spilled cleanup residue would actually be in such a
6 small amount that we would not -- that we would
7 qualify for the hundred kilogram per month exemption.
8 MR. LEHMAN: Okay. I presume all of this is
9 part of this is part of this more detailed --
10 MR. COLLINS: Right.
11 MR. LEHMAN: -- analysis, what assumptions
12 you have made in determining --
13 MR. COLLINS: Yeah. That's the basic
14 assumption that we have made, that and then the --
15 that's just -- that's not in the special category,
16 special waste category. This is one of our problems
17 because crude oil, naturally occurring crude oil, was
18 not considered with the -- with production brine and
19 -- and drilling mud, that it was -- this is another --
20 a waste — waste product in production operations,
21 that that made it more difficult to -- to work with.
22 MR. LEHMAN: Okay. Thank you.
23 MR. LINDSEY: Could I follow up on that?
24 You gave these big numbers, and the two
25 basic numbers I remember were 10.8 billion and there
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1 was another one that was 34.7 billion.
2 To start off with, could you clarify again
3 what the difference :s between those two numbers?
4 MR. COLLINS: Okay. 10.8 billion is the
5 cost that would -- to bring 48,000 wells, their mud
6 pits into — into compliance.
7 MR. LINDSEY- So that's the mud and brine1?
8 MR. COLLINS- Well, there is a 10.8 -- yeah,
9 10.8 is the mud.
10 MR. LINDSEY: Okay.
11 MR. COLLINS: That's the drilling mud.
12 MR. LINDSEY: Okay.
13 MR. COLLINS: That's the drilling operations
14 MR. LINDSEY: Okay.
15 MR. COLLINS: We estimated there was 48,000
16 welis drilled onshore last year. That's the number of
17 drilling pits. We assumed one pit with every well.
18 MR. LINDSEY: Okay. All right. What's the
19 34.7?
20 MR. COLLINS: 34.7 is then production opera-
21 tions. There is the ongoing production field that's
22 already been discovered.
23 MR. LINDSEY: These are -- These things, you
24 are just talking about these impoundments and whatnot?
25 MR. COLLINS: Well, that also includes all
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production brines, well-produced water and waste oil.
MR. LINDSEY. Okay.
MR. COLLINS- Waste crude oil.
MR. LINDSEY- But it's 10.8 billion for the
mud pits, huh7
MR. COLLINS: That was right.
MR. LINDSEY- As I understand it, these
particular materials are handled as hazardous wastes
and have to go to -- I think someone mentioned this
morning have to go to II-I facilities here in
California. Are these kinds of expenses being
experienced here?
MR. COLLINS: Well, in California, they --
they take the fluid portion of the mud to a disposal
site. They don't pick up the cuttings, and I don't --
I think that they would be less than or greater than
20 or a hundred kilograms of mud left, actually left
in the -- in the pit when they close the pit. So we
had to go ahead and assume that even in a California
well, pits would -- would be covered by the regula-
tion; that because they are hauling the -- the liquid
portion of the mud system away to some facility, that
still this didn't exempt them from the regulation.
MR. LINDSEY: Okay. What is it? How much
did you say you estimated per -- per mud pit for -- to
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1 handle these regulations?
2 MR. COLLINS: Well, the total Impact --
3 MR. LINDSEY: You said 48,000 wells would
4 have a pit and --
5 MR. COLLINS: Yeah, the total.
6 MR. LINDSEY: That would be 48 into 10.8?
7 MR. COLLINS: It's about $250,000 per
8 facility. Part of it dealt with in the first year,
9 and then the other part -- you know, portion of it
10 dealt with over a 20-year period.
11 MR. LINDSEY: And that would be for what?
12 Fencing and -- and recordkeeping and reporting, huh?
13 MR. COLLINS: And also for constructing a
14 leachate monitoring system and for drilling ground-
15 water observation wells.
16 MR. LINDSEY: Those are not required under
17 the special waste regs, as — also there has been —
18 I should point out again -- I guess Mr. Fields pointed
19 out earlier that 250.43-8, there's been a clarifica-
20 tion recently that maybe you weren't aware of in one
21 of the recent Federal Registers.
22 MR. COLLINS: We are aware of that the
23 biggest problem was in 250.43-8, which generated
24 monitoring requirements if you — you were required
25 to monitor for -- you have to monitor leachate systems
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1 and monitor groundwater systems, and we have to drill
2 the groundwater wells and then we had to drill --
3 build the leachate system, and we have addressed this
4 in our regulation or in our specific comments and
5 have a flow diagram attached to show the -- the areas
6 that we have had to go to.
7 MR. LEHMAN: Can I follow up with a little
8 bit more on that California experience.
9 California has had a hazardous waste manage-
10 ment program in operation for many years, and one
11 presumes that the oil and gas and petroleum drilling
12 and production operations are covered by that program,
13 or at least we have been led to believe that.
14 MR. COLLINS: Yeah, that's right.
15 MR. LEHMAN: And I just find it hard to
16 believe that -- I mean the California petroleum
17 operations do represent a significant portion of the
18 national activity, as I understand it. I don't know --
19 MR. COLLINS: Yeah.
20 MR. LEHMAN: -- what the statistics are, but
21 it's certainly a reasonably large fraction of the
22 national production and — and drilling operations.
23 And I just find it very difficult to — to reconcile
24 the — these enormous cost estimates that you made
25 here with the actual experience of the California
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1 system.
2 MR. COLLINS: Well, the California system
requires the -- hauling the fluid out of a mud pit to
" a -- to a particular facility. And it's -- what I
•* said before was that — that from the way we read the
hazardous waste regulation, that that portion that's
hauled to the facility in California wouldn't --
o
0 wouldn't allow, or wouldn't -- wouldn't take any
° responsibility away from that pit being a solid waste
10 disposal facility and would have to be constructed and
11 -- and monitored in accordance with it.
12 Now, there is a number of areas. Oklahoma
City and Yukon, Oklahoma, and several areas that
require that mud be -- the mud fluid to be hauled
away from the location and dumped in a site, but they
1C *
1(3 don't try to remove all of the cuttings and -- and
whatever, some small portion of the — of the mud
filtrate that remains.
19 MR. FIELDS: Mr. Collins, on the same issue,
20 it appears to me in your presentation that your
21 assumptions were that -- that all -- I'm just calking
22 about the special waste category now. But your
23 assumption was that all drilling muds and brines were
hazardous. Was that a basic assumption in your cost
25 analysis?
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1 MR. COLLINS: Virtually all would be
2 classified a.s hazardous by the regulation.
3 MR. FIELDS- Based on how you read 3001, you
4 think all drilling muds and brines are going to be
5 hazardous?
6 MR. COLLINS- Yeah, based on the trace
7 metals and the toxic portions that they will be
8 classified as hazardous.
9 MR. FIELDS: Okay. Another comment you made
10 was that the $10.8 billion requirement was -- would be
11 regenerated every year.
12 MR. COLLINS: That's right. We assume
13 48,000 wells drilled in '78. That was the best data
14 we could come up with. I understand that now they
15 are thinking it's more in the range of 51,000 wells
16 were drilled in '78 because of a real heavy last
17 quarter, so that's the cost generation requirements
18 for those 48,000 wells, and it looks like now probably
19 next year it might be 50,000 wells, and then the next
20 year. So that's in the range of numbers that we are
21 looking at .
22 MR. CORSON: I have two questions, Mr.
23 Collins.
24 One, you addressed earlier in the comments
25 the idea that we are defining nonhazardous wastes as
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1 hazardous, and I am wondering whether you have already
2 in your written submittal provided a different working
3 definition of hazardous wastes for us to consider?
4 MR. COLLINS: I -- I think that just by
5 evidence of special categories, by evidence of notes.
6 that -- that ten times the drinking water standard,
' that these -- these trace -- we've -- we've got --
° we've got a span of wastes from here to here
9 (indicating), and it's my feeling that these are
10 hazardous (indicating), but we are including all the
11 wastes over here (indicating), and when we try to write
12 regulations to cover all these wastes, then we're —
13 we're jeopardizing our chance to write real good
14 regulations for these real dangerous wastes.
15 This is the point that we are trying to
16 bring across to you.
17 MR. CORSON : We have heard previous testi-
18 mony that relates to degree of hazard where I think
19 you are making a. distinction between hazardous and
20 nonhazardous , and I guess I would like to know what
21 your thoughts are and these --
22 MR. COLLINS: Our thoughts are that we are
23 just right on the edge and that we have just been
24 kicked into the hazardous -- hazardous zone. We are
25 just right on the virtual edge of this thing and that
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we have been kicked in just right over the edge, and
it's a tremendous economic impact, and that's why,
because we have had prudent disposal practices, but
they are not hazardous wastes, disposal practices,
and this is why we -- we get such a tremendous
economic impact.
When you go — when you take something that's
-- that's a nonhazardous waste and -- and have manage-
ment, prudent management practices for it, and then
say all of a sudden now you are going to have to
establish hazardous waste disposal and -- and -- and
facility standards, there is a tremendous economic
impact.
MR. CORSON: Following that up in another
area of your testimony, which gets us — it seems to
me you are somewhere in the middle of the two comments
we heard earlier this morning.
MR. COLLINS: Yeah. I will give you another
view of notes.
MR. CORSON: With regard to notes, you
indicate that we are applying these things to every-
thing not required. On the one side, we have a
request to go with several distinct definitions of
management techniques. On the other hand, a request
to more generally apply notes, and now we find that th(
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flexibility as defined as representing something
that you call a Band-Aid repair approach, I'm wonderin
what your feeling is about how we should establish
different management techniques for hazards of
different degrees, if there is such a thing?
MR. COLLINS: Well, this -- the problem we
see here is that -- I have to agree with the League
of Women Voters in Denver that, if someone's going to
put a real hazardous waste facility in -- in a recharg
zone, I don't want there to be any notes giving any
Administrator ability to establish this facility in a
recharge zone where I'm drinking the water out of it.
You knew, I want some things -- if we are going to be
managing hazardous wastes, I want some things hard
and clear that are going to be protect me from a
hazard.
But when we start stretching the thing out
where vie get into areas that we don't really have a
hazardous waste, you know, the degree of hazard is so
low, like especially in production operations and
drilling operations that were just right over the
edge, when you have to start designing note systems
and special categories along that line, you surely
take a chance of -- of not really concentrating on tae
true hazardous regulations.
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That's -- That's the objection that I see
for the -- the note type of thing or the special cate-
gory type of -- type of area of the hazardous waste
regujat ion .
MS. DARRAH: Mr. Collins, you told us that,
in some states -- And I guess you mentioned California
and Oklahoma — that you were required to remove the
liquid portion of the —
MR. COLLINS: Yeah. Not only a state re-
quirement. In our West Texas operation, I have talked
to operating people, and they said well, a salt water
based mud, they haven't disposed of the salt water
based mud on location in the last several years.
That's because the landowner doesn't want the salt
water base mud disposed on his property and wants it
hauled", off.
MS. DARRAH: How many gallons per well of
the salt water is there''
MR. COLLINS: Well, approximately -- There
is going to be comments later from the drilling
companies, but I think approximately 40 per cent, 40
or 50 per cent of all muds are salt based, and 5 per
cent might be oil based muds. The rest are fresh
water based muds.
MS. DARRAH: Okav. But I don't -- guess
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I'm not knowledgeable enough to know what that means
in terms of what you haul away if you say 40 to 50
per cent of the mud is salt based.
MR. COLLINS: If it's salt water based mud,
you would be hauling away the -- the salt water that
you could suck up with a vacuum truck.
MS. DARRAH: Okay.
MR. COLLINS: That you physically suck out
of the pit into the hopper and haul it down the road
to the disposal site and dump it.
MS. DARRAH: How many -- If you -- if you
can estimate for me the number of barrels of mud that
you use in the well, how many -- then what percentage
of that would be hauled away as water?
MR. COLLINS: Well, the -- the mud system is
a fluid system to begin with. It's used to — to
drill, to bring cuttings up from the bottom of the
well, and it has certain properties that can suspend
these cuttings and bring them up so that you can keep
on drilling deeper. And it a^so has lubricating
qualities so that the drill pipe can turn.
When it comes to the surface, it will --
normal operating procedure is to let the mud dehydrate
and -- and then to -- to cover the facility, to work
it into the ground.
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1 As far as the amounts, the well that was
2 drilled the record depth in Oklahoma, its mud pit was
3 something like five acres large. That would be it
4 had, I think, 160,000 barrels in its -- in its mud
5 system at one time.
6 Normally, in a normal operation, a pit would
7 be less than -- less than a half an acre. It would
8 be a hundred by a hundred.
9 MS. DARRAH : And how many barrels of mud
10 would that be?
11 MR. COLLINS: It would be a hundred by a
12 hundred, maybe six feet, with about three -- three
13 feet possibly of fluid in the pit.
14 Let me -- I can calculate that out for you
15 if you want me to.
16 MS. DARRAH: Well, I will tell you, yesterda
17 we heard testimony that the average amount of mud
18 used in drilling was between 400 and 750 barrels, and
19 I'm just wondering if you concur with that estimate.
20 MR. COLLINS: It's a function -- It's a
21 function of how deep the well goes. What you have to
22 do is have abilities to change the system; and as the
23 deeper the well goes and how -- how big the well is,
24 first of all, it has to be completely full at all
25 times to -- to have complete circulation. So if you
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1 just figure the volume of a normal well might be 8 to
2 10 inches in diameter, and then it might be 5,000 to
3 30,000 feet deep, then you can figure the volume
4 that's required to keep that system full at all times.
5 ; And — And then the waste, or the — we call it a
6 reserve pit, but it becomes a waste pit when we are
7 through. But the reserve pit is used for reserve for
8 ; changing the -- the deep well drilled down to-- that
9 I mentioned drilled to 14,000 feet with a fresh water
10 base system, and then because of the drilling problems
11 had to shift to a salt water based system. So the
12 ability to change the system, the mud system, to
13 correspond with the drilling problems have to be dealt
14 with with a reserve type of pit.
15 MS. DARRAH: Would you care to disagree with
16 an estimate of 400 to 700 barrels for an average?
17 What was it9 A dry we 1 1 that they were giving the
18 estimate for?
19 MR. LINDSEY: A shallow well.
20 MS. DARRAH: A shallow well.
21 MR. COLLINS- I think that's fine. That's
22 good.
23 MS. DARRAH: I wonder if your cost calcula-
24 tions -- I think -- And I could be wrong. I think you
25 decided that it was about $250,000 per mud pit that we
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1 ended up with with the monitoring and all that. Did
2 you calculate what it would cost if you were to take
3 the mud and haul it away rather than turning each pit
4 into a disposal site?
5 MR. COLLINS: No, we didn't. We didn't
6 calculate the hauling of mud. We looked -- We looked
1 at the current practices. And, first of all, the
8 hauling of the mud, even in California and in Oklahoma
9 City and Yukon, Oklahoma, and the hauling of mud that
10 we do out in other parts of the country, I don't feel
11 would be an exemption from this -- this regulation
12 because, when you haul the mud. you don't haul the
13 cuttings out of the disposal, the waste pit, the
14 reserve pit. And -- And there's got to be more than
15 a hundred kilograms of residue mud left in those --
16 those cuttings. It would physically take the digging
17 up of maybe three feet down and the complete removal
18 of the whole area to get away -- to -- really make —
19 say that this is being an alternative.
20 MS. DARRAH: What you are saying is you do
21 get extensive leaching of these materials in the pit
22 which would make you unable to adequately remove the
23 materials?
24 MR. COLLINS: No, I don't think it's
25 extensive leaching. The mud is a natural sealant.
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1 That's one of the properties that when you drill, the
2 mud keeps the fluid from going out into porous zones.
3 This is one of the properties that it's been designed
4 for. It plugs the formation. It -- It -- The little
5 pieces of mud particles build up and they call it a
6 mud cake, and it's very impermeable.
' Now, because a mud system, when we lose
8 circulation, that's what happens, that mud filtrates.
9 Something's broken down, either some type of formation
10 is washed out or something like that. But it's not
11 the leachate of the drilling mud pit. It's the fact
12 that, as you drill a well, you end up with cuttings,
13 you end up with pieces of formation that you keep
14 dumping out on the surface into a pit operation and
15 you get that out of your mud system and you circulate
16 it and you put clean mud down in the hole, and you are
17 continually removing the cuttings, and these cuttings
18 are put over into the reserve pit, the waste pit.
19 And you are continually moving those cutting
20 over because you end up with a 5,000-foot well, 10
21 inch -- you know, that's a mile of 10-inch pipe, and
22 you can assume that you are going to have -- you have
23 done something with that hole, that you know you have
24 taken that hole, that 5,000-foot, hole, and you have
25 stacked it up over here, and those are the cuttings
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1 and things.
2 And the mud is, you know, integrated with
3 this stuff. They are all wet. Little pieces, every
4 little cutting is wet with mud, and it's put into the
5 waste pit. And -- And it's that -- that inability to
6 remove all the little -- all the mud, these cuttings,
7 covering all this, these waste cuttings in the reserve
8 pit that still classifies that reserve pit as a waste
9 facility according to the regulation, regardless of
10 whether you haul the filtrate, you know, what's --
11 what's pumpable away.
12 MS. DARRAH : So you are saying if you did
13 barrel the majority of the mud and then were to test
14 the cuttings with the mud that remained in it, your
15 belief is that it is, using the extraction procedure,
16 that that soil would --
17 MR. COLLINS: Not soil. I think just what's
18 in that pit, what's left in that pit. You know, you
19 are not going to be able to suck everything out of
20 the pit with, you know, just with a conventional
21 vacuum truck. There is going to be a sludge, if you
22 want to call it, made up of very tiny pieces of
23 formation that you have got cut up surrounded by a —
24 some type of a -- you know, each one of them coated
25 with this mud filtrate and mud.
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1 MS. DARRAH : Okay. Any other questions?
2 MR. LEHMAN: No.
3 MS. DARRAH: Okay. Thank you very much.
4 MR. COLLINS: Thank you.
5 MS. DARRAH- We will hear from Jay Snow
6 next, Texas Department of Water Resources.
7 MR. JAY SNOW: Thank you very much.
8 My name is Jay Snow. I'm head of the
g Industrial Solid Waste Unit oC the Texas Department of
10 Water Resources.
11 I am a registered professional engineer in
12 Texas, and I am speaking today representing the
13 National Governors Association Task Force on Hazardous
14 Waste Management, which is a ejroup of 18 states that
15 have a subcommittee on waste Tianagement which was set
15 up some two years ago to assist EPA in developing
17 these hazardous waste rules.
lg My prepared statement was given to the
19 Reporter on Monday.
20 With regard to Subpart D, the Task Force
21 recognizes EPA's decision to rely primarily on design
22 and construction standards supported with performance
23 standards. Unfortunately, this approach, coupled with
24 apparent lack of experience in regulating solid waste
25 disposal activities, has produced an exceedingly
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1 complicated interrelated and interdependent set of
2 requirements.
3 We note with satisfaction the intent to
4 provide flexibility with the use of the so-calJed
5 note provisions. Performance specifications are
6 scattered throughout the rule, sometimes appearing in
7 the requirements; other times appearing in the notes.
8 Where the performance specifications are not provided
9 or where they are deficient, a corresponding deficiency
10 in the design requirements is often present. Rather
11 than attempt to reconstruct the rules to emphasize
12 performance, the Task Force elected to address the
13 deficiencies in design standards where they are
14 apparent and add or revise performance specifications
15 where needed. We hope the advantages to both the
16 reg'ulator and facility operator of these performance
17 specifications will be evident -- self-evident in our
18 recommendations.
19 I think the success of the note, use of this
20 note convention to achieve flexibility and effective
21 control, both of those things is dependent on an
22 adequate specification of the results to be achieved.
23 With regard to the financial requirements,
24 the Task Force is concerned that during the interim
25 status period, duplicative financial requirements
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1 could be placed on existing facility operators, and
2 in some cases, the financial assurance could be grossl
3 deficient. Accordingly, we have recommended that EPA
4 accept closure financial provisions and enforce under
5 existing state requirements during the interim. And
6 that Regional Administrators impose the requirements
7 during the interim period only after reviewing and
8 approving submitted estimates.
9 Also, we have recommended that alternative
10 means of providing financial assurance, such as surety
11 bonds, be allowed. Experience in state programs
12 indicates that surety contracts can be written to
13 preclude the possibility of sudden cancellation by the
14 surety as discussed in the preamble.
15 In addition, trie states view the $5 million
16 liability insurance requirement which, according to
17 the preamble, was based on, quote, existing damage
18 data from an unregulated industry, end quote, and,
19 quote, very little actual data and minimal experience
20 with a regulated hazardous waste industry, end of
21 quote.
22 We consider that to be unprecedented,
23 inappropriately justified, and will serve to impede
24 the development of a viable hazardous waste industry.
25 We have, therefore, recommended that the — the
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requirements for the insurance be deleted. I think
such requirements would be more appropriately
established by Congress.
My remarks on the special waste standards
were introduced into the record Monday. And in
supplementing that prepared statement, I would like to
review several of our comments and recommendations
that were submitted for the docket, I believe you
referred to it.
In Section 250.41(b ) (5), the definition of
aquifer, the definition is inconsistent with another
definition given in the preamble to Subpart D, Column
3, Page 58992. And the definition that is in the
definition section of the rule could result in
unnecessary restrictions being imposed on certain
facilities. The use of the definition proposed in
Section 250.41 could result in certain geologic
formations which yield groundwater only in localized
areas being considered wholly as aquifers under the
meaning of the definition. In other areas of these
formations, groundwater is not present or not present
in usable quantities and sediments exhibit charac-
teristics fully adequate for waste disposal. Thus
facilities located in acceptable areas of such
formations could be required under Section
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250.45-2(b)(16) to construct unnecessary groundwater
monitoring and leachate monitoring systems.
Accordingly, we have stated our preference
for the definition given in the preamble which would,
I believe, resolve these problems.
Definition No. 35, definition of freeboard,
' defining freeboard in the manner that has been done
will render freeboard requirements and permits legally
ineffective and unenforceable. Permit freeboard
requirements are operational res;rdctions intended to
result in maintaining a level of impounded wastes at
a safe level so as to enable the impoundment to
contain a waste in the event of adverse conditions
such as heavy rainfall. The definition used has the
term "average maximum level" which would enable
operators to comply with freeboard restrictions
without maintaining adequate freeboard, which is not
the intended result. I don't believe.
With regard to Section 250.43(c) regarding
the collection of surface water runoff, the wording
of the subsection could allow discharges of contami-
nated rain off — contaminated runoff — Excuse me —
during periods of heavy rainfall without violating
the rule seems to conflict with the general surface
water protection standard in 250.42-2.
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1 Since the requirement does not adequately
2 specify the performance of preventing discharges of
3 contaminated water, the discharges would be legal
4 under certain circumstances.
5 Accordingly, we have recommended a per-
6 formance specification as the primary requirement.
7 As a matter of fact, contaminated water is not men-
8 tioned in that requirement.
9 In Section 250.43-2 regarding security
10 fences, the requirement is one of construction rather
11 than performance, and I think the provision could
12 result in ineffective access control to the facility
13 under some circumstances. In some areas, such as
14 adjacent to a playground, a six-foot fence could
15 conceivably be inadequate. Other situations, as we
16 have heard in other testimony, such as in remote
17 rural areas, a three-strand barbed wire fence would
18 be more than sufficient.
19 In any event, the facility operator should
20 be responsible for controlling access to the extent
21 necessary to prevent unauthorized entry.
22 We have, accordingly, a performance recom-
23 mendation here, or a recommended performance require-
24 ment to be relied upon, and that the six-foot chain
25 link fence be required for facilities with one mile
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1 of urban areas.
2 Another example, Section 250.43 regarding
3 training, the section, by requiring: training and
4 bureaucratic recordkeeping rather than competence,
5 could result in incompetent personnel being employed
6 at the facilities, thus violations resulting from
7 competency could not be enforced from the standpoint
8 of noncomp1iance with this requirement.
9 I would — We believe the imposition of
10 bureaucratic organizational structures will not
11 necessarily result in competency. Many facilities,
12 such as smaller operations, the requirements would
13 simply be an additional expense.
14 Also, requirements of this sort can be
15 dispensed with entirely if facility performance
16 requirements are adequately specified in other areas
17 of the rule.
18 We have got a specific recommendation on
19 the training section, too, to make it about one-third
20 the length that it is.
21 On Section 250.43-8, this is another section
22 where construction rather than performance is required
23 I think it's conceivable that the section could
24 result in a monitoring system which fails to detect
25 groundwater, yet complies with the rules. We have,
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therefore, added a. performance recommendation here
which would result in an enforceable violation in the
event groundwater pollution was not detected by a
facility operator.
In Section 250.45-2(a), and the section on
surface impoundments, let me look that up right quick.
It would be 45-3. The requirements would prevent the
location of secure landfills over large areas of the
Atlantic Gulf Coast where secure landfills can be
safely and effectively operated, or would result in
establishment of above-grade secure landfills in these
areas which would present much greater long-term
management problems than below-grade landfills.
This — This remark is applicable to surface
impoundment construction as well.
To the extent that an above-ground landfill
capacity was inadequate, the provision would increase
hazardous waste management hazards by necessitating
transport of hazardous wastes out of coastal areas.
The requirement that I'm referring to is
the -- that they may be -- they must be located,
designed and constructed to be five foot above the
groundwater, historical high groundwater table, I
believe. This is the same issue that Ms. Shewbart,
I believe, addressed earlier this morning where they
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1 have some complex formations in which -- in areas
2 that are perfectly suitable for waste disposal, even
3 though they are saturated and you have a high ground-
4 water table.
5 I think that the -- if .strictly interpreted
6 and if we wound up with above-grade landfills and
7 surface impoundments, we would have a much greater
8 risk of hazards to the environment.
9 Also in Section 250.45-2(c)(l) regarding
10 closure of landfills, the requirement of a six-inch
11 final clay cover is totally inadequate for isolating
12 hazardous wastes from the environment and will result
13 in grossly ineffective long-term containment in land-
14 fills. The potential for cover dessication,
15 mechanical puncture, disruption by differential
16 subsidence and thinning during site maintenance
17 operations with a concomitant escape of waste to the
18 surface will significantly be increased with a thin
19 final cover.
20 The potential for infiltration of precipita-
21 tion and subsequent generation of leachates is also
22 greatly increased.
23 We have recommended that the minimum amount
24 of clay be two feet, and we have also added a -- a --
25 recommended that you add performance specifications to
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1 the final cover.
2 One other remark that, these requirements,
3 when taken together, seem to indicate that, in some
4 of these coastal areas, we would have above-grade
5 landfills with a maximum six-inch final cover and a
6 30-per cent -- 33 per cent maximum grade as the final
7 secure landfill, which I think is unacceptable.
8 One more comment regarding closure of land
9 farms. We have some extensive comments in the land
10 farm section that I won't go into in detail. But one
11 of the requirements is to — is that the soil of the
12 land farm where waste has been applied be returned to
13 preexisting soil conditions on the basis of the testing
14 requirements in a previous paragraph. It's unreason-
15 able and will eliminate land farming as a means of
16 ultimate disposal for hazardous wastes. Since a land
17 farm may be the final resting place for hazardous
18 waste, it is unreasonable to return a land farm to its
19 preexisting condition. Soil that has had hazardous
20 waste applied to it cannot be expected to remain in
21 its preexisting condition.
22 Ideally, wastes would be applied to soil at
23 an age which would not result in environmental hazard
24 at the time of closure.
25 The proposed rules will abolish land farming
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1 waste at simple application rates that could cause the
2 soil background to be exceeded, but which would pose
3 no hazard to the human health or the environment.
4 I think the -- the root of this problem is
5 that you are looking at the contents of the soil
6 rather than its environmental properties.
7 So that concludes my testimony, but I would
8 be happy to answer your questions.
9 MS. DARRAH: Okay. Thank you.
10 MR. FIELDS: Jay, one comment I didn't quite
11 understand was the one regarding the groundwater
12 monitoring requirements. I think you indicated that
13 in certain instances that would not provide for the
14 situation where the operator did not detect contamina-
15 tion of the groundwater. Maybe I missed a part of
16 that comment. Could you amplify on that a little
17 more?
18 MR. SNOW: Surely. It's simply a conceivabl
19 result of failing to require that the groundwater in
20 the subsurface be monitored. What you are requiring
21 is the operator construct facilities which no one can
22 be assured will work, thus if groundwater pollution
23 goes undetected until it impacts an adjacent landowner
24 say shows up in his well, for whatever reason, you have
25 facility compliance by the operator since he has his
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wells dug, he has sampled them. However incompetent
he may be or for whatever the reason, the groundwater
pollution has not been detected, so you have required
him to construct a system, you have directed that he
construct a system, but you simply left off the
performance requirement to require him to monitor
groundwater as a primary basis for regulating.
MR. FIELDS: What would you put in our regs
in addition to what we have there now? You know, we
required groundwater — we required groundwater
monitoring, reporting of that monitoring. What I'm
not clear on is what additionally you would want us to
do than what we have done?
MR. SNOW: Our recommendation -- I believe
I have got the right one here. Yeah. -- is to simply
add the following sort of requirement. The intro-
ductory paragraph to Section 250.43-8:
"All land treatment, storage and disposal
facilities shall be designed and constructed to
enable monitoring on a permanent basis of area
groundwater and subsurface conditions as necessar;
to detect any endangerment to any area ground-
water resources. As a minimum, groundwater and
leachate monitoring systems specified in the
section or equivalent systems shall be constructei
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804
1 and operated."
2 MR. FIELDS: Okay. That would be added to
3 our regulations?
4 MR. SNOW: Yes.
5 MR. FIELDS: .All right.
6 MR. SNOW: Like I say, there are some areas
7 of the rule where performance seems to he your
8 primary requirement. We haven't addressed some of
9 those areas. Some -- Some plac.es, the performance is
10 implied, and some places the performance is required.
11 And we simply went through the thing and tried to give
12 you some consistency on that.
13 MR. LEHMAN: Jay, if I heard you correctly,
14 I understand that it is NGA's recommendation that the
15 entire section on insurance reouiremerits be deleted;
16 is that correct9
17 MR. SNOW: That's correct.
ig MR. LEHMAN: Now, this is somewhat surprisin
19 to me in the sense that, to my knowledge, this is the
20 first time we have heard this from NGA. In other
21 words, your membership is, as 5-ou, I think, mentioned
22 in the early part of your presentation day before
23 yesterday, indicated that you have worked with us for
24 over two years on this, and this is the first time
25 I have heard this from the NGA.
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805
1 Could you amplify a little bit on that as
2 to why all of a sudden NGA has taken this position?
3 MR. SNOW We don't think that the require-
4 ment has been adequately researched. There is a lot
5 of concern about the -- the effect that the premiums
6 would have on a developing hazardous waste management
7 industry, for one.
8 You know, your staff advised us that the
9 range of premiums could be very small -- from very
10 small for smaller concerns to very large for very
11 large companies. But in reviewing the requirements,
12 we couldn't think of -- we could think of only two
13 areas where the -- where the government -- where
14 government has required organizations to insure them-
15 selves for their liabilities, this being airlines who
16 are required, I believe, to insure against baggage
17 loss and loss of life, and then state governments
18 generally require automobile operators to have
19 insurance against liabilities.
20 So we are not convinced that the premium
21 rate would be sufficiently small in some cases to be
22 insignificant for — for some smaller operations, and
23 in some cases, it would be flat out unnecessary as far
24 as we can -- we can see.
25 I mean the insurance, the administrative
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806
cost of — of obtaining the insurance and paying for
it, given the risk that is -- the risk that is
conceivable under some situations that will be
regulated under this rule, that the across-the-board
requirement for 5 million was just inappropriate.
MR. LINDSEY: Are you saying that the level
is too high or it should be varied or something like
that, or are you saying we shouldn't have anything?
I thought I heard you say we should just drop the
whole shebang.
MR. SNOW: Well, the recommendation at this
time is to drop it. And it would certainly be
appropriate to continue consideration of it and look
into it a little further, but it seems that the $5
million and $10 million levels were rather hastily
proposed.
I don't think that the cost to the disposal
industry, the generating industry or anyone else, has
been adequately looked into, and the possibility of
varying the amount of insurance necessary seems to be
-- have some viability that needs to be looked into.
MS. DARRAH: Jay, do you know whether the
NGA considered whether our dropping an insurance -- a
liability insurance requirement altogether, whether
they compared that with our duty under RCRA to
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807
1 promulgate standards that shall include the maintenanc
2 of operation, continuity of operation, training and
3 financial responsibility as may be necessary or
4 desirable? You are at this point saying you don't
5 believe liability insurance is necessary?
6 MR. SNOW: That's correct.
7 MS. DARRAH: Okay.
8 MR. LINDSEY: To move on to a couple other
9 subjects quickly, Jay, if we might, you said you felt
10 that surety contracts should be allowed. The problem
11 we have had there is that in -- our information,
12 anyway, indicates that these surety contracts can't
13 be guaranteed for more than a year-to-year kind of
14 basis; and that once they are canceled, then there is
15 no money available for insuring closure, which is what
16 they are used for.
17 Did I hear you correctly? Did you say you
18 had some information which was contrary to that?
19 MR. SNOW: Well, we know that surety
20 contracts can be written to preclude that possibility
21 of, say, sudden cancellation. In other words, as
22 discussed in the preamble.
23 We know, because in my state, for instance,
24 we are writing them, and I think every facility in
25 Texas, with the exception of one or two, provide the
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1 assurance with a surety bond at this time.
2 MR. LINDSEY: Do you write --
3 MR. SNOW: It can be constructed such that
4 it is a contract between three parties, whereas before
5 one party, namely the surety, can discontinue coverage
6 He has to provide notice to the other two parties, and
7 that would Rive the government adequate notice, in our
8 case three months, that they are going to discontinue
9 this bond on such and such a date, thus you have three
10 ' months to either secure the funds or to initially
11 order closure and then, secondly, secure the funds if
12 closure is not undertaken or alternate financial
13 assurance provided.
14 So — So the point is that they — they have
15 : been working, they can work. It doesn't -- it doesn't
16 seem reasonable just to rule out all other mechanisms
17 of providing financial assurance, especially since the
18 Regional Administrator is given the authority to
19 accept or -- or deny any of them.
20 MR. LINDSEY: Let me -- So it's a contract
21 between -- And you require this now, right, in Texas?
22 MR. SNOW: We require financial assurance.
23 We don't require the bond. It just so happens that --
24 MR. LINDSEY- But you allow that?
25 MR. SNOW: -- a bond is one means that we
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1 wi11 accept.
2 MR. LINDSEY: Okay.
3 MR. SNOW: We have a model contract that we
4 have provided to your staff, I believe.
5 MR. LINDSEY: Let me give you a "what if."
6 Suppose — Suppose the company, a disposal
7 firm, has this surety bond and goes on making the
8 premiums for two or three years, and all of a sudden
9 the surety company decides it doesn't want any part
10 of this anymore and it gives you and the company
11 three months' notice that it's going to stop, that the
12 surety bond is out of existence in three months. Then
13 what happens? Do you give the -- the company, I
14 gather, the opportunity to gather -- to -- to come up
15 with some other assurance mechanism, right? If he
16 can't,- what happens?
17 MR. SNOW: Well, he's closed down. I mean
18 the first --
19 MR. LINDSEY: Pays for closure?
20 MR. SNOW: Logically, the first thing one
21 would do in a case like this is order that the
22 facility be closed.
23 MR. LINDSEY: Then who pays for the closure
24 if that happened?
25 MR. SNOW: The surety.
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810
1 MR. LINDSEY: The surety bond company pays
2 for that"?
3 MR. SNOW: If you go and get the money
4 before the three months is up.
5 MR. LINDSEY: I see. And they are willing
6 to write contracts like that?
7 MR. SNOW: We have some that are, so I
8 suppose they are.
9 I would comment further that surety bonds
10 may -- may have less applicability as time goes on.
11 As the amounts increase, we are finding this, we are
12 finding that closure costs have been underestimated in
13 the past, and it remains to be seen if surety con-
14 tracts — surety companies are going to be able to
15 write bonds in much higher amounts than have been
16 required in the past.
17 So the point is -- is not the recommendation
18 once again, is not to require surety bonds, but just
19 to allow them as well as any other means of providing
20 financial assurance that you all will accept. I don't
21 see any reason to tie your hands in advance on what
22 sorts of things you will accept.
23 MR. LINDSEY: Okay. One other point quickly
24 Training, you apparently didn't like the
25 approach which we have used, which is basically for
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811
1 the facility to come up with a site-by-site specific
2 training program to insure that its people that are
3 handling these things know what they are doing. I'm
* -- I'm -- I'm not sure, though, whether your recom-
' mendation was -- you said what we should do is
" specify competency.
' MR. SNOW: Require competency.
8 MR. LINDSEY: Pardon me?
9 MR. SNOW: Require competency.
10 MR. LINDSEY: Require competency. How would
11 we do that? Through some sort of a -- some sort of a
12 certification program, like they do with boiler water
13 operators -- boiler operators? You know, a lot of
14 states have boiler operator certification programs or
15 what -- Have you thought about that?
16 MR. SNOW: Well, our -- I will read our
17 recommendation.
18 MR. LINDSEY: Okay.
19 MR. SNOW: You said how. This is how.
20 Rewrite the Section 250.43-4 on training as
21 follows. We have three subsections.
22 "(a) All persons employed at hazardous
23 waste facilities must be qualified by training,
24 education or experience as necessarily -- as
25 necessary to effectively perform their duties in
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1 a manner as to achieve continued compliance with
2 these rules.
3 "(b) Facility operators shall, upon request,
4 make available to the Regional Administrator a
5 list of all employees, their duties and qualifi-
6 cat ions.
7 "(c) Facility operators shall assure that
8 all employees are aware of safety procedures and
9 are acquainted with facility contingency plans
10 as necessary to insure effective response to
11 emergencies," period, end of sentence.
12 MR. LINDSEY: Okay.
13 MR. SNOW: Some of the -- You require some
14 of the sort of things that are required in this
15 sentence, such as a staffing plan, and these are thing
16 that I recognize as being traits of the bureaucracy
17 because I deal with them myself. It just stands to
18 reason that a two-man transfer and storage operation,
19 these requirements are not going to serve any useful
20 purpose.
21 Also, I found that requirements of this sort
22 are valuable to the regulator as, shall we say,
23 secondary requirements when -- when a regulatory
24 agency wants to take action as a result of some
25 pollution problem. If it is found that incompetency
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1 in this case were a cause of that pollution problem,
2 then you would have two violations: one, the pollutio
3 problem and, secondly, the incompetency that caused
4 it in the first place.
5 This sort of requirement, the regulatory
6 agency can go in and find incompetency, but compliance
7 with a bunch of training requirements that didn't
8 necessarily result in competency. There is the guy's
9 diploma. There is the guy's records on how many
10 seminars he's attended and his educational qualifica-
11 tions but, nevertheless, he didn't know what the hell
12 he was doing when he let the stuff go and caused the
13 problem.
14 So that's their value, and I think if you
15 conducted it that way, it would be more valuable.
16 MR. LINDSEY: Okay.
17 MR. LEHMAN: Jay, I was wondering if you
18 were -- you would be willing to answer a question or
19 two that I have concerning the Texas hazardous waste
20 management program.
21 In other words, in your capacity as an
22 official of the Texas Department of Water Resources
23 as opposed to your -- as a -- representing the NGA?
24 MR. SNOW: I'll try.
25 MR. LEHMAN: Well, the question I have
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1 related to some previous testimony concerning the
2 petroleum waste. And, similarly, as we have heard
3 in California, I presume -- this is what I want to
4 find out. I presume that at least certain kinds of
5 petroleum-based or petroleum generated waste -- I
6 mean from the petroleum oil and gas production and
' drilling industry, is regulated under -- as a hazardou
8 waste in the Texas system. Is that true?
9 MR. SNOW: No, it's not true.
10 MR. LEHMAN: You do not regulate any of the
11 petroleum-based wastes or related to the petroleum
12 industry?
13 MR. SNOW: Let me describe what we do
14 under state law, and this will explain my answer, I
15 be 1ieve.
16 i First of all, my department's jurisdiction
17 is limited to regulation of industrial solid waste.
18 This is under the Texas Solid Waste Disposal Act,
19 which assigns jurisdiction to two agencies: ours and
20 the Texas Department of Health.
21 Specifically deleted from regulation under
22 this act are wastes resulting from activities of
23 exploration and production of oil and natural gas,
24 which are arbitrarily deleted from the Texas Solid
25 Waste Disposal Act, and their jurisdiction for
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815
1 controlling environmental protection from that -- from
2 those activities is assigned to the Texas Railroad
3 Commission.
4 I am only -- I'm only familiar with what
5 they do and not very familiar, frankly, with their
6 Railroad Commission's rules on mud disposal, brine
7 disposal, this sort of thing. So they are not regu-
8 lated by the department under our industrial waste
9 regulatory program because they are not industrial
10 solid wastes.
11 MR. LEHMAN: Okay. I can understand that
12 exemption from — from — for them from your law for
13 oil and gas exploration and production. What about
14 oil refining wastes?
15 MR. SNOW. Yes, they are.
16 MR. LEHMAN: They are covered by your --
17 MR. SNOW: Yes.
18 MR. LEHMAN: -- your regulations?
19 MR. SNOW: Yes, they are.
20 MR. LEHMAN: Now, we had some testimony that
21 -- I believe this is accurate -- that — making a
22 distinction now between the oil and gas exploration,
23 drilling and exploration, that the production industry
24 would be forced to spend 30 -- roughly $35 billion a
25 year, of course, to comply with our proposed
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1 regulations.
2 Now, that's an astounding number. Do you --
3 Have you had any occasion to determine the impact of
4 the Texas rules and regulations on the production an
5 -- not -- not the -- I'm -- I'm talking about the
6 refinery operations now, not the drilling operations.
7 And does that come any -- I mean what -- I'm having
8 trouble reconciling the experience with existing state
9 programs with the -- these projections for the
10 national program.
11 MR. SNOW: Okay. The answer to your
12 question is no. I recall that back there somewhere
13 I have reviewed a draft of the American Petroleum
14 Institute's rationale. I will not attempt to inter-
15 pret for them other than to say I believe it was
16 talking about production of crude oil, which means
17 wells, pumps, tanks and stuff that are in the oil
18 field.
19 I believe once again that your question was
20 what would the impact of these rules be on refining,
21 the petroleum refining industry, which is not
22 production, under my understanding, and the answer
23 to that question is no, I have not seen any cost
24 evaluations of the impact of these rules on the Texas
25 refining industry --
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1 MR. LEHMAN: No, I was talking --
2 MR. SNOW: -- or waste disposal.
3 MR. LEHMAN: I was talking about the impact
4 of your rules on the Texas refining industry.
5 MR. SNOW: Oh.
6 MR. LEHMAN. Do you have any estimates
7 what that is?
8 MR. SNOW: No, I don't. Cost estimates?
9 MR. LEHMAN: Yes.
10 MR. SNOW: No. Our program has been
11 implemented — has been implemented for nearly ten
12 years, and I have only worked in it for four years,
13 so these cost things might have been issues back in
14 about 1968, but I haven't seen any of them.
15 MR. LEHMAN: Thank you.
16 MS. DARRAH: Okay. No more questions. Than
17 you very much.
18 Is Mr. Dillard here today?
19 MR. A. W. DILLARD: Yes.
20 I MS. DARRAH• Okay. I apologize. We are
21 going to take fairly short lunch break so that we can
22 try and hear all the witnesses for this afternoon.
23 Mr. Dillard, you will be the first witness at the
24 end of the lunch break.
25 We will recess now and reconvene at "i :45
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1 p.m.
2 (The noon recess was taken from 12:45 p.m.
3 to 1:50 p.m.)
4 MS. DARRAH : Would the people take their
5 seats , please.
6 Mr. A. W. Dillard, Permian Basin Petroleum
7 Associ at ion.
8 MR. A. W. DILLARD: Madame Chairman, members
9 of the panel:
10 I'm A. W. Dillard, Jr., from Midland Texas.
11 I And I will forego all the qualifications that were
12 stated yesterday.
13 I'm addressing 3004 today.
14 The 1500 members of the Permian Basin
15 Petroleum Association, small, independent businessmen
16 and producers of crude oil and gas in West Texas and
17 Southeastern New Mexico, would be among the first to
18 say that it is important to protect the environment
19 in areas that produce oil and gas because this is our
20 home. This region produces almost one-third of the
21 oil and gas produced in the United States.
22 However, it is our belief that the standards
23 applicable to owners or operators of hazardous waste
24 treatment, storage or disposal facilities, as proposed
25 under Section 3004, are inappropriate, unnecessary,
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1 overly burdensome, have infinite cost-benefit ratios,
2 or cannot be accomplished by the industry and the
3 manpower and machinery currently available in the
4 country.
5 Site selection and design for the drilling
6 of producing wel Is are dictated by the natural occur-
7 rence of crude oil or gas in commercial quantities
8 and many state regulatory rules and private con-
9 tractual obligations. If wetlands and 500-year flood-
10 plains are excluded as potential drill sites, one-
11 fourth to one-half of this country's potential
12 sedimentary basins would be left unexplored.
13 We can also envision certain technical
14 problems with trying to rig up a rotary on top of
15 Pike's Peak and tap a deposit of oil or gas near
16 Corpus Christi by directional drilling.
17 And I personally have participated in
18 drilling 15,000-foot wells within one-half a mile of
19 the Mississippi River. We have logistic problems.
20 We have problems of location of well siting, but they
21 are taken care of.
22 And I don't think that some of these flood-
23 plain areas that you all are so interested in have
24 that big of a hazard. There are potentials there,
25 but I think they can be reasonably accomplished by the
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1 industry with relaxation of some of the certain
2 proposals on these things.
3 There are strongly differing opinions as to
4 whether the financial requirements are, in truth,
5 removed in the case of drilling muds and brines, or
6 what might be added on at any subsequent time. These
7 financial requirements could shut down nearly all the
8 domestic drilling and producing industry with no true
9 or proven benefit.
10 Before I came to San Francisco, I checked
11 with my insurance agent with regard to this $5 million
12 $10 million financial responsibility and the possi-
13 bility of insurance, and he told me that no company
14 in the United States wrote those policies.
15 And I asked him, "Could you give me an idea
16 of cost?"
17 He says, "No, none whatsoever."
18 In finding out from previous testimony today
19 that a $90,000 a year premium on a $2 million or $4
20 million liability, $90,000 is unaffordable to an awful
21 lot of independent oil operators for a premium on
22 insurance. Therefore, if you cannot buy the -- cannot
23 pay the premium, what are you going to do? Are you
24 going to shut your wells down, plug them and walk off
25 and join the welfare rolls, or are you going to stay i
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1 business and have reasonable qualifications on
2 financial responsibility?
3 Personally, I would love to be able to say
4 I can say I'm worth $5 million. I would love to be
5 able to say it, but it would be a gross lie if I did.
6 So these things are unreasonable to an
7 extent for the small independent businessman. Some
8 major companies, yes, that's fine. But we are not
9 major oil companies.
10 Of the 600,000 or more producing oil and
11 gas wells in the United States today, probably fewer
12 than 200 have a need for round-the-clock surveillance
13 or security because of any public health or environ-
14 mental contamination danger. The balance of the
15 wells are generally inspected on daily basis for any
16 problems. You have your pumpers that go by your wells,
17 check, gauge the tanks, visually supervise those wells
18 every day. Some wells -- Some leases are very auto-
19 mated, but most of them have pumpers that go by. But
20 for continued surveillance, if you gave one man ten
21 wells and an automobile and a 12-hour shift just to
22 circle around and check those wells, you would run
23 two shifts, it would take 60,000 people to keep the
24 surveillance.
25 And under your stated propositions, a man,
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1 a person, must be present on that facility at all
2 times. So another slightly unreasonable proposition
3 for oil field application.
4 The filing of the SPCC type plans with all
5 local and state agencies would benefit only the
6 manufacturers of paper and file cabinets and storage
? warehouses. This volume of reports would inundate the
8 recipients to the point that they would be valueless
9 and the recipients would not have the people to even
10 file or compehend them. Witness the fact that the
11 Texas Railroad Commission has to get an emergency
12 additional appropriation of $500,000 to initiate
13 compliance with the state's portion of the NGPA of
14 1978.
15 The oil and gas producing industry is a
16 capital intensive industry, and they require well-
17 trained workers with above average capabilities. The
18 training* of our existing personnel is a continuous,
19 ongoing job. We would question again, however, any
20 reasonable cost-benefit ratio of the proposed training
21 and recordkeeping under Section 3004.
22 The closure and long-term care of a variety
23 of facilities that would come under regulations in
24 the proposed Section 3004 would present significant
25 legal problems that might well prove unsolvable. Our
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1 economic impact statements address the prohibitive
2 costs involved.
3 Most technical problems can be solved in
4 this day and time if the money required does not run
5 out. So it is with the surface water, groundwater
6 and leachate monitoring proposals in Section 3004. We
7 would state again that no proof has been brought forth
8 of any significant contamination of surface or
9 subsurface waters by drilling muds, and only a very
10 few isolated instances of contamination from produced
11 brines.
12 Current practices by the industry, under
13 existing state or federal regulatory agencies, which
14 agencies EPA seems to have ignored or not contacted
15 during its previous three years' work, are producing
16 no known or predictable hazards, and so the enormous
17 costs proposed by Section 3004 produce zero benefits.
18 The storage requirements set forth for
19 ponds, tanks, and containers of hazardous wastes would
20 include all oil and gas production vessels and would
21 necessitate a complete moving and rebuilding of all
22 facilities currently in use. These requirements
23 would seem to fit large chemical plants rather than
24 isolated wells.
25 The proposals in Section 3004 to deal with
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1 the treatment and disposal of hazardous wastes again
2 seem defined for stationary plants or sanitary land-
3 fills dealing with highly toxic, materials or deadly
4 poisons. The many requirements here that would point
5 out the wrong classifications cf drilling muds and
6 brines, crude oil or crude oil waste, or produced
7 brines under Section 3001, which we addressed before.
8 The Permian Basin Petroleum Association
9 would strongly recommend that no requirement under
10 Section 3004 be applicable to drilling muds, crude
11 oil or crude oil wastes or produced brines unless
12 and until the currently proposed two-year study has
13 been completed and thoroughly analyzed in all respects
14 Prior application of these proposed regula-
15 tions could initiate the shutdown of a great portion
16 of our industry. Roughly, that shutdown would
17 constitute practically ever -- In fact, it would take
18 care of every stripper well in the United States and
19 lot of what we would consider to be deep marginal
20 producing wells. These would account for about 50
21 per cent of our proven reserves today.
22 And I think that is something that we cannot
23 put up with in the posture of our energy situation
24 as it is right now.
25 Premature plugging of hundreds of thousands
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1 of wells which can never be redrilled for the
2 remaining reserves, and the complete loss of our
3 national security because of added dependence on over-
4 seas, unreliable sources of energy.
5 The basic conception that all government
6 regulators should be free from any industry experience
7 in the area that they deal with is laudable to some
8 degree. However, this lack of industry experience
9 carries with it the very heavy burden of the responsi-
10 bility for 24-hour, 7-day-a-week study to become
11 knowledgeable enough, without bias, to propose proper
12 regulat ions.
13 The EPA has been working in this area for
14 three years, but from the presentation of these
15 proposed regulations, with regard to oil and gas —
16 oil and gas operations, we can conceive of no first-
17 hand knowledge of, or any attempt to learn, the
18 workings of the oil field: drilling, exploration or
19 production.
20 Thank you for the opportunity to present
21 these views, and I will answer any questions that I
22 may be able to.
23 MS. DARRAH: Okay. Thank you. And thank
24 you for staying within the time limit. We appreciate
25 that.
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MR. DILLARD: Thank you.
MR. LINDSEY: Mr. Dillard, you and others
have addressed this same point before, that you felt
that the -- the special waste regulations here would
result in the shutdown of stripper wells and presumabl
some other well drilling operations and so on. And if
I -- Let me see if I understand it right.
It's mainly because of the monitoring
activities which would be associated with the disposal
of the muds and the brines; is that -- is that the —
primarily the reason why the thing that would cause
the closedown, as you understand it?
MR. DILLARD- All right. Let me -- let me
say this.
The way I -- The way I have read these
regulations, I have a tank battery that is a facility,
and I am required --
MR. LINDSEY: What's in the tanks'?
MR. DILLARD: Oil, brine waters.
MR. LINDSEY: Brine. Okay. Brine.
MR. DILLARD: In other words, produced brine
are stored in a tank until you can either transport
them out or you have your own disposal well and you
pump those on down into a formation that is amenable
to taking them.
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All right. You set up a groundwater
monitoring system, and you set up your leachate sys-
tem. The cost of that -- Suppose you are only making
maybe — if you got a one-well lease and that whole
thing is only netting, after operating expenses, maybe
$1600, $2,000 a year, your justification for the cost
of the four wells to be drilled and monitored after
you have no income coning from this, but you have got
a 20-year monitoring requirement, there is no capital.
There isn't even enough in there that you could save
up over a 20-year period to even begin to pay for
that .
MR. LINDSEY: Okay. So it's your under-
standing, though, that these regulations would require
monitoring well drilling and monitoring for storage
tanks and so forth?
MR. DILLARD: Yes, sir, that's my under-
standing.
MR. LINDSEY: That's not our intention.
Maybe we haven't worded it correctly enough and will
have to take another look at that.
MR. DILLARD: No, I have read your regula-
tions through, and my poor inability to understand
legalese, but I have read it through three times, and
I keep coming up with the same thing all the time.
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MR. LINDSEY: Okay.
MR. FIELDS: I would just, you know, add to
what Fred said. I guess there are some inaccuracies
in the way the regulations have been presented, but
it was not our intent to -- for your industry's wastes
in terms of muds and brines -- I'm not talking about
the crude oil wastes, but in terms of muds and brines,
it was not our intent to require financial require-
ments for the groundwater and leachate monitoring
provisions, for the storage provisions, i know you
have touched on these in your presentation, but that's
something -- we appreciate your comments. We will hav
to fix that and clarify these things in the final
regulat ions.
MR. DILLARD: Thank you, Mr. Fields. I hope
you do.
MS. DARRAH • I just have to get a word of
clarification in here.
MR. DILLARD: All right.
MS. DARRAH: I just want you to know that
these are some of the people that wrote the regulation
and that the lawyers in our agency weren't the ones
who wrote them. We certainly tried to help as much
as we could.
