OOOR79002 1 2 3 4 5 6 7 8 9 10 11 13 14 15 16 17 18 19' 20 21 22 23 24 BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY In the Matter of: HAZARDOUS WASTE GUIDELINES AND REGULATIONS TRANSCRIPT OF PROCEEDINGS Wednesday, March 7, 1979 8:00 a.m. Holiday Inn 4040 Quebec Street Denver, Colorado APPEARANCES : DOROTHY A. DARRAH, Chairperson, Office of General Counsel, Environmental Protection Agency, Washington. D. C. LISA FRIEDMAN, Office of General Counsel, EPA Washington, D. C. JOHN P. LEHMAN, Director, Hazardous Waste Management Division, Office of Solid Waste, EPA Washington, D. C. ALFRED LINDSEY, Chief Implementation Branch Hazardous Waste Management Division. Office of Solid V/aste, EPA Washington. D. C. AMY SCRAPPER, Office of Enforcement, EPA, Washington D.C. 'ALAN CORSON. Chief (Section 3001) Guidelines Branch Hazardous Waste Management Branch, Offie of Solid Waste. EPA. Washington, D. C. JON P. YEAGLEY. Chief, Solid Waste Section, EPA, ',.-'.:\3onqy Region VIII. Denver, Colorado Chi:. ------- ------- » ; 2 3 4 5 & 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 • 24 25 INDEX WITNESSES ROGER WILLIAMS JOHN P, LEHMAN S* NORMAN KESTEN HESTER McNULTY WILEY W. OSBORNE JIM V. ROUSE CLARA LOU HUMPHREY HOWARD RUN I ON KENNETH LADD RICHARD T. DREITH DR. CARL J. JOHNSON ORVILLE STODDARD STEWART H. MILLER STEVE ALLEN ROBERT S. HEARON JOHN G. RE ILLY EARL R. WHITE FRANCINE B. KUSHNER KENT OLSON RITA E. EWING REES C. MADSEN ROBERT N. HEI STAND DR. JOHN E. TESSIERI PAGE NO. . 2 7 20 32 40 57 64 71 81 88 98 116 132 145 154 167 173 182 191 216 229 235 239 ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ..INDEX WITNESSES PAGE NO. WEND ALL CLARK 245 PHILIP W. MORTON 250 DR. JOHN T. MAKENS 260. < 4 < ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS MR. ROGER'WILLIAMS• I want to officially welcome you to Denver, and to this particular hearing, which is the fourth of five hearings that the Environmental Protection Agency is conducting to consider comments"and testimony ori our proposed Hazardous Waste Management program for the nation. The hearing is going to run for three days. I suspect there is going t o be a lot of debate and some controversy and because of that, and because I am not really participating in the hearing, otehr than welcoming you to Denver, I thought I might start out on a little note. I want to play a little game with you. We will give you a little quiz. I would like to ask you to think about a couple of cities that I am going to mention in a minute and to try and identify with that city a particular reputation. To give you an example, when we think of Washington, D. C., we think of the Nation's Capitol, or the seat of our government, and so forth — at least some people do. I would like to name a couple of other cities and give you a-minute to think about them and then I will share with you what my thoughts are in terms of what I identify with that city, and you can compare with my thoughts or you can just equate yourselves with your own identify with that city, and then we will go on from that point. * The first city I would like to mention is Niagara Falls, ------- 1 New York. I will give you a couple of seconds to think about 2 that. To me Niagara Falls clearly identifies with the largest 3 water fall in the United States, and perhaps to some of you in 4 the audience that are younger, recently married, you might 5 think it is quite a place to go on your honeymoon. 6 Another city I would like to mention is Louisville, 7 Kentucky. I like horse racing, so Louisville, Kentucky means 8 Churchill Downs, and Kentucky Derby. 9 I understand we have a lot of industry representatives 10 from the mining community. The next city I mention would be 11 Butte, Montana, I am sure, to at least the mining interest 12 would identify with the richest hill on earth, the Anaconda 13 Copper Mine in Butte. Some others might identify it with the 14 home of Evil Knievll. 15 The next city I will mention is Denver, Colorado. I am 16 sure a majority of you can identify with Denver, clearly the 17 Mile High City, or the Gateway to the Rockies. 18 Now, you probably- think I am crazy for running through 19 that, because I didn't mention anything about hazardous waste, 20 and I know that- some of you who are familiar with the 21 hazardous waste problems in this country know that each one 22 of those cities in recent months, or over the last year, has 23 identified a major hazardous waste problem. In some cases. 24 they have identified a disaster in those particular areas. 25 in terms of the Love Canal in Niagara Palls. Mew York, the ------- 1 phosphate slag in Butte Montana, the Valley of the Drums 2 In Louisville, Kentucky, and the radioactive radium problem 3 that has surfaced recently within the last three weeks in 4 Denver. If you do have an opportunity to take a break in 5 this hearing and go outside, you will probably see one or two 6 helicopters flying very low altitude over Denver with 7 eauipment hanging below and doing radiometric surveys to 8 identify additional sites, where they have found a very 9 serious radioactive problem associated with the radon from 10 the radium development industry back in the 1915 and 1925 era. 11 These are just a few of the problems that are cropping 12 up all over the country. I think that they are to be added 13 with the more than one hundred sites that we already know 14 about associated with this PCB in the HUdson River, and PCB 15 along the highways in North Carolina, and the Ketone Problem 16 in Hopewell, Virginia. These problems are cropping up every 17 place, and the list is growing daily. 18 These are problems created by past practices, whose 19 costs to society have come due. Costs measured in the 20 hundreds of millions of dollars and perhaps even billions of 21 dollars when you consider the lawsuits and liability associated 22 with some of the problems,identified already, not to mention 23 the unauantifiable costs associated with the lost of lives, 24 disability and poor health. It is too late to minimize these 25 past problems. We can only clean them up. ------- 1 We are here today at this hearing to focus on the 2 present and the future, to consider a major regulatory program 3 to manage and control the country's hazardous waste from 4 generation to final disposal. 5 The 'Congress directed this action by passing the 6 Resource Conservation and Recovery Act in 1976. and recognized 7 that the disposal of the hazardous waste is a critical health 8 and environmental probelm which must be controlled, especially 9 in light of some of these recent problems. These requirements, 10 we believe, will close the circle of environmental control 11 begun earlier with regulatory control of air emissions and 12 discharges of contaminants to our waters and lakes. 13 Vre did not underestimate the difficulty of implementing 14 these proposed regulations, rather, they reflect the large 15 amounts of hazardous waste generated, and the complexity of the 16 movement of hazardous waste in our society. 17 These regulations will affect a large number and 18 diversity of industry ranging from corporate giants to 19 neighborhood service stations. Other than non-industrial source 20 of waste, such as laboratories, hospitals and commercial 21 pesticide applicators and transporters of the hazardous waste 22 will also be included. 23 The Environmental Protection Agency estimates that a 24 minimum of 270,000 waste generating facilities, and 10,000 25 transporters will be regulated, although, only about 30,000 ------- 1 of that number will require treatment storage or disposal 2 permits. Under this program, approximately 35 million metric 3 tons per year of hazardous waste, mainly from industrial 4 sources will be controlled while another several hundred 5 million tons per year of high volume, low risk waste, such 6 as certain mining and utility waste will be brought under 7 limited control, pending further.rule making. 8 Disposal of the hazardous waste presents soecial problems 9 EPA, and most of the states solid waste agencies are currently 10 studying this problem and talking with commercial disoosal 11 firms about establishing sites. The management of the hazardoui 12 waste at commercial off-site facilities is a relatively new 13 business, It has experienced increased growth in the last •> 14 ten to fifteen years due to emergency public concern and aware- 15 nes^/about the environment, and because of new environmental 16 laws which ban other disposal methods. With the implementation 17 of these regulations, greater disposal capacity will be 18 necessary. Expansion of the hazardous waste management 19 industry for both private and public sectors face two-maior 20 obstacles. 21 First, the availability of the capital necessary to 22 control, construct, and expand and start up a facility, and 23 (2) public opposition to the siting of the hazardous waste 24 facilitv. 25 Citizen otroosition to the sitincr of facilities is exnected ------- 1 to be a-major obstacle to the implementation of these regulations 2 We are hopeful that these regulations and this type .of public 3 participation like this hearing, and other hearings across 4 the country, will instill public confidence that these facilitie 5 can coexist with other industries and communities without 6 causing any legal or environmental problem. 7 It was the intent o'f Congress that states assume and 8 run the hazardous waste programs, using EPA or federal minimum 9 standards. We have been working very closely with the states 10 and expect the majority of them to become authorized to run 11 this program in lieu of EPA. The impact of these regulations 12 will be felt by all segments of society. It is important that 13 EPA hear your views, study them and incorporate them into a 14 reasonable and effective hazardous waste management program 15 for the nation. 16 We appreciate your participation in this hearing. Thank 17 you. 18 MR. JOHN P.'. LEHMAN: Thank you Roger. 19 My name is John Lehman and I am director of the Hazardous 20 Waste Management Division of EPA's Office of Solid Waste, 21 in Washington. Again, I would like to second Roger Williams 22 welcome to you to our public hearing. We appreciate your 23 taking the time to participate in the development of these 24 regulations which are being issued under the authority of 25 the Resource Conservation and Recoverv Act— RCRA. ------- 1 2 4 5 6 7 Q 0 methods, and a hazardous waste list; (2) standards applicable 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 For a brief overview of why we're here— The Environmental Protection Agency on December 18", 1978 issued proposed rules under Sections 3001, 3002, and 3004 of the Solid Waste Disposal Act as substantially amended by . the Resource Conservation and Reco-very Act of 1976 (Pub.L. 94-580). These proposals respectively cover: (1) criteria for identifying and listing hazardous waste, identification to generators of such waste for recordkeeping, labeling, using proper containers, and using a transport manifest; and (3) performance, design, and operating standards for hazardous waste management facilities. These proposals together with those already published pursuant to Section 3003, (April 28, 1978), Section 3006 (February 1, 19781, Section 3008 (August 4, 1978), and Section 3010 (July 11, 1978) and that of the Department of Transoortatiojn pursuant to the Hazardous Materials Transportation Act (May 25, 1978) along with Section 3005 regulations constitute the hazardous waste regulatory program under Subtitle C of the Act. EPA has chosen to integrate its regulations for facility permits pursuant to Section 3005 and for State hazardous waste program authorization pursuant to Section 3006 of the Act with proposals under the National Pollutant Discharge Elimination System required by Section 402 of the Clean Water Act and the Underground Injection Control Program of the ------- 1 Safe Drinking Water Act. This integration of programs will 2 appear soon as proposed rules under 40 CFR Parts 122, 123, 3 and 124. 4 This hearing is being held as part of our public partici- 5 pation process in the development'of this regulatory .program. 6 First— for the logistics of the meeting— we ask that 7 smokers sit to the right, where ash trays are located, and 8 non-smokers may wish to sit to the left. 9 The panel members who share the rostrum with me, are: 10 Dolothy A. Darrah 11 Lisa Friedman 12 Alfred Lindsey, 13 Amy Schaffer, 14 Alan Corson, 15 J&ri P. Yeagley. 16 The responsible staff person for each section will join 17 us on the panel. As noted in the Federal Register our planned 18 agenda is to cover comments''on' Section 3001 today, Sections 19 3002 and 3003 tomorrow, and 3004 the next day. Also we have 20 planned an evening session tomorrow, covering all four 21 sections. That session is Planned primarily for those who 22 cannot attend during the day. 23 • The comments received at this hearing, and the other 24 hearings as noted in the Federal Register, together with the 25 comment letters we receive, will be a part of the official ------- 10 I docket in this rulemaking process. The comment period 2 closes on March 16 for Sections 3001-3004. This docket may 3 be seen during normal working .hours 'in Room 2111D, Waterside 4 Mall, 401 M. Street, S.W. Washington, D.C. In addition we 5 expect to have transcripts of each hearing within about two 6 weeks of the close of the hearing. These transcripts will 7 be available for reading at any of the EPA libraries. A 8 list of these locations is available at the registration 9 table outside. 