MR. DILLARD: May I do this? May I extend
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1 an invitation to West Texas to any of you to come out
2 and be our guest, and we will show you deep-well/
3 shallow-well operations and let you see what is being
4 done and how the -- how it operates and the require-
5 ments that we go through with our own state regulatory
6 body, which I have stated before, and I think Mr. —
7 one of the gentlemen was questioning Mr. Snow today
8 about the Texas regulations. But we do have good,
9 solid regulations to protect the environment, and we
10 I work with our commission becau.se of it.
11 MS. DARRAH: Okay. Did you have some
12 questions?
13 MR. LEHMAN: No.
14 MS. DARRAH: I guess there aren ' t any more
15 questions. Thank you very much.
16 MR. DILLARD: Thank you very much.
17 MS. DARRAH: Mr. J. B. Braden , Santa Fe
18 Energy Company?
19 MS. GWEN SCOTT: Mv name is Gwen Scott, and
20 I work for Santa Fe Energy Company, and we would like
21 to request that the time allotted to Santa Fe Energy
22 to testify be given to -- added to the time allotted
23 to the Western Oil and Gas Association to testify since
24 we were in on the writing of those comments, and those
25 comments show our views, and I would like to extend
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1 this in the name of Mr. Les Clark from Belridge Oil
2 Company and from Mr. Gallagher of Getty Oil Company.
3 And I thank you.
4 MS. DARRAH: Okay. I will certainly considei
5 that. Thank you.
6 Mr. Richard Dreith, Shell Oil Company? Is
7 Mr. Dreith here?
8 Mr. Arne Rovick, Phelps-Dodge Corporation?
9 MR. ARNE ROVICK: Here.
10 My name is Arne Rovick. I'm an attorney
11 from Phoenix, Arizona, appearing on behalf of Phelps-
12 Dodge Corporation this afternoon.
13 Last evening, I gave a short presentation
14 on Section 3001 and our interpretation of the Act and
15 the legislative history. We felt that this program
16 should not apply to the copper mining industry until
17 completion of the Section 8002 study, which Congress
18 has directed that the Administrator conduct in
19 connection with the mining industry.
20 However you choose to proceed ahead, then
21 we would like to offer some other comments on the
22 Section 3004 special waste category regulations that
23 have been set out in the proposed regulations.
24 Phelps-Dodge Corporation mines and discards
25 several hundred thousand, or several hundred million
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1 tons of material every year in its domestic mining,
2 copper mining operations. These wastes generally are
3 no different from the natural rock material — In fact,;
4 the bulk of it is the natural rock material that is
5 picked out of the mine and dumped near the mine site.
6 And Phelps-Dodge Corporation does not
7 believe that these wastes constitute a hazard to the
8 environment. In fact, apparently the Environmental
9 Protection Agency agrees with us to some extent, and
10 that throughout th€?se regulations, those type of
11 wastes have been categorized as large volume,
12 relatively low-risk wastes.
13 And with that in mind, and I think in the
14 legislative history the draft regulations have
15 categorized those as special wastes and have exempted)
16 them from many of the provisions in the Section 3004
17 regulations.
18 However, even the provisions that are still
19 applicable to the copper mining industry, we believe
20 that some of these should also be given careful review
21 and reconsideration and deletion.
22 For instance, the -- just the sampling
23 provisions that are set forth in these regulations,
24 I think were devised for containerized wastes, wastes
25 of certain small measurable quantities. We are dealing
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1 in -- with wastes of several hundred thousand tons
2 per day, hundreds of millions of tons over a year, and
3 billions of tons over the life of the mine. And we are
4 just perplexed as to getting a representative sample
5 of a billion tons of material. And I don't think that
6 these regulations have addressed that.
~l Additionally, I'd like to reiterate our
8 guest -- some of the site selection comments by the
9 petroleum industry.
10 Copper, like petroleum, has to be recovered
11 where it is found. We don't have the liberty of
12 mining it above a 500-year floodplain.
13 Now, in fact, I'm not sure whether our
14 mines right now are in or out of a 500-year floodplain,
15 but if they are, that's where we have to continue
16 mining the ore. Because of the economics of the
17 dispersal of the wastes, that's also where we have to
18 discard the wastes.
19 Additionally, where our mines are located in
20 the Southwest, Arizona and New Mexico, the nines, some
21 of them are located in the rugged desert regions which
22 have gulleys, ravines, arroyos and other naturally
23 occurring flow areas. And when the -- we have the
24 occasional rain storms in the desert, these naturally
25 occurring drainage areas, of course, fill up with the
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flood waters that run off the desert.
These particular areas are tradtitlonal1y
places where the mine wastes have been deposited, and
they must continue to be in places where the mine
wastes are deposited.
It is physically impossible to pile up
several hundred millions of tons of material along the
narrow ridges that separate these gulleys. So if —
if these gulleys are considered to be in the floodplain
it is totally impossible for us to avoid depositing
wastes in those regions.
Similarly, I guess I'm not aware of any one,
of our mines anyway, being situated near a sole source
aquifer; but if that's where the ore body is discoverec
then, again, that is where the mine has to be
situa-ted and the wastes discarded.
Now, just the site selection standards, while
they are only applicable to new mining sites, we feel
could impose restrictions on the location and develop-
ment of new ore bodies, and these restrictions are
being imposed when Congress and the Environmental
Protection Agency admit they don't have sufficient
information to determine whether or not the hazards
do exist.
So I submit that, before these type of site
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1 selection guidelines be imposed, that there be a
2 determination there is a hazard, and would, therefore,
3 suggest that they be deleted with respect to the
4 mining industry.
5 Other regulations on site selection also
6 provide for a 60-meter buffer zone around the
7 facility. This buffer zone is to protect against
8 unexpected discharges or releases from fires,
9 explosions, spills and underground leaks. Those
10 dangers, to me, indicate some volatile or liquid
11 materials may be released. The g;reat bulk of our
12 wastes are the rock that is pulled out of the mine and
13 unchanged in form. And I suggest it does not pose a
14 hazard of this type which requires this buffer zone.
15 Additionally, our mines are located in
16 rather remote regions of the Southwest, certainly no
17 housing adjacent to the -- the waste dumps. And the
18 removal of this 200-foot buffer /.one removes a
19 considerable amount of land from use as a waste dump.
20 Every 200 linear feet would be approximately another
21 acre around our property, and over several miles,
22 we'd end up with a large acreage which we have dependec
23 upon as a dump site which is now being taken away.
24 Again, without any analysis of the potential
25 risk, and we believe that just piling the rock there
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1 does not pose a risk that needs a buffer zone.
2 Another provision that has been made
3 applicable by the special waste category are the
4 security provisions, which requires a six-foot barrier
5 and various entry restrictions. We have at the
6 Morenci mine — US Highway 666 actually passes directly
7 over the mine dump. It has never been fenced in, and
8 we are not aware of anybody having any problems in
9 driving over that and being exposed to any dangers
10 other than perhaps from other automobiles. So we
11 would suggest that the -- the mine wastes that is
12 piled up there is not of a nature that must be guarded
13 against physical contact.
14 Cattle graze close to our mine dumps, and
15 they have not experienced any hazards from their
16 exposure to that pile of rock. So I think that, having
17 a requirement to construct miles and miles of a six-
18 foot barrier fence around waste dumps, one that offers
19 no protection to any hazard and, again, incurs a
20 considerable expense, which I guess would benefit the
21 manufacturer of the fencing material.
22 On the recordkeeping requirements -- And this
23 perhaps comes back and ties in somewhat with the
24 analysis -- we don't -- we don't believe that daily
25 records are required, or daily analysis, once we have
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1 determined the characteristic of the — of the rock
2 waste from the mine, day in and day out. That wouldn't
3 vary significantly.
4 We are moving probably in the neighborhood
5 of 5-600,000 tons of rock a day from our three
6 operations in New Mexico and Arizona. And it is a
7 constant, movement. It must be taken out of the mine
8 and dumped immediately, and we don't believe that
9 daily analysis of that material is necessary and would
10 submit that annual reports as to tonnages moved would
11 be adequat e.
12 I had some comments here on the closure
13 requirements. However, I have been apprised by Mr.
14 Fields, in looking at some corrective amendments to
15 the rules and regulations, that there was a typo, and
16 thank you for removing that restriction.
17 On the groundwater monitoring requirements,
18 these wells are expensive to put down in Arizona. We
19 may be operating in areas where it would be several
20 hundred feet to the groundwater. We question the
21 advisabiltiy of requiring, I guess, four wells at this
22 time to measure. We would suggest that perhaps a
23 single well in the downgrading from the property might
24 indicate whether a problem does exist; and if problems
25 do occur, perhaps additional monitorinp; be imposed
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1 at that time.
2 But to impose these financial requirements
3 or expenditures at a time when there is no hard
4 evidence that there is substantial hazard here we
5 think is premature.
6 That concludes my comments.
7 MS. DARRAH: Okay. Thank you.
8 Will you respond to questions?
9 MR. ROVICK: Yes.
10 MR. FIELDS: Mr. Rovick, my comments are
11 questions regarding your comments on the site selection
12 Your comment basically was that we should
13 remove all these general site selection standards we
14 have in here for the mining category of special waste,
15 and your basic comment was that mine waste disposal
16 sites should be located where the ore is processed.
17 But I was just wondering what types of -- there must
18 be some sort of site criteria by -- which the mining
19 industry has to comply with now. Are there any
20 requirements at all regarding selection of where you
21 are going to put a mine at all? Are you saying that
22 there should be no restrictions whatsoever? Is that
23 your
24 MR. ROVICK: In Arizona, I'm not -- I'm not
25 aware of any requirements. Where the ore body is
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1 located, that's where we mine it.
2 The economics are such that we are mining an
3 ore that's 5/10 of 1 per cent copoer. So at the
4 Morenci mine, we are moving 60,000 tons of processible
5 ore at 5/30 of 1 per cent. That doesn't work out to
6 be too much copper.
7 So the -- most of that process ore is
8 discarded on site, plus we have to move another
9 120,000 tons of ore and rock material from the mine
10 just to get to that 60,000 tons. And all of this
11 removal of that material, you are talking in such
12 vast amounts that our -- our site selection for the
13 disposal of those wastes is economically -- has to be
14 very close to the mine. We just cannot afford to
15 shift t.iat material any great distance.
16 And, in fact, I guess our -- economically
17 our major site selection factor is dumping as close
lg to the mine as we can. Most of these mines are
19 situated :n arid, remote areas, and I guess we have not
20 had difficulties. The major difficulties, in fact,
21 are in getting the property upon which to dump the
22 wastes. A lot of it's federal land, Bureau of Land
23 Management, U. S. Forestry, other claims.
24 So, actually acquiring the real estate to
25 dump the waste has been a major problem.
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MR. FIELDS: Right now there are no require-
ments that you know that are imposed upon you regarding
locating of disposal sites whatever in your --
MR. ROVICK: Waste dumps, no. It's just the
rock that's there before we get there, and we dig it
out of the mine and dump it next to the mine.
MR. FIELDS: Okay. All right. Thank you.
MR. TRASK: Are you required to do any
environmental impact studies of any kind on copper
mines that you are aware of?
MR. ROVICK: Not that I'm aware of. Most of
the copper mines have been there for a long time,
predate NEPA , and Arizona does not -- does not have
a little NEPA Act, and I believe New Mexico repealed
it, finding it too cumbersome to work with.
MR. TRASK: Okay. There is no national
requirement. There may be state requirements. Is that
what you are suggesting?
MR. ROVICK: Yeah. I'm not aware that we are
-- We are not a nationally funded private enterprise.
MR. TRASK: I will remember that.
MS. DARRAH : Okay. I guess there aren't
any more questions. Thank you.
Mr. Greg McClintock, Western Oil and Gas
Association?"
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1 MR. GREG McCLINTOCK: Madame Chairperson,
2 I discussed with you informally, I guess during an
3 earlier recess, the possibility of getting a few
4 extra minutes in lieu of the three oil companies which
5 decided not to make present atiors here. I hope that
6 we can do that.
7 MS. DARRAH: Okay. You indicated you thought
8 you could give your presentatior in about 15 minutes.
9 MR. McCLINTOCK: Yes. And I am timing
10 myself here, so I will try to be very religious about
11 that.
12 MS. DARRAH: Okay. That would be fine.
13 Thank you.
14 MR. McCLINTOCK- I might just say for the
15 record that my name is Greg McClintock, and I am
16 appearing here today as counsel for the Western Oil
17 and Gas Association.
18 "While the comments I have to make will
19 relate primarily to Section 3004, I would like to
20 briefly address a couple of the other sections as
21 well. But my comments will be brief.
22 I might say at the outset that we see at
23 least five significant problems with the way the
24 proposed regulations are presently drafted, and I
25 would like to just very briefly tick those off for you.
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1 First, with the exception of a few special
2 wastes, the regulations appear to treat all hazardous
3 materials essentially the same, basically as though
4 they were all extremely toxic or highly poisonous.
5 I am cognizant of the fact that you've
6 incorporated a note procedure, and I will address
7 that in a moment. We don't believe that really solves
8 our problem. We believe approaching the hazardous
9 waste problem in this fashion, basically treating
10 all materials as extremely toxic, results in overregu-
11 lation with respect to many of the materials that
12 would be regulated.
13 The solution, as has been indicated by a
14 number of speakers here today, we believe lies in
15 differentiating among wastes based on relative degree
16 of r'isk or relative degree of hazard and treating the
17 wastes accordingly.
18 Secondly, the burden of these proposed
19 regulations basically falls on industry to establish,
20 first of all, that its -- that its wastes are not
21 hazardous. There seems to be a -- more or less of a
22 presumption that your wastes are hazardous, and then
23 you need to test to establish that that is not the
24 case, rather than the other way around, with EPA
25 designating those particular wastes which they believe
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1 are troublesome and then one merely comparing the
2 wastes that you have to dispose of against that list
3 to ascertain whether or not you are included.
4 Basically, you have to go both ways rather
5 than just following the latter course. So, as we
6 see it, the burden has basically been placed on
7 industry to establish that they are not dealing with
8 a hazardous waste. And while this is convenient for
9 the agency, it's very costly to industry and will
10 enormously increase the amount of testing that needs
11 to be done by industry.
12 We believe for some companies it will be
13 economically prohibitive, and we really believe that
14 a better approach would be for EPA to take the
15 criteria that it's established or other criteria which
16 it deems appropriate, compile a rather comprehensive
17 list of the wastes that are hazardous, then rank them
18 according to their hazard or degree of risk, and then
19 prepare regulations which regulate in accordance with
20 that list.
21 This would leave industry in the position
22 of, rather than having to go out and test each one of
23 their waste streams, merely looking at your list and
24 ascertaining, based on their knowledge of what it is
25 they are putting out, whether or not they are covered.
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We think this would be a preferable approach.
Thirdly, the regulations seem to discriminate
in a rather arbitrary fashion between wastes based on
end use. For example, if a waste is being disposed of,
it must be handled with extreme care. On the other
hand, if it's being recycled, it's exempt.
We don't really see the relationship here to
the actual risk posed. We would think that the handlin
of the waste would, in both cases, pose the same
degree of risk. Yet you have discriminated based on
basically the end use that -- that -- of the material.
Fourth, annual testing is required even
where there's been no change in the waste stream that's
being put out or the process by which it's being
produced. Nothing has happened, in essence, that could
alter the waste stream in many cases, yet we are still
required to test, to test the stream to establish that
that's the case.
We think this results in a great deal of
unnecessary testing, and we believe that testing at the
time there is a change in the process or testing when
you commence a waste stream to establish what its
content is, coupled with spot checking by the agency
to make sure that no one's cheating, should be suf-
ficient to take care of the problem.
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And, finally, we believe the regulations
unnecessarily overlap into areas that are already
subject to environmental regulation.
An example of this is in the area of air
pollution control from combustion operations where it
appears to us at least that the Clean Air Act and state
and local air pollution regulations should adequately
take care of the problem. But, nonetheless, these
regulations would attempt to regulate that function as
well .
Well, moving now to the specific requirements
of Section 3004, there are several points I'd like to
briefly touch on.
First, as I hinted, I guess in my first
point, we believe that everything from site selection
through closure and post-closure procedures, all
aspects of the treatment and disposal function should
be scaled depending on the degree of hazard posed by
the materials actually being handled at a facility.
If you have a facility that handles only
low-risk type materials, all of these various
requirements that bear on that facility should be much
less stringent than if they are handling kepone or
something that's extremely toxic.
An example of this is that, if you have a
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845
1 remote production site where you are producing crude
2 oil and you have some waste crude oil in limited
3 quantities that you need to dispose of, it seems that
4 the requirements with respect to that disposal should
5 be extremely less stringent than those, as I mentioned
6 for a kepone dump or some other facility handling
7 highly poisonous materials.
8 As presently written, we don't believe the
9 regulations really make that kind of distinction.
10 ' While it's true that you have the note procedure,
11 which appears to be designed to accommodate some of
12 these things, it wouldn't accommodate all of them.
13 And I think, because the burden again is on industry,
14 we have to come forward and demonstrate to you that
15 the way we propose to handle the problem will be
16 satisfactory. We have to convince the EPA permit
17 writer of that.
18 It can be a. very time consuming and burden-
19 some process to do this. It will be discouraging,
20 particularly to small companies, to try to do that,
21 and I think once you've accomplished it, if you are
22 successful, you are stil] faced with the possibility
23 of litigation by public interest or other environmenta
24 groups who feel that the permit writer's being more
25 lenient than your basic regulation permits. So we
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don't really see the note process as an answer to the
problem.
I would like to add that I think a further
reason for more relaxed standards in the case of low,
low hazard pollutants or -- or wastes in California,
at least, is the fact that, because of the numerous
faults in California. If you have ever seen a map of
the geology of California, the whole state is literally
riddled with faults. And the fact that I think a
large part of at least the Central Valley of California
is a 500-year floodplain, the availability of sites to
dispose of hazardous materials may be very, very few.
So we think this is another reason for
differentiating between degrees of hazard and having
different dump sites ior less hazardous materials.
The second point I would like to make
|
regarding Section 3004 is that, while we believe EPA
has acted correctly in designating utility scrubber
sludge as a special waste under your regulations,
because of the volume and low-risk characteristics
of that type of waste, the same treatment should be
accorded to other scrubber sludges. In other words,
it shouldn't be limited only to utility sludges. And
the ones we have specifically in mind are those that
are produced by flue gas desulfurization units that are
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installed on steam generators used in thermally
enhanced oil recovery operations.
This is a problem that's somewhat unique to
California, and more particularly to Kern County, where
most of this activity occurs.
To give you some idea, we are talking about
perhaps as many as 300 to 500 units, FGD units being
installed on steam generators in Kern County by 1982.
Now, there will be a huge volume of sludge
produced by these steam generation operations. It's
been estimated that, if the double alkali system is
used rather universally, that we would be dealing with
as much as 77 20-ton truckloads a day of sludge that
would need to be disposed of. And if the nonregenera-
tive or liquid type of system is used instead, you
could be talking about as much as 2700 truckloads of
waste sludge that would need to be disposed of.
So, as we see it, unless some special waste
status is accorded to this sludge from these operations
which really is very similar in nature to the utility
sludge, and the volumes are certainly comparable, you
are going to have a very severe impact on oil produc-
tion in Kern County.
Economic consequences will be very severe,
particularly for the small companies, many of whom are
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1 right on the edge right now in terms of profitability
2 in producing this oil, and we have some concern that
3 much of it's going to be left in the ground and shut
4 in if they have to comply fully with your regulations.
5 Now, the third point I would like to make is
6 -- really goes to a problem that you have discussed
7 several times here today, and that relates to facili-
8 ties which are constructed to take care of accidental
9 spills. And what I have in mind are dykes and similar
10 impoundments — I guess that's the way to describe
11 them — which are constructed around storage tank
12 batteries against the possibility that there might at
13 : some time be a spill.
14 Now, I guess I took a little different
15 approach when I read your regulations. You make clear
16 I in there that these facilities should be subject to
17 j the oil and hazardous spill requirements of EPA, and
18 I took that to mean that you deemed that adequate. I
19 think that I can't really believe, after reading the
20 Act, that it was the intent of Congress to include as
21 a hazardous disposal site a dyked area around a storage
22 tank that's put there strictly to take care of a
23 possible emergency that might aever occur. This just
24 doesn't seem to me to fit within the concept.
25 I can certainly see it for facilities that
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1 are intentionally set up to handle hazardous materials
2 but not — not facilities that may never actually be
3 used, but are just there as an emergency precaution.
4 I think the effect of including these type
5 of facilities within your definition would be to
6 discourage the dyking of storage tank areas because
7 that's how you come within the Act. You then become
8 an impoundment and subject to the Act. So the simple
9 solution is don't dyke if you can avoid it.
10 There are -- There are, of course, conse-
11 quences if you don't dyke. But it just seems that you
12 are working somewhat at cross purposes here if you
13 include this type of facility. So we would hope that,
14 in your regulations -- And there was some indication
15 that you might do this — that you would clarify that,
16 where".the facilities are constructed solely to retain
17 an accidental spill and are not intentionally designed
18 to handle hazardous materials, that this was something
19 that you don't intend to include.
20 Fourth, we also feel it's unfair and somewhat
21 unreasonable to apply the regs to facilities which
22 have been installed solely because they were required
23 under the NPDES provisions of the Clean Water Act. In
24 other words, we have a situation where you are required
25 by one set of federal regulations to install a
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1 treatment facility and, having done that, to comply
2 with that Act. It appears now that we are coming along
3 under RCRA and saying, "Oh, yes, you have to also
4 comply with these regulations." And that facility,
5 of course, never would have been there if it hadn't
6 been installed to comply with the NPDES provisions.
7 So this seems somewhat unreasonable to us
8 to try to catch it under both sets of regulations.
9 And we also believe that the facilities are
10 generally built using best available technology and
11 other precautions which should prevent any significant
12 problems.
13 Fifth, not all disposal of liquids in land-
14 fill sites should be discouraged, at least in our
15 opinion. There are certain low-risk wastes, such as
16 waste crude oils and some refined oils, which have
17 been disposed of in California municipal garbage dumps
18 for a number of years, and we have really experienced
19 no problem.
20 What we have found is that the garbage acts
21 as an excellent absorbant for the oil. It doesn't
22 become a -- It soon loses its liquid state and actuall}
23 the space is filled up, and actually there is a space-
24 saving aspect to this.
25 It's a low hazardous material and it can be
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1 accommodated very easily in municipal dump sites. And
2 we think where you are dealing with that type of low-
3 hazard material, you ought to be able to continue
4 that practice.
5 The final point which I wish to make with
6 respect to Section 3004 is that the burning of waste
7 crude or refined crude oil as a fuel by utilities or
8 in other industrial boilers has certain beneficial
9 aspects. It's energy-conservative. And if it's done
10 in compliance with air pollution regulations, we reallj
11 don't understand why you should have a waste, hazardous
12 waste concern.
13 It seems to us that, if you are meeting the
14 Clean Air Act requirements, local air pollution
15 regulations and all of that, that any concern regarding
16 hazardous wastes should be completely taken care of anc
17 that type of thing should be exempt from these regula-
18 t ions.
19 I see I'm out of time, so I won't go on to '
20 the other sections. I do have a set of written com-
21 ments which I will submit for the record, which con-
22 tains all of our thoughts on these proposed regulations
23 The only other thing I might add is that I
24 have been authorized by the California Independent
25 Producers Association to state that they join in our
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1 comments. And I will make myself available for any
2 questions which you might want to ask, bearing in mind
3 i that I'm an attorney and I'm not technically as
"
4 : knowledgeable as some, but I will do my very best.
5 MS. DARRAH: Mr. McCLin took, let me ask you
6 how many more minutes would you need to finish your
7 scheduled present at ion"7
8 MR. McCLINTOCK: WelL, I really had two --
9 I think there were two or three brief comments which
10 I wanted to make. Probably two minutes at the most.
11 MS. DARRAH: Okay. I certainly appreciate
12 your limiting yourself, but I haven't cut anybody else
13 off today, so please go ahead.
14 MR. McCLINTOCK- All right. Fine. Thank
15 you.
16 Well, I just wanted to comment briefly on
17 a coupLe of the other sections of the proposed regula-
18 t ions.
19 One of the concerns which we have is with
20 the way in which you are treating waste oil. It's our
21 view that most waste oils, not all, but most, are
22 relatively innocuous. Crude oil and most used
23 lubricating oil, most refined oil wastes are not really
24 a significant hazard in and of themselves. And we
25 understand really that your concern is that these
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1 oils might become potential carriers of other things
2 that could be quite harmful, such as PCB's.
3 While we can understand that concern, I
4 think that the rationale here bothers us a little bit
5 because it seems like that rationale could be applied
6 to almost any liquid. Water can certainly become a
7 potential carrier of innumerable hazardous substances
8 just as waste oil can become such a carrier. And we
9 really don't understand why waste oil has been singled
10 out, other than apparently there have been some
11 incidents where reformer oil, for example, or
12 transformer oil has been mixed with waste crude oils.
13 Again, the same thing happens all the time
14 with water. And we -- we feel that the answer to that
15 is proper management techniques with respect to the
16 oils and it is not to treat all oil, irrespective of
17 its properties, as being hazardous.
18 The second point which I would like to make
19 has to do with the monitoring function. We understand
20 the regulations to be treating all service stations
21 which collect used motor oil as a storage facility
22 under Subpart D if they hold such oil for more than
23 90 days. We believe that this could present some
24 rather major problems, particularly for those service
25 stations which are located in remote or rural areas
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854
1 and which cannot arrange to have that waste oil that
2 they are gathering picked up more often than once ever$
3 90 days.
4 A simple solution to this problem might be
5 to say that the 90-day period commence a to run at the
6 time the storage tank is full. And, obviously, at
7 that point you can expect that the service station
8 owner or operator is going to have the oil picked up
9 within a reasonable period of time, and we would think
10 within 90 days.
11 If that -- If that definitional change were
12 made, I think that would take care of a great deal of
13 our concern respecting that particular problem.
14 And I think that's really about all I had
15 to say. Thank you.
16 MS. DARRAH: Okay. Thank you.
17 Tim?
13 MR. FIELDS: Go ahead, John.
19 MR. LEHMAN: Let me start out by asking you
20 a legal type question since you mentioned that you
21 didn't normally handle technical ones.
22 MR. McCLINTOCK: I'm not sure whether I can
23 handle legal ones, either.
24 MR. LEHMAN: Well, since Ms. Darrah made it
25 clear that she wasn't -- a bunch of engineers hero
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855
1 wrote the regulations earlier, and I'm not a lawyer,
2 we will see how this works out.
3 MR. McCLINTOCK: Fine.
4 MR. LEHMAN: I wanted to comment on your —
5 or ask you to consider what I took to be a suggestion
6 which appears to be at odds with the statute.
7 You said that it was your recommendation of
8 your association that we ought to, when we're -- when
9 we're -- when we're going about the business of
10 defining a hazardous waste, that we should stick to
11 listing wastes and somehow subdivide those.
12 MR. McCLINTOCK: Yes.
13 MR. LEHMAN: And that the -- the other side
14 of it, that is the presumption that all wastes are
15 hazardous unless proved otherwise, puts a big testing
16 burden on everyone.
17 Well, I would just call your attention to
18 Section 3001(b) of the statute, which the way we read
19 it anyway, mandates a dual system of both a list and
20 this other set of characteristics which we have done.
21 Now, how do you rationalize picking only
22 one-half of the mandate and ignoring the other half?
23 MR. McCLINTOCK: Well, my reading of that
24 particular section -- And I don't have it in front of
25 me, but my recollection is that you are correct in
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8
9
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856
that it requires you to establish criteria and to also
establish a list. The thing that I don't think it
requires you to do is to then require that industry
apply that criteria to their individual waste streams
and tell you whether their stream is hazardous.
Certainly it requires you to establish criteria, and
that's why I suggested that you do establish that
criteria. You then prepare a comprehensive list
based on that criteria, and on that list, using the
criteria, you come up with a very specific categoriza-
tion of those wastes which are hazardous which industry
can then look at and say, "Yes, I come within that,"
or "No, I don't,'' rather than having industry do the
testing.
I don't read the statute as saying that
industry is the one that has to do the testing. I
guess that's where I disagree with you.
MR. LEHMAN: Well, we have the statute, and
it says that we shall promulgate regulations identifyir
the characteristics of hazardous wastes and listing
particular hazardous wastes. That's both, right?
MR. McCLINTOCK: Yes.
MR. LEHMAN- Tt doesn't say "or list,'1 it
says "and list . "
MR. McCLINTOCK: Right. Again, I don't see,
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857
1 though, that I'm saying that you should establish
2 criteria. I'm not telling you not to do that. What
3 I am saying is that I don't think you then have to
4 shift the testing burden to industry to establish
5 whether they come within the criteria. I don't see
6 that in the statute.
7 MR. LEHMAN: Well, okay. Let's -- Let's
8 carry this on to Section 3010, for example. This
9 occurs elsewhere in the Act. But let me just give you
10 a feel for why we believe our interpretation is
11 correct .
12 Section 3030, for example, uses words like
13 this. This has to do with the notification require-
14 ments. And it says:
15 "Not later than 90 days after promulgation
16 'or revision of regulations under Section 3001,
17 , identifying by its characteristics or listing any
18 substances as hazardous wastes subject to this
19 title, then such person," you know, "must notify.'
20 In other words, throughout Subtitle C, when-
21 ever hazardous wastes are referred to, it is by its
22 characteristics or by listing.
23 MR. McCLINTOCK: Again, perhaps I'm drawing
24 too fine a line. I don't think so. I think again
25 that you can take the criteria and establish a list
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858
1 based on that criteria and require people to report to
2 you if they have wastes which contain those charac-
3 teristics or contain -- or are on the list by reason
4 of having those characteristics and still comply with
5 the statute.
6 I can see how you are reaching the conclusio
7 you do, but I don't believe mine is at odds with the
8 statute, and it certainly would reduce the burden on
9 industry.
10 MR. LEHMAN: Okay. Let's pursue another
avenue, then.
12 These type of characteristics that we have
13 specified, like f1ammab11ity, reactivity, corrosivity,
14 and so forth, are identical in many respects, if not
15 exactly identical, to the same types of characteristics
that are specified in DOT regulations, by which
shippers of hazardous materials are required to
lg determine by testing those materials whether or not
19 they meet those characteristics.
Now, in other words, the onus is on the
generator or the shipper of those materials to
22 determine whether or not he meets those characteris-
23 tics
24 MR. McCLINTOCK: Yes.
25 MR. LEHMAN: -- and thereby follow certain
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859
1 transportation rules.
2 Now, do you feel that -- you know, is your
3 experience that that type of testing requirement that
4 DOT has is somehow more or, say, less onerous or more
5 onerous than this would be?
6 MR. McCLINTOCK: Well, I don't have the
7 practical experience to answer your question. I'm not
8 that familiar with how the DOT statutes and regulation
9 work in practice. I would be very surprised if every
10 time a shipment is picked up that independent testing
11 I is done. I suspect that they have worked out some
12 way of doing it much more conveniently. But I frankly
13 don't know. I'm just speculating.
14 I would say this, though, even if I am wrong
15 on that score and they do test each shipment, your
16 regulations would require that the people who generate
17 the waste conduct this kind of testing, and I think
18 this expands the burden many, many-fold when you --
19 when you spread it out to all the potential sources
20 from -- which generate wastes, particularly when there
21 is basically that presumption that waste is hazardous
22 until established otherwise.
23 So it seems to me we really are increasing
24 very, very substantially the testing burden. And
25 rather than one agency, such as EPA, doing the testing
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860
1 on particular products, you may be requiring that
2 thousands, or maybe even tens of thousands of people
3 all over the country each test their own material,
4 even if it's identical to everybody else's, to estab-
5 lish whether or not it comes within the regulations.
6 So I see -- what I see is a multiple testing
7 ramification to the way you are approaching the probleir
8 MR. LEHMAN: All right. Okay.
9 MR. FIELDS: Mr. McClintock, I just want to
10 encourage you, if you haven't already done it -- you
11 made a comment that you felt that -- and then you are
12 the second person to make the same statement that FGD
13 sludge from oil recovery steam generation ought to be
14 a special waste.
15 MR. McCLINTOCK- Yes.
16 MR. FIELDS: It would help us in making some
17 final decisions in that area if you would send us as
18 much data as you could regarding the waste analyses
19 or what's in the wastes, how it's similar to FGD sludge
20 from a utility, quantities of that waste that you know
21 about, and so forth, how it's managed today and so
22 forth in your comments. Okay?
23 MR. McCLINTOCK: Yes. In our comments, we
24 do give you some idea as to volumes. I don't know if
25 the data is readily available to tell you the
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861
1 characteristics, but I will certainly attempt to find
2 out and provide you with that information as soon as
3 we can.
4 MR. TRASK: Mr. McClintock, in your comments
5 about service stations, you suggested that we ought to
6 start the 90-day clock ticking when the tank is full.
7 Are you suggesting that a service station would have
8 two tanks?
9 MR. McCLINTOCK: No. What I'm saying is
10 that, when there -- as I understand the way these
11 operations work, they have one cank into which they
12 dump all used motor oil. At some point, this may go
13 on for some period of time while the tank is filling
14 up. And if they are in a rural location, there may
15 not be a pickup of that oil within 90 days. They would
16 then become a Subpart D facility.
17 So my solution to the problem is that you
lg say that, once that tank does become full, then the
19 onus is on them to have somebody pick it up rather
20 promptly or they will become a storage facility. Just
21 a practical attempt to come up with a practical solu-
22 tion to the problem.
23 MR. TRASK: I was just wondering what the
24 service station operator would do with the waste oil
25 that came in the meantime before he got the tank empty
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862
1 MR. McCLINTOCK: Well, I don't know what thej
2 do now, but I would -- I would hope they wouldn't
3 violate the regulations.
4 MR. TRASK: That was going to be my next
5 question.
6 MR. McCLINTOCK: Yes.
7 MR. TRASK: How often is waste oil picked up
8 in rural areas? Do you have any feel for that?
9 MR. McCLINTOCK- Not personally. I have
10 been told by people in the marketing end of the
11 industry that they believe this would create a
12 problem, that it's less frequent than 90 days in many
13 cases, and that's the extent of my knowledge, unfor-
14 t unately .
15 MR. TRASK: Would this subject be addressed
16 in your comment letter1?
17 MR. McCLINTOCK: It's addressed, but I don't
18 provide any more facts, I'm afraid, because I don't
19 have them.
20 MR. TRASK: Is it possible that you could
21 get some? Could you ask some of your people who had
22 made these comments to you earlier?
23 MR. McCLINTOCK: Yes.
24 MR. TRASK: We would appreciate anything you
25 have.
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863
1 MR. McCLINTOCK: Yes. I will -- I will
2 certainly try to -- to get you more information on
3 that.
4 MR. TRASK: Okay. Thank you.
5 MS. DARRAH : I have one line of questioning
6 I want to pursue, and I think Jack has another
7 quest ion.
8 When you say to us that we are putting the
9 presumption on people that their wastes are hazardous,
10 are you talking about the characteristics or the lists'
11 MR. McCLINTOCK: Well, I think both, to some
12 degree. I feel your list is not as definitive perhaps
13 as it should be. If it got more definitive for, well,
14 waste oil, I guess -- I'm not sure that that's
15 actually listed. I don't think it is. Is it a listed
16 item as waste oil?
17 MS. DARRAH: Yes.
18 MR. McCLINTOCK: Okay. I think that's much
19 too broad a category. It seems to me that many of
20 the things that would be trapped by that broad of a
21 definition would be relatively nonhazardous and might
22 realy be entitled to exemption. So it seems to me you
23 need to in some manner make that much more specific.
24 I think it is the -- to address your other -- the
25 other aspect of it, using the criteria, the
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864
1 flammability and so on, that this does place quite a
2 burden on industry
3 I'm told-- I don't know this for a fact,
4 but I'm told that cement, for example, would test as
5 highly hazardous under the criteria which you have set
6 up. And if cement will test as hazardous, ttns
7 suggests to me that anybody who's discarding almost
8 anything better test it to make sure they don't come
9 within the criteria and find out after the fact that
10 something they thought was innocuous and wasn't covered
11 by the regulations, in fact, was.
12 MS. DARRAH: Okay. Well, I guess I did want
13 to clarify that. You were saying that the characteris-
14 tics were putting a presumption on you. I mean I
15 would assume --
16 MR. McCLINTOCK• I think that's the major
17 burden. yes.
13 MS. DARRAH: Okay. I would assume that,
19 during this comment period -- And we certainly have
20 received comments to this effect -- that what we are
21 trying to do -- Well, let me put it this way.
22 If the characteristics were more narrowly
23 defined or, you know, you had sone sort of degree of
24 hazard, would you -- 1 guess I just have a little
25 trouble with your idea that we are shifting or putting
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865
1 some sort of presumption up. Indeed, there is a
2 burden on industry to test. However, if someone in
3 good faith has no reason to suspect that the company's
4 waste would meet one of these characteristics, then,
5 you know, I would think that that's a fairly good
6 defense.
7 MR. McCLINTOCK: Well, I think you are asking
8 us to rely on prosecutorial discretion and the judge's
9 -- the judge's kind feelings toward us. I think
10 literally we are covered by the regulation.
11 MS. DARRAH: Okay. I just -- I did want to
12 cJ ari fy that.
13 I think Jack has one more question.
14 MR. LEHMAN: Yeah. I wanted to just explore
15 a little bit more, if I could, the issue of burden
Ig again on.industry, burden of proof on industry. But
17 in this -- this one was with respect to another point
18 that you made concerning our note system. And if I
19 could paraphrase that.
20 What I thought I heard you say was that you
21 were basically suggesting that the note system doesn't
22 do you a whole lot of good, first of all, because you
23 got to prove the basis for any variance and that's
24 difficult for small businesses, in particular; and,
25 furthermore, that you are still subject to legal
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866
1 attack over, let's say, an abuse of discretion charged
2 by a -- by the permit writer. I mean, you know, I
3 guess that --
4 MR. McCLINTOCK: Yes.
5 MR. LEHMAN: And, therefore, here again,
6 still paraphrasing what I thought I heard you say,
7 therefore, that the technical standards should --
8 should be written in distinguishing between various
9 degrees of hazard rather than by this note system.
10 MR. McCLINTOCK: You stated it better than
11 I could have.
12 MR. LEHMAN: Now, the point I was trying to
13 get at is there is certainly a limit to how many
14 different classes you could theoretically break down
15 a set of technical standards. I mean, you know, two,
16 three, ten, whatever.
17 MR. McCLINTOCK: Certainly at some point it
18 becomes —
19 MR. LEHMAN: Some point.
20 MR. McCLINTOCK: Yes.
21 MR. LEHMAN: Now, how would you handle
22 variances, or would you say you don't want any
23 variances even, you know, if you had such a -- a
24 degree of hazard sort of distinction here? I mean you
25 are still going to have to have variances, systems of
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867
1 some kind, and you are still going to have the same
2 problem, it strikes me. You are still going to have
3 to prove the basis for that variance. You are still
4 going to have the subject of abuse of discretion and
5 so on, no matter how many, whether it's one class,
6 like we have got now, or three or four.
7 MR. McCLINTOCK: Well, I think you can take
8 care of a lot of your problems by merely creating
9 additional classes. I know in California -- I'm not
10 thoroughly familiar with the scheme, but I think there
11 is at least three different classifications for dump
12 sites. There may be more than that. Certainly, if
13 there were a broader range, three or four or five
14 different classes of dump sites or levels of control
15 that were imposed, depending on the degree of risk,
16 I think this would do a great deal to eliminate the
17 need for a variance.
18 I might suggest that, if there is still a
19 need for variance, 1 think your special waste pro-
20 cedure, which is a good idea in principle, can still
21 be used.
22 Utility wastes is a great example. You have
23 got this tremendous volume of sludge that seems to be
24 almost unique in the way it needs to be handled and
25 disposed of, and for that, you created a special waste
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868
1 kind of -- not an exemption, but a special waste
2 category. Perhaps that's the way to deal with the
3 variance problem should there still be a need for one.
4 MR. LEHMAN: Okay. I just don't want to
5 let pass and just clarify, the State of California
6 has three classes of facilities: Class I, II and III,
7 which correspond to three classes of waste. But those
8 are -- for the record, one, Class III, which is the
9 least harmful, is construction debris and, you know,
10 bricks and things like that. Class II is municipal
11 waste, commercial waste and nonhazardous industrial
12 waste. And Class I would be as close an analog as
13 you could get to what we call hazardous waste.
14 So, in fact, the Class I facilities standards
15 that California has apply only to the analog of what
16 we are calling hazardous wastes here.
17 MR. McCLINTOCK: Well, again, I don't have
18 a great deal of knowledge regarding this, but it's
19 my understanding that certain of the materials that
20 you were categorizing as hazardous waste in your
21 regulations are currently being disposed of in Class
22 II.I or Class II-I sites in California with everybody's
23 blessing. No one has any problem with that. They are
24 not being treated as Class I hazardous wastes. And
25 this is the type of thing we are after.
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1 MR. LEHMAN: And that's a variance on a case-
2 by-case basis, as I understand it, and that is how the
3 note system is supposed to work in our system. In
4 other words, where — where certain types of wastes
5 do not require the full force of these regulations,
6 then that's where the note system comes in. So,
7 well --
8 MR. McCLINTOCK: I understand what you are
9 saying.
10 MR. LEHMAN: Yes.
11 MR. McCLINTOCK: I think -- Just to repeat
12 very quickly, I think the concern that the petroleum
13 industry has with the note system is that it -- it
14 doesn't give us firm standards.
15 There was another speaker this morning, the
16 gentleman from Union Oil, I think, who indicated this
17 and maybe there was some surprise on your part that
18 we really would want something more clear. But I
19 think we feel that leaving — that's leaving an awful
20 lot to discretion. It doesn't really give the small
21 operator in particular any clear course as to what's
22 going to be required, and the burden of going in and
23 establishing that yes, this is one of those situations
24 where a deviation from the rule is appropriate, may
25 just be too imposing and the consequences can be rather
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1 substant ial.
2 We feel that, if you won't do a categoriza—
3 tion of dump sites based on degree of risk, that you
4 are -- you are probably going to get better results
5 and certainly it's going to be less costly and burden-
6 some for industry to figure out where they fit in the
7 scheme of things.
8 MR. LEHMAN: Thank you.
9 MR. McCLINTOCK: Thank you.
10 MS. DARRAH: I guess that's all. Thank you
11 very much.
12 Mr. H. L. Hanright, Petroleum Equipment
13 Suppliers?
14 MR. H. L. HANRIGHT: Madame Chairperson,
15 ladies and gentlemen:
16 My name's H. L. Hanright. Most people call
17 me Hap.
18 I'm honored and privileged to be here today.
19 MS. DARRAH: Thank you.
20 MR. HANRIGHT: I'm appearing before you in
21 my capacity as Chairman of the Service Companies
22 Committee of the Petroleum Equipment Suppliers Associa-
23 tion. Privately, I'm President of Baker Service Tools
24 m Houston, Texas.
25 The Petroleum Equipment Suppliers Association
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1 is a trade association comprised of 220 oil field
2 equipment manufacturing, supply and service companies.
3 Among our membership are the major companies which
4 manufacture drilling fluids systems and provide well
5 site drilling fluids service to the oil and gas
6 drilling industry.
7 The Association is in complete accord with
8 the desire of the Environment Protection Agency to
9 protect our environment from the baleful effects of
10 hazardous wastes under authority of the Resource
11 Conservation and Recovery Act by proposing regulations
12 to implement that Act. Certainly, where substantial
13 evidence exists that a particular kind of waste has
14 in the past been a source of danger to persons or to
15 the environment, that substance should be classified
16 as a hazardous waste.
U It is the contention of the Petroleum
18 Equipment Suppliers Association, however, that oil and
19 gas drilling fluids have not been shown to pose any
20 danger to persons or the environment and, therefore,
21 should be exempt from the proposed hazardous waste
22 regulat ions.
23 The EPA has recognized that special status
24 of drilling fluids, stating that "The Agency has very
25 little information on the composition, characteristics,
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872
and the degree of hazard posed by these wastes . . .,"
but that "The limited information the Agency does have
indicates that such waste occurs in very large volume,
that the; potential hazards posed by the waste are
relatively low, and that the waste generally is not
amenable to the control techniques developed in Subpart
7
8 It would seem to follow from this that
drilling fluids would be completely exempted from the
10 regulations, at least until there existed sufficient
11 evidence of potential hazard to warrant their inclusion
12 However, the EPA proceeded to write special standards
13 for these special wastes, first making them subject to
14 the haza.rdous waste identification standards in
15 Section 250.13 and then subjecting them to limited
sections of Subpart D if they were determined to be
17 hazardous.
The agency apparently felt that drilling muds
19 were being exempted from the substantive requirements
20 of Subpart D. The background document on special
2i wastes even states that this was done to avoid imposing
22 a substantial economic burden on the economy for
23 little or no net environment benefit.
24 This is not, however, the effect of the
25 regulations as currently drafted. The limited
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1 standards to which drilling muds are subjected would,
2 in fact, create a tremendous administrative and
3 economic burden for the drilling industry and
4 ultimately for the economy as a whole. Compliance
5 with these requirements would seriously impede the
6 exploration for and production of our domestic energy
' resources without achieving any environmental benefit
8 at a time when the danger of our reliance on foreign
9 sources of oil is becoming more and more apparent.
10 Section 250.46-6 makes drilling fluids
11 subject to Section 250.13 which sets forth testing
12 procedures for all wastes to determine if these wastes
13 should be classified as hazardous. The requirements
14 under this section do not recognize the peculiar
15 nature of drilling fluids or of mud systems as used
16 in i ndust ry.
17 When an oil or gas well is being drilled,
18 fluids, commonly called drilling muds are pumped down
19 the inside of the hollow drill pipe under pressure.
20 This mud emerges through jets in the drill bit at the
21 bottom of the hole. It then circulates back up the
22 outside of the drill pipe and emerges through the
23 blowout preventers on the surface. It then passes
24 over a shale shaker which removes rock and sand
25 cuttings. These cuttings and some of the mud flow into
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1 the reserve pit. The filtered mud then goes back into
2 the well to recirculate. This circulation of fluids
3 is absolutely essential to drilling all but the very
4 shallowest of wells
5 It accomplishes several purposes. Most
6 obviously, it cools and lubricates the bit and drill
7 pipe and it washes the cuttings out of the hole. The
8 weight of the mud also allows it to act as a counter-
9 weight to pressures from within the wellbore which
10 might cause a blowout of the well.
11 The composition of the mud also allows it
12 to coat the inside of the wellbore, forming an
13 impervious cake so that circulation will not be lost
14 if a highly permeable formation is encountered. This
15 cake also prevents the wellbore from collapsing.
16 Now, if you would, please, I'm going to
17 skip about a page and a half now in the interest of
18 time, and I'll pick up on about the third paragraph
19 on the next page.
20 A primary purpose of the Resource Conserva-
21 tion and Recovery Act is to protect surface and ground
22 water from undesirable chemical elements emanating
23 ' from hazardous wate storage facilities. The bentonite
24 I added to drilling muds prevents leaching even if the
25 reserve pit did contain materials determined to be
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1 hazardous under Section 250.13. In fact, many states
2 require that closed-off wellbores contain drilling mud
3 to prevent collapse of the walls and possible environ-
4 mental damage.
5 Because the current proposed regulations
6 subject drilling -- subject drilling muds to the
7 unrealistic testing requirements of Section 250.13 and
8 proscribe elements such as trivalent chromium ions,
9 it is possible that drilling fluids may be classified
10 as hazardous wastes. They then would be subject to
11 the so-called procedural regulations outlined under
12 Section 250.46-6.
13 And then I will skip that listing below,
14 please.
15 A careful study of these requirements reveals
16 that, far from being only procedural in nature, most
17 of them are quite far-reaching and substantive. Only
18 the visual inspection requirement can be considered
19 procedural. It would be extremely difficult, if not
20 impossible, to reasonably comply with each of the
21 other requirements. And the economic burden imposed
22 would, in direct' contravention of the stated intent
23 of the EPA, be enormous with little or no environ-
24 mental benefit.
25 The waste -- The waste analysis requirements
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1 would be almost impossible to comply with in a
2 meaningful way. The constituency of drilling fluids
3 is constantly changing due to the addition of new
4 elements to the fluids and cuttings from different
5 geological formations being encountered in the wellbore
6 An analysis made one day could easily be invalidated
7 the next.
8 Furthermore, many well sites are situated
9 in remote areas which would necessitate transporting
10 the samples long distances to obtain analyses. The
11 American Petroleum Institute recently estimated that
12 the cost of performing an extraction procedure test
13 as outlined in Section 250.13(d) on a reserve pit
14 sample would be $750. Considering that there were
15 approximately 48,000 wells drilled last year using
16 drilling muds, the cost of compliance with only this
17 one section of the so-called procedure regulations
18 would be $36 million.
19 The general site selection procedures would
20 also apply to any drilling fluids determined to be
21 hazardous waste. They prohibit the location of a
22 hazardous waste facility in an active fault zone, in
23 wetlands and recharge 7,ones or in 500-year floodplains.
24 This would effectively preclude drilling in much of
25 the Texas and Louisiana Gulf Coast area and in many
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' muds, the absence of dangerous hexavalent chromium
8
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10
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12
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16
17
18
19
20
21
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25
877
parts of California, areas considered by geologists
to be the most promising locations for oil and gas
reserves.
The benefit to the environment which would
result from these strictures is nonexistent. The
sealing properties of the bentonite added to drilling
ions in the fluids, and the rapid reduction of high
pH levels mentioned earlier obviate any dangers to the
environment caused by flooding of a former reserve pit
The security requirements are unnecessary
and cannot reasonably be applied to reserve mud pits.
Surrounding the pit with a two-meter fence to keep
out persons and livestock is totally unnecessary since
drilling operations are carried on 24 hours a day and
the reserve pit is in view and under the supervision
of the drilling crew at all times.
During the drilling of the well, controlled
access points manned by a guard or equipped with
electromechanical devices are not only unnecessary,
but would greatly impede the movement of equipment
and supplies and create a tremendous financial burden
for the drilling operator.
The API has estimated the cost of fencing
each of these 48,000 wells at $3,200 per well, or
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1 $154 million industry-wide. Again, this expense would
2 be imposed with no benefit whatsoever accruing to the
3 environment as a result.
4 The manifest system required of all
5 operators of hazardous waste facilities would be
6 extremely burdensome, not only to the drilling
7 industry, but to the EPA as well. The average depth of
8 the 48,000 wells drilled last year with fluids was
9 only 4,875 feet. Approximately 23,000 wells of that
10 depth were drilled in less than one week each. To
11 ' apply the manifest system obviously designed for more
12 permanent facilities to thousands of reserve pits of
13 such a short life would result in monumental and
14 I unnecessary paper work for the drilling industry and
15 the EPA alike. This regulation simply does not
16 recognize the temporary nature of the reserve mud pit.
17 The closure and post-closure requirements
18 are perhaps the most burdensome of all the regulations
19 Compliance with these requirements could cost in
20 excess of $4 billion according to API estimates.
21 These costs would result from the necessity for the
22 drilling operator to negotiate with the landowner for
23 the right to monitor the site of the closed reserve
24 pit for 20 years.
25 The API has estimated that the total cost of
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1 compliance with those procedural regulations imposed
2 on oil and gas drilling fluids and production brines
3 would be in excess of $10 billion a year, which would
4 almost double the current cost of drilling.
5 An often ignored fact is that the money
6 available to finance drilling operations is not
7 infinite in supply. When nonproductive expense", such
8 as compliance with annecessary federal regulations
9 increase, there is less money available to drill wells.
10 Besides adding to the cost of energy, such
11 regulations as the EPA is proposing greatly impede
12 production of our domestic energy reserves. And at
13 what benefit to our environment? Practically none,
14 as the EPA has stated. Drilling muds and reserve mud
15 pits pose no danger to persons or to the environment
16 under current operating procedures.
17 The Environmental Protection Agency has
lg conceded that there is little or no evidence to
19 indicate that there are hazards posed by special
20 wastes such as drilling fluids. We concur with the
21 wisdom of the EPA in giving drilling fluids special
22 treatment. We fail to see, however, how the standards
23 as currently proposed afford any meaningful regulatory
24 relief to the special waste category.
25 For these reasons, the Petroleum Equipment
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1 Suppliers Association respectfully suggests that
2 drilling fluids be exempted from the proposed
3 hazardous waste regulations until such time as the
4 agency has a thorough understanding of the characteris-
5 tics of special wastes and the degree of environmental
6 hazard, if any, posed by them.
7 Thank you.
8 MS. DARRAH: Thank you.
9 MR. HANRIGHT: I was trying to read that in
10 ten minutes. I don't know if I made it or not.
11 MS. DARRAH: It was about ten and a half,
12 and it was very much appreciated.
13 I know we have heard many of vour comments,
14 but I'm sure there may be some questions. Will you
15 answer them for us?
16 MR. HANRIGHT: Yes, ma'am, to the best of
17 my ability.
18 MS. DARRAH: Okay.
19 MR. LEHMAN: Mr. Hanright, apparently we
20 have before us here a man who really knows what's in
21 drilling mud. We have asked that question of a number
22 of other people, and they always say that these are
23 proprietary things and nobody really knows what's
24 inside them.
25 MR. HANRIGHT: I have to ta"ke the Fifth
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1 Amendment here. As I stated when I opened, I'm speak-
2 ing to you as the Chairman of the Service Companies
3 Committee. However, in private life, I'm president
4 of a service tool company. We have hardware, so I'm
5 not an expert.
6 MR. LEHMAN- Okay. Well, perhaps your
7 testimony to us might be able to supply us with the
8 name of a guy who really does know or, even better,
9 supplies us with some data as to what typical
10 compositions of drilling muds might be in various
11 situations. That would be very helpful to us.
12 MR. HANRIGHT: Well, I would be dangerous
13 on that subject. I do believe that we are going to
14 put that, or some of that information in our written
15 comments .
16 MR. LEHMAN: Okay. That would be very
17 he Ipf ul .