10 With that as background, I'd like to lay the groundwork 11 and rules for the conduct of this hearing. 12 The focus of a public hearing is on the public's response 13 to a regulatory proposa.l of an Agency, or in this case, 14 Agencies, since'both EPA and the Department of Transportation 15 are involved. The purpose of this hearing, as announced in 16 the April 28, flay 25, and December 18, 1978 Federal Registers, 17 is to solicit comments on the proposed regulations including 18 any background information used to develop the comment. 19 • This public hearing is being held not primarily to 20 inform the public nor to defend a proposed regulation, but 21 rather to obtain the public's response to these proposed 22 regulations, and thereafter revise them as may seem appropriate 23 All major substantive comments made at the hearing will be 24 addressed during preparation of the final regulation. 25 This will not be a formal adludicatoryhearing with the ------- 11 I right to cross-examination. The members of the public are 2 to oresent their views on the proposed regulation to the 3 panel, and the panel may ask Questions of the oeople oresenting 4 statements to clarify any ambiguities in their presentations. 5 Since we are time-limited, some questions by the panel 6 may be forwarded in writing to the speaker. His reponse,if 7 received within a week of the close of this hearing, will 8 be included in the transcript. Otherwise, we'll include it g in the docket. 10 Due to time limitations, the chairman reserves the 11 right to limit lengthy questions, discussions, or statements. 12 We would ask that those of you who have a prepared statement 13 to make orally, to please limit your'nresentation to a 14 maximum of ten minutes, so we can get all statements in a 15 reasonable time. If you have a cony of your statement, nlease 15 submit it to the court reporter. 17 Written statements will be accented at the end of the 18 hearing. If you wish to submit a written rather than an 19 oral statement, please make sure the court reporter has a 20 cooy. The written statements will also be included in their 21 entirety in the record. 22 Persons wishing to make an oral statement who have, not 23 made an advanced request by telephone or in writing should 24 indicate their interest on the registration card. If you 25 have not indicated your intent to give a statement and you ------- 12 *• decide to do so, please return to the registration table, 9 * fill out another card and give it to one of the staff. g J As we call upon an individual to make a statement, he or she should come up to the lectern after identifying him- self or herself for the court reporter, and deliver his or her statement. At the beginning of the statement, the Chairperson will g inquire as to whether the speaker is willing to entertain Q questions from the panel. The speaker is under no obligation to do so, although within the soirit of th is information sharing hearing, it would be of great assistance to the 19 x* Agency if questions were permitted. Our day's activities, as we currently see them, appear 14 like this; We will break for lunch at about 12:15 and reconvene at 1:45 p.m. Then, depending on your progress, we will either 1' conclude the day's session or break for dinner, at about 5:00. Phone calls will be posted on the registration table at the entrance, and restrooms are located outside to the left. If you wish to be added to our mailing list for future regulations, draft regulations, or proposed regulations, please leave your business card or name and address- on a three by five card at the registration desk. nt The regulations under discussion a-t this hearing are 25 the core elements of a major regulatory program to manage ------- 13 1 and control the country's hazardous waste- from generation to 2 final disposal. The congress directed this action in the 3 Resource Conservation and Recovery Act of 1976 (RCRA), . , recognizing that disposal of hazardous waste is a crucial environmental and health problem which must be controlled. In our proposal, we have outlined requirements which set minimum norms of conduct for those who generate, transport, treat, store, and dispose of hazardous waste. 9 These requirements, we believe, will close the circle 10 of environmental control begun earlier with regulatory control 11 of emissions and discharges of contaminants to- air, water, 12 and the oceans. We do not underestimate the complexity and difficulty of our proposed regulations. Rather, they reflect the large amounts of hazardous waste generated and the complexity of the movement of hazardous, wastfe in our diverse society. These regulations will affect a large number of industries. Other non-industrial sources of hazardous .waste, such as laboratories and commercial pesticide applicators,., as well 20 as transporters of hazardous waste, will also be included. Virtuallv every dav, the media carries a story on a 22 dangerous situation resulting, from imoroper disnosal of 23 hazardous waste. The tragedy at Love Canal in New York State 24 is but one recent examnle. EPA has information on over 400 25 cases of the harmful consequences of inadequa-te hazardous ------- 14 waste management. These cases include incidents of surface 2 and groundwater contamination, direct contact poisoning, various forms of air pollution, and damage from fires and 4 ' • explosions. Nationwide, half of all drinking water is 5 supplied from groundwater sources and in some areas contamination 6 of groundwater resources currently poses a threat to public 7 health. EPA studies of a number of generating industries in 8 1975 showed that approximately ninety percent of the potentially 9 hazardous waste generated by those industries was managed by 10 practives which were not adequate for protection of human 11 health and the environment. . , 12 The Resource Conservation and Recovery A'ct of 1976 was 13 I passed to address these problems. Subtitle C establishes a 14 comprehensive nrogram to protect 'the public health and 15 • ^ environment from improper disoosal of hazardous waste. 