18 I would like to just correct something that
19 might be a mis impression. I believe your testimony
20 says that Section 250.46-6, which is the special waste
21 facility technical standards for oil drilling, you
22 say that section makes driling fluids subject to
23 Section 250.13, which sets forth testing procedures.
24 MR. HANRIGHT: That was our interpretation.
25 MR. LEHMAN: And I have got to say that it's
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1 the other way around. In other words, it is only if
2 your wastes, when -tested subject to 250.13, indicates
3 that it is hazardous that it then becomes subject to
4 Section 250.46-6.
5 MR. HANRIGIIT: Okay, sir.
6 MR. LEHMAN: In other words, you had it
7 reversed.
8 MR. HANRIGHT: All right. Well, thank you.
9 MR. TRASK: There is another comment, Mr.
10 Hanrigrht .
11 I think that the special wastes are not
12 subject to the manifest -- manifesting part of 250.22.
13 I think you might want to look at that. Your statement
14 indicated otherwise, arid I think that, at least, it is
15 not our intent that they would be.
16 MR. HANRIGHT: All right, sir. We will look
17 at it .
18 MR. TRASK: That does not mean that you might
19 not be subject to DOT shipping paoer requirements,
20 however.
2i MR. HANRIGHT: Okay.
22 MR. FIELDS: Mr. Hanright, the question --
23 I guess I didn't understand your -- your comments on
24 the Section 250.43, waste analysis requirements, 3004.
25 And you indicated that it was going to cost $36 millior
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I to comply with that requirement. But your -- your
2 statement was based on 3001. You are — You are
3 assuming that the — the -- the -- each well drilled
4 would have to sample the waste per the extraction
5 procedure of 3001 and -- and then you said that you
6 were going to multiply it times the number of wells
7 into 36 million, but there is nothing in 3004 that
8 requires that these wastes in the reserve pit -- that
9 waste analysis is not necessarily an extraction
10 procedure; just all it says is you must do an analysis
11 sufficient to characterize the waste in order to
12 dispose of it properly.
13 MR. HANRIGHT: Yes, sir. We may not have
14 put it in that exact language in our comments here,
15 but that's what we meant: that in taking samples of
16 each reserve pit, and each well drilled has a reserve
17 pit, that those were going to cost on the average of
18 $750 each.
19 MR. FIELDS: And are --
20 MR. HANRIGHT: And they will drill about
21 48 to 50,000 wells this year.
22 MR. FIELDS: And it was -- I mean you didn't
23 do that type of analysis to determine what to do with
24 the wastes? That's all 3004 requires you to do.
25 MR. HANRIGHT: Reserve pit, you can't take
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884
1 an analysis in one spot in a reserve pit. A reserve
2 pit is, you know, many-faceted.
3 As an example, suppose you were drilling in
4 limestone for a while and then went off into shale.
5 | Just the things that you are putting in the reserve
6 | pit change. The fact that you had changed mud during
7 the life of the well by adding things and so on, the
8 wash water that comes off the rigs and what it's
9 washing go into the reserve pit. You do special jobs
10 like cementing jobs on casing or squeeze jobs and
11 cement comes back up and is put in the reserve pit.
12 Well, where do you take the sample? So we felt that
13 you would have to sample various sections of the
14 reserve pit to find out what was in it.
15 MR. FIELDS: Does that $750 consider all that
16 in your estimate?
17 MR. HANRIGHT: Yes.
18 MR. FIELDS: Okay. The second question. If
19 -- I don't know if your written statement that you gave
20 us contains this, but you indicated that several
21 states require that these muds be put back into the
22 reserve pits to prevent leaching. If you could --
23 MR. HANRIGHT: No.
24 MR. FIELDS: I thought that's what you said.
25 MR. HANRIGHT: No. A well, if it's abandoned
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1 that -- the wellbore itself contains mud.
2 MR. FIELDS: Oh, how about the reserve pits
3 themselves?
4 MR. HANRIGHT: The reserve pits, of course,
5 they -- various states have regulations regarding
6 reserve pits. But in most cases, the reserve pit is
7 backfilled after a short period of time, and that's all
8 there is to it.
9 MR. FIELDS: Okay. Thank you.
10 MS. DARRAH: I guess that's all our questions
11 Thank you.
12 MR. HANRIGHT: Thank you.
13 MS. DARRAH: George Rhodes from Texas
14 Coastal and Marine Council?
15 MR. GEORGE FRED RHODES: I would like to
16 introduce myself as George Fred Rhodes from Port
17 Lavaca, Texas. I am a member of the Texas Coastal and
18 Marine Council.
19 The Texas Coastal and Marine Council is a
20 state agency directed by the statutes of the State of
21 Texas to assess and evaluate various activities
22 impacting the coastal sector of the state and to
23 recommend to the state legistlature any programs or
24 policies deemed appropriate.
25 This council is made up of 18 members, 6 of
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1 which are appointed by the Governor, 6 by the
2 Lieutenant Governor and 6 by the Speaker of the House.
3 I happen to be the citizens' representative appointed
4 by the Lieutenant Governor.
5 I have served on this council for three
6 years. I'm a small town, country lawyer; and if you
7 get to asking me some questions, I'm pretty limited,
8 so keep that in mind when you start, Mr. Chairman.
9 In that connection, I would like to give you
10 the benefit of what our studies in Texas have shown
11 and the studies that we have ma.de and the rules and
12 regulations that we have promulgated. It is not so
13 much as to say what you should be doing, but tell you
14 what we have done, and we have found that it's worked
15 for us in Texas.
16 You have heard several of the speakers
17 earlier testify, of course, that various facets of
18 our industry are exempted from various phases of our
19 regulations. They are either regulated by the
20 Railroad Commission or they cone under some other
21 regulatory body.
22 Our primary concern, of course, is with the
23 coast. And being subject, of course, to hurricanes,
24 this is, of course, very important to the environment
25 and, of course, to the people, and to the people that
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887
1 live along the coast, including, of course, industry
2 that operates there and much of our industry is
3 located on the Texas coast.
4 I might like to add this, that the -- we
5 don't have any 500-year records. The crocuses didn't
6 keep them. And I guess when the storms come along,
7 they washed this weather station away because all we
8 have is just a hundred or so years.
9 And I might say that we use the hundred-year
10 floodplain, and the highest floodplain we have is 18.6
11 tide, flood tide, which came with Hurricane Carla in
12 1951. This is a lot of water. I you don't believe
13 it, back off and see how high an 18.6 feet high wave
14 is coming in.
15 Now, in connection with what we have been
16 doing, I would like to say that the Council has under-
17 taken study of solid waste disposal practices in the
18 state and focused specifically on the concept of
19 perpetual care. Our biggest problem in Texas so far
20 with our industrial waste has been with the perpetual
21 care or the care of it and the lack of care of it.
22 And so the only problems that we have had really that
23 have manifested themselves to any great extent are in
24 this area, in the perpetual care area.
25 Now, we had two University of Texas law
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1 school professors who were engaged to study the legal
2 basis for establishing such a program and the question
3 of the continuing liability. >Jow, that's — copies
4 of their reports to the Council are contained in the
5 material that I have submitted to you today.
6 Also in the packet submitted for the record
7 is a copy of the report and recommendations that the
8 Council adopted for submission to the legislature and
9 a copy of Senate Bill 499 now under consideration in
10 the state legislature. That bill would implement the
11 recommendations by imposing a fee on the generators
12 and/or disposers of nonradioactive industrial solid
13 was te .
14 I might go over the report just briefly
15 to say that during the 65th legislature, which met
16 two years ago, the Texas Senate adopted a resolution
17 pertaining to the assessment for the need to create
18 a perpetual care fund to insure that industrial waste
19 disposal sites could be promulgated in a fashion
20 without placing an undue burden on the taxpayers of
21 the State of Texas. The Senate resolution directed
22 that the Texas Coastal Marine Council, in cooperation
23 with the Department of Water Resources, the Gulf Coast
24 Waste Disposal Authority and other interested and
25 knowledgeable parties undertake this assessment and
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1 present a report to the 66th legistlature when it
2 convenes in 1979. And, of course, it is now in
session, and the report that I have submitted to you
contains the recommendations, and I will touch on
those just briefly without taking up undue time.
But to regress just briefly, I would like
to say that direct regulation of industrial solid
waste disposal in Texas began with the enactment of
9 the Texas Solid Waste Disposal Act in 1969.
10 Now, with this Act, the 61st legislature
11 assigned jurisdiction of solid waste management to
12 the Texas Water Quality Board and the Texas Department
13 of Health. And we had two types of solid waste at
14 that time, which they were recognized by the Act, and
15 that was a municipal solid waste, which included
16 discarded or unwanted materials produced by municipal
17 sources, such as normal household refuse and similar
18 wastes from businesses and commercial activities. And
19 the second was the industrial solid waste, which
20 includes all discarded or unwanted materials from any
21 process of industry, manufacturing or agriculture.
22 Industrial solid wastes include solids, slurries or
23 1iquids.
24 Now, we have a — before this Act, our
problems really were not of any great consequence. I
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1 mean we had -- our rules were very limited, and this
2 is where our problems began. It was not very difficult
3 to obtain a disposal site. There were very few
4 regulations and, consequently, some problems arose
5 that really didn't manifest themselves until later.
6 And we've got some examples of some abandoned sites
7 in Texas, just as I am sure you have he;ard from other
8 states that they have. Fortunately, ours are not very
9 varied -- not very difficult. They will be cleaned up
10 for about $5 million, which we don't have but we are --
11 we are attempting to -- to approach this. And I'm
12 going to explain to you in a minute how we are going
13 to atte' • to raise this money.
14 ut our biggest problem that we have left is
15 in the H. G. Kelley disposal site in Galveston County,
16 Texas. This is about six foot above sea level. During
17 Carla, it probably had about twelve foot of water over
18 it. So, to give you an idea that it's very susceptible
19 of course, to hurricanes, hurricane water.
20 Now, during the Forties and Fifties, it was
21 used for disposal of sulfuric acid sludge, and the
22 site presented an environmental hazard until attempts
23 began in the mid-Sixties to have the site closed.
24 Well, I told you we didn't get the act to
25 protect all these things until '69. Due to the age of
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the site, determining primary, for example, liability
was difficult because the contributing companies were
not known or had changed identity. After lengthy
efforts by the Texas Water Quality Board, Galveston
County, the City of Dickinson and the landowner, a
successor to the primary generating company, donated
7 some $3,000 towards a site closure.
8 Now, this donation, believe it or not,
9 enabled the purchase of enough material to treat the
10 acid waste in the pit to reduce the environmental
11 hazard. With additional contributions of fill
12 materials from a contractor employed by the Texas
13 Department of Highways and Transportation, the site
14 has been about 98 per cent closed. Efforts continue
15 to complete the site closure.
16 Now, other efforts, we have had — we hid th
17 Petro Processors site, again in the Texas City area,
18 where we had -- subject to storm tide, probably being
19 in the eight to not more than ten foot level above
20 sea level. This facility was used for the dumping
21 of styrene tar -- tars and other hazardous waste
22 materials beginning in '59. Again, this was ten years
23 before we began to realize we needed some regulations
24 in this area.
At 'least two attempts to reclaim the
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6
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13
14
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892
estimated 380,000 barrels of styrene tars deposited
at the site have failed. Now, efforts by the state to
ascertain and place liabilities on the suspected
contributors have not been successful. Estimates made
by the Texas Department of Water Resources staff
indicate that the cost of complete site closure may
be as high as $5 million.
Another effort toward closure of another
different disposal site has lasted approximately four
years. We had the French Limited on a 22-acre site
containing 12 acres where petrochemical waste material
were deposited during the 1960's and early 1970's.
State enforcement action resulted in a partial site
closure, permit cancellation, and transfer of the
property title to the state. Although some environ-
mental hazards from the site remain, no state funds
are currently available to complete site closure.
Now, after we had the study, which we were
charged with by resolution from the legislature, we
came up with the conclusion that the current statutory
authority and the Department of Water, Texas Depart-
ment of Water Resources regulatory program for
industrial solid waste management appear adequate with
respect to environmental protection from waste manage-
ment activities undertaken since the passage of the
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1 Solid Waste Disposal Act of 1969. However, state
2 resources for correcting problems predating the Solid
3 Waste Act and correcting potential problems from
4 present and future waste disposal activities are not
5 available. The lack of such resources has severely
6 limited the Texas Department of Water Resources'
7 ability to correct past problems and can be expected
8 to hamper future efforts.
9 Experience and practicality suggest that
10 ultimate responsibility for monitoring, control and
11 future corrective actions rest with the state. The
12 cost of both post-closure monitoring and correction
13 of future environmental problems can be borne by waste
14 generators and/or disposal site operators.
15 Now, I'd like to say in connection with this
16 recommendation that, after this study, the Texas
17 Coastal and Marine Council has submitted through one
18 of our Senators Senate Bill 499, which is included in
19 the packet which I have delivered to the Reporter and
20 to the Madame Chairperson.
21 This bill would implement the recommendation
22 ! by imposing a fee on generators and/or disposers of
23 ; nonradioactive industrial solid waste.
24 Now, I'll digress to that just briefly in
25 the sense that we set up -- I might add this bill, of
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1 course, has not passed. It's just been introduced.
2 There's been some hearings on it, but it provides for
3 a fee schedule to provide a fund whereby the fee
4 schedule will be set up after hearings -- it will be
5 implemented after public hearings which address at
6 the minimum the financial responsibility and the
^ solvency of generators, transporters and disposers of
8 such nonradioactive industrial solid waste.
9 The Board shall, to the extent practical in
10 its judgment, vary the fee assessed per ton for various
11 classes, types or other categories of industrial solid
12 waste, such that the fee assessed bears a reasonable
13 relationship to the environmental hazard posed by the
14 various classes, types of other categories of waste.
15 In no case shall the fee exceed 50 cents per ton. The
16 minimum fee may be a zero cent per ton.
17 From time to time, as may be appropriate in
18 the opinion of the Board, the fee schedule may be
19 altered so as to maintain the unencumbered fund balance
20 at a level not to exceed $5 million.
21 This is our approach to alleviating the
22 problem and perhaps curing the problem that we know we
23 have to cure that was created prior to the enactment
24 of the Solid Waste Disposal Act in 1969.
25 Now, radioactive solid wastes are treated
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1 separately in Texas law and are not included in the
2 type of waste which we are concerned with. This has
3 not been -- a resolution to study this problem has
4 not been presented to our Council, and I merely have
5 included it with -- herein a copy of House Bill 1551
6 dealing with radioactive wastes, incorporated in the
7 packet for your information just to show you that
8 Texas is acting in that area. But I'm not -- I just
9 read the bill and that's all.
10 The bill would authorize the State Departmenl
11 of Water Resources to assess a fee and to handle that
12 -- that part of it, of the -- of the disposal. But
13 the main purpose of the act is to see that the
14 citizens of the state are not burdened with the
15 expense of correcting someone else's mistake or
16 negligence.
17 There is in the bill a provision authorizin
18 agreement -- agreements with the Federal Government
19 to assure compatibility of concept and programs under
20 the Resource Conservation and Recovery Act of 1976. It
21 is our hope and feeling that the Texas program will be
22 complementary to the measures being discussed here
23 today. At this point in time, there are only a few
24 real problem sites in Texas, and we propose to
25 eliminate those problems as quickly as possible while
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1 minimizing the chances for new ones.
2 We just want you to know that we have been
3 handling our problem. V/e think we have handled it
4 since we have enacted the law in 1969, and it has
5 worked, and we want you to be aware of what we are
6 doing in Texas.
7 Now, I will try to answer any questions. I ' it
8 a hundred miles from home and I have a briefcase, but
9 I'm not an expert. But I will try to answer any
10 questions that you have. And before you dismiss me,
11 I do want to thank you for letting me appear here.
12 MS. DARRAH: Okay. Thank you very much for
13 coming more than a hundred miles.
14 MR. LINDSEY: In your statement, Mr. Rhodes,
15 you indicate that you expect the fee to be about 50
16 cents a ton or something.
17 MR. RHODES: That's a maximum fee.
18 MR. LINDSEY: Okay. Somebody else earlier
19 today, or perhaps possibly yesterday, was talking
20 about setting up a fee on a national basis, and we've
21 been considering that for post-closure liability,
22 which is roughly the same thing you are talking about
23 here. And one of the problems that's been addressed
24 is the problem of how do you vary the fee rather than
25 having it -- In other words, one option is to have a
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1 flat rate of X number of cents per ton. Then what
2 happens is that the people that have very high
3 quantities of rather low-hazard wastes end up paying
4 a disproportionate amount of the total amount of
5 money that goes into this fee.
6 How do you expect to handle that?
7 MR. RHODES: Well, as you noticed in our
8 bill, it said this price would be determined after
9 public hearing. We have -- In the particular county
10 that I live, we have two large industries: the
11 Aluminum Company of America, which handles bauxite
12 waste and aluminum, and manufactures aluminum; and,
13 of course, Union Carbide Corporation, which has a
14 different type of waste. Both of them are concerned,
15 Alcoa more than Union Carbide, as to are you going to
16 charge us — how are you going to charge us. And
17 those, of course, that have the larger amounts of
18 wastes are concerned that the price be less to them
19 if their hazard is not great.
20 So these are just rules that I'm sure will
21 have to be determined by the -- by the public hearings
22 when they are held.
23 And, of course, this is always a difficulty.
24 No one really wants to pay anything or, if they want
25 to pay anything, they want to pay a minimum amount.
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1 I'm sure our legislature does not want to overburden
2 industry. We have some 14,000 industrial plants in
3 Texas, and they found us attractive and we hope they
4 can continue to be there.
5 But we all have to live there, and we do have
6 to have rules and regulations by which we can all live
7 together and protect not only the environment but in
8 which they can also make a profit.
9 So I would think this would be taken into
10 consideration. As to a magic formula to give you, I
11 don't have one.
12 MR. LINDSEY: Your draft regulation, though,
13 does allow for different rates for different --
14 MR. RHODES: Yes, sir. And I would think
15 particularly that if you had a large amount and it's
16 not particularly hazardous, I would think that the
17 rate would be less; if you had particularly hazardous
18 material, even though it may not be very great in
19 amount, it would be great because the handling of it
20 would be more difficult.
21 And, of course, the problem would be -- woulc
22 be the closure of the site after abandonment or in the
23 event of bankruptcy or whatever else that someone
24 leaves the site for. That's the problem that we have
25 had in the past. Once you have established financial
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1 responsibility, then you have no problem with it.
2 Most of the on site, we started out with our rules thai)
3 the on-site sites did not have to post any type of
4 bond, but presently they are also required to show
5 financial resonsibility.
6 MR. FIELDS: Mr. Rhodes --
7 MR. RHODES: Yes, sir.
8 MR. FIELDS: -- could you tell us -- you
9 say the bill is currently being discussed in the
10 legislature. What are the prospects? Does it look
11 like it's going to be enacted? Do you have any feel
12 for that?
13 MR. RHODES: You remember Mr. Snow being
14 here earlier this morning.
15 MR. FIELDS: Yeah.
16 MR. RHODES: He told me he didn't think it
17 was going to pass. But I differ with him. I think it
18 wil1 pass.
19 MR. FIELDS: Okay.
20 MR. RHODES: I really do. I think that we
21 do have the problem along the coast, and because of
22 the problems we have, I'm sure there will be some
23 changes, there will be some amendments. There always
24 are. But I feel certain that this bill will be passed
25 But primarily we want you people to understan
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that we are not sitting down in Texas waiting for you
in Washington to make our rules and regulations; that
we are also trying to promulgate some rules and regula-
tions. First of all, you guys may be too slow or you
may be too fast. When 1 say "you guys," I'm talking
about you two girls also .
You know, Mr. Lehman, talking about being an
expert, let me tell you about the man, the professor,
that was going -- he went to seminars like this and
made comments for industry. And he was an expert in
a particular field.
And he was always chauffered to these
seminars by a chauffer. And this chauffer had heard
this speech about eight or ten times. And just before
they were about to make this one place where he was
going to make a speech, he said to him, he said, "You
know, I have heard you make this speech so much that
I could make this speech. I know I can."
So he thought about it a little bit. And
just before he got to the university where he was going
to give his speech, he stopped and he said, "Okay. I
have thought about what you are going to do. Give me
your uni form."
He got the chauffer's uniform. He got out of
the car and drove up there, and the chauffer got up and
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1 made the speech.
2 Well, he did an excellent job. He gave it
3 just like the professor had been giving it the eight
4 or ten times he heard it. But all of a sudden, some
5 wiseacre in the back over there asked a real technical
6 question that obviously he couldn't answer. And he
1 stopped for a minute and he said, "Sir, just to show
8 you how simple your question is, I'm going to let my
9 chauffer there in the back answer it."
10 Now, I didn't bring my chauffer today.
11 MR. TRASK: Well, Mr. Rhodes, in the absence
12 of your chauffer, your statement indicates that
13 generator, transporter or disposer should fully
14 participate in legal compliance with the law and state
15 regulations would be immune. I assume that's after
16 this -- if the legislature passes this thing. Could
17 you explain what you mean?
18 MR. RHODES: You mean -- You say they are
19 immune?
20 MR. TRASK: Would be immune from any further
21 liability of the state is the way you put it here.
22 MR. RHODES: Well, that's not absolutely
23 correct in the sense that this bill does not address
24 the -- The senate bill, you will see after you read it,
25 does not address the liability or the immunity part.
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902
1 We were wrestling with the question in Texas as to
2 whether or not a generator loses or -- or does he end
3 his liability when he gives it to a transporter or
4 when he gives it to the site.
5 At this present time, the law is -- is there
6 is really no Supreme Court decision in Texas on this,
7 and I think that they perhaps could under certain
8 circumstances. I doubt seriously if they could -- if
9 it's a. highly toxic or if it's a material that's very,
10 very dangerous in nature or if they handle it in —
11 even though they may dispose of it, if they are still
12 involved with gross negligence and those kind — or
13 just intentional negligence of some sort, I think the
14 liability would not end.
15 MR. TRASK: So there could be some residual
16 responsibility, then, for some of the extremely
17 hazardous wastes --
18 MR. RHODES: Yes, sir.
19 MR. TRASK: -- or whatever.
20 MR. RHODES: Yes. Now, there has been a
21 movement by industry, of course, to -- to limit their
22 liability or to curtail it or to abruptly end it once
23 it's given to the transporter or once it's delivered
24 to an acceptable licensed disposal site. I don't
25 believe that there has been any -- at least I believe,
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if you will read the brief that is enclosed in here,
1 don't believe there's been any case in that cite,
and you are aware, of course, under the federal act
and the Atomic Act, they were not successful, or at
least it's under attack in the Supreme Court, of
' limiting the liability where you have an incident
involving atomic energy or atomic energy wastes.
MR. TRASK: Okay. Thank you
MS. DARRAH: Okay. We thank you very much
for your comments.
MR. RHODES: I appreciate you listening to
it .
MS. DARRAH: If you want to send your
chauffer next time, we will listen to him, too.
Let me read the names of the next — I have
four more people who have registered to speak today.
I will read their names and the order in which I will
call them.
Mr. Brubaker, Mr. Gladbach, Mr. Schwegmann
and Mr. Jopling.
If there are any other people who do want to
offer comments on Section 3004, please contact the
registration desk.
We will take a short break and reconvene at
five minutes of 4:00.
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904
1 (Short recess.)
2 MS. DARRAH: Is Mr. Brubaker here?
3 Okay. Mr. Gladbach, Department of Water and
4 Power, City of Los Angeles.
5 MR. EDWARD G. GLADBACH: Yes. For the
6 record, my name is Edward G. Gladbach, and today I'm
7 speaking only on behalf of the Department of Water and
8 Power, at least for now. It might change later.
9 MR. LINDSEY: It's going to change?
10 MR. GLADBACH: Yeah. Okay.
11 Today I would like to express the concern
12 which the department has regarding the proposed 3004
13 regulations which you have proposed under RCRA.
14 As I stated Monday, we believe that there is
15 really only one or two waste streams from a power plant
16 which is truly hazardous. We further belive that you
17 should not impose the 3000 series of regulations at
18 all on the utility industry until you develop a method
19 of classification which takes into account the known
20 composition of the material and the experience which
21 has been obtained from using tha.t material and its
22 waste management in addition to a sound extraction
23 procedure, which really goes back to 3001. We believe
24 that it would then be appropriate to implement a
25 utility waste category of regulations. Further, we
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905
1 recommend that the utility waste category include all
2 utility wastes which are unique to power plants.
3 Please recognize that the power plants
4 presently meet requirements of several laws, both
5 state and federal, which protect the same aspects of
6 the environment as these regulations will attempt to
7 do. These, then, only become another layer of
8 regulation.
9 We have several concerns with the siting and
10 operating regulations, but our main concern today --
11 I'm just going to focus on just a very few.
12 We fear that we would be expending large
13 sums of money needlessly to meet the proposed regula-
14 tions. Much of that expenditure would be at our
15 coastal power plants which undoubtedly lie within the
16 500-year floodplain and would probably overlie an
17 aquifer,
18 In the regulations, a waste disposal
19 facility is precluded from being sited in a 500-year
20 floodplain, over a sole-source aquifer, and also an
21 evacuation plan must be prepared and submitted to the
22 state and local law enforcement agency, a security
23 program must be implemented, you have got to have a
24 training program, etc.
25 When I presented this to some of our
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1 management, they were sure that the people that wrote
2 this came from the NRC because we had just gone through
3 the whole thing trying to get a nuclear plant put
4 together. But I assured them that I thought that they
5 had -- that you had not. These latter items really
6 sound, though, like a nuclear plant operating require-
7 ment rather than operating a settling pond, a pond
8 which contains water which we used to discharge to the
9 ocean and after 20 years of discharging it to the
10 ocean, we had biological studies run by marine
11 biologists and oceanographers, and they proved, with
12 20 years of operating that way, that it had no
13 significant effect on the marine environment, the
14 discharge.
15 As I pointed out in my comments Monday,
16 these waste materials from our fossil fuel power plant
17 do not warrant such concern if, indeed -- if, indeed,
18 any concern over what is now performed.
19 And I did mention that, as T said, Monday
20 and earlier, that, you know, there is probably one or
21 two other waste streams that is, you know, hazardous,
22 and we deal with those in the appropriate manner. One
23 of those waste streams is when we have acid cleanup
24 of the boiler, that we hire a contractor, such as Dow
25 Chemical or IT Corporation to come in and acid-clean
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1 the boiler and then dispose of all that material in
2 a Class I landfill as part of a single contract.
3 Regarding the 500-year floodplain, I would
4 like to point out that our experience has been that I
5 don't think there is any one agency that has maps for
6 all the 500-year floodplains in the country. This was
7 discussed earlier in the week.
8 And, furthermore, that it's very subjective
9 what the 500-year floodplain is. Being a licensed
10 civil engineer and having gone through, again,
11 hydrologic studies for a nuclear power plant, we went
12 around with NRC for a year just establishing the
13 factors to be used in determining -- In that case it
14 was a probable maximum flood. And we had nine feet of
15 water over most of the entire San Joaquin Valley. And
16 I concurred, too, that in that 500-year flood that
17 most of the San Joaquin Valley would be under water.
18 I think, too, we have got to recognize that
19 they can plan with numbers and pretty soon numbers
20 become so they don't mean anything. But then we get
21 it back to perspective and, yeah, a 500-year flood
22 can occur this year, it can occur next yeai, it can
23 occur the following year, but over a statistical base,
24 it's going to occur once in 500 years.
25 And let's recognize that Columbus only
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908
1 discovered America less than 500 years ago, so what
2 we are talking about here is one hell of a big flood.
3 And it's reasonable, I think, to assume that
4 there are going to be chemical plants located within
5 that 500-year floodplain, as are many power plants,
6 and in the event of a 500-year flood on such a stream,
7 the products of the chemical plants located in that
8 floodplain can be washed down the stream and mixed
9 with flood waters. The only thing that will be left
10 when the flood recedes is a power plant's waste
11 disposal facility containing materials which we contenc
12 are not even hazardous. And in our case, those
13 materials which we discharged to the ocean for 20
14 years without any incident.
15 We recognize the need to have improved
16 procedures for containing the more hazardous wastes,
17 such as the acid cleaning from power plants, and to
18 prevent the reoccurrences of the Love Canal incident.
19 However, things must be kept in perspective. That is,
20 less stringent regulations for less hazardous
21 materials. And keep in mind the Objective No. 4 of
22 the Act. which states, "... regulating the treat-
23 ment, storage, transportation, and disposal of
24 hazardous wastes which have adverse effects on health
25 and the environment."
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909
I Also keep in mind that other -- elsewhere in
2 the Act, where it points out that the object is to
3 protect against a substantial threat to human health
4 and the environment.
5 We recognize that you have provided some
6 variance on some of the regulations by way of your
7 notes provided an applicant proves that certain
8 conditions occur. Based on our past experience
9 regarding applications, such variances are extremely
10 time consuming and expensive and, on occasions, one
11 is obligated to spend the funds and meet the regula-
12 tions whether or not it is cost effective.
13 I would like to point out that the Departmenl
14 has just spent millions of dollars for the industrial
15 wastewater treatment systems at two of our coastal
16 po-wer plants to meet NPDES permit conditions. These
17 plants probably lie within the 500-year floodplain and
18 are over an aquifer with less than 10,000 milligrams
19 per litre of TDS. This work consisted of piping and
20 settling basins. The settling basins have been lined
21 with asphalt to make them more impermeable. And these
22 settling basins hold -- again hold the waters which we
23 used to discharge to the ocean.
24 If these regulations are promulgated as
25 proposed, we would probably have to completely rebuild
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910
1 these basins to protect them against a 500-year flood,
2 install monitoring wells, fence the basins. Most of
3 this work would be done just to protect against a
4 500-year floodplain, or a 500-year flood to protect
5 the groundwater because the groundwater has less than
6 10,000 milligrams per litre TDS, yet this groundwater
7 will never be used because it migrates to the ocean
8 a few hundred feet away. This is an example of my
9 discussion on Monday of expenditures of large sums of
10 money without any associated benefits.
11 Based upon this information and that
12 contained in my statement Monday, we recommend that
13 you exempt existing power plants from the siting and
14 operating regulations as has been done for the
15 publicly owned treatment works; that you postpone the
16 promulgation of any regulations affecting future
17 power plants until your studies are complete, and that
18 you revise the 500-year floodplain to the 25-year
19 floodplain.
20 And I would like to take a few moments to
21 discuss some items which have come up during the last,
22 you know, couple days.
23 And that is speaking of hazardous wastes,
24 the various classes, I think you've heard various
25 speakers. Most speakers -- I wasn't trying to keep a
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1 tally, but seems like most speakers were speaking for
2 having degrees of hazardous waste. I think there were
3 some that felt that you probably needed to increase th
4 requirements that you had on some of your regulations.
5 It was my impression that, having some, I
6 guess, assumption as to what materials they were
7 dealing with, certainly determined what they were
8 saying, and I think most of those speaking for less
9 stringent regulations had hazardous wastes which I
10 think the average person would not consider hazardous.
11 And they are only considered hazardous because of
12 3001 regulations.
13 And I would submit that, you know, take a
14 hard look, you know, at trying to come up with, I
15 think, more than one class of "egulations because I
16 think what you are trying to do is that certainly you
17 want to protect the worst materials and make sure that
18 they don't get in the environment, but in so doing,
19 you are throwing thousands, or hundreds of thousands
20 of times the volume of that waste material into that
21 same category, and I think you are causing undue
22 concern, and I think public unrest in the area of
23 hazardous materials.
24 And I think you are going to cause a lot of
25 problems, and I think it may come back to haunt you,
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1 and I would hate to see that.
2 On the business of standards versus guide-
3 lines, and, you know, this gets back to your notes,
4 I'm one that I guess I'm a pioneer in things, and I
5 like to be able to be flexible, to be given the
6 flexibility to come up with innovative systems, and
7 I personally hate to see regulations set out that you
8 can't use your -- you know, your engineering judgment
9 or good, sound experience in coming up with what you
10 feel is best.
11 The problem that I see with that and the
12 problem the Department's having with that right now
13 is that that's a good principle if everybody works the
14 way 1 think we are working back and forth together
15 here. But what happens is that it gets into another
16 branch of EPA, I assume, that gives out the permits,
17 and somehow I feel that they don't feel that they got
18 the authority to work — to do anything other than
19 follow a set of codes that you could feed into a
20 computer and it would say ''yea" or "nay."
21 We have the personal experience of having
22 settling ponds, which is a very sore spot to me
23 because we submitted a variance request two years ago
24 to the Federal Government. It's been sitting in
25 Washington, D. C. for two years. We have not heard
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1 anything on that. We were forced under the -- under
2 the threat of enforcement to spend millions of
3 dollars to get -- to meet the regulations, which we
4 did with arm-twisting. And yet there's been no action
5 under -- on our variance request. And I only submit
6 that for background information because I think that,
7 when you have flexibility, accompanied with that
8 flexibility, you got to have a permit system, a permit
9 branch that acts, you know. I'm not saying the next
10 day or the next week, but they act in a time where
11 another branch of EPA doesn't come in and force you to
12 -- into spending the money while someone else is
13 setting around ignoring what you have done.
14 And excuse my feelings on that because it's
15 hard -- it's hard to ignore those.
16 Just a couple things for the record, Mr.
17 Trask. I did talk to our office in Washington, D. C.,
18 and they are confident that the information you
19 requested regarding the volumes, you know, the low
20 volumes of materials as well as the high volume
21 materials and costs associated therewith will be
22 included in our comments, which you asked that I
23 give EPA.
24 I would ask that, in the event if that's
25 inadequate, I would appreciate you getting back to us
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914
1 and we will be glad to furnish additional information.
2 MR. TRASK: Thank you.
3 MR. GLADBACH: I would like to clarify one
4 thing I heard from someone. I thought that someone
5 said that no manifests -- Oh, they are referring to
6 the, I guess, the petroleum industry. No manifests
7 was required for special wastes. I think that was
8 under 46-6 or 5 or something.
9 Does that include for all special waste
10 categories. I think, Mr. Trask, you were the one
11 that --
12 MR. TRASK: The reference there was to the
13 oil and gas drilling muds.
14 MR. GLADBACH Right.
15 MR. TRASK: I don't know about all others.
16 MR. GLADBACH That was that specifically?
17 MR. TRASK: And also in the context of the
18 statement that he had given us.
19 MR. GLADBACH: That's what I was referring
20 to. I was just wanting . . . Okay.
21 And there was a comment brought up yesterday
22 and I think the panel asked a question on it, whether
23 someone felt that reused material should be covered
24 under this -- these regulations. And USWAG, and at
25 this point I'm -- Utility Solid Waste Activities
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915
1 Group, we are firmly convinced that, in the event
2 that reused materials or materials to be reused would
3 be -- would come under the regulations here, that it
4 would certainly eliminate the -- most all reuses of
5 power plant waste, of power plant byproducts, which
6 would then become wastes and not be reused.
7 So I would request, strongly request, that
8 if a material is to be reused that it not come under
9 these regulations.
10 And there was also another question brought
11 up this morning about EPA's authority under other
12 acts to control the water or to protect the water. I
13 believe that EPA under the Clean Water Act and the
14 Safe Drinking Water Act has adequate protection, or
15 has adequate authority to protect all the waters of
16 the country.
17 MS. DARRAH: Are you speaking for the city
18 or for USWAG?
19 MR. GLADBACH: Speaking for the city.
20 And that is a request. I would rather see
21 all air matters being taken care of under the Clean
22 Air Act, even though the Act itself was not intended
23 to set up -- I don't think this would stop EPA's air
24 group from setting regulations for incinerators and,
25 again, to have any transportation regs.
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916
I Okay. I will drop that one.
2 Okay. That's -- that concludes my comments.
3 MS. DARRAH: Okay. Thank you,
4 Any questions9
5 MR. LINDSEY: No.
6 MR. LEHMAN: Yes, I have one.
7 MR. GLADBACH I am somewhat sorry for the
8 disjoin ted .
g MR. LEHMAN: Mr. Gladbach, I wanted to just
10 explore one statement you made earlier on in your
11 testimony where you say that power plants presently
12 meet the requirements of several laws which protect
13 the same aspects of the environment that these
14 regulations will attempt to do.
15 MR. GLADBACH Right.
15 MR. LEHMAN: Now, it is our understanding
17 that, for example, the Clean Water Act under the NPDES
18 system does not and cannot do the -- make a statute
19 to protect groundwater supplies, whereas RCRA does.
20 MR. GLADBACH: That's true. But let me
2i take it — Can I take it one step further?
22 MR. LEHMAN: Then I don't understand your
23 question -- your statement.
24 MR. GLADBACH: Okay. All right.
25 First of all, the other acts that do protect
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917
1 -- that is NEPA, and any time you are building a
2 power plant, you are going to have to have a NEPA
3 statement and the NEPA statement -- And I'm sure you
4 are familiar with NEPA statements for power plants.
5 There are several three-inch volume reports that you
6 go through and you got to adequately address how you
7 are protecting the entire environment, and there is
8 no way you can get a waste disposal site approved
9 that's, you know, where you are endangering any ground
10 water materials or groundwater aquifers.
11 In addition, as I understand, the Safe
12 Drinking Water Act has authority -- you have authority
13 under the Safe Drinking Water Act under the ground-
14 water injection to adequately protect any groundwater.
15 MR. LEHMAN: Well, that's true for injec-
16 tion, but not for settlement ponds or —
17 | MR. GLADBACH: I understand it also covers
18 settlement ponds in the strictest sense.
19 MR. LEHMAN: No, it does not.
20 MR. GLADBACH: I stand corrected. But still
21 NEPA would apply.
22 MR. LEHMAN: Not state programs.
23 MR. GLADBACH: What?
24 MR. LEHMAN: NEPA applies to federal
25 activities, not state or commercial activities.
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918
1 MR. GLADBACH: Well, I know that. I don't
2 know of a power plant that can be built without a
3 NEPA statement. There is a federal agency in there
4 someplace, or agencies in most cases.
5 MS. DARRAH: Okay. Well, then, you are
6 saying that for power -- you are at least making the
7 assertion that for power plants you think there are
8 other adequate protections; you are not necessarily
9 making the assertion that in all cases --
10 MR. GLADBACH: Oh, no. I'm --
11 MS. DARRAH: -- that actions under other
12 statutes would adequately protect groundwater?
13 MR. GLADBACH: Would you repeat that? I was
14 looking at something.
15 MS. DARRAH: Are you making the assertion
16 that for any waste disposal site, that EPA has other
17 authority than RCRA --
18 MR. GLADBACH: No.
19 MS. DARRAH: -- to adequately protect
20 groundwater?
21 MR. GLADBACH: I thought that's what you
22 were going to say, and my mind went off.
23 As I said in my statement, power -- there
24 is federal law which adequately protects, so it's
25 limited to power plants.
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919
1 MR. FIELDS: Mr. Gladbach, you said earlier
2 when your material wastes are found to be hazardous
3 that your normal practice would be to call a contrac-
4 tor .
5 MR. GLADBACH: Would be what?
6 MR. FIELDS: Call a contractor and send
7 them to a Class I landfill; is that correct?
8 MR. GLADBACH: That's right.
9 MR. FIELDS: So I guess our regulations
10 would only apply to, you know, those portions of your
11 utility wastes which were hazardous, and the require-
12 ments would probably be less stringent than the — you
13 know, there are no real management techniques in terms
14 of landfill, etc. So why are our requirements so
15 much more burdensome than your existing practice for
16 that portion of your wastes which is hazardous?
17 j MR. GLADBACH: Depends on which one we call
18 hazardous. See, you are painting a hazardous picture
19 and you are meaning certain things, and I'm reading
20 hazardous as meaning other things. Okay. And I
21 think it depends upon the difference between what you
22 consider hazardous and what I would consider hazardous.
23 MR. FIELDS: So you are saying 3001 versus
24 California's --
25 MR. GLADBACH: Right.
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1 MR. FIELDS: -- hazardous waste definition -
2 MR. GLADBACH: Right.
3 MR. FIELDS: -- is what?
4 MR. LEHMAN: Could I follow up on that a
5 little bit?
6 MR. GLADBACH- Sure.
7 MR. LEHMAN: Would you care to tell us what
8 you consider to be hazardous coming from a power
9 plant? Oh, you did that already.
10 MR. GLADBACH: Well, I attempted to do it.
11 MR. LEHMAN: Well, if it's already -- I'm
12 sorry if I --
13 MR. GLADBACH- I didn't answer it, so I
14 didn't have -- but, you know, ] have given it a lot of
15 thought, you know, since Monday, and certainly the
16 acid material that we acid-clean boilers with, and
17 that is so that we can, you know, remove all the
18 foreign material in there. I would consider that
19 hazardous, and I would consider that that be taken to
20 an appropriate land disposal site. And in our case,
21 you know, with — hire like I say, Dow Chemical or
22 IT Corporation, someone like that to do the whole
23 pro c ess.
24 The materials that I -- that we fear are
25 going to be included i ri the hazardous waste category
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I are those sludges which -- you know, from the waste
2 waters that are generated, you know, in the power
3 plant as a secondary effect of producing power, again
4 which we used to discharge to the ocean for 20 years
5 and we saw no significant effect on the environment.
6 And I think that is a true measure of whethe
7 it would be hazardous or not. There was no change in
8 the environmental aspects of the marine environment
9 after 20 years' operation.
JO Because of the NPDES regulations and the
11 failure of EPA to act upon our variance request, we
12 have spent millions of dollars now to put that -- put
13 in a settling pond. The sludge, you know, left in
14 those settling ponds I fear is probably going to be
15 classified as hazardous under the 3001 regs, and we
16 are going to have to dispose of those someplace else.
17 If -- Again, if that is considered to be
18 hazardous, then we got to go and completely rebuild
19 those basins. Again, it's just, you know, a never-
20 ending process.
2i MR. FIELDS: Who imposed the requirement to
22 put those -- to line those basins with asphalt that
23 you are talking about?
24 MR. GLADBACH: That was my own decision to
25 protect the groundwater so that we would contain the
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1 wastes.
2 MR. FIELDS: So it was initially --
3 MR. GLADBACH: Theoretically, under the
4 regulations, we didn't have to line them. We never
5 would have had to discharge anything. It would have
6 come right down.
7 MR. FIELDS: Okay.
8 MR. GLADBACH: I just hope we don't have to
9 build them again.
10 MS. DARRAH: Okay. Thank you for your
11 comments.
12 Dr. J. C. Schwegmann from Kaiser Aluminum?
13 DR. J. C. SCHWEGMANN: Madame Chairman --
14 Chairperson -- Sorry -- members of the panel:
15 I hope you will excuse my voice. I suffered
16 a minor injury to my voice box recently, and the
17 doctors tell me it's temporary. I hope so.
18 MS. DARRAH: Well, I think we can hear you.
19 Thanks.
20 DR. SCHWEGMANN: If there is any doubt about
21 what I am saying, please don't hesitate to stop me and
22 ask me to repeat it.
23 For the record, my name is Jack Schwegmann.
24 I'm Director of Environmental Services for Kaiser
25 Aluminum and Chemical Corporation.
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923
1 I wish to emphasize two points made in the
2 written testimony submitted to the Court Reporter and
3 to the Chairlady.
4 First, Kaiser Aluminum requests that bauxite
5 refining waste, variously known as spent bauxite or
6 red mud, be classified as a special waste. This
7 waste qualifies under the criteria of:
8 One. Occurring in large volume.
9 Two. Being relatively low in hazard; and
10 Three. Not being generally amenable to
11 Subpart D requirements.
12 In excess of 38 million tons of bauxite
13 wastes, wet weight, are produced in the U.S. annually.
14 Kaiser Aluminum produces 10 million tons per year of
15 this total. The solids are earthen residues of
16 bauxite, principally iron and silicon, with some
17 residual alumina and all of the trace elements
18 usally found in soils.
19 The wastes are alkaline because alumina
20 is extracted from bauxite through hot alkaline
21 digestion. Because of this alkalinity, heavy metals
22 are largely tied up in the solids. And, further, the
23 clay matrix complexes metals very tightly and prevents
24 their dissolution.
25 Bec-ause of the large volume of the waste and
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924
1 the resultant large size of impoundments which are
2 required by effluent guidelines under the Clean Water
3 Act, and because of the pragmatic location of refining
4 facilities in coastal or port areas, these wastes are
5 not generally amenable to Subpart D requirements.
6 The need for coastal or seaport locations is
7 due to the fact that there is little native bauxite
8 of usable quality and quantity in the United States.
9 Therefore, most bauxite is imported on bulk carriers
10 from the Carribean, the closest source of bauxite,
11 to Gulf Coast ports. Virtually all bauxite refining
12 operations are either on 500-year floodplains or
13 subject to hurricanes, or both.
14 Further, most are in locations in which the
15 water table is very close to the surface and may, in
16 part, be located in wetlands.
17 This brings me to the second point, that is,
18 these regulations should not make blanket prohibitions
19 in any siting requirements. To do so is to prohibit
20 any technological development for site utilization in
21 spite of features which are presently considered a
22 poor risk. The people who live and work in the lower
23 Mississippi River Basin have developed engineering and
24 construction techniques to cope with the difficult
25 conditions of that area
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925
1 As you may already know, that area is
2 largely at or below sea level, lower than the level of
3 the Mississippi River during most of the year, and
4 is subject to hurricanes. Recent technology has
5 permitted construction of skyscrapers in New Orleans,
6 a feat believed impossible 30 years ago.
7 Kasier Aluminum has, within this decade,
8 constructed red mud impoundments with technology never
9 before applied on such large scale. Management of
10 these waste impoundments is ecologically secure. Grounc
11 water monitoring has demonstrated no migration of any
12 of the constituents of the waste into the groundwater
13 in spite of the fact that the bottom of the impound-
14 ment is below the highest level of the water table.
15 The area is in the 500-year floodplain of
16 the Mississippi River, but the levee system built and
17 managed by the U. S. Army Corps of Engineers provides
18 proven safety from flooding. Potential hurricane
19 impacts are routinely incorporated into any design and
20 construction of facilities.
21 In conclusion, Kaiser Aluminum urges that
22 the Agency avoid prohibitions of any type and invites
23 the Agency to visit our facilities and discuss any and
24 all concerns they have on solid waste management.
25 MS. DARRAH: Okay. Thank you very much.
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926
1 DR. SCHWEGMANN: I will be happy to try to
2 answer questions if you have an>.
3 MS. DARRAH: Sure. Thank you.
4 DR. SCHWEGMANN: It doesn't hurt, so don't
5 worry.
6 MS. DARRAH: Okay.
7 DR. SCHWEGMANN: It just sounds bad.
8 MS. DARRAH: I have one question just for
9 clarification.
10 You indicated that you've done groundwater
11 monitoring at this site and haven't found any migra-
12 tion. Over what period have you done that monitoring?
13 DR. SCHWEGMANN: About three years now.
14 MS. DARRAH: Okay. Do you have any ques-
15 tions?
16 MR. FIELDS: No.
17 MS, DARRAH: Questions?
18 MR. TRASK: No.
19 MS. DARRAH: I guess not. It was very clear.
20 DR. SCHWEGMANN- Thank you.
21 MS. DARRAH: William Jopling, State of
22 California Department of Health Services?
23 MR. WILLIAM F. JOPLING: I'm William Jopling
24 with the California Department of Health Services.
25 We are responsible for carrying out the California
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927
1 Hazardous Waste Control Act.
2 There has certainly been a lot of talk here
3 today about California. It makes me a little nervous
4 to get up here with everybody seeming to know more
5 about what's going on than I do. But what I'd like to
6 direct my comments here today is particularly the
7 approach and the flexibility that is included in the
8 present draft of the Subpart D standards. We had
9 commented back in November of 1977 when there were a
10 number of mandatory standards with no variances at
11 all allowed, and I think this note system has been a
12 big step in the right direction. But I think that
13 there is some more need for flexibility in the
14 standards.
15 The proposed standards will tend to
16 discourage the continued use of the variety of
17 hazardous waste facilities which are presently in
18 use to effectively and efficiently manage the broad
19 range of hazardous waste streams. The comprehensive
20 coverage of the regulations and the extreme detail
21 provided suggest that the standards were developed
22 for application to a regional off-site hazardous
23 waste facility of significant size and resources and
24 one which is capable of handling a number of hazardous
25 wastes.
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928
1 This may result in somewhat of a self-
2 fulfilling prophecy in that the standards do not fit
3 well when applied to a small, single waste facility
4 or a special purpose facility and will tend to
5 discourage the operation of such facilities even
6 though they serve a useful purpose and provide
7 adequate protection of health and the environment.
8 I believe it would be in the best interests
9 of all to provide a practical means to assure that
10 only the necessary and appropriate requirements will
11 be applied to each facility and to provide a greater
12 degree of flexibility in allowing alternative control
13 measures. More freedom should be given to the
14 regulatory authority as to what controls are needed
15 based on a consideration of the nature of the opera-
16 tion, the environmental setting and other factors.
17 And I believe this can be done by establishing
18 standards which clearly identify the objectives to be
19 met by those standards and allowing the regulatory
20 agency to set the specific requirements, the specific
21 numbers, and so on, via the facility permit.
22 I would like to briefly describe the
23 regulatory approach in California. Several previous
24 speakers have remarked that we have a degree of
25 flexibility because we differentiate between hazardous
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929
1 wastes and extremely hazardous wastes. I don't think
2 there is a great degree of flexibility in that in
3 that we are treating a broad number of hazardous
4 wastes in a certain way, and we are more restrictive
5 with this special group of wastes.
6 I do believe that we have flexibility into
7 the system with our approach as to how we permit
8 hazardous waste facilities.
9 Also, we do have more than two classes of
10 wastes that we have different standards for and
11 different regulations for, different policy with and
12 so forth.
13 For example, we have recently developed
14 standards, regulations for reclaimable wastes, that
15 are going to attempt to get those wastes to be
16 reclaimed rather than disposed of. We have a dif-
17 ferent approach with small quantities of asbestos
18 waste. Infectious wastes we are developing separate
19 regulations on. We have a separate program entirely
20 for low-level radioactive wastes. So there is a
21 whole number of separate regulations for different
22 types of wastes.
23 Also, there is an entirely different program
24 for used oi] in California, reclaiming used oil.
25 At the state level, there is two major
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930
agencies involved in the regulation of the hazardous
waste facilities: the State Water Resources Control
Board and its regional boards, and the Department of
Health Services. The regional boards review and
approve of sites for the disposal of different types
of wastes and regulate the disposal of the waste so
as to protect the quality of the waters of the state,
both the surface water and the groundwater quality,
and this is accomplished through the application of a
j lengthy set of uniform regulations. They do specify
different groups of wastes and different classes of
sites that can receive the different types of waste.
I But, in order to establish the specific
requirements for a site, the owner/operator of the
proposed facility must submit a report to the regional
board which includes information on the geology of the
site, hydrogeologic information, type and amounts of
wastes to be received, the proposed facilities and
the control measures.
The board will then decide whether the site
is suitable to receive the intended wastes and will
establish requirements for water quality protection
for that particular operation.
And I've brought a copy of their regulations
which really isn't very extensive. We just specified
-------
931
1 that a report has to be submitted and that specific
2 discharging requirements will be established. There
3 is no particular secret about what they are going to
4 include in their discharge requirements, and they
5 published a report which lists typical waste discharge
6 requirements that they may apply to different sites
7 receiving different types of wastes, so the industry
8 does know what they are expected to do in pretty
9 specific terms.
10 The discharge requirements may indicate the
11 "type and amount of waste that can be received and
12 specify leachate control features, runoff diversion
13 requirements, groundwater, surface water and waste-
14 water monitoring facilities and the required moni-
15 toring piogram. And so all of the detailed standards
16 for water quality protection is in the tailor-made
17 discharge requirements applied to the facility.
18 The Department of Health Services has
19 developed regulations which cover areas of design and
20 operation for a facility; however, these are objective
21 oriented.
22 Again, the facility operator must prepare a
23 report which specifies how he will meet the objectives
24 of the regulations.
25 In the area, of security, this was one of the
-------
932
1 examples that was used in the federal preamble to
2 describe how they approached this situation. Our
3 regulations for security include the statement that:
4 "The hazardous waste facility shall have
5 posting and fencing as necessary to protect
6 public health and safety, domestic livestock and
7 wildlife,"
8 The specific fencing requirements will be
9 established in the operating permit based on an
10 evaluation of what is needed to accomplish this
11 objective by the regulatory agency. In the case of a
12 remote facility which ponds and land-spreads oily
13 waste, a four-foot stockproof fence was considered
14 adequate. At a transfer station in an industrial
15 area, a six-foot cyclone fence was required.
16 The permit conditions are used to supplement
17 and provide specificity to the more general regulation
18 and provide controls which are finely tuned to the
19 needs for the facility and its particular operation.
20 Again, we require that the operator fill out
21 an operating plan for his particular facility, and we
22 pretty clearly indicate what we want him to address
23 and -- and what we expect.
24 For example, storage tanks, it says informa-
25 tion should be provided on tank design to assure that
-------
933
1 tank materials are compatible with the stored wastes,
2 tanks are sturdy and leakproof, tanks containing
3 volatile wastes are not vented directly, storage
4 containers holding wastes which are incompatible are
5 sufficiently separated or otherwise protected to
6 prevent mixing.
7 So we tell them exactly what we want
8 addressed in this thing, but then we review it and
9 decide whether the protection that is going to be
10 afforded according to this plan is adequate to meet
11 the objectives of our regulations.
12 I am going to skip one of these paragraphs
13 here, which sort of restates what I have essentially
14 already said.
15 I believe the across-the-board application
16 of the large number of detailed design and operating
17 standards may close down some well operated facilities
18 which are adequately handling the wastes from a single
19 industrial operation. A plant manager faced with the
20 financial responsibility requirements or the require-
21 ments to determine background groundwater quality
22 level, the three well monitoring situations, looking
23 forward to identifying possible changes in quality
24 as determined by the Student's single-tailed test at
25 the 95 per cent confidence level, he may just throw
-------
934
1 up his hands and say, "I'm going to use the regional
2 facility rather than mess with this."
3 So essentially I believe the approach as
4 it is now in EPA regulations is a bit, too rigid. This
5 isn't the way to go from a national economic, environ-
6 mental or health and safety viewpoint, and we recom-
7 mend that the EPA take the approach of specifying
8 more general objective-oriented requirements and leave
9 more to the professional judgment and common sense of
10 the regulatory authority as to the requirements for
11 each specific facility for health and environmental
12 protection.
13 I am not going to go into the specific
14 comments that I've included in the written report
15 here. What I would recommend be done to follow up
16 on what I have suggested on the overall approach is
17 that, insofar as possible, the specific numbers that
18 are in the regulations be placed in the notes, perhaps
19 to stay objective oriented in the requirements, and
20 then put in the notes that this is a suggested or
21 recommended practice and limit, or whatever, to
22 indicate what the ballpark is that we are talking
23 abou t .
24 I also would perhaps remove the words that
25 the operator must demonstrate to the satisfaction of
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935
1 the Regional Administrator that 60 meters — that he
2 can control wastes within a shorter distance than 60
3 meters because I think he's faced with proving a
4 negative. I don't even know how he's going to prove
5 that he could do it within 60 meters. So I would
6 suggest that the numbers be moved down as recommended
7 standards and that the statement requiring demonstra-
8 tion be changed to the effect that the Regional
9 Administrator may accept alternative proposals which,
10 in his judgment, achieve adequate and equivalent
11 protection of health and the environment.
12 I am glad to answer any questions.
13 MS. DARRAH: Okay. Thank you.
14 MR. FIELDS: Mr. Jopling, the approach you
15 are recommending is an approach we have considered
16 a year or so ago, and some of our earlier drafts did
17 have the numbers and notes or data as a subsidiary
18 standard type thing. But we got comments from various
19 parts of the regulated community that they wanted more
20 specification about what should be — you know, what
21 are -- what standards are you actually imposing upon
22 us. And we want to be told exactly what we should do.
23 I am just wondering what sort of comments
24 are you getting from the regulated community in
25 California regarding the general approach that you hav
-------
936
1 in your system where you put all the specifications
2 in at the time you write a permit? What types of
3 reaction are you getting to that approach?
4 MR. JOPLING: Well, I think there is -- we
5 are getting a favorable reaction. We are working
6 things out with those we are regulating. In putting
7 down a number of magic numbers, I think you are going
8 to run into two things. The regulating agency is
9 going to say, "That's it, folks. I don't care what
10 you say, this is the number we are going to apply,"
11 and trying to come up with a reasonable alternative
12 or deviation from that number is -- some of the
13 regulatory agencies are not going to be responsive
14 to making any substantial changes, even though it
15 may be appropriate from a health and environmental
16 viewpo int.
17 Now. that's sort of a strong statement, but
18 I think once you identify a number, a six-foot fence,
19 trying to put — to say that a four-foot fence is
20 equivalent to it just because you may not have people
21 around or it's a remote area or something, it's
22 difficult to argue those viewpoints. I think if you
23 put them in the notes, everybody has a pretty good
24 idea what you are shooting at and -- and what has to
25 be addressed and what kinds of figures they may feel
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937
they can come up with that will satisfy the agency.
Another thing, without the figures -- And I
may perhaps be making your argument — without the
figures, you may feel that, "We will have a wide
variety of different numbers and different regions
and different states and so forth."
MR. FIELDS: Right.
MR. JOPLING: I don't completely agree with
that. I think that, as you gradually gain experience
in this field and — and see what's needed, I think
things will settle down to a fairly uniform number of
standard -- types of standards throughout the nation.
And I do think the benefit of having some flexibility
is that you can consider the environmental setting,
the special factors that may make one facility only
require one monitoring well while another may have to
have three or ten or something else.
MR. FIELDS: Okay.
MS. DARRAH: Al?
MR. CORSON: No.
MR. LEHMAN: Mr. Jopling, I just want to
follow up a little bit on what Tim Fields was mention-
ing .
We had testimony earlier in the day from
Mr. McClintock of the Western Oil and Gas Association
-------
938
1 and basically he was saying that the approach which
2 we have taken, which is to have what we consider to
3 be fairly distinct standards with the provision of
4 i variances via notes, and which I take it you would go
5 even further --
6 MR. JOPLING: Yes.
7 ' MR. LEHMAN: -- in backing off from in terms
8 of allowing flexibility, places a great burden on
9 industry to prove the basis for these variances and,
10 furthermore, subjects them to possible legal attack
11 over abuse of discretion by permit writers and, in
12 general, the general tone of his remarks -- I think I
13 am accurately stating it -- is that this just infuses
14 a great deal of uncertainty into the whole situation.
15 This is sort of a paraphrase of what Tim
16 was saying, is that we got a lot of commentary saying
17 that everybody wanted to be more explicit, wanted us
18 to be more explicit about what the regs should say.
19 Now, so that leaves us with a dilemma. It
20 strikes me that your -- your agency has had a great
21 deal of experience in administering this program. I'm
22 wondering, though, if one of the elements to all of
23 this might be that, as I understand it, the California
24 program applied until only recently to off-site
25 facilities only and not to on-site facilities; is that
-------
939
1 correct?
2 MR. JOPLING: That's correct. It changed
3 January, 1978.
4 MR. LEHMAN: Now, have you begun to issue
5 permits to on-site facilities under your program yet?
6 MR. JOPLING: Yes.
7 I might point out that at the state level,
8 there is two permits. At the local level, there is
9 at least one permit. And -- And so there is a number
10 of different permits that regulate a hazardous waste
11 facility, on-site or off-site.
12 For example, you have to get a special land
13 use permit from the county. The Air Resources Board
14 at a regional level may come in and require certain
15 conditions. The Regional Water Quality Control Board
16 is setting their requirements on discharges to protect
17 the surface and groundwater, and we are applying the
18 operating permit for the protection of the public,
19 the environment, the whole thing as far as the opera-
20 tion is concerned.
21 MR. LEHMAN: Well, I guess the question I
22 had is are you seeing any difference in the response
23 you are getting from trying to, you know, applying
24 this general philosophy that you espoused any dif-
25 ferent when it comes to applying this technique to
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940
1 on-site facilities as opposed to off-site?
2 MR. JOPLING: Not so far. We haven't done
3 very many because our initial attempts have been to
4 permit the major off-site facilities, and we have
5 about -- with the Class I sites, about ten of those
6 and about 72 I sites, and then perhaps several
7 hundred, 250 to 300 off-site facilities.
8 So we have gotten to a few major ones, and
9 we have gone partially down the road working with
10 them on the permits and the permit conditions.
11 I think I perhaps have left a flavor that
12 our requirements are so general, and what I am asking
13 you to be is so general that nobody knows, is going
14 to know where we are. I'm suggesting that you
15 take a look at those numbers that you have in there
16 and s'ee whether it wouldn't be appropriate to move
17 some of them down to the notes. Some of them, some
18 °f your prohibitions are perhaps eminently necessary
19 for health protection and should stand. Perhaps some
20 of the numbers are eminently satisfactory as a guide
21 and there is little question about what they should be,
22 But I would suggest taking SL close look and
23 seeing if some of them couldn't be used as guidance
24 kind of numbers and allow a little more to the
25 decision-maker that's going to issue that permit.
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941
1 No, we haven't got a great difference or a
2 great feel from private versus the -- the on-site
3 facilities versus the off-site. It -- It does require
4 a lot of tougher negotiations, I'm sure, doing it our
5 way, but I think we are coming up with — we will
6 have to come up with a system that's at least as
7 strict as yours, and I think we are doing it.
8 MR. LEHMAN: Now, when it comes to enforce-
9 ment of your program, is that generally -- I mean
10 exclusively done against permit conditions, then?
11 HE. JOPLING: No. We have prohibitions in
12 our regulations. We have certain things that are
13 stated in the regulations which are very definite and
14 support enforcement actions such as illegal dumping,
15 spills, immediate cleanup of spill requirements, that
16 sort o f thing.
17 MR. LEHMAN: Well --
18 MR. JOPLING: Where we have been a little
19 vaguer is maybe in the training activity, or the
20 height of fence or things that we think we can
21 negotiate based on the particular setting.
22 MR. LEHMAN: Okay. I'm sorry. I should
23 have been more explicit. I was saying with respect
24 to a facility, you know, I mean you've — you've
25 negotiated with a facility, whether it's on site or
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942
1 off site --
2 MR. JOPLING: Right.
3 MR. LEHMAN: — and you have arrived at
4 certain permit conditions. Now, when you enforce —
5 when it comes time to enforce against the facility —
6 I'm not talking about transport manifests or any of
7 that; I'm talking about, you know, do you enforce
8 against the permit conditions?
9 MR. JOPLING: We enforce against both. We
10 have a series of regulations directed at the facility,
11 how he is to operate in, but it leaves out the num-
12 bers, perhaps. We don't say -- You know, if we say
13 you have to have sufficient fencing and signs to
14 exclude the public, okay, if he has no fencing, why,
15 that's a violation of our basic regulations.
16 MR. LEHMAN: Wait a minute. I just -- Let
17 me follow this through, if I may, because I know it's
18 an important point.
19 MR. JOPLING: Sure.
20 MR. LEHMAN: You indicated in your testimony
21 that -- just the fencing as an example --
22 MR. JOPLING: Yes, sir.
23 MR. LEHMAN: -- that, your -- your approach
24 would be, for example, to say, "Well, you got to have
25 a sufficient -- " Let me just find it here. " --
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943
1 posting and fencing as necessary to protect the public
2 health."
3 MR. JOPLING: Right.
4 MR. LEHMAN: That's what the regulation says
5 MR. JOPLING: Yes.
6 MR. LEHMAN: And then you say t'hat the way
7 you administer that or characterize that is that you
8 then sit down and negotiate on a case-by-case basis,
9 you know, what is necessary for a particular facility,
10 and so on.
11 ! MR. JOPLING: I don't like the word
12 "negot iate ,'' but go ahead.
13 MR. LEHMAN: Well, whatever you arrive at,
14 based on the case-by-case situation.
15 MR. JOPLING: Yes, sir.
16 MR. LEHMAN: You arrive at an explicit
17 statement of what that standard means --
18 MR. JOPLING: Okay.
19 MR. LEHMAN: -- basically in terms of
20 either -- you know, you used the example of a four-
21 foot stockproof fence in one case and a six-foot
22 fence,cyclone fence in another,
23 MR. JOPLING: Right.
24 MR. LEHMAN: But I would presume that that
25 goes into the permit as a permit condition —
-------
944
1 MR. JOPLING: Exactly.
2 MR. LEHMAN: -- is that right?
3 MR. JOPLING: That's right. Right. That's
4 where we would enforce it if he didn't meet the
5 conditions of the permit for that particular example.
6 And --
7 MR. LEHMAN: All right.
8 MR. JOPLING: -- what we are getting at is
9 we are using the permit conditions as finely tuned
10 regulations for each particular facility.
.11 MR. LEHMAN: Exactly. That's exactly what
12 the note system was intended to do is what I am
13 trying to say.
14 MR. JOPLING: Well, I think it's reversed,
15 though.
16 MR. LEHMAN- Well, okay.
17 MS. SCHAFFER: I lust want to ask one more
18 question concerning enforcement, Mr. Jopling.
19 If you bring an enforcement action against
20 a person who owns or operates a facility, have you
21 ever experienced the problem of having that owner or
22 operator say that the conditions that you've put in
23 my permit are not equivalent to the one -- to the guy
24 next door to me; hence, you can't enforce against me?
25 MR. JOPLING: This is one thing that we are
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1 very careful about. There is an old saying that
' inconsistency is the trademark of a weak intellect,
3
and we don't want to be in that classification. So
* we are being consistent, and we are making sure that
there is a reason for, a solid reason for a variation,
and it's documented and -- what it is, and we pin it
' down.
° So I think that would be — I think we are
* covering ourselves pretty well as far as that's
concerned.
11 MS. SCHAFFER: Okay. When you say "a
12 variation," what is the variation from? Is it —
13 MR. JOPLING. Well, the cyclone fence down-
town versus the four-foot fence out in the remote
area.
Now, someone would say, "Well, you are —
you have got two different fencing requirements."
And I am saying if we have got two remote
areas that are exactly the same, we better come up
20 with the same fencing requirement, yes.
21 MS. SCHAFFER: Okay.
22 MR. JOPLING: Yes, and I'm sure we will.
23 MS. DARRAH: I have another little enforce-
2* ment question.
I wonder if you have ever had the experience
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946
1 of issuing a permit, you know, given the procedure
2 you have described to us, and then either had a
3 citizen complaint or had some monitoring data which
4 evidenced to you that your permit conditions didn't
5 appear to be stringent enough to really carry out the
6 regulations? What do you do in that case?
7 MR. JOPLING: We can modify our permit
8 conditions any time. So one example, which is
9 exactly opposite of what you are bringing up, we had
10 a provision in a permit which stated that the
11 facility could not receive -- It wasn't flammable
12 wastes: it was -- well, it was a strong acid or
13 something like that. We didn't put a limit on it,
14 though, as to what it could or could not receive. We
15 wanted to allow them to accept a certain kind of weak
16 acid that could be ponded without any hazardous vapors
17 and so on. That could cause environmental problems,
18 so we went back and put a. condition in the -- changed
19 that particular condition of that particular permit to
20 allow waste up to the 10 per cent concentration.
21 And we can do this according to our law. We
22 can modify the permit as necessary. We don't have to
23 wait until the term of the permit runs out or somethin
24 along that line.
25 MS. DARRAH : I'm sure we can look up the law
-------
947
1 but do you happen to know what standard you need to
2 use to modify the permit? I take it if someone has
3 a permit and they are acting in good faith under their
4 permit, they might have a complaint if you issued that
5 permit a month ago and you come back a month later and
6 say, "By the way, we are going to change this."
7 MR. JOPLING: Okay.
8 MS. DARRAH: Do you know what the standard
9 is that allows you to go in and modify it?
10 MR. JOPLING: There is a procedure which
11 allows someone -- If we arbitrarily were modifying
12 permits left and right, there is a procedure whereby
13 they appeal up through the Department, the Department
14 Director, and hold hearings and so forth.
15 MS. DARRAH: Okay. I guess we don't have
16 any more questions. Thank you very much.
17 Is there anyone else who wants to offer
18 comments on Section 3004 today?
19 Okay. I will close this final session of
20 our Subtitle C hearings. Thank everybody for their
21 attention and their comments, and I will say that it's
22 been extremely valuable to us to have this interchange.
23 Good afternoon.
24 (The hearing concluded at 4:56 o'clock p.m.)
25 oOo---
-------
Attendees—Public Hearing
on Proposed Hazardous Waste Regulations
San Francisco, California
March 12-14, 1979
Glenn Affleck
Environmental Control Coordinator
Hewlett Packard
1501 Page Mill Road
Palo Alto, California 94304
Marc A. Anderson
Assistant Professor
Water Chemistry Program
University of Wisconsin-Madison
660 North Park Street
Madison, Wisconsin 53706
Gary Balzhiser
Union Oil Company of California
Post Office Box 7600
Los Angeles, California 90051
Gary Baucom, Administrator
Environmental Affairs
Southern California Gas Company
810 South Flower Street
Los Angeles, California 90017
John Beale, Manager
Environmental Regulatory Activities
for Solid Waste
Dow Chemicar.U.S.A.
Environmental Quality
2030 Dow Center
Midland, Michigan 48640
Ralph Becker, Director
Legal Research
Bonneville Associates
747 East South Temple
SLC, Vermont 84103
Joh Bednerik
Director of Government Affairs
tADC
Post Office Box 4287
Houston, Texas 77210
Robert G. Beimer, Ph.D.
Section
Advanced Chemical Instrumentation
Section
Defense and Space Systems Group
of TRW Inc.
Building 0-1, Room 2020
1 Space Park
Redondo Beach, California 90278
Anne Bell
Cal-OSHA and Claims Reporters
San Pablo, California 94806
Sy Bensky. Manager
Regulatory Affairs
Post Office Box 1185
Houston, Texas 77450
Kieran D. Bergin, Hazardous Waste Eng.
Solid Waste Management Department
County Sanitation Districts
of Los Angeles County
1955 Workman Mill Road
Post Office Box 4998
Whittier, California 90607
Truman E. Bolia, Safety Engineer
University of California
Fruink, California 92717
David G. Boltz
Senior Pollution Control Engineer
Rethlehem Steel Corporation
Room B-252 Martin Tower
Bethlehem, Pennsylvania 18016
Warren H. Bossert, Environmental Eng.
U. S. Navy
West Division Code 114A
Post Office Box 727
San Bruno, California 94066
-------
Steve Bradly
Traffic Specialist
Hewlett Packard
333 Logue Avenue
Mt. View, California 94043
GAil L. Brice, Manager
Environmental Quality
Raychem Corporation
300 Constitution Drive
Menlo Park, California 94025
Bruce H. Brubaker, Special Assistant
to the Director
Safety & Environmental Engineering Dept.
Diamond Shamrock Corporation
1100 Superior Avenue
Cleveland, Ohio 44114
Jay R. Brummer, Chief Chemist
FMC Corporation
Box 3808
Modesto, California 95352
Eric S. Burnett, Director
Energy & Pollution Control
Aratex Services, Inc.
16001 Ventura Boulevard
Encino, California 91436
Ray Butler, President
IADC
Box 1490
Alice, Texas 78332
Bob Burt, Director
Environmental Quality
California Manuf Associates
Post Office Box 1138
Sacramento, California 95805
Russell Bush, P.E.
Assistant Manager - Engineering
Union Sanitary District
4057 Baine Avenue
Fremont, California 94536
Robert B. Cameron, Sanitary Eng.
Environmental Planning Division
United States Air Force
Regional Civil Engineer
Western Region
630 Sansome Street, Room 1316
San Francisco, California 94111
Tibaldo L. Canez, R.S.
Solid Waste Section
Bureau of Sanitation
Arizona Dept. of Health Services
411 North 24th Street
Phoenix, Arizona 85008
Arlie G. Capps, Sen. Oprts. Analyst
Center for Resource & Environmental
Systems Studies
SRI International
333 Ravenswood Avenue
Menlo Park, California 94025
John N. Cardall, Staff Engineer
Mobil Oil Corporation
3700 West 190th Street
Torrance, California
Roy F. Carlson, Production Director
American Petroleum Institute
300 Corrigan Tower
Dallas, Texas 75201
Milton G. Carter, Staff Scientist
Woodward-C]yde Consultants
Three Embarcadero Center
Suite 700
San Francisco, California 94111
Thomas G. Casebolt
Supr. Chemical Engineer
Pacific Gas & Electric Company
77 Beale Street
San Francisco, California 94106
-------
John Chadbourne
Environmental Manager
General Manager
12700 Park Central Lane
Dallas, Texas 75221
Sam Z. Chamberlain
Senior Environmental Engineer
Monsanto Chemical Intermediates Co.
P.O. Box 711
Alvin, Texas 77511
Samuel T. Chapin
Assistant Vice President
Voigt, Walker, Co.,
311 California St.
Suite 620
San Francisco, Ca 94104
Cheryl Clark
Staff Writer
The Sacramento Bee
21st S Q St., Box 15779
Sacramento, Ca 95813
Rudolph Clay
County Councilman
Lake County Government Center
Crown Point, Indiana.
B.J. Coffia
Safety, Security, and Environmental
Control, Grace Petroleum Corporation
Brosdway Executive Park
£501 North Broadway
Oklahoma City, Okla 73116
Dr. Anne H. Cohen
Congressional Science Fellow
Congressman Albert Gore, Jr.
4th District-Tennessee
Washington, D.C. 20515
James W. Collins
Cities Service Co.
Tulsa, Okla for American
Petroleum Institute
Gerald W. Cook
Facilities Engineer/Energy Conservation
Memorex Corporation
1200 Memorex Drive
Santa Clara, California 95052
Al Cooksey
P/F Environmental Coordinator
U.S. Steel Corporation
P.O. Box 471
Pittsburg, Cal 94509
Gerald Couch
Manager, Safety and Industrial
Hygiene, P.O. Box 358
Sunnydale, California 94086
Dennis Cox
Senior Engineer
Southern California Edison Company
P.O. Box 800
2244 Walnut Grove Avenue
Rosemead, Calif 91770
Audrey Cunningham
Assoc. Engineer
Dept. 843/125
5600 Cottle Road
San Jose, California 95193
Ward Dabney
Utility Maintenance
Specialist
United Airlines
San Francisco International Airport
San Francisco, California 94128
Paul Dana, R.S.
Solid Waste MAnagercent Specialist
San Meteo County Health
590 Hamilton Avenue
Redwood City, California 94063
George I. Davis
President
P.O. Bex 6089
Corner of Orance Avenue
and Springhill Road
Tallahassee, Florida 32301
William Davis
Solid Waste Supervisor
Solid Waste Division
Department of Sanitation and
Flood Control, 5555 Overland Avenue
San Diego, California 92123
-------
Ray DiMaio
Plant Manager
Organic Materials Group
Kopper Company, Inc.
5431 District Blvd.
Los Angeles, California
Arthur Dinsmoor
Member, Independent Petroleum
Association of America
P.O. Box 145
Midland, Texas 79702
Robert Doss
Civil Engineer
Pacific Gas and Electric Co.
77 Beale Street
San Francisco, California 94106
Colleen Doyle
Research Associate
Southern Cal. Edison
Global Geochemistry Corporation
Walnut Grove Avenue
Rosemead, Cal. 91770
Steve Dufler
Gimell Bros.
Staff Chemist
326 Phelan Avenue
San Jose, Cal 95112
Jerome E. Earls
Sale Leathers
Plant Engineer
River St
Santa Cruz, California 95060
Bob Edson
Manager, Engineering, Research
and Technical Services
Occidental Chemical Company
P.O. Box 198
Lathrop, Calif 95330
Hal Ehrhardt
Environmental Engineer
IBM Corporation GPD
02F/009-11
Tucson, Ariz 85744
Ernest M. Elssele
Manager, New Business Development
Research Cottrell
P.O. Box 1500
Somerville, New Jersey 08876
Neil Estrada
Vfce President and General Manager
Reichhold Chemicals, Inc.
120 S. Linden Avenue
South San Francisco, Calif 94080
Maerose Evans
Assistant to General Manager
Dept. of Public Utilities
City of Alameda, Cal. 94501
J.I. Feley
General Foremen Utilities & Environmental
U.S. Steel
Pittsburh, California 94565
Yoshiko Findly
Findly Chemical Disposal, Inc.
9680 Primrose Drive
Riverside, California 92503
Burton N. Fleischer
Environmental Specialist
Allied Chemical
Nichols Road
Pittsburg, California 94565
Mike Fonsiller
Hewlett-Pagcard
1501 Page Mill Road
Palo Alto, California 94304
John Fong
PT&T
215 Fremont St
-------
Roger A. Fontes
California Energy Commission
Assessment Division
1111 Howe Avenue
Sacramento, Cal 95825
L. Russell Freeman
Vice President
Brown and Caldwell
1501 N. Broadway
Walnut Creek, California 94596
Clarence Gieck
Technical Sales
BKK Corporation
3031 E. I. Street
Wilmington, Calif 90744
Edward G. Gladbach, C.E.
Power Design and Construction
Division, Department of
Water and Power, City of
Los Angeles
Room 1034, 111 North Hope St
Los Ange;es, Calif 90012
T.A. Gleason
Principal
Dames and Moore
1150 W. 8th Street
Cincinnati, Ohio 45203
Robert G. Gough, Ph.D.
Manager of Chemical Regulation
Affairs, Cincinnati Milacron
Cincinate, Ohio 45209
Winifred Grant, Bechtel
Environmental Engineering Specialist
P.O. Box 3965
San Francisco, California 94117
Steven Green
Safety Analyst
United Technologies-Chemical Systems
P.O. Box 358
Sunnyvale, California 94086
Alan Grey
Project MAnager
EG&G
P.O Box 1625
Idaho Falls, Idaho
83401
Jake E. Griffin
Intalcc Alum. Corporation
Technical Department Engineer
Ferndale, Wash. 98248
Kathryn Guillou
Intern
Office of Environmental Review
45 Hyde St, #319
San Francisco, Cal
Deborah K. Guinan
Manager, Environmental Services
Association of American Railroads
1920 L Street, N.W.
Washington,D.C. 20036
Ellis T. Hammett
Petroleum Engineer
USGS-CD-Geothermal
2465-E Bayshore Road
Palo Alto, California 94303
H.L. Hanright
President
Baker Service Tools
9100 Emmott Road
Houston, Texas 77040
George Hansen
Senior Projects Engineer
EFSEC
820 E Street
Olympia, Wn 98504
J.R Hanson
Staff Engineer
Shell Oil Co.
Martiez, Cal 94554
-------
R.W. Harrington
Environmental Control Engineer
Pacific Refining Company
P.O. Box 68
Herci'les, Calif 94547
Fred Harris
Western Mud Sales and Service Cc.
Rio Vista, California
Robert Harvey
Technical Director
Intalxo Aluminum Corporation
P.O. Box 937
Derndale, Washington 98248
John Hayes
Consultant
Bay Area League of
Industrial Association
5 Barroilhet Avenue
San Mateo, Cal. 94401
Juergen Heckel
Senior Engineer,IBM
3000 Westchester Avenue
White Plains, N. Y. 10604
J.P. Hellmann
Executive Assistant tc Director
California Trucking Association
P.O. Box 923
Burlingame, California
R.A. Henry, Jr.
Registration and Labeling
Wilbur Ellis Company
191 W. Show Avenue, Suite 107
Fresno, California 93704
R. George Hersh
Division Chief
California Solid Waste
Management Board
P.O. Box 1743
Sacramento, California 95808
Clement M. Higby
Technical Director
Cal-Ink
1404 4th Street
Berkeley, California94710
Mr. Robert Hill
Environment Prot. Spec.
U.S. Army Fort Ore), California 939^-1
William Hill
General Manager Supply Trans.
Ekotek
7901 Oakport
Oakland, California
E. James Houseberg
General Manager
2222 Watt Avenue, Suite B- 7
Sacramento, California 95825
L.G. Hubbard
Director-Hazardous Materials
Transporation, Surface Transportation
Department, Continental Oil Company
5 Greenway Plaza East
Houston, Texas 77046
Ted Hudson
U.S. Geological Survey
Conservation Division
Rm 213, 777 Sonoma Avenue
P.O. Boc 3539
Santa Rosa, California 95402
T. Dean Inokuchi
Assistant Civil Engineer
Public Works Department
6th Floor Admin, Bldg.
Martinez, Calif. 94553
H.S. James
Manager
Kaiser Refractories
300 Lakeside Drive
Oakland, California 94598
-------
Lita Jans
Intern
Environmental Action Clearinghouse
Fort Mason-Bldg. 312
San Francisco, California 94123
Downing B. Jenks.Jr.
Manager Hazardous Materials Control
Santa Fe Railway
80 E. Jackson Blvd
Chicago, 111. 60604
Douglas Johnson
Emergency Planning Coordinator
Caltrans
1120 N. Street
Sacramento, California 95814
Joseph R. Johnson, P.E.
Vice President/ Engineering
BKK
3031 East I Street
Wilmington, California 90744
Robert R. Johnson
Chevron Chemical Company
575 Market Street,
San Francisco, California 94105
Benjamin F. Jones
Staff Scientist
Radian Corporation
8500 Shoal Creel Blvd.
Austin, Texas 78758
Bob Jones
Assistant Firector
IMCO Services
2400 W. Loop South
Houston, Texas 77027
William F. Jopling
Assistant Chief
State of California
Department of Health Services
744 P. Street
Sacramento, California 95814
J.D. Joyce
West Coast Representative
Environmental Affairs
Shell Oil Company
P.O. Box 250
2401 Crow Canyon Road
San Ramon, California 94583
Marvin Jung
State California
Water Resources Control Board
2125 19th Street
Sacramento, California 95818
J.F. Jusess.Jr.
Committee Chairman
I.A.D.C.
P.O. Drawer N
Jena, La 71342
Ken Kazarian
U.P. General Manager
3031 E. I Street
Wilmington, California 90744
Michael Kerran
Double Eagle Refining Company
301 N. Rhode Island
P.O. Box 11257
Oklahoma City, Oklahoma 73136
Duane A. Kilhne
Manager, Industrial Waste
Water Treatment and Deionized
Water Systems
San Jose, California 95193
R.S. Kilpatrick
Engineer, Environmental and
Mechanical
South Pacific Transportation
Company, One Market Plaza, Rm 1000
San Francisco, California 94105
Meredith Klein
Legal Assistant
Pillsburg, Madison and Sutro
225 Bush Street
San Francisco, California94104
-------
Daryl Koch
Senior Environmental Quality
Specialist, State of Idaho
Boise, Idaho 83720
Don Kondoleon
Energy Generation Specialist
California Energy Commission
1111 Howe Avenue
Sacramento, California 95825
Bruce Krasker
Assistant Counsel
Defense Property.. Disposal
Service, Federal Ceneter
Battle Creek, Michigan 49015
L.L. Krohn
Union 76 Division
Union Oil Company of California
Los Angeles, California 90017
Brian Lamb
Assistant Chemist
Washington State University
Pullman, Washington 99163
Charles L. Lamoureaux
Senior Field Engineer
24600 S. Main Street
P.O. Box 6200
Carson, California 90749
John E. Law
Captain
Commercial Ve'n'cle Section
California Highway Patrol
2555 First Avenue
Sacramento, California 95818
Frank J. Lazzaretto
Safety Supervisor
Pacific Intermountain Express Co.
25 North Via Monte
Walnut Creek, California 94598
William W. L. Lee, Sc. D.
Woodward-Clyde Consultants
Three Embarcadero Center
Suite 700
San Francisco, California 94in
Ronald Leineke
President
Venada National
3465-B American River Dr.
Saramento, California 95821
Robert Leonard
Environmental Engineer
Ford Motor Company
P.O. Box 1101
San Jose, California 95108
Carl Levi
Champlin
Division Mechanical Engineer
P.O. Box 125
420 Henry Ford Avenue
Wilmington, California 90748
Russell J. Light
At-uornoy
Champlin Petroleum Company
5301 Camp Bowie Boulevard
Fort Worth, Texas 76107
D.D. Lloyd
Area Technical Advisor
IMCO Services
3711 Lomg Beach Boulevard
Long Beach, California 90807
Frances R. Lo
Market Analyst
McKesson Chemical
Crocker Plaza
One Post Street
San Francisco, California 94104
Lyle J. Lofdahl
Senior Vice President
Purex, 5101 Clark Avenue
Lakewood, California 90712
David W. Long
Attorney
Southern Pacific Transportation Co.
Southern Pacific Building
One Market Plaza
San Francisco, California 94105
-------
Julio Loureiro, P.E.
President
Loureiro Engineering Associates
20 Tower Lane
Avon Park, South Avon, Conn 06001
Frank Luchetti
Waste Management Specialist
State of Nevada
201 S. Fall Street
Capitol Complex
Carson City, Nevada 89710
Bruce F. Lupoli
Associate Motor Carrier Operations
Specialist, California Highway
Patrol, Commercial Vehicle Section
2555 First Avenue
Sacramento, California 95818
Randy Marcus
Environmental Specialist
U.S. Army
Facilities Engineeing, Bldg 280
Presidio, S.F., San Francisco
California 94129
J.R. Mastelotto
Director, APR
2856E Olive Hiway
Oroville, California 95965
Sandra Mathias
Program Manager, Solid Waste
Southern California Association
of Governments
600 S. Commonwealth Ave, Suite 1000
Los Angeles, California 90005
Frank Maxwell
Environmental Coordinator
USBLM, Nevada S.D.
Rm. 3008 Federal Building
Reno, Nevada 87509
Ehoy Mazuka
F'eld Assistant
Board of Supervisors
San Joaquin County
222 S Weber
Stockton, California 95202
James McBain
Executive Director
Association of Petroleom
Refiners, Executive Director
Suite 700, 1101 Conn.Avenue
Washington, D.C. 20036
Greg McClintock
Attorney
Western Oil & Gas Association
3435 Wilshire Blvd. 30th Floor
Los Angeles, California 90010
M.N. McCulloch
Supervisor
Hazardous Materials Control
Southern Pacific Transportation
Company, One Market Street
San Francisco, California 94105
Tom Meientry
IT Corporation
4575 Pacheco Blvd.
Martinez, California 94553
Lee Metcalfe
Regulations Development Branch
Office of tozardous Materials
U.S. Department of Transportation
Office of the Secretary
400 Sixth Street, S.W.
Washington, D.C. 20590
John C. Middleton
Supervisor Product Safety
U.S. Borax Research
412 Crescent Way
Anaheim, California 92801
John Moe
5377 Boyd Avenue
Oakland, California 94618
C.D. Morgan
Pet. Eng. Tech., USGS,
777 Sanoma Avenue
Santa Rosa, California 95401
-------
James Morriss
Attorney
Thompson and Knight
2300 Republic National Bank
Dallas, Texas 75201
D.R. Morrow
General Manager
Agrico Chemical Company
Mining Division
P.O. Box 1110,
Mulberry, Florida 33860
R, Morseley
Manager & Environmental Engineer
Dresser Magcobar
P.O. Box 6504
Houston, Texas 77005
Todd Moyn
Attorney
Brewer, Partridge, and Monis
1209 N. El Dorado
Stockton, California 95202
David Muntz, P.E.
Project Engineer, Environmental
Continental Forest Industries
Brown System Operations
Highway 56 South
Augusta, Ga 30903
Stephen Mussel 1
Staff Analyst
Citevron USA Inc.
575 Market Street
San francisco, California 94105
Tom Nicolas
Administrative Assistant
Supervisor Yoshikawas Office
Board Of Supervisors, San Joaquin
County, 222 E. Weber
Stockton, California 95202
A. William Nosil
Manager of Technical Compliance
Hexcel Structural Products
10 Trevarno Road,
Livermore, California 94550
T.W. Obert
Staff Engineer
United Air Lines
San Francisco, California94128
Ken 0'Morrow
Technical Director
OSCO
1704 W. First Street
Azusa, California 91702
Chris Olive Ira
Energy Facility Siting Planner
1111 Howe Avenue
Sacramento, California 95825
Roger Olmsted
US Borax
Senior Environmental Engineer
3075 Wilshire Blvd.
Los Angeles, California 90010
Don Osterholt
Safety Engineer
UTC Chemical System Division
1050 E. Arques
Sunnyvale, California 94088
Orton Overman
Assistant Manager Labeling
Stauffer Chemical Company
Westport, Conn 06906
Charles E. Owens
Engineering
United Airlines
San Francisco International Airport
San Francisco, California 94128
-------
E.B. Faille
Manager Environmental Technology
Kaiser Aluminum & Chemical Corporation
300 Lakeside Drive
Oakland, California 94643
Richard A. Pentages, R.S.
Program Director
Public Health Service
Division of Environmental
Health, 470 27th St.,
Rm. 325, Oakland, Ca. 94612
William "Bill" Park
President
Environmental Protection
Corporation, 3040 19th St.,
Suite 10, Bakerfield, Ca 93301
A.B. Parker
Senior Conservation Engineer
Atlantic Richfield Company
P.O. Box 2819
Dallas, Texas 75221
Ens. Parker
Marine Environmental Protection
Officer, U.S. Coast Guard
630 Sansome St.
San Francisco, California
Ariel Parkinson
Member California SWM Board
Gerald Pea body
President
Pozzolanic Northwest Inc.
1449 Kent West Mall
Kent, Washington 98033
L. Wayne Pepple
Assistant Engineer, Environmental
and Mechanical, Southern
Pacific Building, One Market
Plaza 1100, San Francisco, Ca94105
J.E. Perry
Assistant Manager, Quality Control
Western Pacific Railroad
526 Mission Street
San Francisco, Ca. 94105
LeRoy Peterson
Environmental Engineer
Sohio Petroleum Company
100 Pine Street
San Francisco, Ca. 94111
Stearns, Conrad and Schmidt
Consulting Engineer, Inc
Tan Phung, Ph.D.
4014 Long Beach Blvd.
Long Beach, Ca 90807
Rod Pieper
Safety & Ind. HGY Engineer
Lockheed
1111 Lockheed Way
Sunnyvale, Cal. 94086
Barbara K. Polich
Attorney, Parsons, Beble & Lahmer
P.O. Box 11898
SL.CA 84142
Joseph Rafferty
Environmental Engineer
Dresser Industries
P.O. Rox 6504
Houston, Texas 77005
Howard Reiquam, Ph. D.
Manager, Air and Water Program
El Paso Natural Gas Company
P.O. Box 1492
El Paso, Texas 79978
Albert Rench, P.E.
Environmental/Civil Engineer
U.S. Forest Service
Region 5 630 Sarisome St.
San Francisco, California 94111
Jamie Replogle
Counsel
Independent Petroleum Assoc. of America
1101 16th St, N.W.
Washington, D.C. 20036
George Rhodes
Member, Texas Coastal & Marine Council
P.O. Box 986
Port Lavaca, Texas 77979
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Bruce W. Risley
Vice President
American Waste Container Svc.
11505 Douglas Road
Rancho Cordova, Cal. 95670
Rich Rose
Transportation Manager, Hazardous
Materials, Corporate Traffice and
Distribution Division
International Minerals & Chemical Corp.
421 East Hawley St.
Mundilein, 111. 60060
David Rose.P.E.
Stearns, Conrad and Schmidt
Consulting Engineers, Inc.
4041 Long Beach Blvd.
Long Beach, Cal 90807
Arne Rovick
Attorney
Evans, Kitchel & Jenckers
363 N. First Ave.
Phoenix, Arizona 85003
Stuart Rupp
Vice President
California Environmental
Tech., P.O. Box 7
Richmond, Ca. 94807
Willaim Sallans
Executive Vice President
Petroleum Equipment Suppliers
Association, 9225 Katy Freeway
Suite 401, Houston, Texas 77024
Donald Sanders
Sr, Engineering Geologist
International Engineering Co.
220 Montgomery St.
San Francisco, California 94104
Yvonne Cyr San Jule
Principal Planner
Assocation of Bay Area Governments
Hotel Claremont,
Berkeley, Ca. 94705
I. Sarkany
Environmental Health Ins.
S.F.H.D.
10V Grave Str. Rm. 217
San Francisco, California 94102
Charles Sawyer
Corp. Env. Engin./Ind. Hygienist
Syntex Inc.
3401 Hillview Ave.
Palo Alto, California 94304
Pat Scanlon
Vice President
Phelps Dodge Corporation
Box 1238
Douglas, Ariz. 85607
H.M. Schneider
President
ROMIC Chemical Corporation
2081 Bay Road
East Palo Alto, Ca. 94303
Herbert Schott, Ph.D.
Waste Source Control Supervisor
Union Sanitary District
46525 Landing Road
Fremont, Ca. 94538
Mr. H. Schuyten
Manager Environmental Affairs
Chevron Chemcial Company
575 Market Street
San Francisco, Ca 94105
J.C. Schwegmann, Ph.D.
Director, Environmental Serivfces
Kaiser Aluminum
300 Lakeside Drive
Oakland, Ca 94643
George Seto
Occupational Health & Safety Specialist
Health Physics, Safety and Health
Roam 67 Encina Hall
Stanford University
Stanford, California 94305
Jim Severns
EPA
-------
Rafat Shahid
Contra Costa County Health
Occ. Health Program Coord.
1111 Ward Street
Martinez, Cal 94553
Joseph E. Shandling
Environmental Protection Officer
Naval Air Station Alameda
Code ON
NAS Alameda, California
John Sheahan
Oakland Scavenger Company
2601 Peralta Street
Oakland, California 94607
Karen Shewbart
Gr. Leader-Env. Ser.
Dow Chemical Co.
B-1226
Freeport, Texas 77541
Paul Shockely, Jr.
E.I. DuPont
Supervisor-Transportation
P.O. Box 310
Antioch, Cal 94509
John Siegfried
Legal Division
The Procter & Gamble Company
301 East 6th Street, Cincinnati, Oh45202
Bernard Simonsen
Regional Vice President
4575 Pacheco Blvd.
Martinez, Cal. 94553
Daniel Simpson
Manager-Pesticide Marketing
W.R. Grace & Co.
100 N. Main, Box 277
Memphis, Tenn. 38101
Jean Siri
President
West C.C. Conservation League
1015 Leneve Place
Richmond, California 94530
T.J. Smolik
Project Engineer
Placer Amex Inc.
Ore California Bldg., Suite 2500
San Francisco, California 94111
Jay Snow, P.E.
Chairman, Hazardous Waste Management
Task Force
National Governors Association
P.O. Box 13087, Capitol Station
Austin, Texas 78711
Dan Sokol
Princ. Ground Water Geol .
Intern. Engineering Co.
220 Montgomery
San Francisco, California 94104
N.A. Speed
Brown & Caldwell
1501 N. Broadway
Walnut Creek, Cal 94598
Rodger Staha
Environmental Coordinator
Exxon Co. U.S.A.
3400 E. 2nd Street
Benicia, Ca 94510
Andrew Stephens
ASTA Contruction Co. Inc.
39 N. Front St.
Rio Visto, California 94571
Robert Stephens, Ph.D.
State of California
Department of Health Services
2151 Berkeley Way
Berkeley, Ca. 94704
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James Stock
Sr. Chemical Engineer
Chevron USA Inc.
575 Market Street
San Francisco, California
94105
Robert Stone
Assistant Vice President
Baccala & Shoop
Two Century Plaza, Suite 2100
2049 Century Park East
Los Angeles, California 90067
David Storm, Ph.D.
Research Chemist
State Of California
Department of Health Services
2151 Berkeley Way
Berkeley, Ca 94704
F.C. "Jim" Suhrer, P.F.
Consultant
State of California
Department of Health Services
2151 Berkeley Way
Berkeley, California 94704
Guen Swtt
Environmental Analyst
Santa Fe Energy
10737 Shoemaker
Santa Fe Springs, Ca 90670
James Sykora
Attorney
Cities Service Company
Box 300
Tulsa, Oklahoma 74102
John Tallaksen
Group Engineer
PUREX Corporation
24600 S. Main Street
Carson, Ca 90745
R. Thayer
Environment*! Eng.
EPT Co.
Market Plaza
San Francisco, Ca 94105
James Thompson
Northwest Environmental Manager
Aluminum Company of America
P.O. Box 221
Wenatchee, Washington 98801
Dick Thompson
Time Magazine
100 Bush
San Francisco, Ca 94104
Richard Timm
Operations Manager
BKK Corporation
3031 East I Street
Wilmington, California
90744
Floyd Trill is
Sr. Operations Engineer
Consol Nat. Gas
Four Gateway Ctr.
Pittsburgh, Pa 15222
L.J. True
Chevron Chemical Company
575 Market Street
San Francisco, Ca 94105
Walter Unterberg, Ph.D., P.E.
Project Officer
Rockwell International
2421 West Hillcrest Drive
Newbury Park, Ca 91320
J.P. Valinsky
Staff Environmental Engineer
McDonnell Douglas
5301 Bolsa Avenue
Huntington Beach, Ca 92647
William Van Horn
Senior Analyst
Center for Planning and Research, Inc.
2483 East Bayshore Road,
Palo Alto, Ca 94303
James Van Sant
Technical Manager
326 Phelan Avenue
Gimelli Liquid Waste
San Jose, Ca 95124
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Robert Varfiol
Civil Engineer
Pacific Gas & Electric Co.
3400 Crow Canyon Road
San Ramon, Ca 94583
Charles A. Wagner
Secretary-Treasurer
Poetsch and Peterson
325 S. Maple Avenue
South San Francisco, Ca 94080
William Wagner
Vice President
Poetsch and Peterson
325 S. Maple
South San Francisco, Ca 94080
Francis Wairer
Waste Water Treatment Specialist
IBM Corporation
5600 Cottle Road
San Jose, Ca 95193
Ann Walsh
Public Affairs Administrator
Crown Zellerbach
One Bush Street
San Francisco, Ca 94119
Gary Wai thai!
Environmental Engineer
Union Oil Company of California
Los Angeles, California 90017
Chuch Wassinger
U.S. Geological Survey
Western Region
Room 213
777 Sonoma Avenue
P.O. Box 3539
Santa Rosa, Ca 95402
Albert L. Wellman
Sanitary Engineering Associate
State of California NCRWQCB
1000 Coddingtown Center
Santa Rosa, California 95401
Theodore R. Weller, Sr.
Wine Institute
Professional Engineer, S.F.
Sanitarian R.S.
Safety Engineer, C.S.P.
165 Post Street
San Francisco, Ca 94108
Herbert Wheeler, Jr.
Petroleum Engineer
2775 Cottage Way, Suite 24
Sacramento, Ca 95825
Kenneth Wilkins
Supervisor, Technical Services
Safety Specialists Incorporated
3284 F Edward Avenue
Santa Clara, Ca 95050
Richard Whorrall
Manager of Environmental Services
11400 Burnet Road
Austin, Texas 78758
D.E. Wick
Supt. - Engineering Services
Kaiser Steel
Box 158
Eagle Mountain, Ca 92241
Patrick Wicks
Manager Chemical Disposal and Treatment
Chem Nuclear Systems, Inc.
P.O. Box 1866
Bellevue, Washington 98009
Leon Winters
Partner
Dames & Moore
500 Sansome St
San Francisco, Ca 94111
James Wiseman
Manager
Sfauffer Chemical Company
636 California Street
San Francisco, Ca 94108
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Douglas Yadon
Engineering Geologist
Earth Sciences Associates
701 Welch Road
Palo Alto, Ca 94304
Robert Yelin
Mkt. Manager
Rockwell EMSL
2421 West Hillcreast Dr.
Newbury Park, Ca 91320
Bernard Yurash
Environmental Control Coordinator
Fairchild Semiconductor
464 Ellis Street
Mt. View, California 94042
S.M. Zand
Environmental Engineer
O.S.G.S.
345 Middlefield Rd.
Menlo Park, Ca 94025
Pat Zimmerman
Assistant Engineer
Washington State Univ.
Rm. 310 Dana Hall
Pullman, Washington 99164
Stanley Zwicker
Senior Environmental Engineer
Union (Dil Company
Los Angeles, California 90017
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TESTIMONY
ON
REGULATIONS PROPOSED TO IMPLEMENT
SECTION 3004
OF THE
RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
STANDARDS FOR OWNERS AND OPERATORS
OF
HAZARDOUS WASTE TREATMENT, STORAGE AND DISPOSAL FACILITIES
Bernard L. Simonsen
Vice President
IT Corporation
4575 Pacheco Blvd.
Martinez, CA
March 14, 1979
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My comments will be directed to the provisions of the
proposed regulations dealing with financial responsibility of
hazardous waste management facilities. I have been participating
in the submission of comments on this section both as a member of
the National Solid Wastes Management Association and on behalf of
IT Corporation for the past 18 months.
I would like to preface my comments with a description of the
environmental imparement insurance policy IT Corporation has had
in force for the past two years, and it's strengths and weaknesses.
This policy can potentially meet the requirements of financial
responsibility during site operation.
The policy is available through various insurance brokers
from the Lloyds group. The exclusions in the standard form are:
1. Occurances outside the United States.
2. Liability resulting from acts of war, riot, or
exercise of public authority.
3. Nuclear fuel, wastes or weapons.
4. Obligation covered by Workers Compensation, unemployment
compensation, or disability laws.
5. Personal injury to an employee.
6. Any loss where an officer, director, or responsible
employee was aware of non-compliance.
7. Arising from ownership or use of any land motor vehicle,
vessel, oil or gas drilling platform, deep water port,
or airport.
8. Product liability.
9. Sudden unexpected happening.
10. Genetic damage.
11. Damage to property owned or used by the insured.
12. Punitive damages or fines.
13. Pre-existing conditions.
14. Neutralizing, restoring, cleaning up or inactivating
any waste disposal site used directly or indirectly by
the insured.
15. Any clean up considered to be routine and normal in
connection with the business of the insured.
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The policy is on a claims-made basis for the term of one
year. It is issued only after_ the prospective insured agrees
to pay for an engineering survey of the company, its facilities
and equipment by an engineering firm retained by the insured
company. This survey cost approximately $6,000 in 1977 and
can be applied to up to 10% of the premium. I have no information
on the criteria utilized by the Insurer in accepting the risk or
how the premium is developed.
Premiums for our policy are approximately $90,000 per year
for sudden and non-sudden claims, $2 million per occurance, $4
million per year. This covers all operations of IT Corporation
including vacuum truck hauling, two Class I site operations, tank
cleaning, and chemical/oil spill cleanup. The quotation for a
$4/8 million policy was approximately $125,000. No quotation was
offered for higher limits, and material received indicated that
this is currently the highest limits available.
Potential problems may exist for the following circum-
stances which could make this policy difficult to obtain or more
expensive.
1) The existance of other on site storage, manufacturing,
or processing facilities which would be potential
emission sources and hence might need to be included
in the policy coverage.
2) Low volume facilities which would be faced with a more
significant impact on their cost of operation due to
minimum premiums.
3) Sites with ground drinking water under the facility.
4) Inadequate assets or history to justify coverage of
the risk to $10 million.
The policy we have in force is substantially the one discussed
by the EPA with the Lloyd's brokers and marketed in the U. S.
The following comments are organized around the four operational
phases of the proposed regulations.
1. Operations
The proposed regulations require evidence of $5 million
of general liability insurance and $5 million per
occurance per year up to $10 million per occurance per
year of Environmental Imparement Insurance for multiple
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facility operators.
During site operations, a hazardous waste management
facility is similar to any other facility handling hazardous
materials, except that upon ceasing business the potential
risks from materials in the ground or in storage continue.
Due to the fact that only insurance will be a realistic
option to our firm, as well as most of the off-site disposal
facilities, and many smaller on-site disposers, I will con-
centrate on that alternative.
The following issues are unresolved or present problems as
contained in the proposed regulations:
a. What action is anticipated or required by the EPA upon
cancellation or non renewal of the insurance policy? Since
the coverage is only offered through the Lloyd's brokers,
any decision to cancel would be final unless a sale of the
facility occurred. Basically this puts the operation in the
position of guaranteeing the existence of insurance, a reversal
of the traditional roles. This risk of loss of permit would
have two negative impacts.
i. The threat of permit cancellation would eliminate
many potential investors or developers from expanding or
creating new disposal facilities.
ii. Once cancelled, the facility would be without
revenue or insurance coverage. Thus, the EPA would be
increasing the risk of site bankruptcy or abandonment with
no one financially responsible.
2. What coverage is intended under the regulations?
I have listed the standard exclusions in the available policy
form. Which of these, if any, are unacceptable? The expecta-
tions of the public and the regulatory agencies must be con-
sistent with the available or required insurance policies,
and the limitations must be known.
3. What types of claims or liabilities are required to be
covered? Under various definitions, such items as loss of.
income, loss of profits, genetic damage, loss of resources,
etc. could be included, but are currently not available in
the form of insurance.
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4. The limitations of a "claims-made" policy must be known.
Upon failure to make premium payments, site closure, change
in ownership, or bankruptcy the policy may be cancelled re-
sulting in no coverage for prior operations.
5. A specific exclusion of the policy is as follows "liability
arising from Environmental Impairment in respect or which any
executive director or any officer of the Insured or any
employee with specific responsibility for environmental con-
trol was aware of noncompliance with any applicable statute
or regulation or instruction relating to Environmental Im-
pairment issued by competent authority PROVIDED ALWAYS that
until next renewal date of this policy this exclusion shall
not apply where the Insured is operating under conditions of
noncompliance under a permit or order of such authority and
with good faith efforts to comply as soon as can reasonably
be expected of the Insured with any applicable statute or
regulation or instruction issued by that authority."
The restrictions implied are that upon issuance of a notice
of violation or commencement of legal action all coverage could
cease for losses resulting from that act or omission.
6. There is no indication as to the basis for either the
$5 million coverage requirement or the limitation of self
insurance to 10% of net equity. Both of these levels limit
the resources available to provide adequate Hazardous Waste
facilities by discouraging or disqualifying participants.
The $5 million insurance level is above that currently
available although higher limits may result after the
regulations are effective.
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2. Site Closure
The proposed regulations require funding of the engineering
estimate of closure cost prior to issuance of a permit. Although
the concept of eliminating a public burden in case of site aban-
donment is valid, this sole means of providing for closure is
unduly restrictive.
Alternates to be considered would include.
a. A lien against the land and real improvements.
b. Providing for a deposit of only the amount required for
closure of the facility on each anniversary, based upon the
initial engineering study. This could be updated upon change
in operations or every 5 years to ensure current closure cost
estimates.
c. Posting of other securities or assets to satisfy (b).
d. Phasing the deposit required under (6) over 5-10 years.
3. Post Closure Monitoring and Routine Maintenance
There are no conceptual problems with the proposed regulations
for this phase. We concur that the funding occur over the entire
site life and that a 20 year post closure period be established
for all burial or injection facilities. Attention may be given
to a much shorter monitoring (i.e. 1 year) for storage or treat-
ment facilities to ensure no potential liability due to seepage
from tanks or spills.
4. Long Term Liability
We concur with the EPA analysis that there is no acceptable
alternative available for satisfying this objective. We have
worked extensively with the NSWMA and the EPA on a national
fund to handle claims on a no-fault basis for sites under the
following circumstances:
a. The site was permitted under RCRA.
b. The site operated substantially within the permit
conditions.
c. The site was closed under RCRA standards.
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The key elements of the program should include:
a. Release from liabiltiy for a generator from
properly manifested materials sent to a RCRA
permitted Hazardous Waste Facility.
b. Release from liability for a HWME facility
operated and closed substantially in compliance
with RCRA.
c. A fund contributed to by producers of hazardous
waste to pay for claims against sites with
suitable rules of evidence on a no-fault basis.
d. Full liability if it is established that a
facility or generator acted in a negligent or
willful manner in violation of the permit to
cause the damage or claim.
This provides a positive incentive to comply fully with
the provisions of the Regulations, while providing a mechanism
to satisfy legitimate claims for pollution damage done by a
closed facility.
-------
STATEMENT OF
lie Ulwtc'L
->
INDEPENDENT PETROLEUM ASSOCIATION OF Ai-ERICA
AND
ALASKA INDE=ENCENT PETROLEUM
ASSOCIATION
ARKCf-A 3ASIM INEE=EMCENT GAS
PRODUCERS ASSOCIATION
CALIFORNIA INDEPENDENT PRODUCERS
ASSOCIATION
EASTERN KANSAS OIL AND GAS
ASSOCIATION, INC.