16 Although the program requirements are to be develooed by the 17 Federal government, the Act orovides that States with adequate 18 - programs can assume responsibility-for regulations of hazardous 19 waste. The basic idea of Subtitle C i-s that the oublic 20 health and the environment will be protected if there is 21 careful monitoring of transportation of hazardous waste, and 22 assurance that such waste is properly treated, stored, or 23 . disposed of either at the site where it is generated or 24 l after-it is carried from that site to a special facility in \ 25 accordance with certain standards. ------- 16 17 21 25 Seven guidelines and regulations are being develooed and either have been or will be oroposed (as noted earlier) under Subtitle C of RCRA to implement the Hazardous Waste Management Program. Subtitle C creates a management control •* system which, for those wastes defined as hazardous, requires a cradle-to-grave cognizance, including aporopriate monitoring, recordkeeoing and reporting throughout the system. Q It is important to note that the definition of solid wastes in the Act encompasses garbage, refuse,' sludges and other discarded materials, including liquids, semisolids and contained gases, with a few exceptions ,- from both municipal and industrial sources. Hazardous wastes, which are a sub-set of all solid wastes, and which will be identified by regulations oroposed under Section 3001, are those which have narticularly significan impacts on public health and the environment. Section 3001 is the keystone of Subtitle C. Its purpose is to provide a means for determining whether a waste is hazardous for the oruposes of the Act and, therefore, whether it must be managed according to the other Subtitle C regulations • Section 3001 (b) provides tow mechanisms for determining whether a waste is hazardous: a set of characteristics of hazardous waste and a list of particular hazardous wastes. A waste must be managed according to the Subtitle C regulations if it either exhibits any of the characteristics set out in ------- 16 proposed regulation or if it is listed. Also, EPA is directed 2 by Section 3001(a) of the Act to develop .criteria for 3 identifying the set of characteristics of hazardous waste 4 and for determining which wastes to list. In this proposed 5 rule, EPA sets out those criteria, identifies a set.of characteristics of hazardous was.te, and establishes a list 7 of particular hazardous wastes. g . Also the proposed regulation provides for demonstration g of non-inclusion in the regulatory program. Section 3002 addresses standards applicable to generators of hazardous waste. A generator is defined as any person 22 whose act or process produces a hazardous waste. Minimum 13 amounts generated and disposed per month are established to 4 14 further define a generator. These standards will exclude household hazardous waste. The generator standards will establish requirements for: recordkeeping, labeling and marking of containers used 10- for storage, transport," or disposal of hazardous waste; use of appropriate containers, furnishing information on the 2Q general chemical composition of a hazardous waste; use of a manifest system to assure that a'hazardous waste-is designated 22 to a permitted treatment, storage, or disposal facility; 23 and submitting reports to the Administrator, or an authorized 24 State Agency, setting out the quantity generated and its 25 disposition. ------- 17 1 Section 3003 requires the development of standards 2 applicable to transporters of hazardous wastes. These proposed 3 standards address identification codes, recordkeeping, 4 acceptance and transportation of hazardous wastes, compliance 5 with the manifest system, delivery of the hazardous waste; 6 spills of hazardous waste and placarding and marking of 7 vehicles. The Agency has coordinated closely with proposed 8 and current U. S. Department of Transportation regulations. 9 Section 3004 addresses standards affecting owners and 10 operators of hazardous waste treatment, storage, and disposal 11 facilities. These standards define the levels of human 12 health and environmental protection to be achieved by these 13 facilities and provide the criteria against which EPA (or 14 State) officials will measure applications for permits. Facil- 15 ities on a generator's property as well as off-site facilities 16 are covered by these regulations and do require permits; 17 generators and transporters do not otherwise need permits. 18 Section 3005 regulations set out the scope and coverage 19 of the actual permit-granting process for facility owners 20 • and operators. Requirements for the permit application as 21 well .as for the issuance and revocation process are defined 22 by regulations to be proposed under 40 CFR Parts 122, 123 23 and 124. Section 3005(e) provides for interim status during 24 the time period that the Agency or-the States are reviewing 25 the pending permit applications. Special regulations under ------- 18 Section 3004 apply to facilities during this interm status period. Section 3006 requires EPA to issue guidelines under which States may seek both full and interim authorization to carry out the hazardous waste program in lieu of an EPA- administered program. States seeking authorization in accordance with Section 3006 guidelines need to demonstrate 8 that their hazardous waste management regulations are consistent with the equivalent in effect to EPA regulations 10 under Sections 3001-5. 11 Section 3010 requires any person generating, transporting, 12 or owning or operating a facility for treatment, storage, 13 and disposal of hazardous waste to notify EPA of this activity 14 within 90 days after promulgation or revision of regulations 15 identifying and listing a hazardous .waste pursuant to Section 16 3001. No hazardous waste- subject to Subtitle C regulations 17 may be legally transported, treated, stored, or disposed •18 after the 90-day period-unless this timely notification has 19 been given to EPA or an authorized State during the above 20 90-day period. Owners and operators of inactive facilities 21 are not required to notify. 22 EPA intends to promulgate final regulations under all 23 sections of Subtitle C by December 31, 1979. However, it is 24 important for the regulated communities to understand that 25 the regulations under Section 3001 through 3005 do not take ------- 19 1 effect until six months after promulgation. That would be 2 approximately June of 1980. 3 Thus, there will be a time period after final promulga- 4 tion during which time public understanding of the regulations 5 can be increased. During this same period, notifications 6 required under Section 3010 are to be submitted, and facility 7 permit applications required under Section 3005 will be dis- 8 tributed for completion by applicants. 9 With that as a summary of Subtitle C and the proposed 10 regulations to be considered at this hearing, I return this 11 meeting to the Chairperson Lisa Friedman. 