EASTERN OKLAHOMA OIL PRODUCERS AND
ROYALTY OWNERS .ASSOCIATION
INDEPENDENT OIL AND GAS ASSOCIATION
OF WEST VIRGINIA
INDEPENDENT OIL PRODUCERS TRI-
STATE, INC,
INDEPENDENT PETROLEUM ASSOCIATION
OF ."CUNTAIN STATES
KANSAS INDEPENDENT OIL AND GAS
ASSOCIATION
KENTUCKY OIL A;O GAS ASSOCIATION
THE LAND AND ROYALTY OWNERS OF
LOUISIANA
LIAISON COMMITTEE OF COOPERATING
OIL AND GAS ASSOCIATIONS
LOUISIANA ASSOCIATION OF INEE^ENDENT
PRODUCERS AND ROYALTY ONERS
yiCiIGAN OIL AfiD GAS ASSOCIATION
NATIONAL STRIPPER ',•£!_ ASSOCIATION
NEW YORK STATE OIL PRODUCERS
ASSOCIATION
NORTH TEXAS OIL AND GAS ASSOCIATION
OHIO OIL AMD GAS ASSOCIATION
OKLAhOPA INDEPENDENT =ETRCLEU-<
ASSOCIATION
PAWANDLE PRODUCERS ,-jMD ROYALTY
CUIERS ASSOCIATION
PENNSYLVANIA GRADE CRLLE OIL
ASSCCIATICN
PENNSYLVANIA OIL, GAS AND .'-ilNERALS
ASSOCIATION
PERMIAN 3ASIM PETRC'^EL^ ASSCCIATICN
TENNESSEE OIL AND GAS ASSOCIATION
TEXAS INDEPENDENT PRODUCERS AND
ROYALTY CV/NERS ASSCCIATICN
VIRGINIA OIL AND GAS ASSOCIATION
WEST CENTRAL TEXAS OIL AND GAS
ASSCCIATICN
Before the
United States Environmental Protection Agency
on
Hazardous Waste Proposed Guidelines and Regulations
and Proposal on Indentification and Listing
March 12 - 14, 1979
San Francisco, California
-------
Testimony of Francis C. Wilson, II, Chairman
Environment and Safety Committee
Independent Petroleum Association of America
Before the United States Environmental
Protection Agency
RE: "Hazardous Waste Proposed Guidelines and
Regulations and Proposal on Identification
and Listing" (43 Fed. Reg. 58946 et seq.,
December 13, 1978)
I am Francis C. Wilson, II, an independent producer of
crude oil and natural gas from Santa Fe, New Mexico. I currently
serve as Chairman of the Environment and Safety Committee of the
Independent Petroleum Association of America (IPAA). The IPAA is
a national association, located in Washington, D. C., which repre-
sents approximately 5,000 independent oil and gas explorer-producers
who operate in every producing region of the United States.
We are joined in these comments by the twenty-six unaffiliated
state and regional oil and gas associations "isted on the cover page.
The combined membership of these associations includes virtually
all of the 10,000 to 12,000 independent oil and gas producers in
the United States.
The IPAA appreciates this opportunity to respond to the above-
referenced "Hazardous Waste Guidelines and Regulations", which were
recently proposed by the U.S. Environmental Protection Agency (EPA)
pursuant to Sections 3001, 3002, and 3004 of the Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act of 1976
(RCRA) (P.L. 94-580, October 21, 1976).
While the IPAA recognizes that careful planning and management
of certain industrial wastes are necessary tc protect the human health
and environment, we believe that the hazardous waste regulatory program
-------
proposed by EPA is overly broad and burdensome and will have a
devastating adverse impact on the exploration and production segment
of the oil and gas industry. We appreciate the Agency's difficult
task of promulgating regulations to implement a statute (RCRA) that
is all-encompassing in nature yet lacking at times in detailed guidance.
Nevertheless, we believe that EPA's approach of regulating all
wastes - regardless of their degree of hazard - on equal terms is
an unwarranted and exaggerated response to its mandate.
HAZARD NOT SHOWN
Crude oil and natural gas exploration and production operations
are effected by this extensive regulatory scheme because drilling
muds and oil production brines (as well as crude oil wastes) may
be determined to be "hazardous" pursuant to EPA's criteria. While
we will defer analysis of these criteria to those with greater
technical expertise in such matters, the Association questions whether
muds and brines (and crude oil wastes) pose a serious threat of contami-
nation. According to Sec. 1004(5) of RCRA,
The term, 'hazardous waste' means a solid waste,
or combination of solid wastes, which because
of its quantity, concentration, or physical,
chemical, or infectious characteristics may --
(A) cause, or signi ficantly contribute
to an increase in mortality or
an increase in serious irreversible,
or incapacitating reversible, ill-
ness ; or
(B) pose a substantial present or potential
hazard to human health or the environ-
ment when improperly treated, stored,
transported, or disposed of, or other-
wise managed. (Emphasis added)
IPAA submits that EPA has failed to take into account the strong
qualifying language in the Congressional definition of hazardous
waste. By using such words as "significantly contribute" and
-------
"substantial. . .hazard", the Congress clearly intended to emphasize
that only those wastes actually posing a serious threat of risk to
health and environment were to be regulated. Yet EPA has proposed
to regulate all wastes falling within its broad interpretation of
hazardous wastes without considering or demonstrating that all of
these substances pose the degree of risk contemplated by the statute.
Certainly, the Agency has neglected to establish that drilling muds
and oil production brines are "hazardous" or that they present
"significant or substantial "adverse effects to the human health
or environment. Until that nexus has been shown, EPA cannot pro-
ceed with its proposed regulation of muds and brines without
exceeding its legal boundaries.
This arm of the industry has a long history that is devoid of
any evidence suggesting that these substances are an actual hazard
to the environment. Undoubtedly, the inability of the Agency to
document any examples of contamination can be attributed primarily to
the facts that any "hazardous" elements present in these substances
are of low risk and in very low concentrations and that state and
federal regulations already provide adequate safeguards against any
dangers that may be present. In fact, last year t//o studies commis-
sioned by the Interstate Oil Compact Commission showed virtually no
evidence of contamination of drinking water sources in a five-state
area from reinjection of oil production brires. The ri ve states
surveyed (Oklahoma, Texas, New Mexico, Louisiana, and ArKansas) have
had more //ells drilled and operated within their boundaries than any
other region in the country.
RECOMMENDATIONS
I. Deferral From All Regulation Bending Study
The IPAA recommends that EPS, defer regulation of drilling
-------
muds and oil production brines (and crude oil wastes) under the
entire hazardous waste management program until the Agency has
completed its proposed study of these substances and is able to show
that a serious hazard exists. The preamble to the regulations, as
well as the Special Waste Background Document prepared by EPA,
acknowledge that EPA has little information on muds and brines.
In fact, the Agency, in its Background Document, lists the follow-
ing rationale in support of its decision to designate certain wastes
as "special":
1. Lack of information on waste characteristics
2. Lack of information on the degree of environmental
hazard posed by disposal
3. Lack of information on waste disposal practices and
alternatives
4. Very large volumes and/or large numbers of facilities
5. Limited movement of wastes from point of generation
6. Few, if any, documented damage cases
7. Apparent technological difficulty in applying current
Subpart D regulations to the waste
8. Potential high economic impact if current Subpart D
regulations are imposed
Because of this paucity of data and "the apparent technological
difficulty in applying current Subpart D regulations" (i.e., Section
3004) to these wastes, EPA has proposed to defer applicability of
some of the treatment, storage, and disposal standards for selected
"special wastes", such as muds and brines. Yet a careful reading
of the regulatory compliance burden that remains indicates that
owners/operators of facilities storing or disposing of muds and
brines are still confronted with myriad complex regulations. We will
address these in greater detail in our comments on section 3004
below.
It is our understanding that EPA expects to initiate a study of
muds and brines in the near future. IPAA would welcome the opportunity
to assist those conducting the study in any way it can. If the study
-------
proves that any or all of these substances do in fact present a
serious threat of contamination to human health and environment,
then again IPAA will be prepared to work with the Agency in devising
adequate and workable safeguards. After all, most oil and gas well
operators live near drilling and production sites, and they too have
a strong personal interest in protecting the environment around them.
We believe that the Agency should also include1 crude oil wastes
in the special waste category of muds and brines. Crude oil in its
naturally occurring state is biodegradable; yet crude oil residue
would fall within EPA's hazardous waste criteria. Unless similar
consideration is given to crude oil wastes, they could trigger com-
pliance with the entire hazardous waste regulatory program. In
this event, the relief ostensibly extended the industry by virtue
of the special waste deferral program would be essentially meaningless.
We firmly believe it would be more prudent to defer all regulation
of muds, brines, and crude oil wastes until the EPA study is completed
and it has been demonstrated that a clear hazard exists. Otherwise,
for a substantial period of time, those dealing with these substances
will be locked into a regulatory program which is not founded on a
full and complete understanding or knowledge of muds and brines and
crude oil wastes - and which may not be needed at all.
In the preamble to this proposal, EPA stated: ". . .even
where we have limited data the statute requires that we establish
standards and controls." We believe Congress did not intend EPA
to be so inflexible in its approach. Even though a Conference
Report did not accompany RCRA, the bill that was finally adopted
by both Houses of Congress was essentially the version sponsored
by the House of Representatives. In the House Report of its bill,
the Committee on Interstate and Foreign Commerce, which was the
-------
jurisdictional House body, noted that it had insufficient information
on the potential danger posed by certain wastes (e.g., mining waste)
to form the basis of legislative action at that time. Accordingly,
it mandated studies of these waste materials.
The action of the House in deferring regulation until its
need could be substantiated is logical and reasonable and should be
followed here. Until EPA gathers sufficient information regarding
muds, brines, and crude oil wastes to v/arrant subjecting them to
regulatory controls, it should delete these materials from its
hazardous waste management program.
Economic Impact. If EPA proceeds with its inclusion of muds and
brines in the regulatory program, the impact on the^oil and gas
exploration and production industry will be substantial. Even
though EPA has not provided an economic impact analysis of the
regulations' effect on these operations, we, nevertheless, believe
the economic impact will be severe. The regulations before us,
even the "modified" version applicable to muds and brines, are
monstrous in their compliance demands. For even the largest
generator or owner/operator, the burden will be significant; but
for the small business person, they will be devastating.
Most independent producers operate as small, unincorporated
businesses. Their staffs typically are small, often consisting only
of the producer himself and perhaps some office support staff.
Generally, services of technical personnel (e.g., a geologist,
petroleum engineer, drilling contractor, etc.) are contracted for
independently. Hence, any increase in administrative burdens is
not easily absorbed or accommodated by these producers.
-------
EPA's concern that the regulations have "important economic
implications for some industries" and its intention to conduct "more
detailed economic studies of highly impacted industry segments" are
encouraging. Although the Agency's reading of RCRA indicates it
is "not clear to what extent RCRA allows economic impact to be taken
into account", we suggest there are other, more current federal
guidelines that do call for close scrutiny of the regulations'
economic impact. For example, Executive Order No. 12044 clearly
reflects a continued concern by the Executive that there be some
consideration of cost burdens associated with every major regulatory
proposal. Moreover, the inflationary impact of environmental and other
regulations has received increasing attention from President Carter
through his recent formation of the Regulatory Analysis Review Group
and the Regulatory Council, the latter of which is headed by EPA
Administrator Douglas Costle. Because IPAA firmly doubts that the
benefits to be derived from saddling oil and gas exploration and
production operations with this regulatory burden will justify the
astronomical costs, we strongly recommend that EPA perform a cost-
benefit analysis for this business segment.
To put the magnitude of these regulations' impact in perspective,
there are approximately 670,000 producing oil and gas wells in the
United States today. World Oil, Vol. 183, No. 3 (Feb. 15, 1979).
Moreover, the IPAA Cost Study Committee estimates that about 50.000
new wells will be drilled in the coming year. Assuming each new well
drilled will have only one pit associated with it (and there are
usually at least 2 or 3 pits present at each drill site), this means
that thousands of these facilities will come within the RCRA regula-
tory program. (Pits would be considered storage/disposal facilities
since they receive muds and brines.)
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Impact on Energy Development. A second and related area of national
concern is the adverse impact on the needed exploration and produc-
tion effort to find additional domestic energy sources. When
RCRA was drafted, one of its laudable goals was the reclamation and
reuse of wastes into alternate energy sources. It is ironic that in
practice what the Act, as proposed to be implemented by EPA, may
accomplish is a severe curtailment of the exploration and develop-
ment of this nation's two primary energy sources: crude oil and
natural gas.
It is not clear that EPA gave adequate attention to this
possibility. While the Agency did confer with Department of Energy
personnel prior to releasing its proposed rules, the preamble indicates
these discussions only focused on the utility waste provisions.
Because the regulations will have a dramatic inhibiting effect on
the development of these two major energy resources, it is incumbent
on the Agency to take cognizance of this problem.
In order to understand the important role independent oil and
gas producers occupy in supplying energy to American households, let
me cite some figures. Independents account for 90% of "wildcat"
wells (that is, wells drilled in areas previously unexplored and
untested), 80% of all wells drilled, 40% of industry expenditures
on petroleum exploration and field development, and about 30% of
all domestically produced oil and gas.
From the above, it is readily apparent that independents are
an active and vital competitive force in the crude oil and natural
gas exploration and production industry. Yet cash flow is an especially
acute problem for independents since the successful ventures must
finance, the unsuccessful ventures. Independents depend on revenues
-------
derived fron the sale of crude oil and natural gas at the wellhead
to provide the capital necessary to finance their operations.
However, because of federal price controls, crude oil and natural gas
producers (unlike other businessmen) cannot pass through additional
cost burdens. Any regulatory program that dips into the independent's
cash flow and manpower resources will result in a direct loss in
revenues and personnel available to finance increasingly expensive
exploration, development and production activities. The "dip" into
those resources that is envisioned as a result of complying with the
RCRA regulations is not inconsequential.
At least for the time being, the financial responsibility
requirements that would apply to owners/operators of facilities
storing or disposing of muds and brines have been deferred. Yet
EPA's current thinking is to require a cash deposit of those who must
fulfill this obligation. Given the number of pits involved, even a
modest cash deposit per pit would tie up large sums of money and
would amount to a substantial outlay by the industry when taken
as a whole.
Independents operate many of their properties on a marginally
economic basis. The additional economic and administrative burdens
generated by this new set of regulations could provide the final
decisive blow to the continued operation of many of these properties.
We cannot stress strongly enough that these additional burdens will
drain industry resources that would otherwise be available to explore
for and produce vitally needed domestic energy. The resulting loss
in terms of production volumes and ultimate reserves will, in turn,
assuredly further strain our fragile domestic economic posture.
Lost domestic energy supplies will translate into increased foreign
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imports, higher unemployment rates at home, and an even more inflated
domestic currency. It will also mean an additional threat to national
security as we are forced into further dependence on insecure foreign-
produced energy.
II. If Complete Deferral Not Granted, Minimize Compliance Burden
If the first recommendation of completely deferring all regula-
tion of muds and brines (and crude oil wastes) pending the outcome
of EPA's study is not accepted, we believe that certain revisions to
the proposed regulations are essential if they are to be at all work-
able. We will briefly address the remainder of our comments to some
of the most glaring difficulties found with implementing each of the
three sections of RCRA that are the subject of this rulemaking proceeding.
A. Section 3001
Without conceding in any manner that drilling muds and oil
production brines are in fact hazardous to the environment, the IPAA
will briefly comment on a few practical problems we see with the
proposed regulations promulgated pursuant to Section 3001.
Under Section 3001, generators of waste who know or have reason
to believe their waste is hazardous must test that waste against the
criteria set forth in this section. Testing is not required if the
waste is already listed on EPA's hazardous waste list or if the
generator merely elects to declare his waste hazardous ab initio.
With respect to drilling muds, one normally could assume that
companies manufacturing these products would be responsible for the
initial determination of whether or not the mud meets the hazardous
waste criteria. However, if for some reason this is not done, the
burden presumably would then rest with the owner/operator, who
possibly could be considered a "generator" for the reasons discussed
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below. In any event, the oil and gas operator presumably would be
responsible for analyzing brines and other crude oil wastes to
determine if they are "hazardous."
Most independent producers simply do not have the technical
expertise available in-house to perform the kinds of tests that EPA
has detailed in the proposed regulations -- for determining either
inclusion or non-inclusion. Yet the enforcement provisions reveal
dire consequences for the unsuspecting producer who deals with a
waste considered to be hazardous.
Moreover, provisions allowing for demonstration of non-inclusion
in the hazardous waste system raise additional questions. For example,
must this testing be performed at each individual facility where the
subject material is present and by each person utilizing that substance.
We hope EPA will recognize a procedure whereby a given set of test
results could be utilized at other sites and by other persons where
conditions and circumstances similar in degree and nature warrant such
an approach.
B. Section 3002
Section 3002 regulations require that "generators" of hazardous
waste adhere to certain prescribed standards in order to protect human
health and the environment. Although RCRA does not specifically
define a "generator," EPA's definition encompasses any person "whose
act or process produces hazardous waste." Furthermore, preambulatory
language elaborates, "... it is important to point out that a person
who accumulates hazardous waste is considered a generator because the
process of accumulation results in a hazardous waste disposal problem."
(Emphasis added) (43 F.R. 58961)
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Although drilling muds and oil production brines may not be
produced (in the sense of being manufactured) at oil and gas drilling
or production sites, they are "accumulated." Therefore, those dealing
with muds and brines could be considered "generators" for the purposes
of hazardous waste regulation.
EPA, in an effort to minimize the burden for those who generate
only small amounts of waste not posing a substantial environmental
threat, has proposed to exempt from this section those persons who
produce and dispose of less than 100 kilograms of hazardous waste in
any one month (although compliance with § 250.29 is still obligatory).
While we support the concept, we think it should be expanded and
clarified.
First, it is not clear whether the 100 kilograms refers to the
particular element in the waste considered to be hazardous or whether
the weight determinant applies to the entire substance containing the
hazardous material, regardless of how small the amount of hazardous
component present within that substance. Second, is this figure
determined on a "cumulative basis" of total operations or on the basis
of the amount generated at each individual site location? Third, a
monthly determination is confusing and unworkable. Finally, the
exclusion should be reserved only for wastes (e.g., muds and brines)
that have a low degree of hazardous risk; we do not believe wastes
exhibiting a high degree of hazard (e.g., PCBs) should be exempt from
any stage of regulation.
Accordingly, we recommend that EPA revise the exclusion cutoff
level to a higher volume level, which would be averaged over a twelve-
month period per facility. EPA has requested comments on whether an
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exclusion level of 1,000 kilograms would be more appropriate. While
this figure would provide necessary and warranted relief to at least
some "generators" in the oil and gas drilling industry, it still would
not be sufficient to cover deeper drilling operations which require
much higher volumes of mud. For these latter situations, an even
higher volume exclusion could be enacted without increasing the threat
of measurable contamination to the environment.
Even if one qualifies for the volume exclusion, he still must
comply with § 250.29, which specifies that the waste material must be
disposed of at a permitted facility. Therefore, a large volume of
waste presumably will have to be transported off-site to approved
facilities. This assumes the availability not only of sufficient
transport capacity but also facilities meeting all requisite conditions
and willing to undertake this monumental task. If this assumption is
correct, we hope the Agency will then clarify questions regarding
ultimate liability for any contamination that should occur at the
final disposal site.
The proposed regulations also make allowances for those generators
who store hazardous waste on-site prior to shipment for less than 90
days in DOT specification containers or permanent storage tanks. That
is, a generator falling within this category does not have to comply
with Sections 3004 (standards applicable to owners/operators of
hazardous waste storage, treatment, disposal facilities) and 3005
(permits for treatment, storage, or disposal of hazardous waste).
IPAA recommends that the cutoff period be extended to at least
180 days. If this were done, the vast majority of drilling operations
would be relieved from complying with Sections 3004 and 3005, a
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compliance burden that is impractical and of questionable benefit for
these types of activities. Typically, a well can be drilled and completed
or plugged (depending on such factors as geologic depth, weather, per-
sonnel, equipment conditions) in a time period of a few days to a few
months. Most wells that are drilled do not find oil or gas in com-
mercial quantities so that they are plugged and not developed. Because
of the temporary nature of these projects, delays and extra costs
associated with permit applications and compliance requirements will
undoubtedly mean a reduction in the resources available to find and
produce needed domestic energy resources -- an especially disturbing
perception in light of the questionable benefits to be gained.
For those independent producers who must comply with the entire
list of standards in 3002, the burden will be sizeable. The reporting,
recordkeeping, and manifest system requirements will be difficult for
most of these small businessmen.
Certification of reports should be made according to one's best
knowledge. Under normal working conditions, a producer or his
"authorized representative" may not be able to inspect personally all
information to be certified and to attest in absolute terms to its
accuracy.
C. Section 3004
Section 3004 sets forth the standards that are applicable to owners
and operators of hazardous waste treatment, storage, and disposal
facilities. It is an especially important part of the hazardous waste
program because it establishes certain performance criteria, and these
will be used by EPA in evaluating applications for facility permits under
Section 3005. These standards will not be applicable to inactive
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facilities. Existing facilities, on the other hand, must conform
or close.
Ostensibly, the Section 3004 compliance burden for explorer-
producers will be less because drilling muds and oil production brines
have been designated "special wastes" and, therefore, compliance with
parts of 3004 have been deferred pending further analysis. A close
look at the applicable standards that remain, however, indicates that
any thought that the deferral means significant interim relief is
simply illusory.
The following comments are offered on those general facility
standards specifically applicable to muds and brines:
1. Waste analysis - §250.43 (f)
In line with earlier comments, this requirement will be extremely
difficult for most, small producers, if the information is not already
supplied by the manufacturer of the drilling mud. Analysis of brines
should not be required.
2. Site selection - §250.43-1
Our reading of §250.43-1 (General Site Selection) indicates that
many current drilling and production sites would be "off limits" under
the criteria enunciated. For example, most of the Gulf Coast area, one
of this country's most active and vital oil and gas regions, would come
within the "wetlands" prohibition. Also, the "active fault zone"
prohibition would pose a problem for some California producers, as
would the highly restrictive "500 year floodplain" limitation restrict
development of many areas throughout the country.
3. Security -§250.43-2
This section clearly demonstrates the problem of trying to regulate
a drilling or production site on the same basis as a permanent plant
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or large, well-staffed facility. Requirements for fences (deviation
is allowed only upon showing a satisfactory substitute), gates and
security personnel are not practical at most of these locations.
Where precautions are needed, they are taken. Producers have always
been liable to landowners and others with access to and surface use
rights to areas surrounding drilling and production sites.
4. Manifest System, Recordkeeping and Reporting - §250.43-5(a) ,(b)(l),
(b)(2)(1),(b)(6), and (c)
Most independent pr9ducers (i.aL, owners/operators for purposes
of Section 3004) contract yith independent drilling contractors to
perform drilling operations\ Myst likely, it would be the latter group
- that would receive the manifeYt for the drilling mud. Their failure
to comply with the manifesy sys\em reporting requirements raises
complicated legal issues /egardin\ liability.
Certification of reports should be based on one's best knowledge
for the reasons previously noticed. Also, if an emergency does occur,
it will not be of the kind contemplated in § 250.43-3(c). For example,
should a leak or spill occur at a tank or pit site, evacuation of com-
munities would not be necessary. Spill prevention control and counter
measure plans, which are already required under federal law, would
cover most of these situations.
Regardless of the legal complexities, the excessive administrative
burdens inherent in this subsection will be monumental for the average
independent producer. As stated repeatedly throughout our comments,
he generally operates by himself with a small staff and is able to
succeed in large part because of his ability to move quickly where
opportunity presents itself. Needless to say, his movement will be
greatly impeded if his attention must be devoted to endless paperwork,
and especially of the detail specified here.
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5. Visual Inspection - §250.43-6
Since personnel are not permanently stationed at production sites,
visual inspections on a daily basis are unrealistic. Most production
facilities are located in unpopulated areas; they are run by automatic
systems and, hence, are left unattended except for periodic visits to
make sure operations are running smoothly. When drilling operations cease,
the associated facilities might also remain unattended for a period of
time. Therefore, inspections less frequent than daily should be approved.
6. Closure and Post-Closure - §250.43-7 (k)(l)(m)
Given the type and amount of waste involved and the extraordinarily
large number of facilities (i.e., pits), it is difficult to justify the
need for certification of proper closure by a registered professional
engineer and recordation of a survey plat certified by a registered
professional land surveyor showing the type and location of hazardous
waste disposed of.
Twenty years of post-closure care is required for those facilities
from which hazardous waste is not removed; this twenty-year period may be
reduced only upon a satisfactory showing that a shorter period of care
is needed. Again, lack of evidence of contamination in the long history
of the oil and gas industry does not justify this excessively long period
of monitoring and reporting. Also, this requirement ignores the unique,
temporary nature of drilling operations and the relationship between the
operator and the landowner. Once drilling (or production) operations
cease, the land (usually including access roads) is reseeded by the
operator, who only holds a mineral interest in the land. Continued
surveillance and monitoring could raise not only logistical and practical
problems but also significant legal problems if the landowner is unwilling
to extend access to his property.
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Finally, even though the financial responsibility requirements
have been deferred, we think the catastrophic effects these requirements
would have on the oil and gas exploration and production industry deserve
immediate attention. Cash deposits of the size contemplated would surely
cripple most independents. If financial responsibility is ultimately
determined necessary for these operations, it should be managed through
a bonding or letter of credit system rather than a cash deposit system.
There are currently sufficient numbers of state bonding programs in
existence with which producers are familiar (e.g., bonds secured prior to
commencement of drilling and which are secured on either an individual
well basis or a state-wide basis) and from which EPA could draw experience.
CONCLUSION
In conclusion, the IPAA appreciates the magnitude of EPA's mandate
to protect the environment from hazardous waste pollution. Nevertheless,
we do not believe all hazardous wastes should be regulated with the same
level of intensity. The hazard should be clearly established and the
degree of hazardous risk then considered in formulating appropriate
hazardous waste manaaement programs.
We do not believe that there is any evidence of contamination caused
by drilling muds and oil production brines (or crude oil wastes) that
warrants their inclusion in the hazardous waste regulatory program.
Accordingly, we urge the Agency to defer all regulation of these substances
until it has completed its special waste study and until it has demonstrated
the need for regulation. Otherwise, we fear this nation's ability to
produce vital energy resources and to maintain a stable economy will have
been greatly undermined, at great cost and with no appreciable benefit to
the environment.
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STATEMENT OF STANLEY L. ZWICKER
UNION OIL COMPANY OF CALIFORNIA
AT THE EPA PUBLIC HEARING
ON HAZARDOUS WASTE MANAGEMENT REGULATIONS
SAN FRANCISCO, CALIFORNIA
MARCH 14, 1979
My name is Stanley Zwicker. I am a Senior Environmental
Engineer in the Corporate Environmental Sciences Department,
Union Oil Company of California, Los Angeles.
I am appearing here to highlight some of our concerns
with the RCRA regulations proposed in the Federal Register
on December 18, 1978. Union has additional detailed written
comments in preparation which will be submitted for the
record. Before addressing several concerns with the Section
3004 regulations, I will make five general comments on the
regulations as a whole.
1. Degree of Risk
EPA's proposed regulations contain a major flaw in that
they fail to-take into account the degree of risk associated
with various hazardous wastes. By its approach in Section 3001,
EPA has simply made nearly everything hazardous and in
Section 3004 has called for waste management measures that
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far exceed the precautions needed for proper management of
most wastes. It is interesting to note, however, that the
agency does justify its use of special waste categories
in 3004 using a degree of risk/quantity argument yet refuses
to recognize it on a general basis.
In adopting this worst case approach to the regulation
of hazardous waste, the agency has in effect developed a
generic approach which fails to acknowledge the need to
analyze on a case-by-case basis particular site locations,
types of wastes to be handled, and the quantities of waste
to be handled. The proper management of hazardous waste
should be accomplished by providing for a maximum degree
of flexibility which takes into account all of the above
factors. Failure to provide such flexibility will result
in closure of existing sites and few, if any, new sites
to handle the volume of wastes. Many operators will simply
not be able to meet, either technically or economically,
all of the requirements to operate a hazardous waste disposal
facility.
Much hag, been said about the public's resistance to
the location of hazardous waste facilities in their communi-
ties. Based on recent revelations on several specific past
instances, this fear may have some justification. Classificatio
of wastes by degree of hazard could help solve this problem.
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Those facilities which would be operated and designated to
receive only the lesser of hazardous wastes would probably
be more acceptable to the public. Since it is these less
hazardous wastes which make up the majority of the volume
of waste to be disposed of, the wider availability of such
disposal sites that would be possible under the degree of
hazard approach would insure sufficient disposal sites for
most hazardous wastes.
Degree of hazard approaches already exist in several
state programs for hazardous waste management. Programs
in California, Texas and Washington should be examined in
this regard.
2. Overlap of Regulations
Despite requirements to the contrary, many of the proposed
rules overlap into areas already regulated under other federal
environmental programs. In regulating activities such as
NPDES permitted treatment facilities and emissions from incin-
eration, RCRA is placing unnecessary additional burdens on
facilities which are already adequately controlled to meet
the RCRA goal of protection of human health and the environment.
The RCRA-imposed burden adds no additional protection and,
therefore, should be eliminated for these and any other facility
similarly regulated.
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3. Extraction Procedure
EPA has attempted to develop a simple and inexpensive
test. However, in many instances,-the proposed procedure
which has been developed does not represent these real
world action of wastes in the environment. In earlier
testimony given in Denver by Union Oil Company, we provided
an example of this point based on our experiences in mining
activities. While we cannot, at this time, recommend an
alternative test method, we would support the concept of
a risk assessment approach as outlined by the American
Petroleum Institute. This approach embodies the much needed
degree of risk philosophy which I mentioned earlier.
4. Waste Oils
EPA has singled out waste oils as hazardous because
oil is a potential carrier of other hazardous substances.
Some waste oils, e.g., those from crude oil production
operations have traditionally been used for road resurfacing
and dust suppression. These waste oil do not contain the
hazardous substances found in other waste oils. EPA offers
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no evidence why a disposal method which has been proven
environmentally safe should be abandoned.
EPA has also not extended the retailer exemption to
service stations because of the so-called waste oil problem.
It must be pointed out that the major problem associated
with improper disposal of waste oil comes not from the
service station but from the do-it-yourselfers. Service
stations in fact provide an outlet where individuals can
properly dispose of waste oil. If the administrative burden
as contained in the proposal is adopted, service station
operators could well become reluctant to accept any outside
waste oils and improper disposal of waste oils may actually
increase. We believe the whole approach to waste oil manage-
ment needs re-evaluation with a fresh look at defining
different types of waste oils and also an evaluation of
the current practices of service stations.
5. Storage
The proposed regulation limits the time allowed for
storage by a generator to a maximum of 90 days after which
the facility must comply with the storage requirements of
Section 3004 and permit regulations. This time limit simply
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is too short for many operations. On-site storage by a
generator should be allowed for up to 12 months. This
would allow the smaller operators to accumulate quantities
which can be economically collected. It would also allow
collections from generators in rural locations to be
scheduled on a more regular basis than it could be with the
shorter time allowed under the proposed regulation.
SECTION 3004 TREATMENT, STORAGE AND DISPOSAL
I will now comment on four specific concerns.
1. Note System
In Section 3004, EPA has proposed a series of detailed
design and operating standards which must be met by any and
all facilities handling hazardous waste. EPA has also created
within the 3004 regulation a "note system" which would permit
variances from the established design and operating standards.
Because of the unnecessarily stringent nature of the standards
and the large volume of wastes included under the system which
are of a minimal hazardous nature, there will be a large number
of facilities seeking relief through the note system. Each
application under the note system, therefore, will require
case-by-case review resulting in long delays in permitting
and the risk of widely varying interpretations.
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EPA should abandon the note system and designate
alternative standards within the body of the regulation.
Such an alternative approach within the regulation would
provide an operator with a degree of certainty that the
note system simply cannot provide. An additional concern
is the possibility that insurance carriers might not be
willing to provide the necessary liability coverages if the
operating permit were based on a note variance rather than
on a specified design standard.
2. Special Waste Categories
EPA obviously has recognized the real problems asso-
ciated with high-volume, low-hazard wastes and has created
the special waste concept. This concept is good but needs
to be expanded in several ways. For example:
(a) The special waste category only applies to
the waste if it has hazardous characteristics
under 250.13. Consideration as a special
waste should be extended to the list of
hazardous wastes and process lists ander
250.14 as well.
(b) Another example is the utility waste category
under 250.46-2. FGD waste from a utility is
similar in nature to FGD from tertiary oil
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recovery steam generators, yet the latter
sludges are apparently excluded from the
utility special waste category. Without
such a designation, the disposal of these
sludges would be fully regulated under
Section 3004 requirements. Costs for this
could be so great so as to prevent the
development of these valuable oil reserves.
(c) Mining wastes are another category of special
wastes regulated under RCRA. We believe
regulation of mining wastes under a special waste
designation is the proper way to proceed.
However, any mining waste regulation should
be delayed until the studies required by the
statute are completed and the need for such
regulation is justified.
3. Miscellaneous Issues
Time does not permit an in-depth discussion of the many
other concerns we have noted in our review of Section 3004.
To mention just a few:
(a) The use of OSHA workplace standards is inappropriate.
These were not designed as standards to be applied
to the ambient air.
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(b) "No discharge" to the environment from the
storage of organic wastes is an impossible
criterion to meet. Emissions consistent with
regulations under the Clean Air Act SIP's
should be allowed.
(c) The inclusion of accidental discharges such
as oil spills under RCRA requirements is not
warranted. RCRA regulations should appro-
priately be directed only to intentional
disposal.
(d) The inclusion of surface impoundments designed
to meet NPDES requirements under RCRA will result
in necessitating costly facility upgrading which
will have little environmental benefit. On this
issue we support the API position of not regulating
these impoundments under RCRA at this time but
conducting instead an in-depth study of the number
of impoundments involved and the costs and benefits
to be derived. An alternate would be to designate
these type facilities under the special waste
category.
(e) Requirements to return the soil to its original
condition may work to discourage landfarming. The
only requirement should be that the remaining soil
not cause environmental harm.
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4. Financial Aspects
We believe EPA has grossly underestimated the costs
associated with closure and monitoring of hazardous waste
facilities. These requirements are designed for large
scale facilities operated by companies in the waste manage-
ment business. They are applied, however, to all companies
including those for whom waste disposal is an incidental
business.
The cash deposits that would be required for all of the
small single purpose facilities that we as a company might
operate could seriously affect the amount of capital available
for normal business activity. We believe EPA should allow
the site liability self-insurance option to be made applicable
to closure and post closure requirements also.
Union fully recognizes the need for regulating hazardous
waste disposal practices; however, we believe the current
proposal does not reflect the best way to accomplish this need.
We hope that these remarks and the written material will help
you to develop a better regulation.
I will be happy to respond to any questions.
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MR. CHAIRMV4: 1,;H ^ fr „.,-. _... „•..,,. .7 -, _,- „
O.N BEHALF OF THE SAN DIEGO COUNTY BOARD OF SUPERVISORS I WOULD LIKE TO
PRESENT COMMENTS PERTAINING TO THE ENVIRONMENTAL PROTECTION AGENCY'S
PROPOSED RULE UNDER SECTION 3004, SUBSECTION 250.43.9(b), OF THE SOLID
WASTE DISPOSAL ACT AS SUBSTANTIALLY AMENDED BY THE RESOURCE CONSERVATION
AND RECOVERY ACT OF 1976 (PUB. LAW 94-580). WE ARE CONCERNED WITH THE
FINANCIAL RESPONSIBILITY RAMIFICATIONS OF THE PROPOSED RULES.
THE COUNTY OF SAN DIEGO IS BOTH OWNER AND OPERATOR OF A SMALL SCALE
HAZARDOUS WASTE, OR CALIFORNIA DESIGNATION CLASS I, DISPOSAL SITE. THE
FACILITY WAS ESTABLISHED IN 1961 IN CONJUNCTION KITH THE COUNTY'S OTAY
SANITARY LANDFILL TO SERVE THE ENVIRONMENTAL NEEDS OF INDUSTRY. IT IS
ONE OF TEN SUCH SITES PRESENTLY APPROVED BY THE STATE FOR THE CONFINEMENT
OF MOST TYPES OF INDUSTRIAL AND TOXIC CHEMICAL~TvASTES. TOE SERVICE AREA
INCLUDES SAN DIEGO AND IMPERIAL COUNTIES AND A PORTION OF ORANGE COUNTY.
THE SITE IS UNDERLAIN WITH A THICK LAYER OF LOW PERMEABILITY BENTONITE
CLAY WHICH HAS BEEN DETERMINED BY THE STATE AS SUITABLE FOR THE CONTAIN-
MENT OF ENVIRONMENTALLY DANGEROUS WASTES. ALSO, GEOLOGICAL STUDIES HAVE
SHOWN THAT CONFINEMENT OF HAZARDOUS WASTES AT THIS LOCATION IS NOT CON-
SIDERED AN ENDANGERM5NT TO UNDERGROUND WATER SUPPLIES OR TO THE ENVIRON-
MENT. THE AREA CLIIUTE IS SEMI-ARID, WITH AN AVERAGE ANNUAL RAINFALL
OF 10 INCHES.
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',','AS'IE TRANSFER STATION IN TilL SAN DIEGO METROPOLITAN" AKE\ FOR [tiAYS-
siiiPME.NT TO ns ;LAJOR IHSPOSU, FACILITY AT V.EST cc\r.-\ IN LOS ANGELFS
COUNTY.
IN REGARD TO THE RECENTLY PUBLISHED ENVIRONMENTAL PROTECTION AGENCY'S
PROPOSED HAZARDOUS WASTE GUIDELINES AND REGULATIONS, THE COUNTY OF SAN
DIEGO BELIEVES THAT THE REQUIREMENT UNDER SUBSECTION 250.43.9(b) ,
"FINANCIAL RESPONSIBILITY," THAT OWNERS/OPERATORS OF HAZARDOUS WASTE
DISPOSAL FACILITIES MAINTAIN FINANCIAL RESPONSIBILITY IN THE ANNUAL
AGGREGATE OF $10 MILLION WOULD BE UNREALISTIC, UNREASONABLE, AND WOULD
BE PROHIBITIVELY EXPENSIVE. PREMIUM COSTS FOR SUCH LIABILITY INSURANCE,
EVEN IF AVAILABLE, WOULD BE EXTREMELY_CQSTLY, MORE PARTICULARLY UMBRELLA
COVERAGE. IT IS ESTIMATED BY THE COUNTY'S RISK MANAGER THAT FINANCIAL
RAMIFICATIONS OF THE ANNUAL PREMIUM COSTS WOULD BE $500,000 AND POSSIBLY
MORE. COSTS OF PROVIDING THE PROPOSED AMOUNT OF LIABILITY INSURANCES
WOULD, OF COURSE, BE PASSED ON IN THE FORM OF HIGHER DISPOSAL FEES.
DURING THE FIRST SIX MONTHS OF FISCAL YEAR 78-79 GROSS REVENUES FROM
THE COUNTY'S HAZARDOUS WASTE DISPOSAL OPERATIONS AMOUNTED TO ONLY
$52,500. PROJECTED REVENUE FOR THE YEAR WOULD BE ABOUT $100,000. BECAUSE
OF THIS NARROW REVENUE BASE THE FEES WOULD BE PROHIBITIVELY HIGHER.
FOR YOUR INFORMATION, THE COUNTY OF SAN DIEGO IS PRESENTLY SELF-FUNDED
AND SELF-ADMINISTRATES ITS GENERAL PUBLIC LIABILITY EXPOSURES; IN OTHER
WORDS, "SELF-INSURED." FUNDING FOR EXPOSURES IS BUDGETED FOR EACH FIS-
CAL YEAR BASED UPON ACTUARIAL AND EXPERIENCE DATA. CATASTROPHIC LOSSES
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TriVT MIGHT EXCEED THE FISC-M. BUDGf.l ARE BXCKED EY -\ "RLShR'.r. LI\BILIFY
CONTINGENCY FUND" TRVT IS SPECIK C\LLY RESERVED 10'', i::I3 I'JKPOSE. IN'
ADDITION TO THAT FUND, THE COUNTY'S "UNALLOCATED RESERVE" WOULD BE A
SOURCE OF FUNDING IN THE EVENT OF AN UNLIKELY CONTINGENCY. THE COUNTY'S
RESERVE LIABILITY FUND IS CURRENTLY AT A $1 MILLION LEVEL, AND WILL BE
INCREMENTALLY INCREASED OVER ENSUING YEARS TO REACH A $3 MILLION LEVEL,
WHICH IS BELIEVED MORE THAN ADEQUATE TO MEET ANY UNFORESEEN OR UNSUS-
PECTED JURY VERDICT. SINCE THE COUNTY UNDERTAKES ITS OWN CLAIMS ADMIN-
ISTRATION WITH INSURANCE INDUSTRY-TRAINED CLAIMS PERSONNEL AND DEFENSE
ATTORNEYS, THE FINANCIAL BURDEN OF AN UNEXPECTED CLAIM WOULD BE MINIMIZED.
THIS WOULD BE PARTICULARLY TRUE WHEN CONSIDERATION IS GIVEN TO THE FACT
THAT CASES OF.THIS MAGNITUDE WOULD BE IN LITIGATION WHICH PRESENTLY
REQUIRES APPROXIMATELY FIVE YEARS TO RESOLVE THROUGH THE COURTS IN
THIS AREA OF THE COUNTRY. THIS WOULD CONSTITUTE A "BUFFER" IN THAT
THERE WOULD BE ADEQUATE ADVANCE TIME TO PROPERLY RESERVE FUNDS TO
COVER A POTENTIAL LOSS.
IN SUBSTANCE, IT IS FELT THAT THE COUNTY OF SAN DIEGO'S SELF-INSURANCE
PROGRAM IS CONSISTENT WITH AND EQUIVALENT IN EFFECT TO EPA'S PROPOSED
REGULATIONS AND WOULD BE ADEQUATE FOR ANY LEGITIMATE DAMAGE CLAIM THAT
MAY ARISE FROM OPERATIONS OF THE COUNTY'S HAZARDOUS WASTE DISPOSAL SITE.
SUFFICE IT TO SAY, THE COUNTY WAS ESTABLISHED AS A GOVERNMENTAL ENTITY IN
1850 AND IT IS NOT LIKELY TO CLOSE ITS DOORS OR SIDESTEP ITS FINANCIAL
RESPONSIBILITIES AS COULD BE THE CASE WITH PRIVATE INDUSTRY. IT IS A
DISTINCT POSSIBILITY, HOWEVER, THAT THE COUNTY COULD BE FACED WITH THE
ALTERNATIVE OF CLOSING THE ONLY SITE SOUTH OF LOS ANGELES COUNTY APPROVED
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FOR IHI. DISiMSM, 0. C\'. IRO\''h\ 1 ALl.'i D-VXGPlOlb .', -'.i:'S I: i'_y.'r.i">
FISCAL CAPABILITIES. CLOSURE OF THE SITE COULD RESULT IN ILLEGAL
DISPOSAL OF THESE WASTES IN UNAPPROVED AREAS, WITH CONCOMITANT
ADVERSE EFFECTS ON THE ENVIRONMENT AND PUBLIC HEALTH, AND IN HARD-
SHIPS TO LOCAL AGENCIES AND TO INDUSTRIES GENERATING ENVIRONMENTALLY
DANGEROUS WASTES. FURTHERMORE, RESULTING LONG HAUL DISTANCES AND
LACK OF COMPETITION COULD RESULT IN HIGHER DISPOSAL COSTS WHICH
WOULD ULTIMATELY BE PASSED ON TO THE CONSUMER.
IN THE ENVIRONMENTAL PROTECTION AGENCY'S OWN WORDS, "EPA MUST TAKE
INTO ACCOUNT THE NEED FOR MORE HAZARDOUS WASTE MANAGEMENT CAPACITY
AS IT DEVELOPS THE REGULATORY PROGRAM BECAUSE PUBLIC HEALTH AND THE
ENVIRONMENT WILL NOT BE WELL PROTECTED-IF ONE OF THE RESULTS OF THE
PROGRAM IS TO SHUT DOWN MOST OF THE FACILITIES CURRENTLY AVAILABLE."
WE ARE JUST AS CONCERNED, AND PERHAPS MORE SO, AS THE ENVIRONMENTAL
PROTECTION AGENCY WITH RESPECT TO SAFEGUARDING THE PUBLIC AND THE
ENVIRONMENT FROM THE IMPROPER DISPOSAL OF HAZARDOUS WASTES. WHILE
IT IS UNDERSTANDABLE AND AGREED THAT SOME FORM OF FINANCIAL RESPONSI-
BILITY IS NECESSARY, IT IS OUR FEELING THAT THE REQUIREMENT OF SUCH
FINANCIAL RESPONSIBILITY IN THE AMOUNT OF $10 MILLION ANNUAL AGGREGATE
UPON A GOVERNMENTAL AGENCY WOULD IMPOSE AN UNDUE FINANCIAL BURDEN
UPON THE COMMUNITY AND THREATEN CLOSURE OF THE COUNTY'S ONLY HAZARDOUS
WASTE DISPOSAL FACILITY.
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_- ;v-v.S St:l r__. • - ! 7 ' : r I--, r RQf :l \Y .,.'",,' T " :.'.•. 7 [•'
FOR A.VY LEGITIMATE CIAIM V.T-IICH MIGHT ARISE FROM OPERATION OF ITS
OTAY HAZARDOUS V.ASTE DISPOSAL SITE. IT IS THEREFORE RESPECTFULLY
REQUESTED THAT THIS STATEMENT BE TAKEN INTO CONSIDERATION IN EPA'S
FINAL RULE MAKING.
THANK YOU.
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RESOURCE CONSERVATION AND RECOVERY ACT
HAZARDOUS WASTE MANAGEMENT
COMMENTS ON SECTION 3004/SUBPART D
STANDARDS APPLICABLE TO OWNERS AND
OPERATORS OF HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL FACILITIES
BY
DOW CHEMICAL U.S.A.
TO THE
U.S. ENVIRONMENTAL PROTECTION AGENCY
HAZARDOUS WASTE MANAGEMENT DIVISION
OFFICE OF SOLID WASTE
PUBLIC HEARING
SAN FRANCISCO, CA
MARCH m, 1979
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MR. CHAIRMAN, I AM KAREN SHEWBART, ENVIRONMENTAL SERVICES
DEPARTMENT, TEXAS DIVISION OF DOW CHEMICAL U.S.A.
I WISH TO SUMMARIZE SOME OF OUR CONCERNS IN RESPONSE TO THE
AGENCY'S SOLICITATION FOR A COMPREHENSIVE REVIEW OF ALL ISSUES
RAISED BY THE AGENCY IN THE PREAMBLE AND PROPOSED REGULATIONS,
STANDARDS APPLICABLE TO OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES (43 FR 58982 -
59022, DECEMBER 18, 1978), AND THE ASSOCIATED BACKGROUND
DOCUMENTS.
WE HAVE WORKED CLOSELY WITH THE AGENCY, AND WITH VARIOUS TRADE
ASSOCIATIONS, PROFESSIONAL SOCIETIES, AND STANDARD SETTING GROUPS,
OVER THE PAST TWO YEARS TO HELP DEVELOP A CONSISTENT SET OF
MEANINGFUL REGULATIONS FOR HAZARDOUS WASTE MANAGEMENT THAT WILL
PROVIDE ADEQUATE BENEFITS IN PROTECTION OF PUBLIC HEALTH AND THE
ENVIRONMENT FROM UNREASONABLE RISKS WHILE DEMANDING REALISTIC
EXPENDITURES OF RESOURCES. TOWARD THIS GOAL, WE HAVE PROVIDED
COMMENTS PERTAINING TO ALL MAJOR ASPECTS OF THE DRAFT REGULATIONS
AND THOSE PREVIOUSLY PROPOSED. TODAY, WE WISH TO HIGHLITE OUR
MAJOR CONCERNS REGARDING: (1) THE GENERAL REGULATORY STRUCTURE
OF 3004, (2) GENERAL FACILITY STANDARDS, AND (3) STANDARDS FOR
TREATMENT AND DISPOSAL.
I. REGULATORY STRUCTURE
A. USE OF SPECIFIC DESIGN AND OPERATING STANDARDS VS.
PERFORMANCE STANDARDS
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ONE MAJOR CONCERN WITH THE PROPOSED SECTION 3004
REGULATIONS IS THE OVERSPECIFICATION OF DESIGN AND
OPERATING STANDARDS BY THE AGENCY. WE BELIEVE THAT
THE REGULATIONS WOULD BE GREATLY STREAMLINED BY PRE-
SCRIBING WHAT PERFORMANCE IS REQUIRED AND ALLOWING
FLEXIBILITY IN WHAT SPECIFIC PROCEDURE IS USED.
OVERSPECIFICATION OF PROCEDURAL STANDARDS COMPLICATES
THE REGULATIONS AND RESTRICTS FLEXIBILITY OF CHOICE.
THE COMBINED EFFECT IS THE SUPPRESSED DEVELOPMENT OF
NEW TECHNOLOGIES AND MORE COST-EFFECTIVE SOLUTIONS.
THE USE OF RIGID DESIGN AND OPERATING STANDARDS IS
ESPECIALLY BURDENSOME AND UNREASONABLE WHEN APPLIED
EQUALLY TO NEW AND EXISTING FACILITIES. PROPOSED
STANDARDS SHOULD RECOGNIZE AND PROVIDE A REASONABLE
MECHANISM FOR ALLOWING THE CONTINUING OPERATION OF
EXISTING FACILITIES WHICH ARE ADEQUATELY PROTECTING
HUMAN HEALTH AND THE ENVIRONMENT.
THE USE OF "NOTES" AS A MECHANISM TO MITIGATE THE
TECHNOLOGY-SUPPRESSING EFFECT OF SPECIFIC DESIGN AND
OPERATING STANDARDS IS CERTAINLY A STEP IN THE RIGHT
DIRECTION. HOWEVER, THE RELIEF PROVIDED TO THE
REGULATED COMMUNITY BY THE "NOTES" IS SERIOUSLY
UNDERMINED BY THE AGENCY'S DETERMINATION THAT ALTERNA-
TIVE REQUIREMENTS MAY ONLY BE SUBSTITUTED FOR THOSE
DESIGN AND OPERATING STANDARDS ACCOMPANIED BY "NOTES".
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WE URGE THE USE OF NOTES BE GENERALIZED TO ALLOW A
FACILITY TO SUBSTITUTE AN ALTERNATE REQUIREMENT FOR
ALL DESIGN AND OPERATING STANDARDS IF THE FACILITY
CAN DEMONSTRATE THAT THE PROPOSED ALTERNATIVE MEETS
THE HUMAN HEALTH AND ENVIRONMENTAL STANDARDS, OR
THAT IT PROVIDES THE SAME DEGREE OF PERFORMANCE AS
THE PRESCRIBED STANDARD FOR WHICH IT IS TO BE
SUBSTITUTED.
[I. GENERAL FACILITY STANDARDS
ANOTHER AREA OF CONSIDERABLE CONCERN TO US IS THE GENERAL
FACILITY STANDARDS.
A, SITE SELECTION
THE PROPOSED RESTRICTIONS FOR GENERAL SITE SELECTION
(SECTION 250.43-1) SHOULD NOT BE APPLIED EQUALLY TO
ALL HAZARDOUS WASTE MANAGEMENT FACILITIES.
FOR EXAMPLE, THERE IS NO REASON TO PROHIBIT THE
SITING OF AN INCINERATOR OR OTHER DESTRUCTIVE DEVICE
IN A FLOODPLAIN, FLOODWAY, OR NEAR AN ACTIVE FAULT,
WHERE THERE IS NO RISK OF THE RELEASE OF HARMFUL
AMOUNTS OF HAZARDOUS WASTE.
IN ADDITION, THE LOCATION OF STORAGE AND TREATMENT
FACILITIES SHOULD BE BASED ON A CLASSIFICATION OF
WASTES BY DEGREE Oc HAZARD, THIS WOULD RESULT IN
A MORE REALISTIC SITING PROCEDURE BASED ON PRO-
TECTION OF HUMAN HEALTH AND THE ENVIRONMENT.
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WE STRONGLY RECOMMEND THAT THE AGENCY MODIFY ITS
PROPOSED SITING LOCATION RESTRICTIONS TO FULLY
RECOGNIZE APPROPRIATE EXEMPTIONS,
B. 500 YEAR FLOODPLAIN
PROPOSED SECTION 250.43-1(0) PROHIBITS THE LOCATION
OF A FACILITY IN A 500-YEAR FLOODPLAIN. THIS PROVI-
SION IS OVERLY STRINGENT FOR PRACTICALLY ALL WASTE
DISPOSAL AREAS AND BEARS NO DEMONSTRATABLE RELATIONSHIP
TO THE PROTECTION OF HUMAN HEALTH OR THE ENVIRONMENT.
MOREOVER, THE PROPOSED REGULATION IS NOT IN THE PUBLIC
INTEREST SINCE IT MIGHT REQUIRE MANY WELL DESIGNED
AND ENVIRONMENTALLY SOUND FACILITIES, SUCH AS IN THE
GULF COAST AREA, TO CLOSE.
WE RECOMMEND THAT ALL SITE RESTRICTIONS PREDICATED
ON THE USE OF THE 500 YEAR FLOODPLAIN BE REMOVED
FROM THE REGULATION.
C. REGULATORY FLOODWAY
BASED ON THE WAY THIS REGULATION IS WRITTEN, RELATING
TO LOCATING IN A REGULATORY FLOODWAY, NEW FACILITIES
ARE NOT ALLOWED TO LOCATE IN THE REGULATORY FLOODWAY,
AND EXISTING FACILITIES MUST BE CLOSED. IN MANY AREAS
OF THE COUNTRY THE DESIGNATION OF REGULATORY FLOODWAYS
IS NOT COMPLETE TODAY AND WAS NOT IN EXISTENCE WHEN
PRESENT WASTE DISPOSAL FACILITIES WERE BUILT. THIS
REQUIREMENT IS UNFAIRLY RIGOROUS FOR EXISTING FACILITIES,
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AND SOME EXCEPTIONS SHOULD BE ALLOWED. NOT TO
ALLOW SOME EXCEPTIONS FOR EXISTING FACILITIES COULtl
HARM THE OVERALL OBJECTIVE OF RCRA BY CREATING A
SERIOUS SHORTAGE OF ACCEPTABLE HAZARDOUS WASTE DIS-
POSAL FACILITIES,
OLD FACILITIES SHOULD NOT BE FORCED TO CLOSE OR
RELOCATE IN ORDER TO MEET THE SELECTION CRITERIA
OUTLINED IN THIS SECTION IF THESE FACILITIES POSE
NO THREAT TO HUMAN HEALTH OR THE ENVIRONMENT.
D. GROUNDWATER AND LEACHATE MONITORING
PROPOSED SECTION 250.43-8(c)(4) STATES THAI IF AFTER
THE COMPREHENSIVE ANALYSIS HAS BEEN PERFORMED AND
BACKGROUND LEVELS FOR GROUNDWATER AND LEACHATE
MONITORING ARE ESTABLISHED, ANALYSES SHOW THAT THE
QUALITY OF THE GROUNDWATER OR THE WATER IN THE ZONE
OF AERATION IS STATISTICALLY DIFFERENT FROM BACK-
GROUND QUALITY, THE FACILITY MUST DISCONTINUE OPERA-
TION UNTIL THE REGIONAL ADMINISTRATOR DETERMINES WHAT
ACTIONS ARE TO BE TAKEN. IT IS UNREASONABLE TO RE~
. QUIRE A FACILITY TO SUSPEND OPERATIONS WITHIN SEVEN
DAYS OF ANALYSIS, BECAUSE MANY OF THE PARAMETERS
MEASURED BY THE COMPREHENSIVE ANALYSIS ARE NOT, OF
THEMSELVES, TOXIC AND WOULD NOT EVIDENCE ANY ENDAN-
GERMENT TO HUMAN HEALTH OR THE ENVIRONMENT. ONLY
IN CASES WHERE HUMAN HEALTH AND THE ENVIRONMENT ARE
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ENDANGERED SHOULD A FACILITY BE REQUIRED TO MODIFY
OR SUSPEND OPERATIONS,
WE RECOMMEND THAT A STATISTICALLY SIGNIFICANT
MONITORING DEVIATION FROM BACKGROUND LEVELS SHOULD
CAUSE ADDITIONAL INVESTIGATIVE TESTING AND EVALUATION,
BUT THAT SUCH A CONDITION IN ITSELF SHOULD NOT BE
JUSTIFICATION FOR TERMINATION OF OPERATIONS,
III. STANDARDS FOR TREATMENT AND DISPOSAL
A. INCINERATION
EFFECTIVE DESTRUCTION OF HAZARDOUS WASTES WHEREVFR
VIABLE IS PREFERRABLE TO PERPETUAL CARE. THE OVERLY
STRINGENT PROPOSED PROCEDURAL STANDARDS FOR INCIN-
ERATORS, HOWEVER, MAY FORCE THE DISPOSAL OF WASTE
BY LESS PREFERRABLE MODES. WE ARE CONCERNED ABOUT
THE EXCESSIVE SPECIFICATIONS FOR TRIAL BURNS AND
VARIOUS OPERATING PARAMETERS, AS WELL AS THE OVER-
LAPPING WITH OTHER EJVIRONMENTAL REGULATIONS.
THE AGENCY, IN ITS DEVELOPMENT OF SUBTITLE C REGULA-
TIONS SHOULD ONLY ADDRESS THE PROPER DISPOSITION
OF HAZARDOUS WASTES. THUS, DESTRUCTION EFFICIENCY IS
THE ONLY MEANINGFUL PARAMETER FOR ESTABLISHING PER-
FORMANCE FOR THE INCINERATION OF HAZARDOUS WASTE.
WE CONTEND, HOWEVER, THAT THE PROPOSED DESTRUCTION
LEVEL OF 99.99% IS UNREALISTICALLY HIGH AND WILL
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FURTHER DISCOURAGE THE USE OF INCINERATION. THE PRO-
POSED 99.99% APPEARS TO BE BASED UPON HIGHLY CONTROLLED
TEST BURNS, SPOT DETERMINATIONS UNDER IDEAL CONDITIONS,
AND IN SOME CASES WITH LESS THAN COST-EFFECTIVE RE-
QUIREMENTS. FOR EXAMPLE, MOST OF THE REFERENCED TEST
BURNS IN THE INCINERATION BACKGROUND DOCUMENT (BD-25)
INVOLVED A RATIO OP AUXILLARY FUEL TO WASTE
QUANTITIES OF OVER 100:1. FURTHERMORE THE
99.99% DESTRUCTION EFFICIENCY HAS NOT BEEN DEMONSTRATED
TO BE COST-EFFECTIVE OR TO BE CONSISTENTLY ACHIEVABLE
ON DAY-TO-DAY OPERATIONS, ESPECIALLY FOR THOSE UNITS
EXPERIENCING VARIABLE WASTE LOADS AND FUEL COMPOSITION.
WE PARTICULARLY DISPUTE THE CONCLUSION OF THE AGENCY
THAT HALOGENATED AROMATIC HYDROCARBONS ARE MORE
THERMALLY STABLE AND REQUIRE MORE STRINGENT OPERATING
CONDITIONS FOR THEIR DESTRUCTION, WE CONTEND THAT
THE TEMPERATURE OF 1200°C SPECIFIED BY THE AGENCY
IS NOT SUPPORTED BY EITHER THE TEMPERATURES FOR
COMPLETE COMBUSTION OF MANY HALOGENATED PESTICIDES
(800-900°C) AND OTHER CASE HISTORIES REPORTED IN THE
BACKGROUND DOCUMENT, OR BY THE LITERATURE CITED IN
THE EIS (APPENDIX M), FURTHERMORE, IT is READILY
ACCEPTED THAT EXCESSIVELY HIGH TEMPERATURES CAN
ADVERSELY AFFECT INCINERATOR OPERATION BY: (1) FORMING
NITROGEN OXIDES (NOX) WHICH ARE DESIGNATED POLLUTANTS,
(2) INCREASING CORROSION AND SHORTENING INCINERATOR
LIFE, (3) INCREASING ENERGY REQUIREMENTS, AND W
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INCREASING CAPITAL AND OPERATING COSTS. ANY SPECIFIED
COMBUSTION CRITERIA FOR HAZARDOUS WASTE INCINERATORS
SHOULD BE ALLOWED IF A FACILITY OWNER/OPERATOR CAN
DEMONSTRATE ADEQUATE DESTRUCTION EFFICIENCIES.
WE RECOMMEND THAT THE REGULATIONS FOR INCINERATION
BE GENERALIZED BY EXCLUDING ALL REFERENCE TO HALO-
GENATED HYDROCARBONS AND BY REQUIRING A REALISTIC
LEVEL OF DESTRUCTION EFFICIENCIES,
LANDFILLS
THE AGENCY STATES THAT THE OWNER/OPERATOR OF A LAND-
FILL MUST DEMONSTRATE THAT NO DIRECT CONTACT WILL
OCCUR BETWEEN THE LANDFILL AND THE WATER TABLE.
THIS STANDARD IS UNNECESSARILY STRINGENT IN MANY CASES
FOR THE PROTECTION OF HUMAN HEALTH AND THE ENVIRONMENT,
THE HUMAN HEALTH AND ENVIRONMENTAL STANDARD STATES
THAT ALL FACILITIES SHALL BE LOCATED, DESIGNED, CON-
STRUCTED, AND OPERATED IN SUCH A MANNER AS TO PREVENT
(A) ENDANGERMENT OF AN UNDERGROUND DRINKING WATER
SOURCE BEYOND THE FACILITY PROPERTY BOUNDARY OR
(B) ENDANGERMENT OF AN AQUIFER WHICH IS DESIGNATED
AS A SOLE OR PRINCIPAL SOURCE AQUIFER.
IT IS NECESSARY TO ASSESS EACH SITUATION ON ITS INDIVIDUAL
MERITS. FOR EXAMPLE, A UNIQUE SITUATION EXISTS IN THE
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GULF COAST AREA WHICH IS DOCUMENTED IN THE TEXAS
DEPARTMENT OF WATER RESOURCES TECHNICAL GUIDELINES
FOR HAZARDOUS WASTE DISPOSAL. THE SITUATION IS ONE
OF A LOW PERMEABILITY CLAY AND HIGH WATER TABLE AS
TYPIFIED BY THE BEAUMONT CLAY FORMATION. FILL
PLACED BELOW THE WATER TABLE COULD CAUSE LOCALIZED
SATURATION OF THE CLAY LINER, BUT EXTREMELY SLOW
MOVEMENT OF THE GROUNDWATER TOGETHER WITH ATTENUATION
AND/OR BIODEGRADATION PRECLUDES HARMFUL DISTRIBUTION
OF MATERIALS FROM THE LANDFILL.
WE DO NOT BELIEVE THAT A LANDFILL BUILT IN THE AREA
DESCRIBED ABOVE SHOULD BE PLACED SEVERAL FEET ABOVE
GROUND. THE HYDRAULIC HEAD WHICH WOULD DEVELOP WOULD
CAUSE CONSIDERABLY HIGHER RATES OF PERMEATION TO
OCCUR THAN THOSE ASSOCIATED WITH A BELOW GROUND
FACILITY. THERE IS ALSO THE ADDITIONAL HAZARD DUE
TO THE POTENTIAL FOR SLUMPING AND DISINTEGRATION OF
THE WALLS OF THE FACILITY. ON BALANCE, THE HAZARDS
ASSOCIATED WITH THIS ABOVE GROUND FACILITY WOULD BE
MUCH GREATER THAN THE HAZARD POTENTIAL OF A FACILITY
CONTACTING GROUNDWATER IN A THICK IMPERMEABLE CLAY
BED.
WE, THEREFORE, MAINTAIN THAT DIRECT CONTACT OF THE
LANDFILL WITH GROUNDWATER BE SELECTIVELY PERMITTED,
WHERE DUE TO UNIQUE SOIL CHARACTERISTICS HARMFUL
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CONTAMINATION OF GROUNDWATER DOES NOT OCCUR, AND
THERE IS NO ENDANGERMENT OF HUMAN HEALTH OR THE
ENVIRONMENT.
WE RECOMMEND THAT UNIQUE AREA CHARACTERISTICS BE
RECOGNIZED AND ADDRESSED, AT THE STATE LEVEL, AS
HAVE PERMAFROST AREAS, CONSISTENT WITH WHAT IS FEASIBLE
AND NECESSARY TO PROTECT HUMAN HEALTH AND THE
ENVIRONMENT.
WE WILL BE SUBMITTING DETAILED COMMENTS BY 3-16-79. THANK
YOU FOR THE OPPORTUNITY TO ADDRESS SOME OF OUR CONCERNS TODAY.
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REFERENCES: February/March 1979 Oral Statements Regarding
Sections 3001, 3002, 3003 and 3004 of the RCRA
1. Beale, John (Dow Chemical U.S.A., Environmental Quality),
Comments on Section 3002 and Section 3003, to U.S. EPA,
public hearing, San Francisco, CA, March 13, 1979.
2. Daniels, S. L., (Dow Chemical U.S.A., Environmental
Sciences Research Laboratory), General Comments on
Hazardous Waste Management, to U.S. EPA, public hearing,
St. Louis, HO, February 14, 1979.
3. Daniels, S. L., (Dow Chemical U.S.A., Environmental
Sciences Research Laboratory), Comments on Section 3001,
to U.S. EPA, public hearing, Washington, D.C.,
February 22, 1979.
4. Shewbart, Karen (Dow Chemical U.S.A., Environmental
Services Department, Texas Division of Dow U.S.A.).
Comments on Section 3004, to U.S. EPA, public hearing,
San Francisco, CA, March 14, 1979.
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MY NAME is JIM COLLINS, I AM MANAGER OF ENVIRONMENTAL
AFFAIRS FOR THE ENERGY RESOURCES GROUP OF CITIES SERVICE
COMPANY AND AM ALSO A MEMBER OF THE API COMMITTEE ON ENVIRONMENTAL
CONSERVATION IN PRODUCTION OPERATIONS, I AM PRESENTING
COMMENTS FOR THE PRODUCTION COMMITTEE OF THE API ON EPA's
PROPOSED HAZARDOUS WASTE REGULATIONS,
API BELIEVES THE POTENTIAL IMPACT OF THE PROPOSED
HAZARDOUS WAaTE REGULATIONS ON OIL AND GAS DRILLING AND
PRODUCTION OPERATIONS WOULD BE CATASTROPHIC. STRICT INTERPRETATION
JF THE PROPOSED REGULATIONS WOULD APPEAR CERTAIN TO HAVE A
lAJOR NEGATIVE IMPACT ON EXISTING DOMESTIC OIL AND GAS
'RODUCTION, WOULD SERIOUSLY IMPEDE DRILLING FOR ESSENTIAL
NEW ENERGY SUPPLIES, WOULD BE SIGNIFICANTLY INFLATIONARY,
AND V.uULD REQUIRE AN ENORMOUS COMMITMENT OF RESOURCES AND
PcOPLE IN OU3 INDUSTRY WITHOUT ANY MEASURABLE OFFSETTING
,Ei,l , • - I D ,/\ , i.-A'-Til Or; i'-iF CNVIRONMEf; ;,
THE >,'jPu-,,-i> ,-;i.GULAr,oNS WOULD IN THE FIRST YEAR ,.:~OSE AN
UNREALISTIC COST BURDEN ON OIL AND GAS WELL DRILLING ESTIMATED AT
$10,3 BILLION OF WHICH $3,9 BILLION WOULD BE USED TO CONSTRUCT THE
FACILITIES TO COMPLY WITH PROPOSED REGULATIONS AND THE REMAINING
$6,9 BILLION WOULD BE USED TO MONITOR THE FACILITIES FOR 20 YEARS,
THIS $10.8 BILLION REQUIREMENT WILL BE REGENERATED EVERY YEAR, THE
OIL AND GAS PRODUCTION INDUSTRY WOULD BE FORCED TO SPEND AN ADDITIONAL
$3'},7 BILLION, $10.2 BILLION OF THE $34,7 BILLION WILL BE SPENT TO
BRING EXISTING FACILITIES INTO COMPLIANCE AND THE REMAINING $2^.5
BILLION WILL BE REQUIRED TO SATISFY THE FUTURE MONITORING REQUIREMENTS
OF THE PROPOSED REGULATIONS. THE COST BURDEN INEVITABLY WOULD IMPACT
ALL OF U? \, ,-Xrlu.,' fONSUMLRS, Al. ,. THIS ASSUMES Ti-.A f T.,,_ ADI...) -Of"
. Ot~Sf''T PUT SIK.H OPERATIONS OUT OF BUSINESS.
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THE ECONOMIC IMPACT WILL HAVE TWO MAJOR EFFECTS ON THE
UNITED STATES' ENERGY SUPPLY. FIRST, IT WILL CAUSE TREMENDOUS
DIVERSION OF CAPITAL FROM EXPLORATION FOR NEW OIL AND GAS
RESERVES AND RESEARCH AND DEVELOPMENT AIMED AT INCREASING
OIL AND GAS RECOVERY FROM EXISTING RESERVOIRS; AND, SECOND,
IT WILL CAUSE MARGINAL PRODUCING PROPERTIES TO BE CLOSED
DOWN PREMATURELY, FOR EXAMPLE, VIRTUALLY ALL STRIPPER PRODUCTION
WILL BE UNABLE TO MEET THE REQUIREMENTS OF THESE REGULATIONS
DUE TO ECONOMICS OF OPERATION. THE AVERAGE PRODUCTION FOR
STRIPPER WELLS IN THE U. S, WAS ONLY 2,9 BPD (NATIONAL
STRIPPER WELL SURVEY, TOTAL CRUDE OIL PRODUCTION, U. S,
BUREAU OF MINES). 71.5% (368,000) OF THE OIL WELLS IN THE
U. S. ARE STRIPPER, THE STRIPPER WELL PRODUCTION FOR THE
UNITED STATES IN 1977 AMOUNTED TO OVER A MILLION BARRELS OF
OIL PER DAY, OR ABOUT 12.'51 OF OUR TOTAL DOMESTIC CRUDE OIL
PRODUCTION. A GREAT NUMBER OF WELLS WITH PRODUCTION RATES
AROVE STRIPPER PRODUCTION RATES WILL ALSO BE CLOSED DOWN
PREMATURELY BECAUSE OF THE SAME ECONOMIC IMPACT OF THESE
REGULATIONS,
THE PROBLEMS BASICALLY ARISE BECAUSE EPA HAS EITHER NOT
CORRECTLY INTERPRETED THE DEFINITION OF HAZARDOUS WASTE AS
STATED IN THE ACT, OR THE REGULATIONS ESTABLISHED RY EPA TO
DEFINE HAZARDOUS WASTES ARE FAR TO INCLUSIVE.
CRUDE OIL WASTES FOR EXAMPLE ARE INAPPROPRIATELY CLASSIFIED
AS A HAZARDOUS WASTE BECAUSE THEY FAIL THE IGNITABILITY
TEST, HOWEVER, ON SITE CRUDE OIL WASTES DO NOT PRESENT A
FIRE HAZARD,
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CRUDE OIL SPILL CLEANUP RESIDUE is INAPPROPRIATELY
CLASSIFIED AS A HAZARDOUS WASTE BECAUSE IT CONTAINS TRACE
AMOUNTS OF BENZENE OR TOLUENE, THESE TRACE LEVEL POLLUTANTS
POSE NO HAZARD,
ALSO, BECAUSE OF TRACE AMOUNTS OF OTHER CONTAMINANTS
(I.E. HEAVY METALS) THE PROPOSED REGULATIONS INAPPROPRIATELY
CLASSIFY MOST GAS AND OIL DRILLING MUD WASTE AND PRODUCTION
BRINE WASTE AS HAZARDOUS, AND AGAIN THESE TRACE LEVEL CONTAMINANTS
PRESENT NO HAZARD TO HUMAN HEALTH OR ENVIRONMENT,
FINAL REGULATIONS SHOULD ONLY BE CONCERNED WITH TRULY
HAZARDOUS WASTE AND NOT CLASSIFY WASTES SUCH AS THOSE GENERATED
IN DRILLING AND PRODUCTION OPERATIONS AS HAZARDOUS.
THE INAPPROPRIATE INCLUSION OF NON-HAZARDOUS WASTE IN
THE HAZARDOUS CLASSIFICATION PLACES UNNECESSARY BURDENS ON
THE GENERATORS OF NON-HAZARDOUS WASTE, f'IORE IMPORTANTLY IT
PREVENTS PROMULGATION OF GOOD WORKABLE HAZARDOUS WASTE
REGULATIONS WHICH REALLY PROTECT HUMAN HEALTH AND THE ENVIRONMENT.
1'lE BELIEVE THAT EPA UNDERSTANDS THIS PROBLEM AS STATED
IN THE PREAMBLE AS FOLLOWS:
"BY ATTEMPTING, INITIAL COVERAGE OF WASTE,
GENERATORS, AND DISPOSERS THAT IS QUITE BROAD,
THE WHOLE PROGRAM INCLUDING ADDRESSING THE
PROBLEMS BROUGHT ON BY THE MOST HAZARDOUS
(WASTE) WILL BECOME BOGGED DOWN".
WE AGREE WITH THIS IDEA,
SITE SELECTION CRITERIA FOR SURFACE IMPOUNDMENTS INCLUDED
IN THE REGULATIONS ARE PARTICULARLY INAPPLICABLE TO OIL AND
GAS WELL DRILLING OPERATIONS. THE CRITERIA SPECIFICALLY
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EXCLUDES AREAS WITHIN A 500 YEAR FLOOD PLAIN, IN FAULTED
AREAS, OR COASTAL HIGH HAZARD AREAS.
OlL IS FOUND WHERE NATURE PLACED IT AND A GREAT DEAL OF
OUR NATION'S POTENTIAL ONSHORE ENERGY RESOURCES ARE IN THESE
PROHIBITED AREAS, INAPPROPRIATE APPLICATION TO OUR INDUSTRY
OF SITE SELECTION CRITERIA DESIGNED FOR FACILITIES WITH
HAZARDOUS WASTE WOULD PREVENT DEVELOPMENT OF ENERGY RESERVES
VITAL TO THE NATION, THIS WOULD BE PARTICULARLY UNFORTUNATE
WHEN ONE CONSIDERS THE EXCELLENT PERFORMANCE RECORD OF OUR
INDUSTRY IN THESE SENSITIVE AREAS,
IF THE REGULATIONS ARE TO BE EFFECTIVE AND MANAGEABLE,
API RECOMMENDS THEY BE REWRITTEN WITH THE FOLLOWING PARTICULARLY
IN MIND.
(1) ONLY TRULY HAZARDOUS WASTES SHOULD COME UNDER THE
PURVIEW OF THE REGULATIONS,
(2) NATURALLY OCCURRING CRUDE OIL, PRODUCTION BRINE
AND GAS AND OIL DRILLING MUD WASTE SHOULD BE EXCLUDED FROM
THE HAZARDOUS WASTE 'REGULATIONS.
(3) EPA IN ITS ATTEMPT TO BE INCLUSIVE HAS EXTENDED
HAZARDOUS WASTE MANAGEMENT AND DISPOSAL PRACTICES TO WASTES
WHICH ONLY REQUIRE NORMAL SOLID WASTE MANAGEMENT AND DISPOSAL
TECHNIQUES, ALLEVIATING UNNECESSARY IMPACTS BY NUMEROUS
NOTES ALLOWING ADMINISTRATIVE DISCRETION OR BY SPECIAL
CATEGORIES GRANTING PARTIAL EXEMPTIONS REPRESENTS A "BAND-
AID REPAIR" APPROACH UTILIZED IN AN ATTEMPT TO MAKE THE
OVERALL REGULATORY PROPOSAL WORKABLE,
THIS OVER INCLUSIVE TECHNIQUE JEOPARDIZES THE REGULATION'S
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oOAL OF PROTECTING HUMAN HEALTH AND THE ENVIRONMENT FROM
HAZARDOUS WASTES.
RCRA MEETS A REAL NATIONAL NEED, WjJLU CHANGE_S. THE
PROPOSED REGULATIONS CAN WORK, WlIHOUI CHANGES. THE REGULATIONS
WILL BE UNMANAGEABLE AND INEFFECTIVE,
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l n:n,"on'o,'i AJB j Permian Basin Petroleum Association
tan'I afford I Q I . j pQ Box 132 • (915)684-6345 • Midland, Texas 79702
;o run short N r ' " '
Statement of
the
PERMIAN BASIN PETROLEUM ASSOCIATION
Before the
United States Environmental Protection Agency
HAZARDOUS WASTE PROPOSED GUIDELINES and
REGULATIONS and PROPOSAL on IDENTIFICATION
and LISTING
March 12-14, 1979
San Francisco, California
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, ,;!„;'.;;"„;; /ia \ Permian Basin Petroleum Association
am; .11 f of a g • p Q BOX 132 • (915)684-6345 • Midland, Texas 79702
lu iui; shoe, \ ^ I ** /
My name is A. W. Dillard, Jr., my business address is 1001 Wilco Building,
Midland, Texas, 79701. I am president of the Permian Basin Petroleum Association,
located in West Texas and Southeastern New Mexico, and I am representing its
almost 1,500 members in the largest single petroleum producing area in the United
States. The membership is basically independent, domestic oil and gas operators,
but almost every type of business in the Permian Basin is also represented. I am
an independent oil and gas operator, with over 32 years of experience in Oklahoma,
Mississippi, New Mexico and Texas.
We acknowledge that we need rules and regulations to assure both the safe
and orderly conduct of all business operations, as well as the protection of health
and the environment. However we also believe that the hazardous waste program, as
proposed by the EPA, is unnecessarily broad and burdensome. If implemented, as
proposed, these regulations will have a shattering pffect on the future discovery
rates and production of oil and gas in the United States.
We realize that the EPA is required by the RCRA, as substantially amended,
to promulgate regulations that are all encompassing in nature but which, by EPA's
own admission, lack specific guidance in many areas, particularly drilling muds
and production brines. Wtih this admission in mind, we strongly recommend that
gas and oil drilling muds and crude oil production brines be totally exempted
from the EPA Hazardous Waste proposals. Short of that, that they be exempted
until necessary studies are completed and specific guidance is achieved.
In reading the language of the Standards applicable to Generators, it is
plain to us that oil and gas operators were not included in the compliance
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requirements. We get the feeling that these regulations .are, in fact, directed
at those operation'-' where something is manufactured and a hazardous waste is
produced. The language refers to fixed facility locations and the manufacturing
process involved. Mention is made of kilograms and gallons, but nothing is said
about barrels. Specifics to proper cantainerization, proper container 1 abe 1 i n;;
and movement manifests are included. None of these terms are common to the oil
and gas industry.
Compliance, to protect both the health and environment, has long been under
way in Texas and New Mexico, as required by state laws and regulations, concerning
the usage of drilling mud and production brines and their disposal. We recommend
that these laws and regulations be adopted by the EPA and incorporated into the
EPA Proposed Hazardous Waste Guidelines.
With the energy problems already facing the domestic consumer, it is incon-
ceivable that the Federal Government would want to compound those problems. But,
by making it even more difficult for the domestic operator to look for additional
oil and gas reserves, you are compounding them. , each operator is basically
a small business, and the additional man hours and money required to be in com-
pliance can only reduce the operators time and finances needed for his drilling
and producing efforts, you are preventing them from doing their job...finding new
oil and gas reserves.
Due to an apparent oversight, we were excluded from those scheduled to speak
on Section 3001 yesterday, March 12. With your permission, we have im luded our
position on Sec t n>i ; )01 at this point and ask that it be make a part of the rec ore]
We would also appreciate the opportunity to read this part of the statement, hut
will understand if it is not permissible.
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Permian Basin Petroleum Association
can't afford \ n I A ) P O Box 132 • (915)684-6345 • Midland, Texas 79702
lo run snort \ r I •* /
3001
The 1500 members of the Permian Basin Petroleum Association - could well
be more concerned with the protection of Potable Groundwaters than our friends
in Washington, D.C., since we live in a semi-arid region, and our living depends
on these groundwaters. Although our average annual rainfall in the Midland-Odessa,
Texas, area is 14.12" per year, in 1977 (the last year available) we received only
6.82".
Drilling operations in search of crude oil and gas have been carried out in
this area since the early 1920's. The Texas Railroad Commission and the Texas
Department of Water Resources (who oversee drilling and producing operations,
mapping groundwaters and specifying casing, cementing and plugging programs) have
no documented records, or complaints, in their files to show any subsurface water
contamination from rotary drilling muds. Instances of groundwater contamination
from produced brines have occurred in Texas, but these were noted and corrected.
The oil and gas producing industry works closely with the State Regulatory Agencies
to develop, implement, and continuously monitor improved field practices, so that
there is no predictable hazard to health or land productivity under currently
administered rules and regulations.
In the definition of Hazardous Wastes in Sec. 3001, no differentiation is
made between 100% pure, known poisons (ie: certain chemicals) and trace amounts of
some metals and other substances that can be found in drilling muds and produced
brines only by some of the most sophisticated, technical analysis methods currently
available. It might well be noted that during a typical, dusty, spring day in
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3001
the Permian Basin, the air we breathe exceeds certain E.P.A. purity specifications
by a multiple of 5000 to 1, or more (airborne silicates).
The proposed definitions under Sec. 3001 would classify as Hazardous Wastes
the following:
a) Crude oil and/or crude oil wastes (although naturally
biodegradable) because of ignitability tests, and because
of trace amounts of materials listed in Appendix (V).
b) Well drilling muds - because of trace amounts of
contaminents of heavy metals.
c) Oil production brines - because of trace amounts of
contaminents of heavy metals.
Although the total volumes of drilling muds and produced brines that our
industry deals with is large, the volume at each well site (or production facility)
is small, and the trace amounts of materials classified as objectionable, although
measurable, do not materially affect the quality of the groundwater, or the safe
productivity of the soil. We would refer the E.P.A. to the Interstate Oil Compact
Commission Studies on the quality of drinking water in areas of Oil and Gas
production.
May I point out, that a major water supply source field for the city of
Midland, Texas, has 26 producing water wells which were drilled in the late 1950's.
In the past seven years more than this number of oil wells have been drilled in
this water supply field. The engineer in charge of this water field operation,
Mr. John Lowe, stated to me that they have not detected any contamination of the
water due to these oil well operationa Also due to the soil conditions, it is his
opinion that there is no way leaching, of surface contaminates from pits used in
such operations, could even reach the water sand at a depth of 200 feet. Also,
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3001
Mr. Lowe stated that the re-charge of this water formation, being the Ogallah
Formation is practically zero. We're attaching a copy of the Railroad Com-
mission letter to this statement.
In the Permian Basin, 5,422 wells were drilled in 1978, and because of
what we think is improper classification of -drilling muds as Hazardous Wastes
in the proposed regulations, each of these wells would face an additional first
year cost of $ 75,000 or more, and a long term cost of $135000 or more, for a
total cost in excess of $210,000 per well. This totals $1,138,620,000 and exceeds
the dry hole cost of the wells drilled in 1978 in the Permian Basin. The same
drilling budget, in 1979, would produce less than half as many wells, seriously
jeopardizing the search for domestic oil and gas supplies so desperately needed
for our country's survival.
The Permian Basin contains many thousands of "stripper" and 'marginal"
wells which account for 14% and 24.1%, respectively, of our areas current total
production. These wells are very close to the economic limit of production, and
could by no means bear the estimated per well cost of something in excess of
$65,000 per well (without leachate monitoring) a, .. would have to be plugged and
abandoned prior to the inception date of the regulations. How can this nation
afford to throw away potentially 50% or more of its proven reserves of oil and gas,
and the thousands of jobs that these reserves will support for many years. We
find nothing in the Federal Register regarding economic impact of these proposed
regulations - a requirement under current law.
The intent of our Nation's Congress was to provide protection against known
Hazardous Wastes. The E.P.A. by its own admission, states that very little is
known about the hazards to groundwater, land productivity, or human health - if
any hazard actually exists - from drilling muds and produced brines. The Permian
Basin Petroleum Association strongly recommends that no definition as a Hazardous
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3001
Waste need be applied to drilling muds or oilfield produced brines, or, in any
case, not until adequate studies of the industry and its practices have been
concluded and thoroughly analyzed.
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JOHN H. POERNER. Chairme
MACK WALLACE, Comm l.tlone
RAILROAD COMMISSION OF TEXAS
OIL AND GAS DIVISION
February 12, 1979
BOB R. HARRIS, P. E.
Chief Engineer
JAMES E. (JIM) NUGENT, Commi»«!on»r
.<«—*
C€
^\
I
.,••
PHILLIP R. RUSSELL,
Director, Field Op«r
• U T , J
P. E.
ationi
Mr. Ed Thompson
Permian Basin Petroleum Association
IQlt Western Unit Life Buildinp
Midland, Texas 79701
Dear Mr. Thompson:
A review of our records on a statewide basis shows but four incidents
where there was a possibility of a water sand being affected by the
drilling of a nearby oil well.
We have had numerous problems relative to drilling mud escaping from
reserve pits, but almost nil of fresh water strata being affected by mud
or salt water during drilling.
Please advise if additional information is needed.
Yours v^y truly,
hillit
Diredror of Field Operations
PER: mz
cc: Bob Harris
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P«mian Basin Petroleum Association
cant afford \ mTi /J P O Box 132 • (915)684-6345 • Midland, Texas 79702
(o run snort
3004
The 1500 members of the Permian Basin Petroleum Association (small, independent
businessmen and producers of crude oil and gas in West Texas and Southeastern New
Mexico) would be among the first to say that it is importanl; to protect the environ-
ment in areas that produce oil and gas, because that is their home. This region
produces almost 1/3 of the oil and gas produced in the United States.
However, it is our belief that the standards applicable to owners, or operators
of Hazardous Waste treatment, storage, or disposal facilities, as proposed under
Section 3004, are inappropriate, unnecessary, overly burdensome, have infinite
cost/benefit ratios, or cannot be accomplished by the industry and the manpower and
machinery currently available in the country.
Site selection and design for a drilling or producing well are dictated by the
natural occurrence of crude oil or gas in commercial quantities and by many State
Regulatory Rules and private contractual obligations. If"wetlands" and "500 year
floodplains" are excluded as potential drill sites, 1/4 to \ 12 of this country's
potential sedimentary basins would be left unexplored. We can also envision certain
technical problems with trying to rig up a rotary on top of Pikes Peak, and tap a
deposit of oil or gas near Corpus Christi by directional drilling.
There are strongly differing opinions as to whether the financial requirements
are in truth removed in the case of drilling muds and brines, or what might be added
on at any subsequent time. These financial requirements could shut down nearly all
the domestic drilling and producing industry with no true, or proven benefit.
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3004
Of the 600,000 or more producing oil and gas wells in the United States today,
probably fewer than 200 have any need for round the clock surveillance or security
because of any public health or environmental contamination danger. The balance
of the wells are generally inspected on a daily basis for any problems. To accomp-
lish site security and around the clock surveillance would require the hiring and
training of a work force of 60,000 complete with transportation vehicles at a cost
that would cause most of these wells to be plugged.
The filing of SPCC type plans with all local and state agencies would benefit
only the manufacturer's of paper and file cabinets and storage warehouses. This
volume of reports would inundate the recipients to the point that they would be
valueless and the recipients would not have the people to even file or comprehend
them. Witness the fact that the Texas Railroad Commission has to get an emergency
additional appropriation of $500,000 to initiate compliance with the State's portion
of the NGPA of 1978.
The oil and gas producing industry is a capital intensive industry that requires
well trained workers with above average capabilities The training of our existing
personnel is a continuous ongoing job. We would question again, however, any reason-
able cose/benefit ratio of the proposed training and record-keeping under Section
3004.
The closure and long term care of a variety of "facilities" that would come
under regulations in the proposed Section 3004 would present significant legal
problems that might well prove unsolvable. Our economic impact statements address
the prohibitive costs involved.
Most technical problems can be solved, in this day and time, if the money
required does not run out. So it is with the surface water, groundwater and leachate
monitoring proposals in Section 3004. We would state again that no proof has been
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3004
brought forth of any significant contamination of surface or subsurface waters
by drilling muds and only a very few isolated instances of contaminations from
produced brines. Current practices by the industry, under existing State or
Federal Regulatory agencies, (which agencies EPA seems to have ignored or not
contacted during its previous 3 years work), are producing no known or predictable
hazards and so the enormous costs proposed by Section 3004 produce zero benefits.
The storage requirements set forth for ponds, tanks, and containers of Hazardous
Wastes would include all oil and gas production vessels and would necessitate a
complete moving and rebuilding of all facilities currently in use. These requirements
would seem to fit large chemical plants rather than isolated wells.
The proposals in Section 3004, to deal with the Treatment and Disposal of
Hazardous Wastes, again seem designed for stationary plants or sanitary landfills
dealing with highly toxic materials or deadly poisons. The many requirements here
that would point out the wrong classifications of drilling muds and brines, crude
oil or crude oil waste, or produced brines under Section 3001, -which we addressed
before.
The Permian Basin Petroleum Association would strongly recommend that no re-
quirement under Section 3004 be applicable to drilling muds, crude oil or crude oil
wastes, or produced brines unless, and until, the currently proposed 2 year study
has been completed and thoroughly analyzed in all aspects. Prior application of
these proposed regulations could initiate the shut down of a great portion of our
industry, the premature plugging of hundreds of thousands of wells, which could
never be redrilled for the remaining reserves, and the complete loss of our national
security because of added dependence on overseas, unreliable sources of energy.
The basic conception that all government regulators should be free from any
industry experience in the area that they deal with is laudable to some degree.
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3004
However, this lack of industry experience carries with it the very heavy burden
of the responsibility for 24 hour, 7 day a week study to become knowledgeable
enough, without bias, to propose proper regulation. The E.P.A. has been working
in this area for 3 years, but from the presentation of these proposed regulations,
with regard to oil field operations, we can conceive no first hand knowledge of, or
any attempt to learn, the workings of the oil field - drilling, exploration or
production.
Thank you for this opportunity to publicly express our position on this
proposal.
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TESTIMONY OF H, L. HANRIGHT
PETROLEUM EQUIPMENT SUPPLIERS ASSOCIATION
BEFORE
ENVIRONMENTAL
PROTECTION AGENCY
MARCH W, 1979
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Mr. Chairman, Ladies and Gentlemen:
My name is H. L. Hanright. I am most honored and privileged to be
here today. I am appearing before you in my capacity as chairman of the
Service Companies Committee of the Petroleum Equipment Suppliers Association.
Privately, I am the President of Baker Service Tools of Houston, Texas.
The Petroleum Equipment Suppliers Association is a trade association com-
prised of 220 oilfield equipment manufacturing, supply, and service companies.
Among our membership are the major companies which manufacture drilling fluilds
systems and provide wellsite drilling fluids service to the oil and gas drilling
industry.
The Association is in complete accord with the desire of the Environmental
Protection Agency to protect our environment from the baleful effects of
hazardous wastes under authority of the Resource Conservation and Recovery
Act by proposing regulations to implement the act. Certainly, where substan-
tial evidence exists that a particular kind of waste has in the past been
a source of danger to persons or to the environment, that substance should be
classified as a hazardous waste. It is the contention of the Petroleum Equipment
Suppliers Association, however, that oil and gas drilling fluids have not been
shown to pose any danger to persons or the environment and therefore should be
exempt from the proposed hazardous waste regulations.
The EPA has recognized that special status of drilling fluids, stating that
"the Agency has very little information on the composition, characteristics,
and the degree of hazard posed by these wastes...," but that "the limited
information the Agency does have indicates that such waste occurs in very large
volume, that the potential hazards posed by the waste are relatively low, and
that the waste generally is not amenable to the control techniques developed in
*
Subpart D (Sections 250.40-250.46)." It would seem to follow from this that
drilling fluids would be completely exempted from the regulations, at least until
*Federal Register, Vol. 43, No. 243 - Monday, December 18, 1978, pp. 58991-2.
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there existed sufficient evidence of potential hazard to warrant their inclusion.
However, the EPA proceeded to write "special standards" for these special wastes,
first making them subject to the hazardous waste identification standards in
section 250.13, and then subjecting them to "limited"sections of Subpart D, if
they were determined to be "hazardous." The Agency apparently felt that drilling
muds were being exempted from the substantive requirements of Subpart D; the
Background Document on special wastes even states that his was done "to avoid
imposing a substantial economic burden on the economy for little or no net
environmental benefit." This is not, however, the effect of the regulations as
currently drafted. The "limited" standards to which drilling muds are subjected
would, in fact, create a tremendous administrative and economic burden for the
drilling industry and ultimately for the economy as a whole. Compliance with
these requirements would seriously impede the exploration for and production of
our domestic energy resources without achieving any environmental benefit at a
time when the danger of our reliance en foreign .sources of oil is becoming more?
and more apparent.
Section 250.46-6 makes drilling fluids subject to section 250.13 which
sets forth testing procedures for all wastes to determine if these wastes
should be classified as hazardous. The requirements under this section do not
recognize the peculiar nature of drilling fluids or of mud systems as used
in industry.
When an oil or gas well is being drilled, fluids commonly called drilling
muds are pumped down the inside of the hollow drill pipe under pressure. This
mud emerges through jets in the drill bit at the bottom of the hole. It then
circulates back up the outside of the drill pipe and emerges through the
blowout preventers on the surface. It then passes over a "shale-shaker" which
removes rock and sand "cuttings." These cuttings and some of the mud flow into the
reserve pit; the filtered mud then goes back into the well to recirculate.
This circulation of fluids is absolutely essential to drilling all but the very
shallowest of wells. It accomplishes several purposes. Host obviously, it cods
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and lubricates the drill bit and drill pipe, and it washes the cuttings out
of the hole. The weight of the mud also allows it to act as a counterweight
to pressures from within the wellbore which might cause a "blowout" of the well.
The composition of the mud also allows it to coat the inside of the wellbore,
forming an impervious cake so that circulation will not be lost if a highly
permeable formation is encountered. This cake also prevents the wellbore from
collapsing.
In order to accomplish these purposes effectively, drilling mud must have
certain very precise characteristics; mud technology has developed over some
70 years and continues to develop toward a more and more exact science. One
ingredient of almost all drilling mud is barium sulfate or "barite." This
element gives the mud the weight and viscosity necessary to provide pressure
control and to lift the cuttings from the wellbore. Another element is
bentonite which acts as a sealant in forming the wall cake around the wellbore
and also prevents leaching of the reserve pit. A third important additive to
the mud is chromium lignosulfonates which help the bentonite retain its
sealing properties.
Section 250.13 specifies testing procedures to determine if certain quan-
tities of proscribed elements are present in the waste sample. To apply
these procedures to drilling muds,' as the regulations do, is extremely unreason-
cbk
ftbew* and unrealistic. One requirement calls for sampling a reserve mud pit
such that "the representative sample" is "statistically equivalent to the
total waste in composition." This would be virtually impossible because the
mud may contain cuttings, wash water, and other solid elements. Thus, the
composit ion of the reserve pit can vary dramatically at intervals sometimes
less than one foot. Moreover, new elements brought up from the wellbore
and new additives which are frequently used cause the composite on of the fluid
in the reserve pit to change constantly.
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The proposed acidification analyses in section 250.13 are also unrealistic
with regard to drilling muds. These procedures would produce soluble metal
contents which are much higher than those that would occur naturally in the
environment. Almost all drilling muds are so highly alkaline that acidifica-
tion of the remains of a mud pit is unlikely even after nany years of leaching.
The analytical procedure pertaining to chromium does not distinguish
" *reen chromium ions of differing valence states. Hexavalent chromium
Lch is the undesirable form does not occur in drilling fluids; the
re benign trivalent chromium ion is used instead in the chrome-treated
jnosulfonates necessary in drilling muds.
A primary purpose of the Resource Conservation and Recovery Act is to
protect surface and ground water from undesirable chemical elements emanating
from hazardous waste storage facilities. The bentonite added to drilling
muds prevents leaching even if the reserve pit did contain materials detertninad
to be hazardous under Section 250.13 criteria. In fact, many states require
that closed-off wellbores contain drilling mud to prevent, collapse of the walls
and possible environmental damage.
Because the current proposed regulations subject drilling muds to the unrealistic
testing requirements of section 250.]3 and proscribe elements such as
trivalent chromium ions, it is possible that drilling fluids may be
classified as hazardous wastes. They then would be subject to the so-called
"procedural regulations" outlined under section 250.46-6:
1) General Facility Standards-waste analysis (250.43(f))
2) General Site Selection-for new sources only (250.43-1)
3) Security (250.43-6)
4) Manifest System, RecordkeepJng, and Reporting (?50.43-5(a), (b)(l),
(b) (2) (i) , (b) (5) and (c) )
5) Visual Inspections (250.43-6)
6) Closure and Post-Closure (250.43-7(1), (m), (n))
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A careful study of these requirements reveals that, far from being only
procedural in nature, most of them are quite far-reaching and substantive. Only
the visual inspection requirement can be considered procedural. It would be
extremely difficult, if not impossible, to reasonably comply with each of the
other requirements. And the economic burden imposed would, in direct contraven-
tion of the stated intent of the EPA, be enormous with little or no environmental
benefit.
The waste analysis requirement would be almost impossible to comply with
in any meaningful way. As mentioned earlier, the constituency of drilling fluids
is constantly changing due to the additon of new elements to the fluids and
cuttings from different geological formations being encountered in the wellbore.
An analysis made one day could easily be invalidated the next. Furthermore,
many wellsites are situated in remote areas which would necessitate transporting
the samples long distances to obtain analyses. The American Petroleum Institute
recently estimated that the cost of performing an extraction procedure text
as outlined in Section 250.13(d) on a reserve pit sample would be $750. Consi-
dering that there were approximately 48,000 wells drilled last year using
drilling muds, the cost of compliance with only this one section of the so-
called "procedural regulations" would be $36,000,000.
The general site selection procedures would also apply to any drilling
fluids determined to be hazardous waste. They prohibit the location of a
hazardous waste facility in an active fault zone, in wetlands and recharge
zones, or in 500-year floodplains. This would effectively preclude drilling
in much of the Texas and Louisiana Gulf Coast area and in many parts of
California—areas considered by geologists to be the most promising locations
for oil and gas reserves. The benefit to the environment which would result
from these strictures is non-existent. The sealing properties of the bentonite
added to drilling muds, the absence of dangerous hexavalent chromium ions in
the fluids, and the rapid reduction of high pH Jevels mentioned earlier
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obviate any dangers to the environment caused by flooding of a former reserve pit.
The security requirements are unnecessary and cannot reasonably be
applied to reserve mud pits. Surrounding the pit with a 2-meter fence to keep
out persons and livestock is totally unnecessary since drilling operations
are carried on 24 hours a day and the reserve pit is in view and under the
, - ' /' / '
supervision of the drilling crew at all times^.u«til closure when the'pit is
backfilled. Controlled access points manned by a guard or equipped with elec-
tromechanical devices are not only unnecessary but would greatly impede the
movement of equipment and supplies and create a tremendous, financial
burden for the drilling operator. The A.P.I, has estimat€'d the cost of
$3,2CQ $154 MILLION
fencing each of 48,000 wells at c_..i» per well or Szt-^ftStMiC^ industry-
wide. Again, this expense would be imposed with no benefit whatsoever accruing
to the environment as a result.
The manifest system required of all operators of hazardous waste facilities
would be extremenly burdensome, not or.lv to the drilling industry, but to the EPA
as well. The average depth of the 48,000 wells drilled last year with fluids
was 4,875 feet. Approximately 23,000 wells of that depth were drilled in
.-ffvr*
less than oaft week. To apply the manifest system obviously designed for more
permanent facilities to thousandsof reserve pits of such a short life would
result in monumental and unnecessary paperwork for the drilling industry and the
EPA alike. This regulation simply does not recognize the temporary nature of
the reserve mud pit.
The closure and post-closure requirements are perhaps the most burden-
some of all the regulations. Compliance with these requirements could
cost in excess of $4 billion according to API estimates. These costs would
result from the necessity for the drilling operator to negotiate with the
land-owner for the right to monitor the site of the closed reserve pit for
20 years.
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The API has estimated that the total cost of compliance with those
"Procedural regulations" imposed on oil and gas drilling fluids and production
brines would be in excess of $10 billion a year, which would almost double
the current cost of drilling. An often ignored fact is that the money
available to finance drilling operations is not infinite in supply. When
non-productive expenses such as compliance with unnecessary federal regulations
increase, there is less money available to drill wells. Besides adding to
the cost of energy, such regulations as the EPA is proposing greatly impede
production of our domestic energy reserves. And at what benefit to our
environment? Practically none, as the EPA has itself stated. Drilling muds
and reserve mud pits pose no danger to persons or to the environment under
current operating procedures.
The Environmental Protection Agency has conceded that there is little
or no evidence to indicate that there are hazards posed by special wastes such
as drilling fluids. We concur with the wisdom of the EPA in giving drilling
fluids special treatment. We fail to see, however, how the standards as
currently proposed afford any meaningful regulatory relief to the special
waste category. For these reasons, the Petroleum Equipment Suppliers Association
respectfully suggests that drilling fluids be exempted from the proposed
hazardous waste regulations until such time as the Agency has a thorough
understanding of the characteristics of special wastes and the degree of
environmental hazard, if any, posed by them.
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STATEMENT OF
GEORGE FRED RHODES FOR
TEXAS COASTAL & MARINE COUNCIL
I am George Fred Rhodes of Port Lavaca, Texas, appearing here
today as a member of the Texas Coastal and Marine Council. The Coastal
and Marine Council is a state agency directed by statute to assess and
evaluate various activities impacting the coastal sector of the State
and to recommend to the State Legislature any programs or policies deemed
appropriate.
In that connection, the Council has undertaken a study of solid
waste disposal practices in the State and focused specifically on the
concept of perpetual care. Two University of Texas law school professors
were engaged in study of the legal basis for establishing such a program
and the question of continuing liability. Copies of their reports to
the Council are contained in the material I am submitting here today.
Also in the packet submitted for the record is a copy of the
report and recommendations that the Council adopted for submission to
the Legislature and a copy of Senate Bill 499, now under consideration
in the State Legislature. That bill would implement the recommendations
by imposing a fee on the generators and/or disposers of non-radioactive
industrial sol id waste.
Radioactive solid wastes are treated separately in Texas law, and
are not included in the type of wastes with which we are concerned. A
copy of H.B. 1551 dealing with radioactive wastes is incorporated in
the packet for your information.
The bill would authorize the State Department of Water Resources
to assess a fee--not to exceed fifty cents (50
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transporters, or disposers who fully participate in legal compliance
with the law and State regulations would be immune from any further
liability to the State.
There is in the bill a provision authorizing agreements with the
Federal government to assure compatibility of concept and programs under
the Resource Conservation and Recovery Act of 1976. It is our hope and
feeling that the Texas program will be complementary to the measures
being discussed here today. At this point in time, there are only a
few real problem sites in Texas, and we propose to eliminate those
problems as quickly as possible whi~>e minimizing the chances for new
ones.
I will try to answer any questions you may have regarding this
material. Thank you for the opportunity to appear.
-2-
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REPORT TO THE 66th LEGISLATURE ON SENATE RESOLUTION 471,
LONG-TERM MONITORING OF INDUSTRIAL SOLID WASTF DISPOSAL FACILITIES
DECEMBER 11, 1978
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REPORT TO THE 66th LEGISLATURE ON SENATE RESOLUTION 471, LONG-TERM
MONITORING OF INDUSTRIAL SOLID WASTE DISPOSAL FACILITIES
INTRODUCTION
During the 65th Legislature, the Texas Stnte Senate adopted Resolution
471 pertaining to "an assessment of the need to create a perpetual care
±und to insure that(industrial waste disposal) sites can he properlv
maintained in an equitable fashion without placing an undue burden on
the tax payers of the State of Texas." The Senate Resolution directed
that the Texas Coastal and Marine Council, in cooperation with the
Texas Department of Water Resources, the Gulf Coast Waste Disposal
Authority, and other interested and knowledgeable parties, undertake
this assessment and present a report to 66th Legislature when it con-
venes in 1979. The following report describes the work undertaken and
the conclusions drawn by the three primary agencies designated to
conduct the assessment.
To initiate the cjssessment, three studies were immediately commenced
to examine three aspects of perpetual care system for industrial solid
waste disposal facilities. These were a legal study to examine
liability of waste generators under present Texas law and examine
options for addressing these liabilities in further statutory develop-
ment, a legal study examining similar statutes and constitutionality
of such a system, and an examination of past disposal problems and
waste generation and management practices. Pertinent results of these
studies are discussed in this report, anc1 a summary report of each
study is contained in the Appendix.
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I. HISTORICAL BACKGROUND OF THE REGULATION OF INDUSTRIAL SOLID WASTE
MANAGEMENT IN TEXAS
Direct regulation of industrial solid waste disposal in Texas began witfi
the enactment of the Texas Solid Waste Disposal Act in 1969. With this
Act, the 61st Legislature assigned jurisdiction of solid waste management
<-o the Texas Water Quality Board and the Texas Department of Health.
I.A. TWO TYPES OF SOLID WASTE ARE RKCOGNIZED BY THE ACT
For purposes of assigning jurisdiction, two types of solid waste are
recognized by the statute. The first is municipal solid waste which
includes discarded or unwanted materials produced by municipal sources,
such as normal household refuse and similar wastes from businesses and
commercial activities. The second, industrial solid waste, includes all
discarded'or unwanted materials from any process of industry, manufacturing
or agriculture. Industrial solid wastes include solids, slurrys, or
liquids - a material does not need to be in a solid state to be classified
as an industrial solid waste. When both industrial and municipal solid
waste are simultaneously involved in any activity subject to regulation,
the Texas Department of Health is arbritrarLly assigned jurisdiction over
the activity.
I.B. PERMITS REQUIRED EXCEPT FOR ON-SITE DISPOSAL
The Act authorized the Texas Water Quality Board to require permits for
activities of storage, handling and disposal of industrial solid waste.
However, the Act prohibited the requirement of permits for disposal
activities undertaken on land which was (I) owned or controlled by the
waste generator, (II) located within 50 miles of point of generation and
(III) used only for the disposal of that generator's waste.
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I.C. INITIAL RULES IMPLEMENTED IN 1970
Regulatory implementation of the Act by the Texas Water Quality Board
commenced in 1970 with^adoption of a regulation establishing design
criteria and permit requirements for commercial disposal operations.
This initial rule also established the basic policy that the waste
generator is responsible for assuring that waste produced by him is
properly and safely disposed ot regardless of disposal process employed,
Also by rule, the Texas Water Quality Board established requirements
for a certificate of registration whereby each non-commercial facility's
compliance status would be established and regularly reviewed.
I.D. ADDITIONAL RULES IN 1975 AFTER PUBLIC 11KARINGS
Subsequent regulatory development came in 1975. After lengthy public
hearings Texas Water Quality Board revised their industrial solid waste
regulations to establish uniform performance standards for all disposal
operations. The 1975 rule prohibited discharge to ground water or
surface water, creation of any nuisance or public health problems, and
disposal at unauthorized locations. Also, the rules called for the
development of technical guidelines outlining recommended technical
standards for various methods of industrial waste storage and disposal.
These guidelines were to be made available to the general public, waste
disposal industry, and waste generating industries.
The regulatory piogram operated today by the Texan Department of Water
Resources is fundamentally the same as that begun with the 1975 Texas
Water Quality Board regualtions, although several refinements in the
rules have occurred since that time.
II. SPECIFIC ASPECTS OF CURRENT REGULATION BY THE T.D.W.R.
II.A. PERMITS
Controls over storage, processing and disposal facilities are implementec
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two ways. First, permit requirements are applicable to all facilities
except those located on the generating plant site. Through the permit
application process of evaluation, public hearing, and issuance/denial,
the Texas Department of Water Resources is able to assure that the
facility will conform to the established technical standards and comply
with the performance requirements. The permit establishes the site-
specif-ic restrictions necessary to minimize the potential of adverse
environmental impact. Compliance with the permit requirements is sub-
sequently monitored by Texas Department of Water Resources' field
inspectors.
II.B. REGISTRATION OF ON-SITE FACILITIES
The second means by^ which facility control is implemented pertains to
on-site disposal facilities. The Texas Department of Water Resources'
rules require that prior to commencing operation of on-site facilities,
the operators must notify the Texas Department of Water Resources at
which time plans and specifications for the facility may be reviewed
for conformance with established technical standards and for expected
compliance with the performance requirement. Once the notification has
been filed, the operation may commence. However, once under way, the
on-site facility is also subject to routine compliance monitoring of
the Texas Department of Water Resources' field inspectors.
II.C. CONTROLS OVER SHIPPING OF INDUSTRIAL WASTES
Controls over off-site disposal of hazardous wastes are achieved with
requirements applicable to all generators, carriers, and receivers of
such waste. Texas Department of Water Resources' rules require complianci
with shipping control procedures in which the waste generator originates
a shipping control ticket (trip ticket) designating the disposal site
and the carrier of the waste. Reports are subsequently collected from
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from the waste generator and the disposal sites thus enabling cross
check verification of compliance with this requirement.