12 CHAIRPERSON FRIEDMAN: We have approximately 13 35 people who want to make oral statements today, so I .would 14 like to ask you to the extent possible, to keep your comments 15 as concise as possible. I would like everyone to remember 16 that this is not the only opportunity that you will have to 17 present your views to the Agency, as Jack Lehman stated, we 18 will consider written prepared testimony which is submitted 19 at- this hearing. We will also consider any written comments 20 which are filed prior to the March 14th public comment 21 deadline. We will be taking speakers who' pre-registered in 22 the order in which they are listed on this schedule. Individual 23 who did not pre-register, but did today register, will be 24 taken at the end. 25 Our first sneaker'will be Mr. S. Norman Kesten and he ------- 20 1 represents the American Mining Congress. 2 MR. S. NORMAN KESTEN: I want to apologize to the Panel for not having copies of this presentation. I will have them for you by tomorrow or the next day. My name is Norman Kesten of ASARCO, Incorporated-, where 6 I am assistant to the vice president for Environmental Affairs. ' I am also Chairman of the' Solid Waste Task Force of the American Mining Congress, and. I appear here today in behalf of that group. 10 The American Mining Congress is a national association of companies that produce most of the nation's supply of 12 metals, coal and industrial and agricultural minerals, while producing these essential materials, the member companies necessarily generate large quantities of mine waste, rock waster materials from mining, milling and other forms of beneficiation, often called tailings, plus furnace slags and other similar processing waste from later stages of total processing towards 'useable products, as well as other waste in relatively minor quantity. 20 The American Mining Congress is thus very interested 21 in and concerned about the economic impact upon the mineral 22 industry of any regulation promulgated for the purpose of 23 implementing provisions of this amendment to the Solid Waste Disposal Act. " in addition, we want to try to insure that during the ------- 21 1 formulation of such regulations, the Agency is fully aware 2 of the technological limitation that the very nature of its 3 waste places upon the industry and takes into account the large number of physical and chemical variables that tend to make each operation unique. In general, the industry has a series of special probems in complying with proposed regulation ' because of the sheer volume of the waste that are generated, ° and the large areas of land that those waste must occupy. Using copper and copper ores as examples, new mine production, including beneficiation smelting and refining 11 in this country is of a magnitude that there is also produced 12 annually about 600 million tons of mine waste crop, 250 million tons of dry tons• of mill tailings, and perhaps 'five million tons of furnace slag. If that mine waste were distributed in two new waste dumps, each of which covers one section of land, and I will pause here and explain for the benefit of anybody here from the East, that a sect-ion of land is 640 acres. Each of which covers one section of land, the dumps would be built up to an average height of 30 feet 20 by the end of the year. If the tailings were deposited in one new tailing disposal site, occupying one section of land, 22 the tailings would be built up to a height about 25 feet in a year. The height of the pile of slag covering a section of land would be somewhat less, something like six or eight- 25 feet. ------- 22 1 Obviously each type of waste from one year's operation 2 is not .accumulative in one or two mills at individual sites, . 3 but is distributed among, and added to many existing piles. 4 The accumulative volumes are similar to those described, 5 depending upon the length of time a particular site has been 6 operated,' and the rate of production of waste. 7 Because of these volumes, the criteria for distinguishing 8 between hazardous waste and other waste are crucial to the 9 continued viability of the operations in which the member 10 companies of the American Mining Congress are engaged. 11 I have used copper as an example. Obviously the underly- 12 ing principles are applicable to operations.involving most I _ . 13 other non-fuel minerals, including mining and beneficiation A 14 of the phosphate rock and mining of uranium ore. The smelting 15 of the iron ore generating 24 million tons of slack annually. 16 Inspite of the draft regulations and proposed regulations 17 that EPA has made available, member companies of the American 18 Mining Congress still have no idea what the cost will be of 19 solid waste disposal under the Act. If the term open dump 20 and sanitary landfill are strictly applied, and there will 21 be those who- will bring pressure to bear on the agency to 22 apply them strictly, then very many piles of waste tailing 23 accumulations and slag dumps still being used are to be 24 classified' as open dumos, to be upgraded or closed within 25 five years. In many instances, upgrading may be ohysically ------- 23 1 impossible. Replacement of the new sanitary by new new 2 sanitary landfills will be so expensive as to greatly imoair, 3 if not destroy the economic viability of the operations. If 4 what is required of a disposal site for waste, not designated 5 as hazardous is that there will be no reasonable probability 6 of injury to human health or the environment, another dimension 7 of uncertainty is added. We would be"dependent uoon somebody's 8 assessment of that probability and what is reasonable, and 9 of.how much injury is permissible. The result of such 10 assessment could be just as expensive and just as crippling 11 as the direct application of the term open dump. If.the 12 criteria for classifying waste as' hazardous and the listing 13 of ways and processing are finali2ed as now proposed, large 14 tonnage of waste rock, tailings and furnace slag might very 15 well be designated hazardous, even though those large tonnages 16 might be only a fraction of the total tonnage generated. 17 The proposed standards of performance applies to those 18 tonnages will again lead to intolerable experiences. In fact, 19 except for the paper work for hazardous waste, it might make 20 no difference to us how these large tonnage wastes are .21 classified. ' Of course, I am speaking of accumulative worst 22 case situation. 