This program emphasizes control over such wastes from their inception
to their ultimate disposal. This approach to hazardous waste manage-
ment has been termed "cradle to grave" regulatory control and is
designed not only to regulate commercial and on-site disposal but also
to prevent illegal dumping.
Il.D. FACILITY CLOSURE/SURETY ROMPS:
Two features of the Texas Department of Water Resources' program for
storage, processing and disposal sites are pertinent to the subject of
long-term monitoring and protection. First, Texas Department of Water
Resources' rules require that the operator of a permitted storage
processing or disposal facility must obtain a surety bond or other
financial assurance to provide, in the event of the facility abandonment,
an amount of money adequate to close the disposal facility in accordance
with the permit at no cost to the taxpayer.
As part of each permit application, a closure plan is submitted by the
applicant. This plan specifics the actions to be done at the time of
facility closure to minimize potential or future adverse environmental
impact. As part of the evaluation of the closure plan, the Texas
Department of Water Resources' staff calculate the estimated costs of
executing the closing plan. The permit, when issued, requires the
estimated cost of closure to be available at all times, usually in the
form of a surety bond, during the period of facility operation.
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This financial assurance requirement is presently in force for all
permitted industrial sqlid waste sites in Texas. The Texas Department
of Water Resources roqularly reviews Uio closure bonds for adequacy
and has legal authority to institute proceedings to raise the amount
as necessary.
II.E. DEED RECORDATION:
Second-, section 156.22.01.007 of the Texas Department of Water Resources'
rules requires that prior to commencing a disposal operation, the
operator must record in the county deed records the following information:
A legal description of the plot of land used for disposal, Texas Depart-
ment of Water Resources' waste classification of the material disposed,
and the name and address of the waste generator(s) where specific
information about the waste can be obtained.
This requirement is to assure that knowledge of the disposal site
existence and character is available to future land owners at the time
of property transaction for purposes of assessing the land's possible
uses. The deed recordation requirements are applicable to all industrial
disposal facilities in Texas.
III. OVERVIEW OF THE TYPES OF INDUSTRIAL SOLID WASTE MANAGEMENT IN TEXAS:
Texas enjoys an industrial community consisting of approximately 14,000
manufacturing establishments. The types of industrial wastes produced
by these operations are as varied as the products manufactured and the
services rendered. With the exception of enmissions to the atmosphere
and radioactive wastes the Texas Department of Water Resouces is
assigned regulatory jurisdiction for all industrial waste management
activities in accordance with the Texas Water Code, Disposal Well Act,
and Solid Waste Disposal Act.
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III.A. QUANTITY OFWASTE GENERATED:
In addition to waste water subject to treatment and discharge pursuant
».
to the Texas Water Code, some 8.5 million tons of industrial solid waste
produced annually in Texas presents significant potential for adverse
environmental impact due to chemical characteristics and/or great
quantity. An estimated 80% of the industrial solid waste materials are
stored, processed, and disposed of on-sdte by the generators of the waste
The balance of some 20% is shipped off-to permitted commcncal facilities
III.B. QUALITY OF WASTE GENERATED:
The characteristics of industrial solid waste vary on a wide spectrum.
Some are essentially inert and non-toxic such ,.s insoluble construction
debris, brick, and rubble. Other wastes, such as industrial trashes,
sludges, and .slurries and similar materials present short to intermediate
term pollution hazards depending on their quantity and degradability.
Finally, some are highly dangerous duo to their toxicity, flammability
or reactive characteristics. Some highly toxic waste materials are
extremely stable compounds which tend to persist in nature for great
lengths of time. Hence, the range of solid waste includes materials
warranting little or no protective measures to those requiring careful
handling and secure long-term protection.
111.C. STORAGE AND TRANSPORTATION OF INDUSTRIAL SOLID WASTES_IN TEXAS:
Methods to store and transport industrial waste materials are quite
varied. Storage and handling methods frequently employ containers as
means of short term containment and conveyance. Containerized storage
usually include enclosed or secured drum storage areas, "dumpsters",
small buckets, etc. Wastes handled in bulk are usually conveyed by
tank or vacuum truck if in liquid form, and flat bed or dump truck when
in solid form or when containerized. Bulk liquids arc occasionally
conveyed by pipelines.
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111. D . PROCESSING AND DT PPOSAL IIETI If) D S_ OF INDU ST^IAL SOLID WASTE IN
TEXAS:
Under Texas lay, "processing" includes virtually all actions of treat-
ment for recovery of solid wastes, however, regulation of "processing"
does not impede desirable recycling of waste materials. Some processing
and disposal facilities emphasize resource recovery but the majority
emphasize ultimate disposal. Typically, industrial solid waste manage-
ment facilities employ both land storage arid ultimeite disposal, and
in several cases utilize wastewater treatment and discharge, high
temperature incineration, and deep well injection. The mo.st common
means of ultimate disposal is the landfill or burial facility. Opera-
tional life of facilities which utilize this method is directly related
to their landfill disposal capacity.
III.E. LANDFILL AND LANDFARM FACILITIES MAY REPRESENT A LONG-TERM,
LOCALIZED HAZARD_TO__THE ENVIRONMENT:
During operations, all storage and dispsal facilities present some
degree of hazard to the environment ; but, after facility closure, only
those portions of a facility used for ultimate disposal present any
continuing hazard potential.
Certain disposal methods, such as wastewater discharge and incineration,
do not present a continuing, localized potential hazard since their
function consists of removal of hazardous character j.srics and dispersal
within the environment. However, these processes generally do produce
residues for ultimate, localized disposal. Landfill and land farm
facilities present some measure of continuing potenrial hazard within
the environment since their function is permanent containment. Texas
Department of Water Resources' regulations are directed at minimizing
potential hazards during and after opi ration. There are over 300 such
facilities in Texas.
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III.E.I. LAMDFARMS;
Landfarms, where wastes are applied to land, utilize the assimilitive
properties of soil to biograde and chemically stabilize the waste. If
not properly designed and operated, hazardous waste components subse-
quently can be released in rainfall run-off or absorbed by plants thereby
possibly entering the food chain.
III.E.2. LANDFILLS:
Properly designed, constructed and operated, a secure landfill for
hazardous waste will provide containment and hence protection from
hazardous wastes on a permanent basis. However, if such facilities are
improperly located, poorly designed and operated, or not controlled
subsequent to closure, serious problems can develop. Such problems are
usually related to the containment function. Such failures may occur
due to non-compliance with design and operational requirements or un-
intentional damage to barriers relioc] upon for waste containment.
IV. ABANDONED LANDFILLS PRE-DATING THE SOLID WASTE ACT:
IV.A. AN EXAMPLE OF A SEVERE PROBLEM CAUSED RY AN IMPROPER LANDFILL
OPERATION IN THE STATE OF NEW YORK:
An extreme example of the severity of the problems that can result from
improper landfill operations is currently the subject of study and
remedial action in the State of New York. An abandoned excavation re-
maining from an incompleted canal construction project was used for
dumping by a corporation. Disposal of chemical wastes in the excavation
began in the 1940's and continued into the 1950's. The excavation was
not well suited for use as a secure landfill, and secure landfill
techniques were not employed. Chemical wastes dumped in the excavation
included some highly toxic pesticide production wastes. In the early
1950's the excavation was filled and capped with four feet of clay
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soil. Later, after the property had been sold to a local municipality,
and despite reported deed restrictions, the city built a public school
and sold a parcel of the land to residential property developers. During
the home construction activity, the clay cover over the waste deposit
was apparently removed. Responding to unusually high incidents of
cancer and birth defects in the area, the State Health Commissioner
direeted that homes built along the waste disposal site be evacuated.
Remedial measures are being studied to stabilize and secure the waste
disposal site.
IV.B. EXAMPLES OF ABANDONED SITES IN TEXAS:
H. G. KELLEY
Fortunat.ely, no problems of a magnitude described above with abandoned
industrial waste dumps have occurred in Texas. However, there are
several industrial waste dumps in this state which were abandoned prior
to the enactment of the Texas Solid Waste Disposal 7\ct in 1969 and
which are now environmental hazards and have proven to be difficult to
have satisfactorily closed.
An example of modest success achieved in clean-up is the H. G. Kelley
disposal site in Galveston County, Texas. Used during the late 1940's
and early 1950's for disposal of sulfuric acid sludge, the site presentee
an environmental hazard until attempts began in the mid 1960's to have
the site closed. Due to the age of the site, determining primary
liability was difficult because the contributing companies were not knowr
or had changed identity. After lengthy efforts by the Texas Water Quality
Board, Galveston County, the City of Dickinson, and the land owner, a
successor to the primary generating company donated some $3,000 toward
site closure. This donation enabled the purchase of enough material bo
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treat the acid waste in the pit to reduce the environmental hazard.
With additional contributions of fill materials from a contractor em-
ployed by the Texas Department of Highways and Transportation, the
site has been about 98% closed. Efforts continue to complete the site
closure.
IV.C. OTHER EFFORTS TO REMEDY HAZARDS AT ABANDONED SITES HAVE BEEN
LESS FRUITFUL:
In contrast to the degree of success achieved at the H. G. Xelley site,
efforts to close another abandoned site near Texas City has been less
fruitful. Formerly known as the "Petro Processors" site, the facility
was used for dumping styrene tars and other hazardous waste materials
beginning in 1959. At least two attempts to reclaim the estimated
380,000 barrels of styrene tars deposited at the site have failed.
Efforts by the state ascertain and place liabilities on the suspected
contributors have not been successful. Estimates made by the Texas
Department of Water Resources' staff indicate that the cost of complete
site closure may be as high as 5 million dollars.
Another effort toward closure of a different disposal site has lasted
approximately 4 years. Used for dumping by French Limited, Inc., the
22 acre site contains 12 acres where petrochemical waste materials
were deposited during the 1960's and early 1970's. State enforcement
action resulted in a partial site closure, permit cancellation, and
transfer of the property title to the State. Although some environmental
hazards from the site remain, no state funds are currently available
to complete site closure.
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In summary, state efforts toward closing problem disposal sites started
prior to the Solid Waste Act have met with 1imited success due to
'difficulties in determining liabilities and the unavailability of any
public funds to do the job. Also, only the most pressing problems
have been addressed. Smaller, loss visible, and perhaps some unknown
•abandoned and inadequate facilities remain to be dealt with.
V . DISCUSSION OF THE ADEQUACY OF STATE STATUTES f N_D_JRECULATIONJ3 :
The Solid Waste Disposal Act authorizes the Texas Department of Water
Resources to require a permit Cor all industrial wastes storage, pro-
cessing, and disposal facilities, except for those located on the waste
generators' property. These "on-site" facilities -ire regulated by
Department rule with essentially the same environmental protection being
afforded as if the site were subject to permitting-the only difference
being the applicability of land use considerations. The 65th Legisla-
ture amended the-Act to extend the permit requirement to on-site faci-
lities which manage hazardous wastes to conform to federal law. Imple-
mentation of these further permit requirements will begin upon promul-
gation of Environmental Protection Agency's rules which identify the
hazardous wastes that must be rejulated. These rules are expected
during 1980.
The Solid Waste Disposal Act also authorizes the Texas Department of
Water Resources to require operators of permitted disposal facilities
to provide financial assurance that their facility will be completely
closed at no cost to the public. This financial assurance requirement
was implemented by state regulation in 1971, and will be applied to
on-site hazardous industrial waste facilities when permit requirements
for these facilities are implemented.
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By and large, then, the Texas Department of Water Resources' financial
assurance requirements and statutory authority for these requirements
'appear adequate to protect the public interests in the situations
addressed by Senate Resolution 471 where adverse conditions develop
when facilities are abandoned and/or operators experiences financial
difficulty. However, existing financial assurance requirements do not
address two issues raised by Senate Resolution 471. These issues are
(1) post-closure monitoring and maintenance, and (2) proper closure of
unauthorized facilities and problem facilities.
VI. POSSIBLE SCOPE OF THE PROPOSED LEGISLATION AND LEGAL ISSUES
RAISED BY THE TYPE OF LEGISLATION SELECTED:
Any long-term monitoring statutory scheme carries with it potential
conflict between two divergent interests. On the one hand, waste
generating and waste disposing industries want to insulate themselves
from future liability resulting from their respective business activi-
ties; while on the other, members of public want to be assured of the
right of recourse in the event they suffer harm, prop2rty or personal,
as a result of waste generation and waste disposal.
The legislation adopted should recognize these two interests. The
scope of the legislation adopted will directly affect the method of
responsibly rationalizing the two points of view, and it is, therefore,
important to initially decide purposes for which disbursements may be
made from the fund. As one of the attached legal studies indicates,
a list of possible purposes would include:
(1) Closure of sites not closed or not properly closed;
(2) Monitoring of closed sites to detect harmful conditions,
such as assumulation or escape of gas, drainage from the site of
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liquids (including water containing leached wastes), and physical impair-
ment of containment devices by erosion, subsidence, earthquake or other
factors;
(3) Maintenance of closed sites in safe condition;
(4) Cleanup of harmful substances that escape from a site and
ot associated debris;
(5) Abatement of escape of harmful elements from a site;
(6) Compensation of harms caused by stored wastes. Types of harms
thdt might be compensated would include:
(a) Personal injuries;
(b) Death;
(c) Injury to property;
(d) Loss of use of property;
(e) Loss of profits or impairment to earning capacity;
(f) Interest paid on loans necessitated by the incident;
(g) Loss of taxes by governmental units; and
(h) Injury to public resources, including wildlife and
wildlife habitats; and
(7) Costs of administering the program.
VI.A. THREE LOGICAL LEVELS OF LEGISLATION SCOPE ARE POSSIBLE:
A minimum program, addressed solely to the prevention of harm, would in-
clude clean-up and abatement of escaped harmful wastes. A broader program
could include closure, monitoring and maintenance. A still broader program
would seek to compensate some or all of the losses suffered from stored
hazardous waste.
VI.A.I. THE MINIMUM PROGRAM:
If the legislation adopted is contoured to the minimum program discussed
above, there is limited potential for conflict between the indusbries
and the public, and any issues of i.idustrial tort liability to third
persons would remain the domain of the courts.
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Although Texas jurisprudence with respect to potential sources of
liability producing doctrines cujainst the generator of hazardous wastes
is equivocal, it is probable that tort liability for the generator
would cease when the waste is properly transmitted to a permitted dis-
posal facility. The language in the legislation adopted could bolster
this probability. Regardless of the language selected, however, it is
unlikely that the major entities involved in the production and disposal
of hazardous wastes could escape tort liability for their own actual
fault. Likewise, it is unlikely that any legislation adopted could
insulate any entity from liability for willful conduct or gross negligence
It should perhaps be noted that concepts of clean-up of harmful sub-
stances afid abatement of escape of harmful elements at the disposal
site are of particular importance with respect to remedying problems
currently caused by abandoned sites which pre-date the Solid Waste
Disposal Act.
VI.A.2. A BROADER PROGRAM:
If a broader program including monitoring and maintenance is adopted,
more pressure is placed on the two divergent interests outlined above,
industry vs. the general public. Consequently, any language in the
adopted legislation which either directly or indirectly insulates
industry from liability will be scrutinized carefully for constitution-
ality. As the attached report by David W. Robertson suggests, "there
are a number of reasons to believe that there are no serious ob-
stacles to the constitutionality of a statute that would insulate waste
generators who pay into a perpetual care fund frop tort liability for
harms caused by hazardous waste aftei i.t is turned over to a permitted
disposal facility." (see page 18 of the cited report)
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VI.A.3. THE BROADEST PROGRAM:
Implementation of the broadest possible program which would include
compensation of harms such as personal injury, death, injury to
property, loss of use to property, etc. would create, the most serious
obstacles to the constitutionality of a statute that would insulate
waste generators from tort liability for harms caused by this //aste
after it was turned over to a disposal facility. On that basis alone,
j statute with a less ambitious scope mignt be preferred; but, ,1-3 the
attached legal studies discuss, such a statutory ,::hs,ie it constitu-
tionally possible and has beer successfully implepicntod in the
popularly known Price-Anderson Act, which is in amendment of tne Atomic
Energy Act of 1954, 42 USC. section 2011 e_t beq_. (1375)
VLB. A FUND FOR LONG-TERM MONITORING Of SOLID WASTE SI1TS IS HIGHLY
DESIRABLE AND Tlir. COST SHOULD ?•", BuHNr HY_ INDUSTRY AS A COST
OF DOING BUSINESS:
A long-term monitoring fund in the hands of government, one of the most
permanent of man's institutions, is highly desirable to insure that an
ability exist to expeditiously address problems which nay presently
exist or which may arise in the future from past industrial solid waste
disposal.
An arguuent can be made that appropilation of puhlic money to pay the
cost of post-closure momtorinq ar.d correction of environmental problems
after closare and abandonment would PC an unfair taxpayer burden. Botn
waste generation activities and the disposal Dperations are undertaken
in pursuit of profits. It does seem logical, then, thai: costs of moni-
toring and corrective action from nuch activities s:.oald be the burden
of those industries. As the attached reports indicate tn>re are a
number of regulatory programs for industrial waste management in other state1
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which are financed directly by fees assessed on private industry.
CONCLUSION
The current statutory authority and the Texas Department of Water
Resources' regulatory program for jndu&LrJal solid waste management
appear adequate with respect to environmental protection from waste
management activities undertaken since the passage of the Solid Waste
Disposal Act. However, state resources for correcting problems pre-
dating the Solid Waste Act, and correcting potential problems from
present and future v/aste disposal activities are not available. The
lack of such resources has severely limited the Texas Department of
Water Resources1 ability to correct past problems and can be expected
to hamper future efforts. Experience and practicality suggest that
ultimate responsibility for monitoring, control, and future corrective
actions rest with the State. The cost of both post-closure monitoring
and correction of future environmental problems can be borne by waste
generators and/or disposal site operators.
R E C O MM K N D AT I ON S
The following recommendations detail objectives for legislative action
to establish a fund supported by a fee system to provide for long-term
monitoring of closed sites and clean-up and containment of exposed
hazardous waste materials.
1. Establish a fund for industrial solid waste disposal facilities
and specify that the fund is to be maintained separate from the
general revenue fund with accumulated interest being paid to the
specific fund.
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2. Provide authority for the Texas Department of Water Resources to
require and collect fees from operators of industrial solid waste
facilities and/or from generators of industrial solid waste who
contribute to the disposal site operation.
3. Provide that all fines resulting from legal actions by the State
against industrial solid waste facilities, any gifts, unexpended
forfeited closure bond funds, and legislative appropriations be
placed in the fund.
4. a. Establish a maximum fee per unit quantity of industrial solid
waste deposited in a given facility and authorize the Texas
Department of Water Resources to establish a fee schedule based
upon waste characteristics and disposal methods.
b. The benefits of the fund could be initiated much more quickly
if an initial appropriation of state funds were provided to
establish the fund. Initial appropriations could be repaid
to the 'general revenue fund after implementation of fee schedule
and collection of fees by the Texas Department of Water Resources
5. Establish the purpose of the fund to be paying costs of monitoring
disposal facilities after final closure and abandonment and for
correction of present and potential adverse environmental impacts
from such closed or abandoned facilities.
6. Limit the applicability of the fund and collection of fees to those
facilities where industrial solid waste is disposed by means where
the disposal is considered by the Texas Department of Water Resources
to be "ultimate disposal" and where the potential for adverse
environmental impact from the facility will exist after closure and
abandonment.
7. Specify when the fund may be accessed by the TDWR for authorized
purposes:
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a. Upon & subsequent to permit cancellation, or
b. Upon abandonment by the facility operator, or
c. Up'on determination by the TDWR that an imminent threat exists
to the public or water resources of the state, or
d. Upon determination by the TDWR that all legal actions seeking
civil penalties for correction of adverse environmental impact
frprn the facility have been exhausted.
8. Provide authority for the Texas Department of Water Resources to
determine whether a future activity undertaken at any closed
facility site will increase the potential for or result in adverse
environmental impact from the closed facility, or otherwise inter-
fere with the Department's monitoring of the closed facility and,
if so, authorize the Texas Department of Water Resources to exer-
cise control over the activity.
9. Provide authority for the Texas Department of Water Resources to
enter into any agreement with the U.S. Environmental Protection
Agency which may be necessary and appropriate to assure compatibility
of the Texas long-term monitoring fund with any similar system
established pursuant to the Federal Resource Conservation and Recover
Act of 1976 or any subsequent federal legislation.
10. Provide that the state shall file suit against any and all respon-
sible parties to recover monies spent from the fund.
11. Provide for a concept of "successor liability" so that purchasers
of oi, going waste disposal companies or of land where wastes are
deposited acquire title subject to liabilities incurred by their
predecessor (s).
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OPTIONS FOR ESTABLISHING AND ADMINISTERING A PERPETUAL
CARE FUND FOR HAZARDOUS WASTES
A Poport
bv
Corwln W. Johnson
for
The Texas Coastal and Marino Council
May, 1978
W i •• 1978
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TABLE OF CONTENTS
I. Introduction
II. Statutory Survey
A. Perpetual Care Funds for Hazardous (Non-radioact ivc
Waste .Disposal Facilities ............. 1
B. Funds for Radioactive Wastes ........... 3
C. Abatement or Cleanup Funds for Harmful Conditions
Due to Hazardous Wastes .............. 4
D. Funds for Spills of Oil and Hazardous Substances. . 7
1. Texas Oil and Hazardous Substances Spill
Prevention and Control Act ........... 7
2. Funds in Other States for 0:1 and Hazardous
Substances Spills ................ 8
3. Funds Created by Congress for Oil and Hazardous
Substances Spills 11
4. Proposed National Comprehensive Fund for
Oil Spills 13
E. Nuclear Incidents - The Price-Anderson Act 15
III. Disbursements 18
IV. Funding 24
V. Liability 27
VI. Financial Responsibility 31
VII. Preemption ., 36
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I. Introduction
If the Texas Legislature undertakes to establish a perpetual
care fund for expenditures incident to the long-term storacje of
hazardous wastes, there are several options available to it. This
report is intended to identify those options and to provide analy-
sis and information that would be helpful in choosing among those
options.
This report is based in the main upon study of materials re-
lating to analogous funds established by state legislatures and
by Congress.
II. Statutory Survey
A. Perpetual Care Funds for Hazardous (Non-radioactive)
Haste Disposal Facilities
No statute in the United States has been found that
establishes a comprehensive fund for closing, monitoring and
managing hazardous waste disposal facilities and for reimbursing
costs for harms due to malfunctioning of such facilities. Several
fragmentary programs, addressing only some aspect1? of the problem,
have been found.
A Kansas statute directs a state official to collect fees
from "permittees operating hazardous waste processing facilities
or areas, sufficient, but not exceeding the amount necessary to
reimburse the state for the costs of monitoring such facilities
and areas during and after operation of such facilities or areas."
These fees are deposited in the state general fund. Kan. Stat.
65-3406(n) (Supp. 1977).
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A Maryland statute established the "Maryland Hazardous
Substa'nce Control Fund," to be used tor cleanup of state waters
and natural resources damaged by designated hazardous substances
and also for "Program development activities designed to identify,
monitor, and control the proper disposal of hazardous substances."
This fund is to consist of fees paid for permits for operation of
facilities. These fees are site-specific, the fee for a parti-
cular facility to be determined administratively by considering
the following factors:
"(1) The threat that the designated hazardous
substances may present to the environment;
(2) The anticipated costs of monitoring and
regulating the disposal facility;
(3) The anticipated costs attributable to the
removing and properly disposing of all designated
hazardous substances that may escape from the
facility; and
(4) Anticipated needs for program development
activities relating to designated hazardous sub-
stances. "
An Oregon statute provides for a separate fund for each
facility upon wastes as they are received, to be composed of fees
"calculated in amounts estimated to produce over the use of the
site for disposal a sum sufficient to provide for any monitoring
or protection of the site after closure." Or. Rev. Stat. 459.517
(1) (1977). This fund is in addition to a requirement of a cash
bond, which may be withdrawn when the fund for a particular site
reaches the amount of the.cash bond.
One statute has been found that undertakes to provide money
for perpetual management of a specific state-owned facility,
administered by a state department, either directly or by agree-
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ment with the public or private parsons or entities. This is
a Washington stal.utc authorizing the Department of Ecoloyy to
recover fees from users of the facility to cover "the cost of
administration of this chapter and the cost of development,
operation, maintenance, and perpetual management of the disposal
site." Wash. Rev. Code 70.105.040 (Supp. 1976).. The statute does
not expressly authorize use of the fund created by these fees
for cleaning up wastes that escape from the facility, though
this could be implied. The statute also fails to authorize
use of the fund for compensation of harms caused by wastes stored
at the facility.
B. Funds for Radioactive Wastes
A few statutes establish fund:; for manaqcmcnL of dis-
posal of radioactive wastes. These are very brief, compared with
the oil spill fund statutes discussed later in this report.
A Washington statute, Wash. Rev. Code 43.31.300 (.Supp. 1976),
directs a state official to assume responsibility for "perpetual
surveil]ance and/or maintenance of radioactive materials held for
waste management purposes at any publicly or privately operated
facility located witnin the state in the event the parties
operating such facilities abandon said responsibility. ..." Col-
lection of fees from such facilities "exclusively for surveillance
and maintenance costs" is. authorized, such fees to constitute a
"perpetual maintenance fund" in the custody of the state- treasurer.
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The South Carolina legislature lias enacted a substantially
identical act. S.C. Code 13-7-30 (1977).
Nevada's statute covers not only radioactive wastes, but
also "chemical wastes." 1977 Nov. Stats. 112. It is applicable
only to state-owned facilities. Authorized disbursements include,
in addition to payment of "all costs of monitoring, securing
or otherwise regulating the storage or dinposa]" of wastes,
purchase of land for disposal sites and payment or administra-
tive and regulatory costs. Determination of the proper size
of the fund is delegated to the state aqency head and the gover-
nor. Wlven they decide that the fund is sufficiently larqo, fees
thereafter collected are deposited in the general fund of the
state.
A Kentucky statute levies an excise tax of ten rents per
pound "upon all contaminated waste materials and all radioactive
waste materials delivered in the commonwealth of Kentucky for
processing, packaging, storage, disposal, burial or other
disposition," to-be paid by the "processor." 1976 Ky. Acts 772.
The statute is silent as to disposition of the revenues from
this tax, which evidently is left to the administrative discre-
tion of the state agency involved.
C. Abatement or Cleanup Funds for Harmful Conditions Due
to Hazardous Wastes
A California statute established the California State Water
Pollution Cleanup and Abatement Account as a unit of the State
Water Quality Control Fund, administered by the State Water Resources
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Control Board. Cal. Water Code S§ 1 34 40-.1 J442 (Webt 1971).
This board is authorized to disburse money from the fund
to a "public agency with authority to clean up a waste or
abate the effects thereof" for the purpose of assisting it
"in cleaning up the waste or abating i Is effects on the waters
of the state." Although this statute does not expressly ad-
dress problems of waste disposal sites, it. wouLd be applicable
to abatement and cleanup of condition:; cit such r;itos that arc
harmful to state waters. Use of the fund for management, closure
or monitoring of disposal sites is not authorized by the statute.
The statute also fails to provide for compensation of harms
caused by wastes. The fund may receive money from legislative
appropriations, gifts, one-half of certain fines and c/viL
ponalitics, and certain reimbursements of cleanup or abatement
costs from parties responsible for such costs.
This program proved to be inadequate to deal with the
leaching of hazardous wastes from a certain quarry that had
been used as a hazardous waste disposal :;ite (tne Str] mjfellow
site in Riverside County). A separate statute was enacted to
deal with this problem, this statute-consistinq chiefly of an
appropriation of funds solely for ab.itorient of the leaching
at this site and for "maintaining and monitoring the site to
prevent future recurrence of any such condition." 1977-78 Reg.
Sess., Cal. Legis. Serv. Ch. 785 (West).
Dissatisfaction with the California State- Water Pollution
Cleanup and Abatement Account as a solution of problem:1; inci-
dent to hazardous waste disposal sites was also indicated by
the introduction in the California Legislature in 1977 of a bill,
S.B. 1130, which would authorize a regulatory agency to require
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that owners or operators of "environmentally hazardous liquid-
was to disposal sites" provide assurance that such sites will
be closed and maintained in a satisfactory manner. Such
assurance could be provided by any or all of the following,
as required by the agency: a cash bond in the name of the
state, liability insurance, and a "separate monetary fund."
This bill was not enacted.
Funds for abatement and cleanup of hazardous waste condi-
tions were proposed for Michigan in 1977, but were not adopted.
These proposed funds were similar to the California fund in
that they could not be used for management, closure 01 monitor-
ing of waste disposal sites, or to compensate harms.
Section 14 of one proposed act, 'State Treatment and Dis-
posal Facilities for Hazardous and Toxic- Wastes Act of 1977,
would establish a hazardous and toxic waste emergency fund of
$500,000, financed by gifts, federal funds and appropriations,
to be expended by the director of the department of natural
resources for any work related to an emergency in the handling,
transportation, storage or disposal of hazardous or toxic
wastes. If such wastes are on private property, the owner
of that property shall reimburse such expenditures, which shall
be liens upon the property.
Section 12(2) of the other proposed act, the Liquid Waste
Disposal Act of 1977, would establish a similar fund, desig-
nated a "revolving emergency fund from which the department may
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spend up to $50,000.00 per incident ,ib»ting effects of a dis- .
charge or an accumulation of wastes which poses an imminent
threat to the health and safety of the people of the <5tate or
destruction of natural resources, if it is apparent that the
person responsible for the discharge or accumulation cannot
or will not take the corrective action."
D. Funds for Spills of Oil and Hazardous Substances
Many state and1 federal statutes have es< ablished funds to
deal with spills of oil and some of thcoe funds are also ap-
plicable to hazardous materials other than oil. They have no
application, or only limited application, to waste disposal
sites, but examination of sucn programs may be helpful in under-
standing the range and nature of options available for estab-
lishing and administering a perpetual care fund for ha/ardous
wastes.
1. Texas Oil and Hazardous Substances Spill Prevention
and Control Act.
The Texas Coastal Protection fund is established by the
Texas Oil and Hazardous Substances Spill Prevention and Con-
trol Act. Tex. Water Code An i. § 26.?f-l c;t sf |. (Vornon Supp.
1978). This is applicable only to a "discharge or spill" into
"coastal waters" of the state. However, since the tern "dis-
charge or spill" is defined as embracing oil or hazardous sub-
stances that are "deposited where, unless controlled or removed,
they may drain, seep, run, or otherwise enter coastal water in
this state," the act could have some application to some hazard-
ous waste disposal sites.
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This fund consists of money appropri ,Ued by tho legisla-
ture, fines, and reimbursement of cleanup costs by the federal
government and responsible parties. Its si-ze is limited to
S5 million, exclusive of fines and penalties. This fund, admin-
istered by the Department of Water Resources, may be expended
"only for the purpose of obtaining personnel, equipment, and
supplies required in the cleanup of discharges and spills, in-
cluding restoration of beaches and marine resources." Section
26.267, captioned "Exemptions," consists of two subsect: i oi.s.
Subsection (a) provides: "No person shall be. held liable under
this subchapter for any accident resulting from an act of
God, act of war, third party negligence, or an act ci govern-
ment." Subsection (b) provides: "Nothing in this >'ubc!iaptei
shall in any way affect or limit the liability of any person
to any other person or to the United States, or to this state
except as specifically provided in Section 26.265 (b) (2) of
this code." Section 26.265(b)(2) provides that "in the event
that federal reimbursement .is not available, the state shall
seek to recover cleanup costs from the responsible party. If
the responsible party refuses to pay, the state shall initiate
legal action to collect the actual costs, provided, however,
that such recovery may not exceed $5 million."
2. Funds in Other States for Oil and Hazardous Substances
Spills
Statutes establishing fundn in some other st ttos for oil
and hazardous substances spills are much more comprehensive than
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the Texas fund statute. The most comprehensive are the statutes
of Florida, Fla. Stat. Ann. § 376.11 ot scq. (Supp. 1978), Maine,
*
Me. Rev. Stat. tit. 38, § 541 ot seq. (Supp.. 1977) and New
Jersey, N.J. Stat. Ann. § 58:10-23.11 (West Supp. 1977). All
of these funds are supported largely by taxes or foes imposed
upon handlers of oil or hazardous substances. All of these
funds may be expended, not only for cleanup costs, but also to
compensate some harns. Suits for reimbursement
of these funds may be brought by the state against those res-
ponsible for the spills. In such suits, the .discharger is
strictly liable, with certain qualifications. These qualifica-
tions in each of the three states are not identical. The
New Jersey statutory provision regarding the scope of liability
are the most detailed and are set forth here:
58:10-23.llg Liabilities for cleanup and removal costs and
direct and indirect damages
a. The fund shall be strictly liable, without re-
gard to fault, for all cleanup and removal costs and
for all direct and indirect damages no matter by whom
sustained, including but not limited to:
(1) The cost of restoring, repairing, or replacing
any real or personal property damaged or destroyed by
a discharge, any income lost from the time such property
is damf.cied to the time such property is restored, re-
paired or replaced, and any reduction in value of such
property caused by such discharge by comparison with its
value prior thereto;
(2) Tho cost of restoration and replacement, where
possible, of any natural resource damaged or destroyed by
a discharge;
(3) Loss of income or impanment of earning capacity
due to damage to real or personal property, including
natural resources destroyed or damaged by a discharge;
provided that such loss or impairment exceeds 10% of the
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amount which claimant derives, based upon jncome or
business records, exclusive of other sources of
income, from activities related lo the particular
real or personal property or natural resources
damaged or destroyed by such discharge during the
week, month or year for which tho claim is filed;
(4) Loss of tax revenue by the State or local
governments for a period of 1 year due to damage to
real or personal property proxin.itely resulting from
a discharge;
(5) Interest on loans obtained or other obligations
incurred by a claimant for the purpose of ameliorating
the adverse effects of a discharge pending the payment
of a claim in full as provided by this act.
b. The damages whicli nay be recovered by the fund,
without regard to fault, subject to the defenses enu-
merated in subsection d. of this soctio.i, against
the owner or operator of a major facility or vessel,
shall not exceed $50,000,000.00 for eacb major facility
or $150.00 per gross ton for each vessel, except that
such maximum limitation shall not apply and the owner
or operator shall be liable for the full amount of such
damages if it can be shown that such discharqe was the
result of (1) gross negligence or willful misconduct,
within the knowledge and privity of the owner, opera-
tor or person in charge, or (2)- a gross or willful viola-
tion of applicable safety, construction or operating
standard:; or regulations. Damages which m.iy be re-
covered from, or by, any other person shall be limited
to those authorized by common or statutory law.
c. Any person wiio has discharged a hazardous sub-
stance shall be strictly liable, without regard to
fault, for all cleanup an,d removal costs.
d. An act or onission caused solely by war,
sabotage, governmental negligence, God, or a third
party or a combination thereof shall be the only
defenses which may be raised by any owiu?r or operator
of a major facility or vessel responsible foi a dis-
charge in any action arising under the provisions of
this act. For the purposes of this act, no employee
or agent of sucli owner or operator shall l.e considered
as a third party. Any other person shall have avail-
able to him any defense authorized by common or
statutory law.
Suits challenging the validity of the Florida and Maine
statutes have failed. Askew v. American Waterways Operators,
411 U.S. 325 (1972); Portland Pipeline Corporation v._ Environ-
mental Improvement Comm., 307 A.2d 1 (Me. 1973), appeal dismissed,
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414 U.S. 1035 (1973).
'3. Funds Created by Congress for Oil and Hazardous Sub-
stances Spills
Several acts of Congress address the oil spill problem.
The act having the broadest application is the Federal Water
Pollution Control Act of 1970, as amended. 33 U.S.C. § 1321
(Supp. V 1975). It authorizes government removal of oil spills
and recovery of the cost of such removal from the owner or
operator of the vessel or facility involved, subject to certain
defenses and to maximum liability limits of $14 million for
vessels (or $100 per gross ton, if less) and $8 million for
facilities, these limits being inapplicable to spills resulting
from "willful negligence or willful misconduct." No fund is
established by this act, but evidence of financial responsibility
must be established by insurance, surety bonds or otherwise.
Pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C.
§ 1331 e_t seq. (Supp. V 1975), regulations make lessees of the
United States strictly liable without .1 lnutat ion for total
removal of oil discharged by them. Geological Survey, Oil and
Gas and Sulphur Operations in the Ojter Continental Shelf, 30
C.F.R. § 250.43 (1969). No fund is established by these regu-
lations. However, a fund would be established by amendments to
this act proposed by S. 9, now pending in Congress. Sec Outer
Continental Shelf Land Act Amendments of 1977: Report of the
Committee on Energy and Natural Resources, S. Rep. 95-284, 95th
Cong., 1st Sess. (1977).
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The Deepwator Port Act of '974, 33 U.S.r. § 1501 ct seq.
(Supp. V 1975), undertakes to donl with oil spills in the
vicinity of deepwater port.c; beyond the territorial t.cas and off
the coasts of the United States. It establishes the Deepwater
Port Liability Fund, a "nonprofit corporate entity which may
sue or be sued in its own name" and which is administered by
the Secretary of Transportation. This is a "back-up" fund,
.i.e. , it may be used only to satisfy claims in excess of
compensation received fromthe responsible parties. Subject
to this qualification, the fund is liable without fault for
cleanup costs and "all damages suffered by any person, or in-
volving real or personal property, the natural resources of
the marine environment, or the coastal environment of any
nation, ..." The fund is financed by fees imposed uponthe
handling of oil, such fees to cease when the fund reaches and
maintains S100 million. If necessary, the fund may borrow
from the U.S. Treasury. This act also imposes liablity with-
out fault (subject to certain defenses) upon the responsible
parties for cleanup costs and damages, limited to $50 million
for port licensees and $20 million {or $150 per gross ton)
for vessels in fhe absence of "gross negligence or willful
misconduct" by the responsbile parties. The fund in some
instances may be subrogated to claims against responsible
parties.
The Trans-Alaskan Pipeline Act, 43 U.S.C. § 1653 et seq.
(Supp. V 1975), is similar in many respects to the Deepwater
Port Act of 1974. It establishes the Trans-Alaska Pipeline
Liablity Fund to compensate cleanup costs and damages suffered
from discharges of oil from vessels loaded at pipeline facili-
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ties. This, too, is a "back-up" fund, which is liable only for
claims exceeding $14 million, for which the owner and operator
of tne vessel are jointly and severally liable without fault,
subject to stated defenses. Unlike the Deepwatcr Port Liability
Fund, the liability of the Trans-Alaska Pipeline Liability
Fund is limited to $100 million for a single incident. If
claims exceed that figure, they shall be reduced proportionately.
A fee levied upon owners of oil loaded onto vessels finances
the fund to the extent of maintaining it at $100 million. If
the fund is unable to satisfy an approved claim, it may borrow
from any commercial credit source.
4. Proposed National Comprehensive Fund for Oil Spills
Dissatisfaction with existing state and federal programs
for handling the consequences of oil spills, criticized as a
patchwork of inconsistent and ineffective laws, has led to
introduction in Congress of bills that would establish a single
comprehensive fund that would replace in large part the exist-
ing state and federal laws. The bil] supported by President
Carter is S. 1187, 95th Cong., 1st Sess. (1977). Hearings on
tills bill and similar bills (S. 12], S. 182, S. 687 and S. 098)
were held by the Committee on Commerce, Science, and Transpor-
tation, U.S. Senate, on June 9, 10 and 20, 1977. The report
of these hearings, Oil Spill Liability and Compensation,
Serial No. 95-27, contains much information about, and analysis
of, existing and proposed oil spill fund laws. This committee
also directed publication of a Committee Print (94th Cong.,
1st Sess., 1975) of a Department of Justice study of the problem,
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entitled Methods and Procedures for Implementing a Uniform
Law Providing Liability for Cleanup Costs and Damages Caused
» *
by Oil Spills from Ocean Related Sources.
These bills are generally similar, but are different
from each other in some respects. All would establish a fund,
financed primarily by fees (excise taxes) imposed upon certain
handlers of oil. The funds would ho limited to a stated size,
but approved claims would be paid even though they exceed the
sun of money in the fund. Money would be borrowed to meet
such claims. Such debts would be repaid from, fees subsequently
imposed. All of the bills would authorize payment from the
fund of claims for both cleanup costs and some harms resulting
from spills. The list of types of compensable harms is broad,
including: injury to property (real or personal), loss of use
of property, injury to natural resources, loss of use of
natural resources, loss of profits Or impairment of earning
capacity due to injury to property or natural resources
owned by others, and loss of tax revenue due to in]ury to
property owned by others. None of thn bills would compensate
personal injuries or death. Claimants for compensation fron
the fund would not be required to establish that the spill
was due to the iault of anyone, but fault (as defined in the
bills) on the part of a claimant would bar his claim to compen-
sation fron the fund. "The fund proposed by some of these
bills is a "back-up" fund, available only after failure of
claimants to obtain redress from responsible parties, but the
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fund proposed by other bills is a " fro.it -end" fund, to which
claims may bo presented in the fir.it i nstance.
The comprehensive oil spill fund Dills al..o establish
the bases and limits of liability of persons ro«,ponsihie for
OJ1 spills in suits brought against thorn by in]utod parties
or by the fund for reimbursement. The owner and operator of
a vessel or facility which is the source of oil pollution
are made jointly, severally and strictly liablo for all damages
for which a claim may be asserted against the fund. Maximum
dollar limits of liability are established for both cleanup
costs and damagis by some bills, but only for damages by
other 'bills. These limitations are not appliahle when
the conduct of the defendant was particularly ,-,1 irneworthy,
such as gross negligence, willful misconduct , willful viola-
tion of regulations, or refusal of cooperation in cleanup
operations. All of the bills pioviele that acts of war and
negligence or intentional ~icts by olaimntr aic. deLeiv-.es to
liability. Some bills also recognise the defenses of acts of
God and acts of third parties.
E. Nuclear Incidents - The Price-Anderson Act
The Price-Anderson Act, which is an amendment of the Atomic
Energy Act of 1954, 42 U.S.C. §§ 2011 et seq. (Supp. V 197r.J,
undertakes to provide protection from "nuclear incidents" by:
(1) mandating the Nuclear Pegulatory f'c mini ssion to require as
a condition in licenses for nuclear power plants that licensees
maintain financial protection for payment of third party liability
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claims, typically by insurance, to the greatest extent possible
for the larger plants; (2) providing that the commission agree
with licensees to indemnify licensees and other parties liable
for claims arising from a nuclear incident above the amount of
insurance or other private protection required, up to $500 mil-
lion for each incident; and (3) limiting the liability of licen-
sees and others for damages arising from a nuclear incident occur-
ring within the United States to $560 million. I'hus, the act
shifts a substantial portion of the cost of compensating vic-
tims of a future nuclear incident from those engaged in the,
nuclear industry to the government and to victims. This was
said to be necessary in order to effectuate the national policy
of encouraging the development of private nuclear power plants
"in the interest of the general welfare and of the common de-
fense and security," [§ 2012(i)] in view of the asserted reluc-
tance of private industry to engage in the development of nu-
clear power in the face of potential liability far exceeding the
amounts of liability insurance available. Sec Green, Nuclear
Power: Risk, Liability, and Indemnity, 71 Mich. L. Rev. 479
(1973); 1975 U.S. Code Cong. & Ad. News 2251.
The Price-Anderson Act, first enacted in 1957, was limited
to a ten-year period. It has been extended twice, and is now
effective until August 1, 1987. The limited duration feature
of the act stems from an expectation that the need for some of
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the provisions of the act would diminish with the passage of
time.' The amount of private insurainv available was expected
to increase and indeed has done so, r in ing from $60 million in
1957 to $125 million in 1975. The 1975 amendments of the act
provided added impetus to the trend toward increasing availability
of private insurance protection by instructing the commission
to consider "private liability insurance available under an
industry retrospective rating plan providing for premium charge
deferred in whole or major part until public li ibiJity from a
nuclear incident exceeds or appears like'y to e.xceed the level
of the-primary financial protection required of the licer,-;ee
involved in the nuclear incident." 5 2210(b). ihl-; plan was
discussed in the report by the Joint -Committoe on Atomic tnerqy,
Senate Report No. 94-454 at pages 9-11.
Regulations concerning financial protection and indemnity
agreements are at 10 C.F.R. § 140 (1977).
The limited liability provisions of Price Anderson were
held invalid by a federal district comt on the grounds that
they violate the equal protection and due process requi re-Tents
of the Fifth Amendment of the United State:* Constitution.
Carolina Environmental Study Group, Inc. _v_._ United States Atomize
Energy Commission, 431 F. Supp. 203 (W.U. N.C. 1977). This case
lias been appealed to the United Ft.itcs Supreme Court, who.,!-'
decision has not yet been announced. This decision is analyzed
and its implications discussed in a separate report.
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III. Disbursements
« *
One of the earliest decisions to be made is determination
of the purposes for which disbursements may be made from the
fund. A list of possible purposes would include the following:
(1) Closure of sites not closed or not properly closed;
(2) Monitoring of closed sites to detect harmful condi-
tions, such as accumulation or escape of gas, drainage from the
site of liquids (including water contajning leached wastes),
and physical impairment of containment devices by erosion,
subsidence, earthquake or other factors;
f3) Maintenance of closed sites in safe condition;
(4) Cleanup of harmful substances that escape from a
site and of associated debris;
(5) Abatement of escape of haimful element'-, from a site;
(6) Compensation of harms caused by stored wastes. Types
of harms that might be compensated would include:
(a) Personal injuries;
(b) Death;
(c) Injury to property;
(d) Loss of use of property;
(e) Loss of profits or impairment of earning capacity;
(f) Interest paid on loans necessitated by the in-
cident;
(g) Loss of taxes by governmental units; and
(h) Injury to public resources, including wildlife
and wildlife habitats; and
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(7) Costs of administering the program.
A minimum program, adarcssed solely to the prevention ot
ham1, would include the first three items on the above ! i ;; t
- closure, monitoring and maintenance . A broader program, ad-
dressed also to mitigation of harm that occurs, would include
cleanup and abatement. A still broader program would seek to
compensate some or all of the losses suffered from stored hazard-
ous wastes.
Which of these program objectives should bo adopted? The
most urgent need appears to be for a harm prevention program.
If it succeeds, there may be no need for mitigation and compen-
sation programs. What js the probability of success of a harm
prevention program?
Although assessment of the hazuicls of h
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If harmful substances escape from a hazardous waste dis-
V
posal site, the most uigent need is to prevent further harm by
containing the waste, cleaniny it up and stopping the continua-
tion of escape of waste. The availability of .» furul i.o reimburse
expenses incurred in such activities would tend to assure that
adequate measures are undertaken prompMy. This is a very per-
suasive reason for including mitigation as a purpose of the
perpetual care fund.
Whether the hazardous waste perpetual rare fund should
be utilized to compensate losses caused by stored hazardous
wastes is a much more difficult question. Assuming a decision
is made to compensate losses, determining which losses to com-
pensate, and to what extent, are still more difficult questions.
It may be useful in this connection to compare the oil
spill and nuclear incident problems with the hazardous waste
disposal site problem. Both problems - oil spills and nuclear
incidents - involve risk of catastrophic harm that would over-
whelm traditiona'l compensation methods, such as insurance and
tort law. Hazardous waste disposal sites may not crenU.- a
risk of sudden catastrophic harm, but it appears that such sites
create risks of harm that may be beyond the reach of the tradi-
tional compensation methods for another reason - delay in the
occurrence of harm until-a time when, and under circumstances
in which, it may be difficult or impossible to trace the harm to
a legally and financially responsible party. There may be even
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some risk of catastrophic harm from disposal sites. It is not-
inconceivable that underground migration of toxic substances
from a hazardbus waste disposal site could poison the water
supply of a large city, resulting in illness or death for thou-
sands of people.
On the other hand, it may be observed that the ri.sk of
harm and of failure of traditional compensation moUiods aru
no greater for stored hazardous wastes than for n.any other hazards
to public health and safety for which compensation : unds do
not exist and are not currently being proposed,i such as mi-
gration of harmful substances from oil wells and mine:,, explo-
sion of grain elevators, and escape of hazardous substano.-s during
transportation.
If losses are to be compensated by the fund, which losses
will be covered, and to what extent? Personal injuries and
death are not compensated by many of the oil spill funds, but
they are compensated by the Price-Anderson Act, which covers
broadly "any legal liability arising out of or resulting from
a nuclear incident," with some exceptions. 42 U.S.C. § 2014(w)
(Supp. V 1975). This difference might bo explained on the
ground that the risk of nuclear incident& pose an unusually
serious threat of illness and death, while the ris); of oil
spills is primarily a threat to private and public property,
including coastal environmental interests. However, oven some
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of the oil spill funds appear to cover personal injuries and
death, an example being the Florida fund, which compensates
"All provable'costs and damages which arc the proximate results
of pollutants covered by this chapter." Fla. Stnt. Ann. § 376.11
(5)(d) (Supp. 1978). If hazardous substances escape from storage
sites and do harm, it appears likely that such harm will include
personal injuries and death. If a fund is established, it v
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factors. To deny recovery from the fund in such instances
would defeat a major purpose of the fund. The claimant should
only be required to establish that (1) he suffered harm of a
type compensable by the fund and (2) the extent of that harm.
However, if the harm suffered by a claimant resulted from his
own act or failure to act, his claim should be denied. The
oil spill fund statutes typically so provide.
Should the size of claims, separately or in the aggregate,
against the fund be limited? It would seem inadvisable to impose
a ceiling on total liability of the fund for all consequences
of an incident. This could reduce recovery by each claimant to
an uncertain and possibly meager amount. This feature of the
Price-Anderson Act, dealing with nuclear incidents, is justifi-
able, if at all, by virtue of the extraordinary catastrophic
consequences that could be caused by a nuclear incident. More-
over, this feature of the Price-Anderson Act is currently under
attack as unconstitutional. Assuming rejection of this feature
for a hazardous waste fund program, it follows that some provi-
sion must be made for enlargement or replenishment of the fund
if claims at any time exceed the amount of the fund. Oi] spill
fund statutes typically authorize the agency managing the fund
to borrow for this purpose, such debts to be repaid by fees
subsequently collected. .An alternative to authorizing borrow-
ing would be a statement of legislative policy to make up any
deficiency by appropriations, the state to be reimbursed by fees
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subsequently collected. Still another alternative would be
to defer payment of claims until receipts of fees by the fund
are sufficient, and pay interest on the deferred claim.
Per claim limitations (e.g_. , $25,000 for death) are more
likely to be fair and to be upheld than per incident limitations.
Relevant considerations would be the fairness of the speci-
fied ceilings and whether the fund is exclusive, ^.e. , whether
claimants are denied the option of suing tortfeasors in lieu of
proceeding against the fund. See the discussion of the exclu-
sivity issue in part V, herein.
IV. Funding
The principal sources of money for the fund are: (1) legis-
lative appropriations; (2) fees paid for the storage of hazardous
wastes; (3) reimbursements of the fund by parties responsible
for losses compensated by the fund; (4) fines and penalties for
violation of laws regulating the handling of hazardous wastes;
and (5) forfeited bonds. Legislative appropriations could be
relied upon to provide sufficient money during the early stages
of the program pending build-up of the fund from fees and other
sources, but permanent reliance upon legislative appropriations
is subject to the serious criticism that the costs of hazardous
waste disposal should be borne by those who generate such
wastes. Waste disposal is properly viewed as a cost of doing
business. No reason is apparent for shifting this cost to the
taxpayers. Even an initial and limited use of legislative appro-
priations should occur only if absolutely necessary and should be
-------
conditioned upon subsequent reimbursement of the state. How-
V *
ever, it should be noted that the Texas Oil and Hazardous
Substances Spill Prevention and Control Act relies substan-
tially upon legislative appropriations Cor the Texas Coastal
Protection Fund.
All of the other sources of money should be relied upon.
Fees for waste disposal, whether payable by the operator of
a waste disposal site or by the depositor of waste at such
sites, will ultimately be borne by the generator of wastes
and passed on to consumers of products whoso creation generated
the wastes. However, those whose culpable conduct triggers pay-
ments from the fund, whether operators of disposal sites or others,
should not be relieved of responsibility and therefore should
be required to reimburse the fund. Similarly, those who have
violated laws concerning the handling of hazardous wastc-s may
be required to contribute fines and penalties to the fund in
view of the risks of harm presumably created by their conduct.
To the extent of reimbursements by culpable parties and alloca-
tion of fines and penalties to the fund, the financial burden
on the generators is, of course, reduced.
Consideration should be given to the feasibility of basing
fees upon the hazardous quality of the waste as well as upon the
quantity of wastes placed in storage. This not only would pro-
mote fairness in cost allocation, but also would be an incentive
to waste generators to reduce the hazardous characteristics of
waste before disposing of it.
-------
There is a possibility that generators of hazardous wastes
may seek to avoid the fees by disposing of such wastes on their
own premises. This problem could bo net either by forbjddirvj
disposal at other than designated commercial sites or by re-
quiring generators who store waste elsewhere to pay the same
fees to the fund that are assessed operators of storage sites.
Another alternative should be imposition of the fee upon the
generation of hazardous waste rather tb.ui upon its storage.
Similar considerations indicate that the same fees
should be paid for storruje of. hazardoti'- wastes 'at facilities
owned or operated by local governments. If this is not done,
the ability of commercial facilities to compete with public
facilities will be handicapped. Although public facilities may
not be as likely to be abandoned as are commercial facilities,
both types of facilities require monitoring and maintenance af-
ter closure and both are susceptible to malfunctioning.
Some mechanism is needed to maintain the fund at the desired
size. The statute could provide for an automatic scaling down
or termination of fees when the fund reaches a stated size. Another
approach is to delegate to a state official the authority to
determine when the fund has reached its optimum size arid to cur-
tail collection of fees until needed. The latter approach is more
flexible, as it would not require amendments of the statute from
time to time, but it would conuitute a delegation of -substantial
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power. One state, as indicated in the i.tatutory survey, handled
this problem by delegating the task jointly to Hie :,tate offi-
cial in charge of the fund program and to tho governor. Exces-
sive depletion of the fund by claims of unanticipated magnitude'
could be handled by legislative' appropi i ation-; , :;ub):ct to tho
same qualifications recommended for use of legislative appropria-
tions for start-up funds.
V. Liability
Liability of the fund for payment of claims against the
fund has been discussed in part III. Consideration must also
be given to the liability of third parties, particn!nr]\ owners
and operators of waste disposal facilities. The .icjency adminis-
tering the fund should be authorized to sue such parties for
reimbursement of disbursements from tho fund. There is also
tne possibility of suits against such parties by victims.
This latter possibility assumes that the f'lnd is not
made the exclusive remedy for victims. Since the main objective
of the fund piogram is to enlarge the ambit ot protection, riot-
to restrict it, injured parties probably should be allowed to
resort to private lawsuits if they prefer. Administrative effi-
ciency would seem to require, however, that victims make an
irrevocable election within a stated timo. Sonic oil spill fund
programs so provide.
-------
A related issue is whether the fund will be a front-end
fund or a back-up fund. A front-end fund is one against which
claims may be presented in the first instance, without any prior
attempt by the claimant to recover from those whose acts caused
the harm. A back-up fund is one agai.mt which claims may be
presented only after reasonable and futile efforts have been
made to recover from those whose acts caused the harm. The
advantages of a front-end fund are that: it may provide more
prompt payment of c'aims and that it if; sinpl -r to <• dmi nister.
An argument for the back-up fund is t'nt it avoid'; unnecessary
intervention by government.. If the fund is a b^ck-up fund, it
of course would not be exclusive.
The oil spill fund statutes typically provide for strict
liability in proceedings against third parties, subject to
limitations upon the total amount of liability for each spill
and subject to certain defenses.
There are several reasons for imposing stiict liability,
jointly and severally, upon owners and operators of waste dis-
posal facilities. Of prime importance is the incentive thereby
provided for the exercise of the utmost care in the management
of such facilities. In addition, it night appear that since the
fund is strictly liable, reimbursement of the fund b/ the res-
ponsible parties should be on the same basis.
Should there be a limitation upon the total liability of
a responsible party for claims arising from a single incident
involving a waste disposal facility? If so, what should oe the
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limitation? The limitations in the oil spill fund statutes
appear to have been imposed because of the potentially huge
sum of claims resulting from an oil spill. It is not clear
that claims resulting from an incident involving a waste disposal
facility would be of such magnitude that a limitation of
liability would be indicated. A relevant consideration is the
amount of liability insurance purchasable for waste disposal
facilities. Assuming that it is decided that liability should
be limited to a specified sum, there would be merit in adding
the provision, found in some oil spill fund statutes, that the
limitation be inapplicable to instances where harms or losses
are due to gross negligence 01 wilful misconduct.
There is also the matter of deciding what defenses, if any,
a waste disposal facility should be permitted to plead. The
Texas oil spill act recognizes the defenses of "act of God, act
of war, third-party negligence, or an act of government." Some
other oil spill fund acts recognize fev.er deferses. for example,
S. 121 and S. 182, two bills currently beinq con.- idered by
Congress for the establishment of a conprehensivo oil spill fund,
recognize only the defenses of act of war ,ind negTiger.t or in-
tentional act of a claimant. The following statement was made
in support of the narrow defenses allowed by these bills'
"However, we urge the committee not to
include the additional defenses of acts of
God and of third parties. Unlike war,
natural disasters are somewhat avoidable
by prudent operators. But given the option
-------
of pleading the act of God defense, oil
producers and transporters are more likely
to take those calculated risks that time
.and again lead to catastrophic oil spills.
The defense for third-party negligence
offers an even larger loophole by which po-
tential spillers many, through clever law-
yering, avoid paying for their spills. The
third-party defense essentially establishes
a fault standard of liability, which does
not create adequate incentives to prevent
pollution or to clean up those spills that
inevitably occur. The right of subrogation,
explicitly preserved in S. 1?1 and S. 182,
will enable spillers in any event to obtain
reimbursement from negligent third parties.
However, requiring the spillor initially to
assume the liability for such spills' ought
to instill additional caution in potential
spillers and thereby reduce the frequency
of polluting incidents."
Statement by Maxinc LJpolos, Environmental Policy (\ntcr,
Hearings, Senate Committee on Commerce, Science and Transporta-
tion, 95th Cong., 1st Sess., on Oil Spill Liability and Compen-
sation 216 (1977).
Although the liability of owners and operators is the
major concern, consideration should also be given to the pos-
sible liability of other parties. Tho;;e who disturb waste
disposal facilities, such as an excavator who digs into a land-
fill, might be liable to victims by virtue of existing law.
A statute on waste disposal facility funds should provide that
the fund will be t>ubrogated to any such clams of victims who
are compensated by the fund. "'here is also the possibility
of liability under existing law of generators, transporters and
other handlers of hazardous wastes, as to incidents occurring
-------
after the waste lias passed from fieir control, even though such
parties had been free from fault d had complied with all laws
and regulations pertaining to such waste. Whether such parties
would be liable according to Texas Jaw under such circumstances
is the subject of a separate report. If there is any possibility
of their liability, drafters of a waste facility fund statute
might wish to bar that possibility, in view of the lack of
control by such parties and also, in the case of generators, in
view of the fact that most of the money for the fund will come
from generators, directly or indirectly, assuming that waste
disposal fees are relied upon. The validity of such a bar is also
the subject of a separate report.
v ^ • Financi a l_Jte_s po usibility
The contemplated statute should contain provisions requir-
ing owners and operators of hazardous waste disposal facilities
to provide satisfactory evidence that they have the financial
resources or have obtained bonds or insurance to the extent
necessary to reimburse the fund foi disbursements. The oil
spill fund statutes typically contain such provisions.
Even in the absence of a fund, evidence of financial
responsiblity is commonly required. The Texas Solid Waste Disposal
Act requires that: "Before a permit i •-. issued, extended or
renewed, the state agency to which the application is submitted
may require tne permittee to execute a bond or g:ve other finan-
cial assurance conditioned on the permittee's satisfactorily
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closing the disposal site on ijp.al .ibandonment. " Tex. Rev.
Civ. Stat. Ann. art. 4477-7 (r>) (Ver;,ori Supp 1978).
Bonds arid insurance may be used in combination, as well
as separately. Indeed, this nay be desirable for tho purpose
under consideration, since bonds are more appropriate for reimbur-
sement of costs of closure, rioniforing and routtre maintenance,
while insurance is more appropriate i^r reimbursement of costs
of cleanup, abatement, restoration, ami liability '"OT death,
personal injuries and property lusM-e^. A third device, the :;inql>~-
facility fund, supported by foes collected at the particular
facility, may also be useful as a means nf allowing the owner
or operator of a facility to reduce or ternunate hi: bond
or insurance protection when tho fund 'or hi-, fac-il.ty reaehe:
a certain size. This type of fund is entirely different ircm
the multiple-facility fund, v/hirh petmits risk-spreading and
which is the type of fund to which the bull; of tin:, report is
devoted.
Assuming that an owner or operator of a facility in not
financially able to be a self-insurer, or that self-insurance
is not acceptable, how much bonding or insurance should he re-
quired? Ideally, the amount required should be sufficient to
cover all claims that conceivably could be paid in connection
with an incident. That -figure is somewhat conjectural, especially
if disbursements from the fund are to be made for personal in^ur-
ies, death or property losses. The statute could specify a figure,
-------
as the oil spill fund statutes typically do, tins figure usually
being identical to the liability ceilings for handlers of oil.
An alternative would be to leave this to administrative discre-
tion.
If the required financial responsibility ficjine is high,
bonds and insurance may not bo available, or ir-ay bo claimed not
to be available. Financial icsponsib1ity requiCement" should be
realistic, but experience with oil spill and nuclear incidents
indicates that the availability oi inrnrance IP .TV br; somewhat
greater than is sometimes maintained. See the 'Statement by
James N. Barnes, representing the Environmental Defense T'-nd
and other groups, Hearings, Senate Conmittoe on Commerce, Science,
and Transportation, 95th Concj., 1st Sees., on Gi] 'Jpili Liability
and Compensation 341 (1977).
The availability of liability insurance for perpetual care
of hazardous wastes was discussed by Michael Shannon in a paper
entitled "Tho Dilemma of Liability ai-.d Perpetual Care Issues,"
published in Proceedings of the Filth National Congress on
Waste Management Technology and Resource and Lnerqy Recovery
344 (CPA Publication SW-22p 1977). IK.- stater; ,t page 357:
"Information is pirtJralar 1/ limited re-
garding the scope of insurance coverage.
It appears that most irsurancc coverage by
either the generator or the service firm in
the insured peri] coverage and not coverage
for a civil action to protect against law-
suits based on serious hazardous waste oc-
currence. The average liability coverage
-------
under the NSWMA group policy war, $100,000
per occurrence Cor bodily and personal in-
jury and $300,000 per occurrence for property
damage. The insurer would 'iffnr whatever a
company wan tod to buy with some policies
having coverage as high as $S , 000,000/$10,000,000.
One hazardous waste service firm (not iinder
the NSWMA policy) has coverage of $'300,000 bodily,
$500,000 personal and $3,000,000 for property
for each occurrence. The firm's annual insurance
cost is estimated at about $10,000 or less than
a penny per gallon. However, this policy is for
insured peril coverage and does not address the
accidental and long-tern occurrences. Other
than nuclear insurance, the closest experience
to hazardous waste is for damage from water and
air pollution whereby it costs $50,000 per year
foi $1,000,000 of liability insurance to cover
exclusions from a general liability policy.
When areas of new coverage are offered,
insurance underwriters rely heavily on punitive
technical aspects of an operation such as
chemical processing or detoxification which
reduces the potential hazard. They also re-
quire compliance with applicable standards.
Because of a lack of actuarial experience,
rates are set artificially high with the service
firm reliant upon insurance company competition
and credit rebates to reduce the cost of insur-
ance. A high risk situation may require an
insurance company to reinsure the activity
with a specialty insurance company. This
allows the insurance company to share or to
spread its risk and gain added experience and
a second judgment. Most importantly it means
insurance coverage is provided."
Difficulties envisioned by the California Water Resource Con-
trol Hoard with bonds, liability insurance and single-facility funds
which would have been authorized by :;n 1130, introduced in the
California legislature in 1977 to assist in establishment of a
hazardous waste closure and maintenance program, v,'ere discussed
ois follows by Bob Connelly, consultant to the California Senate
-------
Comnittee on Finance, in a letter to Joe C. Moseley, II, dated
December 2. 1977:
"The bill contemplates paying for the
cost of closure and mai nt.rna:<-, in bonding
these sites because of the number of unknown
elements in the problem.
Another concern is that the bonds for winch
an annual premium is normally requuod, could
become an ineffective safegiuud device in
the event that the site was transferred to a
new owner or the iresent owni'r detTmi nod t-o
bail out and simply stop paying the.: premiums.
This might not cive the state time to res-
pond even if they had required the insurance
company or the bonding .-omp.iry to notifv
them immediately of dereliction of pre.'M urn
payment."
Up to this point, it h,v? been assumed thai financial res-
ponsibility requirements would supplement a porpetiia] care fund,
rather than be a substitute for such a fund. However, a vi ry
important question pertaining to the need for a fund is whether
-------
financial responsibility requirements alone would meet t-ho
needs of tho situation. The concerns mentioned above abour the
adequacy of bonds, insurance and single-faci1ity funds would be
even more critical, of course, if sole reliance is placed upon
them. Another serious shortcoming of a program relying solely
upon financial responsibility requirements is that such a program
would not addresr, the problems incident to sites abandoned or
closed prior to the effective date of the legislation. A
perpetual care fund program, on the other hand, could provide
rioney to deal with problems of al ] hazardous w.vste disposal
facilities, whenever they were abandoned or closed.
VII. Preemption
In view of recently increased concern by Congress in the
subject of disposal of hazardous wastes, as manifested by enact-
ment of the Resource Conservation and Recovery Act of 1976,
42 U.S.C.A. §'6901 e_t secj. (1977), it is necessary to consider
whether a state fund for perpetual care of hazardous wastes
would be precluded, restricted or duplicated by Congressional
action or administrative action author i ze-d by Congress.
There is no mention of such a fund in the Resource:
Conservation and Recovery Act of 1976, but section 6924 of tins
act directs the administrator of the Environmental Protection
Agency to establish such, performance standards for ha/ardous
waste treatment, storage and disposal facilities "as may be
-------
necessary to protect public health and the environment. Fol- •
lowing this mandate is a declaration that "such standards shall
include, but'need not be limited to, requirements respecting"
seven items. One item on this list is: "the /naintonanco of
operation of such facilities and requiring such additional
qualifications as to ownership, continuity of operation, train-
ing for personnel, and finane Lai responsibility as may be neces-
sary or desirable."
The act mandates enforcement hy the administrator of the
Environmental Protection Agency, except in state:, authorized to
administer approved programs Ln lieu of the Pectoral program.
A state program will be approved unlef.5 the ,-tcIiuni:;traLor Euids
that "(1) such State program is not equivalent to the Federal
program under this subchapter, (2) such pioyran is not cousin-
tent with the Federal or State programs applicable in other
States, or (3) such program do^s not provide adequate enforce-
ment of compliance with the requirements of this sabchapter. "
Although the act fails to mention a perpetual care fund
as one of the subjects with respect to which the administrator
is directed to promulgate performance standards, this list is
declazed to be non-exclusive, and th-' niorul language of the
act could be construed a^ authorizing the administrator to
require perpetual care funds and to specify ihe nature of such
funds. He has not yet done so.
-------
If the administrator's regulations remain silent as to
perpetual care funds, one might reasonably predict that a
state program'providing for a perpetual care fund would be
approved. The requirement th.it thr state program be "equivalent"
to the Federal program does not mean that the state program
must be identical to the Federal program. Support for this
conclusion is found in section 6929, providing that upon the
"effective date of regulations under this subchapter no State
or political subdivision may impose any requirements less
stringent than those authorized under this subchapter ...."
[underlining added] Similarly, it seems unlikely that the re-
quirement that a state program be "consistent" with programs
of other states would preclude creation of a perpetual care
fund. The apparent purpose of this consistency requirement is
to preclude a state program that would adversely impact another
state. It seems unlikely that a perpetual care fund would have
such impact.
It is clear, however, that the administrator of the En-
vironmental Protection Agency is authorized, if not mandated,
to promulgate standards concerning financial rosponsiblity
of handlers of hazardous waste. Conceivably, an approved state
program could contain provisions deviating from the Federal
financial responsibility.standards, but a state seeking approval
of its program would track the administrator's standards on this
matter.
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THE UNIVERSITY Or TEXAS AT AUSTIN
SCHOOL OF LAW
.2.500 ReJ River
AUSTIN, TEXAS 78705
May 25, 1978
Mr. Howard Lee
Executive Director
Texas Coastal and Marine Council
P. 0. Box 13407
Austin, Texas 78711
Dear Mr. Lee:
I enclose a report, concerning the tort liability of generators of
hazardous wastes in long-term storage. This is the report I promised to
deliver by June 1, 1978, in my response to Ms. Hanson's letter of Octo-
ber 21, 1977.
Sincerely,
David W. Robertson
Baker f, Botts Professor of Law
DKR/bm
-------
TEXAS GENERATORS OF HAZARDOUS WASTES: TORT LIABILITY
UNDER PRESENT LAW AND VALIDITY OF
SUGGESTED STATUTE INSULATING FROM TORT LIABILITY
A Report
By
David W. Robertson
for
The Texas Coastal and Marine Council
May, 1978
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TABLE OF CONT'jKIS
I. Tort Liability of Generator of Hazardous Waste in Texas 1
A. Injuries While Waste In Generator's Custody 1
B. Injuries After Waste Turned Over to Disposal Company—
Liability of One Who Employs Independent Contractor 2
1. Employer's own tortious conduct 3
2. Inherently dangerous work It
3. Non-delegable duties 5
4. Trespass to land 5
5. Nuisance 7
6. "Collateral negligence" 7
C. Injuries After Waste Turned Over to Disposal Company—
Analogy to Situation When Waste Generator Puts Waste Into
City Sewage System 8
D. Injuries After Waste Turned Over to Disposal Company:
Other Questions 12
E. Summary 15
II. Constitutionality of Proposed Statute Thnt Would Insulate
Waste Generator Who Pays Into Perpetual Care Fund From Tort
Liability For Harms Occurring After Waste Entrusted To
Disposal Company 16
III. Footnotes 25
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I. TORT LIABILITY OF GENERATOR OF HAZARDOUS WASTK IN TEXAS
A. INJURIES WI'ILE WASTE IN GENERATOR'S CUSTODY
hazardous waste is capable of causing a wide range of harms to persons and
property. Whi}e no reported Texas decision squarely confronts the problem of
Lhe tort liability of the solid waste generator, ' it neems clear that several
distinct tort theories could result In liability for injuries caused while the
Waste is still in the custody ol or in the process of being disposed of by the
generator. An actionable trespass to land occurs when the defendant intention-
ally acts so as to cause direct unauthorized interference with plaintiff's right
to the possession of realty; causing substances to Invade plaintiff'.'; land can
amount to trespass. Nuisance doctrine would make the generator liable for any
conduct amounting to an unreasonable interference with the plaintiff's use and
enjoyment of land. Originators of pollution damage have been held liable in
a wide variety of circumstances for harms to adjacent landowners and others on
the basis of negligence. Frequently plaintiff's case is materially aided by
the doctrine that breach of a relevant statute by defendant can amount to negli-
gence per se. A distinct theory in Texas provides for liability ag.iinst one
who intentionally causes an unreasonable interference with another's right to
land by substantially interfering with the flow of surface water. (Evidently
the theory is that such an Invasion is non-trespassory because not directly
produced by defendant's actions.)
A major theory available in many other states is inapplicable in Tex.ns.
The English doctrine of Rylands v. Fl£jLllh££ imposed strict liability against
one who allowed an injurious substance to escape from his custody and cause harm.
Many American states adopted that doctrine by name, while others achieved the
I 8
same result under the rubric of strict liability for utrahnzardous activites.
A
9
Texas courts, originally followed the doctrine of Rjljinds v. FU'tclier, but it
-------
wa8 definitively repudiated In Turner v, Big Ln kc Oil Co. The Turner case
has meant that there is no general doctrine of strict liability for ultraha-
zardous activities in Texas.
B. INJURIES AFTER WASTE TURNED OVER TO DISPOSAL COMPANY - LIABILITY OF ONE WHO
EMPLOYS INDEPENDENT CONTRACTOR
Hazardous waste retains its capability for causing many kinds of serious
harms for lengthy periods after It is turned over to a disposal company and
12
stored or otherwise disposed of. Whether the generator of the waste would
still be subject to tort liability for some of these harir.-, is a highly debatable
question. There are no Texas decisions In point. The available analogies are
equivocal. The general category into which such problems fall is the liability
of one who employs an independent contractor for harms caused by that contrac-
tor's acts or omissions. It is assumed in tU" following discussion that the
waste disposal entity would not be a: agent or employee of the waf.te generator.
In the event of an agency or employment relationship, the waste generator would
be vicariously liable for the tortious acts of the disposal facility. ' The
difficult problems arise in the abserce of an agency or employment relationship.
The American law governing the liability of the employer of an independent
contractor is highly confusing. The basic structure of that body of law in the
United States has been well summarized:
"The general rule [is that] the employer of an independent
contractor is not liable ioi physical ham caused to another
by an act or emission of the contractor or his servants.
* * * [This] was the original corran.m law rule. 'Jhe explana-
tion for it most commonly given is th it, since the enployer
has no power of control over the manner in which the work is
to be d3ne by the contractor, it is to be regarded as the con-
tractor's own enterprise, and he, rather than tie employer,
is the proper party to he charged vith the responsibility of
preventing the risk, and bearing and (listributi ag }' .
The first departute from the old common law rule was in
Bower v. I'eate, 1 Q.B.D. 321 (1876), in which an employer was
held liable when the foundation of t IIP plaintiff's building
was undermined by the contractor' ; excavation. Since that
-------
decision, the law has progressed by the recognition of a
large number of 'exceptions' to the genera' rule. These
exceptions . . . are so numerous, and they have so fnr
eroded the 'general rule,' that It can now be said to be
'general* only in the sense that it is applied where no
good reason 1s found for departing from It. * * * 'In-
deed it would be proper to say that the rule is now pri-
marily important as a preamble to the catalog of Its excep-
tions. '
The exceptions have developed, and have tended to be
stated, very largely as particular detailed rules for par-
ticular situations, which are difficult to list completely,
and £ew courts have attempted to state any broad principles
governing them, or any very satisfactory summaries. In
general, the exceptions may be saiil to fall into three very
broad categories:
(1) Negligence of the employer in selecting, instruc-
ting, or supervising the contractor.
(2) Non-delegable duties of tin1 employer, arising out
of some relation toward the publir or the particu-
lar plaintiff.
(3) Work which is spe< i.illy, peculiarly, or 'inherently'
diingerous . i 4
Texas, like most other states, starts with the general principle chat ordi-
narily one who employs an independent contractor is not liable for the contrac-
tor's torts. As elsewhere, there are a number of important exceptions. 1 hu
Texas jurisprudence is wonderfully confused and internally Inconsistent as to
the reach and breadth of the various exceptions. The following discussion indi-
cates so^e of the major categories wherein employers of contractors have been
held liable. However, it should be noted that there are countervailing deci-
sions on many of the propositions adduced. About all that can be said with con-
fidence is that the cases so holding can be grouped into loose broad categories;
and that the Texas decisions applying the general rule, non-liability of the
employer for the independent contractor's torts, substantially outnar.her those
imposing liability,
1. Employer's own tort Ions conduct
While it is not technically an ox
c of
• s -
.5->"M t't-^-u^. 6i
-------
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ALUMINUM
March 9, 1979
Mr. John P. Lehman, Director
Hazardous Waste Management Division
Office of Solid Waste (WH-565)
U.S. Environmental Protection Agency
Washington, D.C. 20460
Dear Mr. Lehman:
Kaiser Aluminum & Chemical Corporation (Kaiser Aluminum) wishes to
comment on the proposed regulations to implement Sections 3001,
3002, and 3004 of the Resource Conservation and Recovery Act
(40 CFR, Part 250, Subparts A, B, and D), published in the Federal
Register on December 18, 1978, pages 58946 through 59028.
Attached are specific comments prepared solely by Kaiser Aluminum.
As a member in good standing of the Manufacturing Chemists Associa-
tion and The Fertilizer Institute, Kaiser Aluminum wishes to include
as part of its comments the comments which those organizations
prepared and submitted separately on behalf of their respective
memberships.
Very truly yours,
J, V. Day, Manager
Corporate Environmental Affairs
JVD/ra
Attch.
300 LAKESIDE DRIVE,OAKLAND, CALIFORNIA 94643
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COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT
BY KAISER ALUMINUM & CHEMICAL CORPORATION
March 9, 1979
A. 40 CFR, Part 250, Subpart A - Identification of Hazardous Wastes
1. Waste Oils
Waste oils, including those which are to be burned as fuel, are specifi-
cally identified as "other discarded material" in Subpart A, 250.10, even
though the oil itself will not be disposed of in the environment and
even through the contamination is entirely presumptive, that is,
"...because it is a potential carrier for other hazardous wastes and
substances" (pg. 58969, underline added).
If it is the contaminant, not the oil, which is the object of the
regulation, consideration of all oil as presumptively contaminated is
inappropriate and unnecessary. PCB's are regulated under TOSCA with
adequate penalties for violation of disposal requirements; thus,
regulation of "potential" PCB content under the Resource Conservation
and Recovery Act (RCRA) is redundant. Other contaminants emitted
from combustion could and would be controlled under existing regulatory
authority in the Clean Air Act if they are, in fact, hazardous; thus,
regulation of other "potential" contaminants under RCRA is also
redundant.
If regulations under RCRA are deemed necessary in spite of redundancy,
which Congress specifically directed against in Section 1006 of the
Act, then they should be applied only to oils known to be contaminated,
or which the operator has reason to believe may be contaminated. In
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A. 40 CFR. Part 250. Subpart A - Identification of Hazardous Wastes (Continued)
1. Waste Oils (Continued)
other words, apply a test which is consistent with the determination
that any other waste is hazardous under Subpart A,§250.13, Hazardous
Waste Characteristics.
Risk of PCB contamination should be decreasing at a rapid rate as
these compounds are removed from service. All operators of significant
sources of such materials are aware of TOSCA regulations for disposal
of these materials. If such persons intend to violate the TOSCA
regulations, it is unlikely that the existence of RCRA regulations will
alter that intent.
Thus, little, if any, environmental benefit will be derived from con-
sidering all waste oil to be presumptively contaminated. Rather,
such presumption imposes unnecessary administrative, technical, and
economic penalties on operators of facilities which can use internally
generated waste oils so as to recover the energy values. This is
especially true where recycling of the oils is either technically or
economically infeasible or where the source and chemical makeup of oils
is known and potential contamination can be avoided.
This is an example of the failure to provide flexibility where it
could be provided without loss of enforcement capability or threat to
the environment.
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A. 40 CFR, Part 250. Subpart A - Identification of Hazardous Hastes (Continued)
2. Reuse of "Hazardous" Materials
The position that placing a material into or onto the soil constitutes
disposal is unreasonable and arbitrary. Many commercial products which
are added to soils in normal activities of construction, road building,
agriculture, etc. have characteristics which, if a waste, would be
regarded to be "hazardous" under this regulation. Any by-product
stream which can be used in commercial application to replace another
product or by-product should not be regarded as a waste to be regulated
under RCRA. For instance, lime, which would be "hazardous" under the
criteria used in this regulation, is commonly used in a number of
applications as a soil additive. It is frequently used in stabilization
of roadbeds for road construction and in agriculture to modify acidity
of soils. By-product streams of a number of manufacturing processes
can be used for either application because they contain residual
alkalinity or otherwise are a desirable soil conditioner. Such a by-
product is no different from pure lime and, therefore, should not be
regarded to be a "hazardous waste." In no sense is this material
being "discarded" as suggested in the proposed regulation.
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A. 40 CFR. Part 250. Subpart A - Identification of Hazardous Wastes (Continued)
3. Extraction Procedure
The "worst-case" assumptions declared by the Agency in adopting the
extraction procedure in 250.13(d) are fundamental to all of the
following subparts since it is the basis for determining whether or
not a waste is subject to those subparts.
The extraction procedures are so rigorous as to produce a worst-case
evaluation of any waste. The intense physical and chemical treatment
of the sample does not simulate actual or even representative conditions
of handling, storage or disposal of materials.
Although the Agency acknowledges that proper management techniques would
Droduce lesser degrees of hazard, the worst-case idenitfication leads
only to worst-case design, construction and operation requirements.
So-called "flexibility" now provided in the footnote leads only to
equivalency to worst-case requirements.
Some additional flexibility in both the identification procedures for
hazardous wastes and the design, construction, and operation standards
should be provided to avoid unnecessary administrative, technical,
engineering, and operating costs for both the Agency and the facility
operator. There may be more cost-effective methods of waste management,
for instance, segregation of alkaline or neutral wastes to preclude
acidic extraction of heavy metals or other hazardous contaminants.
If the hazardous components are "fixed" or stable and will not readily
enter the environment, much less rigorous conditions for containment
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A. 40 CFR, Part 250. Subpart A - Identification of Hazardous Hastes (Continued)
3. Extraction Procedure (Continued)
are available for safe management of such wastes than those required
by Subpart D. The requirements for proper management, including
prohibition of mixing which might release fixed hazardous components,
could be included in the permit as readily as the v/orst-case require-
ments of Subpart D. It should also be recognized that mixing of
wastes may be desirable to bring about cost-effective fixation of
hazardous components; therefore, mixing of wastes should not be
arbitrarily prohibited,
4. Limit of Concentration Allowed in Extract
In the preamble to Subpart A (pg. 58953), EPA indicates that is is
considering use of Water Quality Criteria as the basis for considering
the leachate from a waste as being hazardous.
Such a proposal is objectionable for several reasons:
First, these "criteria" are not subject to public review and
comment, nor are they necessarily subject to peer review by
competent toxicologists outside the Agency.
Second, these "criteria" have been developed with excessive
safety factors which are not demonstrably appropriate for ground-
water contamination.
Third, most of the "criteria" are applicable to aquatic organisms
not found in groundwaters. Protection of surface water is
inappropriate since hazardous waste releases to surface waters are
covered by various regulations which implement the Clean Water Act.
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B. 40 CFR, Part 250, Subpart B - Standards Applicable to Generators
of Hazardous Hastes
1. Waste Oils
See discussion in A. above.
2. Applicability
In 250.20 and 250.29, persons generating less than 100 kg per month
of a hazardous waste are permitted to dispose of such waste in a non-
hazardous waste landfill. Whereas relief from paperwork and reporting
may be justified, this practice could lead to highly inconsistent
environmental protection since the regulations fail to discern between
and among varying degrees of hazard. For example, the generator of
1000 kg of a waste which may barely exceed the extract procedure limits
must meet the worst-case requirements for storage or disposal of such
a waste, whereas a generator of 99 kg of a waste which may be hundreds
of times more toxic may simply dispose of the waste on a sanitary land-
fill.
The problem exemplifies the need for considering the degree of hazard
in wastes and the cost effectiveness of dealing with the hazard. Other-
wise, worst-case standards will certainly cost far more than necessary
for waste of low hazard and exemptions for "small" amounts for very
toxic wastes may lead to severe environmental degradation. In other
words, it would be more cost effective to rigorously control any
amount of all very hazardous wastes than to impose worst-case require-
ments for all wastes that exceed the worst-case screening test.
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C. 40 CFR, Part 250. Subpart D - Standards Applicable to Owners or Operators
of Hazardous Waste Treatment, Storage and Disposal Facilities
1. Inclusion of Regulations Under Other Statutes
The incorporation of standards under the Clean Air Act, the Clean Water
Act, the Safe Drinking Water Act, and OSHA as standards in this regu-
lation violates the admonition of Section 1006 or RCRA not to duplicate
administration or enforcement under those statutes. In addition, such
incorporation establishes double jeopardy for violations of those other
statutes, a condition which the courts found unacceptable in the
recent litigation on hazardous spill regulations under Section 311 of
the Clean Water Act (MCA vs. Costle, et al, U.S. District Court,
Western District of Louisiana, No. 780578, June 8, 1978).
RCRA does not authorize enforcement of regulations which implement other
statutes. EPA and State personnel responsible for RCRA enforcement
may well be unaware of, or inconsistent with, the intent of those laws,
regulations and policies which implement other statutes. Whereas RCRA
must clearly be integrated with other environmental statutes, the
objective should be avoidance of conflict, not duality of enforcement.
2. Standards More Appropriate to Other Statutes
It is also clear from Section 1006 of RCRA that Congress did not
intend that new and separate atmospheric emission limitations, effluent
guidelines or standards, workplace standards, and the like be established
under RCRA.
Wherever such limitations are needed for solid waste disposal sites,
they should be adopted through the administrative procedures and
policies called for under the appropriate statute and enforced by
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C. 40 CFR, Part 250, Subpart D - Standards Applicable to Owners or Operators
of Hazardous Waste Treatment, Storage and Disposal Facilities (Continued)
2. Standards More Appropriate to Other Statutes (Continued)
the appropriate agency. Safeguards for adequacy of review are provided
by other statutes in the procedural requirements for standard setting.
These safeguards are not restated by RCRA; thus, there is great risk
that the intent of the other Acts and policy of other branches of EPA
and state agencies would be circumvented.
3. Coverage of NPDES Facilities
These proposed regulations incorporate design and operational standards
for facilities required under NPDES permits, including "impoundments,"
"basins" and "treatment facilities." As noted above, RCRA regulation
should not duplicate Clean Water Act requirements which deal with
permitted discharges from such facilities or for spills of hazardous
substances which may be discharged through such facilities. Addition-
ally, RCRA Section 1004 (27) specifically excludes solids and dis-
solved materials in industrial discharges subject to Section 402 permits
in the Clean Water Act from the definition of "solid waste."
4. General Site Selection
The site selection proposals in Paragraph 250.43-1, some of which are
not provided with "notes," are likely to preclude continued operation
of, or new siting of, facilities in many areas.
Additional flexibility needs to be provided so as to permit facilities
to locate in areas protected by structures outside the facility and
not built or controlled by the operator. For instance, levees built
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C. 40 CFR, Part 250, Subpart D - Standards Applicable to Owners or Operators
of Hazardous Haste Treatment, Storage and Disposal Facilities (Continued)
4. General Site Selection (Continued)
and maintained by the Corps of Engineers or levee boards in the Lower
Mississippi River Basin have provided adequate protection against
flooding although the area would be regularly inundated without them.
The definition of an "active fault zone" is so broad that no facility
could be located in any area which has historically had a damaging
earthquake. This would cover many areas of the United States not
generally considered to be high earthquake risks. More reasonable
criteria can be drawn up based on quantitative information and likely
risk. For instance, the State of California has specific criteria for
structures to resist earthquake movements of reasonably expected
magnitudes. To provide for the largest possible earthquake is
unreasonable in that it would be prohibitively expensive to build a
facility to withstand such an earthquake or to transport wastes from
the state to a "safe" location if, in fact, such a location exists.
Californians recognize that if the ultimate quake occurs, the risks
from the quake itself and from those things in the normal environment,
i.e., fire, flooding, disruption of water supplies and sewage waste
systems, release of flammable, explosive, corrosive, reactive and
toxic materials used in normal commerce, etc., are far greater than
those which might escape from hazardous waste treatment, storage or
disposal sites. Thus, reasonable requirements can and must be accept-
able whereas absolute safety is not attainable.
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C. 40 CFR, Part 250, Subpart D - Standards Applicable to Owners or Operators
of Hazardous Maste Treatment. Storage and Disposal Facilities (Continued)
5. Contingency Plan and Emergency Procedures
Although it would be desirable to attempt to inform local agencies and
institutions and to develop programs as a contingency against
catastrophic events, owners or operators of facilities have no legal
authority to require their cooperation in this matter. Thus, the
requirements of 250.43-3(a)(2) and 250.43-3(a)(3) should be modified
to require only that the facility inform these agencies and institu-
tions, and where possible, make arrangement to coordinate emergency
services.
All of the provisions of 250.43(a)(4) through 250.43-3(b)(a) should
be footnoted to allow the owner or operator of the facility to demon-
strate that these requirements are not appropriate to the facility.
Many industrial wastes which will be classified as hazardous will
present little, if any, potential risk to the community even if an
accidental release or discharge occurs.
The provisions of 250.43-3(c) appear to impose an inordinate personal
responsibility on the emergency coordinator who may not have the
unqualified authority or qualifications to make all of the required
decisions. The emergnecy coordinator would have to be a physician,
an explosives expert, an engineer, a public relations man, a police-
man, a logistics expert, a chemists, and facility manager to personally
carry out the specific assignments given him by this part of the
regulation. There is likely to be a shortage of such individuals
available on the job market.
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C. 40 CFR, Part 250, Subpart D - Standards Applicable to Owners or Operators
of Hazardous Haste Treatment, Storage and Disposal Facilities (Continued)
6. Security
The requirements of 250.43-2 are obviously intended to cover a
commercial dump site apart from any other business activity. These
provisions are unnecessary for facilities located within manufacturing
plant sites where access is limited and security provisions already
exist. Additional fences, gates, locks, signs, etc. are redundant,
and requirements for these should be footnoted to provide relief
for such sites.
7. Training
The requirements of 250.43-4 are unreasonable. This section is
written for the worst-case situation in the commercial dump category
of waste management. It will create an artificial and false level
of concern on the part of employees in waste management situations
which present little, if any, hazard to employees or to the community.
Many industrial wastes will exceed the extraction test limits, but
because of physical or chemical conditions, or because of management
practices, will not be hazardous to employees who handle them or to the
community. Job descriptions and training should not distort low-
hazard or non-hazard jobs so as to create unjustified "hazard" classi-
fications and unnecessary demands for "hazard" pay. The require-
ments of this section should be modified so as to avoid creating
problems in collective bargaining in manufacturing activities.
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C. 40 CFR, Part 250. Subpart D - Standards Applicable to Owners or Operators
of Hazardous Waste Treatment, Storage and Disposal Facilities (Continued)
8. Visual Inspections
The requirement of 250.43-6 that the owner or operator include
observations of vegetation for damage during daily inspections
implies that the owner or his employee is capable of identifying
damage attributable to discharges or release of wastes from the
facility. This task is not within the competence of personnel
available for employment at waste management facilities. The iden-
tification of such injury requires the competence of persons with
graduate degrees in botany (physiology or phytopathology), and con-
siderable experience with the effects of the particular pollutant
causing damage. A lay person would be unable to discern any subtle
effects, and other much more obvious signs of release would likely
be apparent before vegetation injury was recognized.
This requirement is so unlikely to prove functional that it should
be deleted. It is likely to result in either a failure to recognize
a problem or in a high number of false alarms, and will therefore
prove an unreliable audit procedure.
9. Groundviater and Leachate Monitoring
The requirement in 250.43-8 that background monitoring include a
minimum list of elements, compounds or soil characteristics, even
though these materials or characteristics will not be present in or
result from wastes, is unreasonable. Such sampling will provide no
useful data for managing the facility or for determining whether or
not wastes are escaping from the facility. Background sampling should
be limited to those elements, compounds or characteristics expected or
known to result from the wastes, or combination of the wastes,
managed at the facility.
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C. 40 CFR. Part 250, Subpart D - Standards Applicable to Owners or Operators
of Hazardous Haste Treatment, Storage and Disposal Facilities (Continued)
JO. Financial Responsibility
It appears obvious that the requirements of 250.43-9 are intended
for the commercial waste facility which is operated as a business
separate and apart from any other business, which is unlikely to
have significant assets beyond the land and/or equipment on the
facility, and which is likely to liquidate at the end of the useful
life of the site. A trust fund may be appropriate for such a
facility. However, a trust fund is not appropriate for a large
industrial firm with obvious assets and which operates a number of
waste facilities as minor, incidental parts of its manufacturing busi-
ness. Such a firm is capable of establishing other forms of
financial responsibility, i.e., surety bonds, letters of credit or
other financial instruments. Further, even if a plant site is
closed, a large firm is not likely to go out of business or other-
wise liquidate without assets and, therefore, is able to maintain
ongoing financial responsibility. The confidence in continued
responsibility of large business firms is at least as good as an
expected 2% actual real interest rate on trust investments.
11. Standards for Storage
The requirement for storage containment in 250.44(a) is unreasonable.
Many industrial wastes are generated in large volumes or in physical
dimensions unsuitable for containerization in tanks or portable
enclosures. It should be sufficient to require storage so as to
prevent discharge of hazardous waste, permitting use of impoundments
with suitable management, spiT! prevention and, if appropriate,
treatment prior to discharge.
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C. 40 CFR. Part 250, Subpart D - Standards Applicable to Owners or Operators
of Hazardous Waste Treatment, Storage and Disposal Facilities (Continued)
11. Standards for Storage (Continued)
The additional requirement of 250,44(g) that all containers or tanks
meet OSHA regulations for storage of flammable and combustible
liquids is also unreasonable since not all wastes are either flam-
mable or combustible.
12. Landfills
The limitation in 25Q,45-Z(b)(19) is arbitrary and should be modified
to allow a facility operator to demonstrate that no hazard to the
environment will result in soils of greater permiability.
The requirement in 250.45-2(c)(l) is unreasonable since the operator
of a site within an industrial plant site riidy have good and valid
reasons for a surface which will not support any vegetation. The
further requirement that it support "indigenous" vegetation is
arbitrary since any ground cover which is suitable to the purpose,
i.e., prevent erosion, should be acceptable to the Agency.
13. Basins
The inclusion of basins (250.45-4) encroaches into the area of NPDES
permit requirements and care must be exercised by the Agency so as
to not preclude practical implementation of waste water treatment
requirements by RCRA regulations.
This inclusion also encroaches on some process steps, i.e., thickeners
or treatment vessels, which are not entirely waste facilities, but
which consitutute final steps in separation of waste from process
streams. It is not believed to be the intent of the Congress that
RCRA "back up" into process steps.
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C. 40 CFR, Part 250, Subpart D - Standards Applicable to Owners or Operators
of Hazardous Haste Treatment, Storage and Disposal Facilities^ (Continued)
14. Landfarms
The requirements of 250.45-5 are largely arbitrary and are sometimes
inconsistent.
Limitations on vertical penetration are arbitrary and unreasonable
as long as it can be demonstrated that such penetration will not
cause or threaten to cause adverse environmental impacts. Further,
the limitation of three times the depth of incorporation or 12 inches,
whichever is greater, is arbitrary and unreasonable. A material
applied to the surface should not be more limited in penetration
than one plowed into the top 12 inches; under the proposed rule,
the former would be limited to less than 12 inches, the latter to
36 inches. These limitations should be based on case-by-case
conditions and should allow the applicant to demonstrate that no
threat to groundwater exists.
The prohibition of all landfarming on land which is periodically
flooded is arbitrary. If landfarming practices can be shown to be
capable of management which prevents loss of "hazardous" materials
into surface or groundwaters, it should not be prohibited. If such
practices are prohibited in final promulgation, adequate time needs
to be provided for currently permitted landfarming in such locations
to be moved without violating NPDES limitations.
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C. 40 CFR, Part 250, Subpart D - Standards Applicable to Owners _or Operators
of Hazardous Haste Treatment, Storage and Disposal Facilities (Continued)
14. Landfarms
The prevention of anaerobic conditions by grading should be replaced
by limiting application rates to the infiltration capacity of the
soil so as to avoid soil saturation. Runoff induced by grading
would be a less desirable result than anaerobic conditions. Both
can be avoided by observing infiltration capacity.
The prohibition of food-chain crops on landfarms is arbitrary and
unreasonable. This assumes that all landfarming crops would be in
some way contaminated with the wastes being applied to the landfarm.
Since this is an arbitrary assumption based on the behavior of a few
wastes, it should be footnoted to provide that an owner or operator
may grow such crops on a demonstration that no food-chain hazard will
result.
The closure requirements for landfarms are unreasonable. No such
requirements should be imposed because the "background" or similar
local soils are not necessarily an indication of unacceptable
"contamination," even if there is a "significant" change in the
concentration of elements or compounds contained in the land-
farmed wastes. Demonstrated presence is not necessarily synonymous
with availability to roots of plants or to vertical movement into
groundwaters. If subjected to this scheme, many natural areas
would have to be dug up and placed into hazardous waste facilities
since they contain extractable (with acid) heavy metals or other
contaminants. This requirement should either be modified or foot-
noted to allow the operator to demonstrate that no real hazard
exists or is likely to occur.
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C. 40 CFR, Part 250, Subpart D - Standards Applicable to Owners or Operators
of Hazardous Waste Treatment, Storage and Disposal Facilities (Continued)
15. Special Haste Standards
In addition to the wastes already included as special wastes in
250.46, Bauxite Refining Waste (spent bauxite, red mud) should be
included. Bauxite Refining Waste meets the criteria of being very
large in volume, presenting relatively low hazard and not being
amenable to the control techniques in Subpart D. Specific informa-
tion relative to spent bauxite facilities of Kaiser Aluminum is
already available to EPA in Region VI (Dallas) offices; we would
be pleased to meet with RCRA personnel to review and discuss any
and all aspects of spent bauxite management.
We believe that the prohibition of an impoundment in contact with
a water table is unreasonable. We currently operate such impound-
ments with monitoring wells and can demonstrate no contamination.
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CALIFORNIA DEPARTMENT OF HEALTH SERVICES
COMMENTS ON PROPOSED PART 250
FEDERAL HAZARDOUS WASTE GUIDELINES
AND REGULATIONS
Federal Register, December 18, 1978
SUBPART D - STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE AND DISPOSAL FACILITIES
General Comment
The proposed standards will tend to discourage the continued use of the
variety of hazardous waste facilities to effectively and efficiently manage
the broad range of ha?ardous waste streams. The comprehensive coverage of
the regulations and tht extreme detail provided, suggest that the standards
were developed for application to a regional off-site hazardous waste
facility of sign1fleant sl^e and resources, and one which is capable of
handling a number of hazardous wastes. This may result in somewhat of a
self-fulfilling prophecy In that the standards do not fit well when applied
to a small, single waste facility or a special purpose facility and will
tend to discourage the operation of such facilities even though they serve
a useful purpose and provide adequate protection of health and the environ-
ment. It would be In the best Interests of all to provide a practical means
to assure that only the necessary and appropriate requirements will be
applied to each facility, and to provide a greater degree of flexibility in
allowing alternative control measures than now exists in the standards.
More freedom should Be gKer to the regulatory authority as to what controls
are needed based on a consideration of the nature of the operation, the
environmental setting, and other factors. This can be done by establishing
standards which clearly Identify the objectives to be met and allowing the
regulatory agency to set the specific requirements.
Let me briefly describe the, regulatory approach in California. At the State
level, two major agencies are involved In the regulation of a hazardous
waste facility ~- the State Water Resources Control Board and its regional
boards, and the Department of Health Services. The regional boards review
and approve of sites for the disposal of different types of wastes and regu-
late the disposal of the waste so as to protect the quality of the waters
of the State. This is not accompl ished through the appl icatlon of a lenqthly
set of uniform regulations Rather, the owner/operator of a proposed facility
must submit a report to the regional board which includes information on the
geology of the site, hydrogeo'log ic information, type and amounts of wastes
to be received, the proposed facilities and control measures, etc. The
board will decide whether the site is suitable to receive the intended
wastes and will establish requirements for water quality protection at that
specific site and for that particular operation. These requirements may list
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the types and amounts of wastes which can be received, and specify leachate
control features, runoff diversion requirements, groundwafer, surface water a
and wastewater monitoring facilities and the required monitoring program.
All of the detailed standards for water quality protection is in the tailor-
made discharge requirements applied to the facility.
The Department of Health Services has developed regulations which cover
areas of design and operation for a facility; however, these are objective
oriented. Again, the facility operator must prepare a report which
specified how he will meet the objectives of the regulations. In the
area of security, for example, the regulations state that ''The hazardous
waste facility shall have posting and fencing as necessary to protect
public health and safety, domestic livestock and wildlife". The specific
fencing requirements will be established in the operating permit based on
an evaluation of what is needed to accomplish this objective by the regu-
latory agency. In the case of a remote facility which ponds and land-
spreads oily waste, a 't-foot stockproof fence was considered adequate.
At a transfer station in an industrial area, a 6-foot "cyclone" fence was
required. The permit conditions are used to supplement arid provide speci-
ficity to the more genera! regulations and provide controls which are
finely tuned to the needs for the facility and its particular operation.
In the preamble to the proposed federal regulations, it is pointed out that
the Environmental Protection Agency recognized that most of the design and
operating standards prescribe very specific requirements and that these
standards da not a I low enough flexibility to cope with different situations.
EPA has utilized "notes" after many of the standards to describe the
circumstances under which a deviation Is allowed. In the real world of
regulation, the notes are not going to provide any significant degree of
flexibility. The applicant, according the preamble, is going to have to
demonstrate that an alternate to the standard will achieve at least an
equivalent degree of containment, destruction or environmental protection.
In most cases, this will be difficult to accomplish. It would be difficult
to demonstrate that a A-foot fence and a notable lack of p>eople in the
surrounding area is equivalent to a 6-foot fence -- or that two downstream
monitoring wells are equivalent to three -- or that unexpected releases,
discharges, fires and leaks can be controlled In less than 60 meters. The
applicant Is going to be faced with proving a negative and the regulatory
agency will most likely resist any substantial alternatives to the specified
standards.
The across-the-board application of the large number of detailed design and
operation standards may close down some well operated facilities which are
adequately handling the wastes from a single industrial operation. A plant
manager faced with the financial responsibility requiremerts or the require-
ments of determining background groundwater quality Including the levels of
all constituents In the federal primary and secondary drinking water stand-
ards and looking forward to identifying possible changes in quality as
determined by the Student's, single-tailed test at the 95 percent confidence
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level, might well consider doing away with the lined pond which receives
the plant's asbestos waste or caustic material.
The approach which EPA has selected is too rigid. This is not the way to
go from a national economic, environmental or health and safety viewpoint.
We recommend that the Environmental Protection Agency take the approach of
specifying more general objective oriented requirements and leave more to
the professional judgement and common sense of the regulatory authority as
to the requirements for each specific facility for health and environmental
protection.
Specific Comments
Sectton 250. 42, A general health, safety and environmental standard
could be Included which would state that the facility shall be located
designed constructed and operated in a manner which minimizes any discharges,
spills, emissions reactions or fires which might peril the safety of workers
or the public, or which could adversely affect the environment.
Section 250. ^(d). The note under open burning of hazardous wastes
should also stlpllfy that it must be demonstrated that the open burning will
not result In nuisances safety hazards or health hazards.
Section 250.A3(f). The provision for detailed information on waste
composition should be applied to the generator and should be required to be
included on the manifest- The generator Is in a better position to know the
composition of his wastes. Requiring this specific information on the
manifest will provide essential Information in case of a spill during
transport and will assist the facility operator In determining proper
treatment, storage or disposal practices for the waste.
Section 250.
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Section 250.^3-5(2). If the 30 days Is allowed for submission of the
manifest to the generator, an auth:H.jed State agency certainly can not
meet the 30 day proposed time schedule for quarterly report submission to
EPA which Is presently specified In the proposed requirements for an
approval State program.
Section 250.')3"5- The total reporting requirements, with no exemptions
or notes, impose a significant load on the operator. Flexibility should be
provided. Some reporting requirements are not exactly clear -- i.e., "the
units of volume of each quantity of hazardous waste" and "r^a re (hod of
treatment, storage or disposal for each hazardous waste" Taken literally,
this would require documentation of :he disposition of e<;ch small container
in each waste load.
Section 250.^3-8. The State Wa~er Resources Control Board will provide
comments on current water quality protect/on aspect;,.
Section 250. ^3-9. The Departnc1'' cf >f:a,tn 3-.v\. ic.;- c,oe-i 'ict ua.-e tiie
experience to comment on specific financial responsibility requirements but
15 apposed to requirements which wou ' d cause IncrcL^^d h-i!:h and safety
hazards due to the closure or abandonment of facilities resulting solely
from the Imposition of such requirement-,. it v/Tj'd nf.pt, ' that the conso-
quences of financial responsibility -standards should be caiefully considered.
Section 250. M(g)' Should tanks for storage of acids or alkalies be
required to meet OSHA standards for flammable and cornbus' abl e liquids? The
proposed wording would appear to require this.
Section 250.Vi-l. The venting standard based on capacity appears
somewhat arbitrary.
Section 250. k$-2 (b) (6) . It wou'd appear that Ignitable, reactive and
volatile wastes may be restricted from landfills, surface impoundments,
basins or landfarrns. It may he desirable to ccnside- tht national resources
that arc available and which may be needed to manage these wastes by
alternative methods.
Section 250. 45-2 (d) (2) . The restriction regarding t hi- construction of
habitations on sites receiving radioactive wastes should be broadened to
restrict the construction of human dwelling places on arv hazardous wjsto
d i sposa 1 site.
caves
Section 250-^5-5- The distances to ground.vater, public water supplies,
~u.~.,, etc., should be determined b" the Regional Adm ir I ;.t rator or authorized
State agency and not be a r ingle nat r>na! standard.
In regard to the 1 andspreac i nq of PO ~\l ',,'uJqu, xe do not agree ,vlth the
statement i r, the preamble that F.PA "c.an deveh^p rules for landfarming POT',v
sludge v/hlch will allow grough of food chain crops on Si'c ii land...". Past
attempts to develop sucii rules, trie confl'cting view:, expressed, and the
present lack of rules would tend to contradict this clai'i.
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I am Ken O'Morrow, a past president and a member of the
Board of Directors of the Los Angeles Society for Coatings
Technology. This is a group with about 600 members, who are
employed by companies affiliated with the coatings industry.
Coatings include paints, shellacs, varnishes, lacquers, and
any other product which is sold to beautify and/or protect a
surface.
The Los Angeles Society is a member of an international
Federation of Societies. Many of these individual and company
members are also members of local paint and coatings associations
and the National Paint and Coating Association.
We would like to be on the record as supporting the
testimony given by the National Paint and Coating Association.
We would especially point out that many coating manu-
factures and suppliers are small businesses. We believe it is
imperative that all possible consideration be given to the
economic impact of the proposed regulations on these companies.
We also believe that the very nature of a typical small
business works a hardship on these companies in dealing with
regulations. They do not have the personnel to evaluate proposed
regulations and to lobb)*1 for their point of view during the
process of formulation, which often involves several drafts
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before the final rule is adopted. Therefore, we believe that
the EPA should be certain that it can be responsive to any
changes required in the adopted rule if it proves to be an
undue hardship on small businesses. Thank you.
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rr« r1
jy i
SF13S3<2322H4-077102E071>PD 03/12/79 2372 } ,,
ICS IPMRNCZ CSP ' '
4153881302 NL TDRN MILL VALLEY CA 100 03-12 1122P EST
PMS HEARING OFFICER MATHEW WALKER r p /^'^°
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY RESOURCE CONSERVATION"^^''
AND RECOVERING ACT AND HEARING 215 FREMONT AT^HOWARD ST rt7rti|b'v I
SAN FRANCISCO CA
RCRA DRAFT SHOULD:
UPDATE MINING REGULATIONS BEFORE PERMITS (CHROME AND NICKEL
EXTRACTION, SIX RIVER- NATIONAL FOREST CALIFORNIA--STEEP TERRAIN,
SHALLOW SOILS, SLIDES, SUMMER IRRIGATION REOUIRED--REOUIRED POSTING
IOND, ONGOING MONITORING OF REPLANTING, SLAG CONTROLS PROTECTING
TRIBUTARIES—SALMON SPAWNING CREEKS OF SMITH RIVER). DENIED PERMITS
SOME VULNERABLE SITES (DEATH VALLEY—MINING VIEWED FEBRUARY TRAVESTY
TO NATIONAL MONUMENT).
-------
1979 HAR 12 Fll 8 30
ADD RECLAIMED EFFLUENT IRRIGATION VATER STANDARDS —CHEMICALS}
CONTAMINANTS FOR ANIMALS/PLANTS SAFETY TO PRESENT (PUBLIC HEALTH
COLIFORM IN PUBLIC USE AREAS.)
REQUIRED ON POINT RUN OFF CONTAINMENT AND RECYCLING WATER BEFORE
DRAINING INTO WATERCOURSES, (RICHARDSON BAYS DEVELOPMENT, MARIN
COUNTY).
MARGARET ZEGART MILL VALLEY CA
NNNN
va 1809e
SW-752
&US GOVERNMENT PRINTING OFFICE'1979-281 14771