23 one frustrating thing is, that we do not know at this 24 time, nor will be-know at the time th& proposed regulation 25 becomes final, just what their effect upon our industries will ------- 24 be. In the midst of all this, we feel there is a reasonable probability that our current budget of the disposal method will not endanger human health; except in minor/ easily reasonable instances. In fact we think that EPA should make that presumption. In addition, we contend and are on record to this effect that the legislative history of the Acts states unequivocably that mining waste are at this time exempt from the provisions of Solid Waste Regulations . • I refer you to the comments of the American Mining Congress on rules proposed under Section 4004 of the Act. 12 In most mining waste, the principal property 'that determines whether they are -^hazardous or not is toxicity, and these are the — I am referring to the waste with which our members are most concerned. For some other waste, it is radioactivity and the complex matters to be dealt with in separate kinds of regulations. A waste may not be designated 18 as toxic by the simple procedure of saying it is so. It must be. determined to be toxic because of the results of an objective scientific test. EPA proposes a test in Section 350. 21 13 (d) (2), and we do not agree that it is a test that is • 22 appropriate "for the purpose. We believe that it flies in ^ the face of logic and reason for EPA to even attempt to establish a single 'procedure to be applicable nationwide to 25 all kinds of waste' regardless of chemical and physical ------- 25 1 environment in which a waste is deposited without going into . 2 the entire history of the propose'd test, we should like to 3 stand with the D19.12 sub committee of the American-Society 4 of Testing and Materials in decrying the unscientific approach 5 that EPA has'followed in creating the extraction procedure. ' 6 We urge strongly that EPA work closely with ASTM to 7 establish criteria for a test rather than a single test for 8 extraction procedures. This would enable a generator or 9 anyone else who is required to -d^smi.116 toxicity/ to devise • 10 a procedure within the framework of the testing criteria 11 that would be applicable to his waste through the projected 12 life history of his waste. 13 At the very least, a generator should be permitted and 14 required to set up in his testing laboratory the nearest 15 approach possible to the chemical and physical environment of 16 the disposal site'. If the generator does not chose to make 17 that test, he is free to concede that his waste is toxic' 18 as that te±m is defined', and therefore hazardous. 19 . I should like to refer the panel to a strongly worded 20 letter of last December first to the Administrator from the 21 Chairman and Secretary of- the ASTM sub-committee D19.2, and 22 to another letter from Professor O.K. Hamm of the University 23 of Wisconsin to John .Lehman of the Office of Solid Waste, - 24 dated January 24th, 1979. 25 My next point is of mostly peripheral interest because ------- 26 1 I feel sure the extraction procedure will be changed, either 2 before promulgation or possibly as a result of the judicial ' A *•• 3 review sometime afterward. That point is, that the apparatus 4 to be used in carrying out the extraction procedure is not 5 existing standard equipment, nor is it readily available from 6 the sole manufacturer'listed by EPA. In Section 250.13(d) (1) 7 are listed pollutants and the threshold .values for concentration 8 in the extract whichi if exceeded, cause the waste to be 9 designated hazardous. The numbers are, of course, ten times 10 the national interim primary drinking water'standard for those 11 substances, and according to the preamble, they are listed 12 on the assumption that on the average the natural allutrate(sic) 13 from a waste will be diluted by a factor of ten before it is 14 used for drinking water. 15 This is another instance of the agency trying to 16 establish a single standard applicable to all places at all 17 times. This, of course, is indefensable. A knowledge of 18 the number of variables-and the degree of the variability at 19 any one site might make it possible to estimate for that site 20 the attenuation that takes place between the disposal site 21 and the present or future drinking water source. To arrive 22 at a generalized figure is to perpetuate a nonsense. 23 We were astonished when we examine orocessing generating 24 hazardous waste, that is 250.14(b)(2) because we find that 25 most of the listina are not processees, but the substances ------- 27 1 generated by certain processes. We were further surprised 2 that in that list, particularly in the SIC''3: prefix'with the 3 numbers 33, there are substances which are seldom waste. 4 Some are invariably, or at least very very often return to 5 the metalurgical process for capture of the contained 'metals 6 or they are stockpiled for shipment to another plant for the 7 same purpose. For them to be characterized as waste^by 8 regulation is to throw them into hazardous waste procedures 9 from which the generator might extricate them only at consider- 10 able inconvience. 11 Section 250.15 discusses how a person might, demonstrate 12 that a solid waste that has been listed as hazardous is not 13 in fact hazardous. If there is any serious doubt about the 14 toxicity or other hazardous characteristics of the substance, 15 EPA should avoid listing it or avoid putting the generator 16 or any other person to the expense and inconvenience, of 17 rebutting the presumption. EPA should rely upon the provisions 18 of the Subpart G, under- Section 3010 of the Act, to insure that 19 every hazardous waste is identified. We believe that to some 20 extent these lists are arbitrary and capricious. 21 Section 250.15 does not discuss how a person might rebutt 22 the presumption on the part of EPA that a hazardous substance 23 is a waste. The lack of understanding that exists among some 24 EPA pesonnel was demonstrated by a staff member who in a 25 related context included low grade ore in a list of waste. ------- 28 1 Of course, this is a contradiction in terms of it seems to 2 me that the Agency has two alternatives. It can leave it * 3 to the generator or other pers.ons who own or control the 4 materials to judge whether or not it has the potential to be used or reused, and therefore whether or not it is a waste or it can devise a set of reasonable criteria by which the material may be judged to be waste or otherwise. our much longer written comments on proposed Subpart 9 A will be submitted in due course. In general, we urge greater 10 clarity and consistency as well as compatibility of the regulation with actual conditions. In addition to the points 12 that I have just tried to make, we suggest that EPA's 13 presumption that hazardous waste is mismanaged should be 14 rebuttable on a case-by-case basis and that wastes that have 15 only a low level of toxicity and are therefore only marginally 16 hazardous might be managed under less stringent requirement 17 than those for wastes that significantly exceed the criteria. 18 We do not feel that any of the suggestions, when acted 19 urjon, will have the effect of reducing the Agency's 20 effectiveness ta carry out the directive of Congress to 21 protect human health and the environment from injury occasioned 22 by management of hazardous waste. Thank you. 23 CHAIRPERSON FRIEDMAN: Thank you, Mr. Kesten. 24 Will you answer questions from the panel? 25 MR. KESTEN: I will trv. ------- 29 1 MR. CORSON: Let me state if I may, Mr. Kesten, a 2 couple of points, and I would like to make just this, as a 3 matter of fact, probably more for clarification than perhaps 4 a question. One is the fact that as proposed on December 18th, 5 we have put mining waste with the exception of uranium, some 6 of the radioactive waste, which are listed in a special waste 7 category, which do not require the set of standards normally 8 required of Section 3004. I think we further, by-way of at 9 least a misunderstanding I was left with from your comments, 10 the fact that in our definition of other discarded material, 11 this provide for some reuse of materials, and that does take 12 it out of the definition of .solid waste entirely. So therefore 13 the subject is not what the regulations propose. I guess a 14 further point, and I want to make sure your understanding is 15 the same as mine. The ourpose for including the section on 16 non-inclusion was in the event that a waste is listed, and 17 the person who was generating a product has produced that 18 waste, has gone to some, treatment method, and therefore, his 19 waste does .not exhibit the characteristics identified, and the 20 listing provides a means on a case by case basis for that 21 nerson to demonstrate that that waste does not belong in the 22 system at all. Obviously the industry, and in your case, the 23 American Mining Congress, could demonstrate to us by data, 24 that looking at what we have oroposed in our background 25 document, that maybe some of your waste that have been listed ------- 30 should not be there at all. That is the nunose for our making a proposal and asking for comments from the industry. I do have a direct question.. You indicated earlier there are some cases where you admit that- damage occurs in certain well recognizable cases. I am wondering whether that recognition is available before the disposition ' or afterwards? 8 MR. KESTENj Before. . MR. CORSEN: Then I would appreciate it if you could with your written comments describe to us what it is 11 that is recognizable about those waste before you do' it for dispositions, and how that may differ-from--what we have proposed in our regulations. MR. KESTONr I was speaking of waste produced in relatively minor quantities as compared with the massive quantity of other wastes which have constituents which we note is sufficiently soluable, and that they will fit the criteria of hazardous waste, and I am not going to identify them now. We. will do so under Section 3010. 20 MR. CORSES: Thank you. MR. KESTON: I think that I and my colleagues are 22 fully aware of the ooints that you made,. Mr. Corsen. I don't think there is misunderstanding. MR. LINDSEY: I have one additional question. Earlier in your presentation, you talked about the burden 4 4 ------- 31 which the proposed regulations would have'on the mining 2 industry, and that burden would seriously hamper the economic 3 viability, I guess, of the industry. Can you be more specific 4 with regard to the other mining waste regulations, that is 5 the limited set of regulations that are here, which is among 5 those that create such an intolerable burden on the industry. 7 We thought we had limited, or eliminated most of the really g heavy burdensome things upon this interim set of regulations. 9 - MR. KESTEN: By some quirk, certain furnace slags are determined to be hazardous, and in fact a slag which is not hazardous, which we really believe to be non-hazardous, 12 is listed as being a hazardous waste, if it turns out.to be 13 a hazardous waste, and the operation goes on for years and 14 years, there will be millions of tons of that material 15 generated, and if it ha's to be disposed of in a manner comoatib with these regulations, the exnense will be very great and 17 may put that smelter out of business. Of course^ EPA has a great many other ways -they can out smelters out of business and are trying them all. 2Q MR. LINDSEY: I think the ooint I am trying to make, and if you are not in a position to address it today, 22 I would appreciate it if.in vour written comments, give the 23 regulations 250.46-5 which is the special .regulations for 24 other mining waste. It is oretty much limited to security 25 and some recordkeeoing and some visual inspection and things ------- 32 1 like that, which in our belief, you know, such a huge impact 2 in itself. If you could exoand upon that in your comment, it 3 would sure be helpful to us. 4 MR. KESTON: Yes, I wasn't referring as much to 5 soecial.waste as to the others. On the other hand, if those 6 materials that are classified as soecial waste, if they are 7 hazardous, if they are not hazardous, involve a tremendous 8 expense to prevent them from EPA's regulations, and it states 9 the view from contributing some kind of injury to human health 10 and the environment. 11 CHAIRPERSON FRIEDMAN: Thank you very much, Mr. 12 Kesten. Our next speaker is Hester P. McNulty from the League 13 of Women Voters. 14 MS. HESTER McNULTY: I - am Hester McNulty and I 15 will be speaking for the League of Women Voters of the United 16 States. Our offices are in Washington, D.C. I hapoen to 17 live here in Colorado and that is why I am appearing here 18 today. I understand that our Missouri League testified at 19 the Kansas City hearing, and later this morning our Colorado 20 League will be testifying. 21 The League is a volunteer- citizen Organization with 22 members in all fifty states, the District of Columbia, the 23 Virgin Islands and Puerto Rico. The League's members in over 24 1,350 communities are deeplv involved in finding solutions 25 to solid waste oroblems. ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 We would like to commend EPA for an excellent job in providing supplementary -explanatory information. Considering the difficult and technical nature of the regulations, we are expecially pleased with the lucid introduction to Section 3001. However, we question the wisdom of dividing the hearings into spearate days for each section of the proposed regulations. This means that all those interested in testifying on two or more sections must appear two or three times. Such an arrangement is likely to dampen meaningful public involvement in the hearing process. The League has been involved in the protection of our land, air and water resources for a number of years. Our members, after two years of study, agreed that wastes-which cannot be reused must be safely disposed of. The League " supported the passage of the Resource Conservation and Recovery Act (RCRA), and were expecially supportive of its provisions for hazardous waste management. We have examined the proposed regulations in light of. the principal objective of the Act— to protect human health and the environment. Our comments are directed primarily to Subnarts B and D of the proposed regulations. Regarding Section 3001 and Subpart A, we commend you for your lists of specific materaials and the characteristics of these materials, but we urge you to constantly update the lists and consider other materials. ------- 34 1 Section 3002 2 • Subpart B— Standards Applicable to Generators of Hazardous Waste 4 The League does not agree with the exemption from these 5 regulatory requirements of hazardous waste generators that 6 produce 100 kilograms or .less per month.. The League's 7 opinion on this issue is based on three considerations. One, 8 the degree of hazard associated with a particular waste is. 9 often more closely related to concentration than volume. Two, 10 the small generator exemption sidesteps a major objective 11 of RCRA, namely, to track hazardous wastes from their creation 12 to their disposal through a manifest system. Three, there 13 is no foundation in the Act for a blanket exemption. 14 We find no support for this exemption in Section 3002 15 of RCRA which states that the standards will -apply to generators 16 identified or listed under Subtitle C of the Act. In fact, 17 Section 3002 (5) requires that the manifest system be applied 18 to all wastes identified under Subtitle C: 19 ...standards shall establish requirements respecting... 20 (the) use of a manifest system to assure that all 21 such hazardous waste generated is designed for 22 treatment, storage or disnosal in...facilities 23 for which a permit has been issued... 24 In addition, EPA notes in the explanatory information that it 25 has limited data on the numbers of small generators, the amount 4 ------- 35 1 on human health and the environment. By requiring generators 3 of 100 kilograms or less per month to comply with the require-m 4 ments of Subpart B, EPA will acquire the essential information 5 that it currently lacks. For instance, the requirements would 6 allow EPA to pinpoint the small generators' disposal sites to determine which ones are relied on heavily for disposal of 8 their hazardous wastes. So that the requirements under Subpart 9 B may not be burdensome to generators of 100 kilograms or less 10 per month of hazardous wastes, we.would urge EPA to keep record keeping to a minimum to simplify procedures. 12 Further, the League believes that proposed section 13 250.29(1) which allows small generators to dispose in sanitary 14 landfills approved pursuant to Section 4004 of the Act is 15 inconsistent with RCP.A. Subtitle C's section. 3002 (5)plainly states, "(A)11 such hazardous waste generated is designated for treatment, storage-, or disposal in. . .facilities.. .for 18 which a permit has been issued as provided in this subtitle." 19 It does not include sanitary landfills developed pursuant to 20 Subtitle D of RCRA. 21 Since approximately 67 percent of the hazardous waste 22 is produced in ten of fifty states, we are also concerned 23 if generators of 100 kilograms or less per month are allowed 24 to dispose of their wastes in sanitary landfills as opposed 25 to hazardous waste sites, some sanitary landfills may receive ------- 36 1 many contributions of 100 kilograms or less of hazarous 2 wastes, thereby becoming in the aggregate major resting places 3 for these substances. Because these landfills will not be 4 as stringently developed and managed as hazardous waste sites, 5 they may pose serious problems to public health and the environ- 6 ment. 7 The proposed regulations (section 250.27) also allow 8 the hazardous waste generator -to request that certain information 9 be kept confidential. The regulations should clearly impose 10 a heavy burden on the disposer to demonstrate the need for 11 secrecy, lest this section become a loophole for avoiding the 12 intent of RCRA. 13 Section 3004. 14 Subpart D—Standards Applicable to Owners and Operators 15 of Hazardous Waste Treatment, Storage and Disposal Facilities. 16 The League agrees with most of the provisions in this 17 subpart. However, we do not believe that the Notes in this 18 subpart, which substitute performance standards for environ- 19 mentally sound facilitv siting, will accomplish the stated 20 goals of RCRA. 21 We are especially concerned about the Note that allows 22 a hazardous waste facility to be located in the recharge zone 23 of a sole source aquifer. We believe the intent of both the 24 Safe Drinking Water Act and RCRA would be negated by the locaticr 25 of any hazardous waste facility in such recharge areas. ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 37 Because tf the limited supplies of drinking water sources it is imperative that EPA regulations ensure their protection. We question that EPA can predict with any certainty adequate resources over the long term — at either e EPA or the state level — to ensure that the operation, maintenance, and monitoring of a facility will protect a sole source aquifer The potential social, environmental and economic costs outweigh short-term accommodation. The League strongly urges that no facilities be permitted in the recharge zone of sole source aquifers. Additionally, we are concerned with the facility • exemptions permitted in f loodplains , wetlands , and high coastal areas. Because of the very nature of hazardous materials, therej^ll be a latent threat to fragile ecosystems, water resources, and human health, if facilities are located in these areas. Performance standards at the time a permit is issued cannot ensure future reliability. . We ask that EPA remove these exemptions from the regulations as the intent of RCRA is protection of human health and the environment. We also think that. the proposed Notes providing • exemptions for land farms (section 250.45-5) present an unnecessary risk, particularly to ground and surface water auality and may lead -to possible contamination of oublic water supplies. Demonstration of performance to the regional administrator when a permit is issued does not preclude future ------- 38 contamination. For instance, it is almost impossible to predict with Certainty that there will be no direct contact with the water table when the treated area is less than five feet above the historical high water table. We have the same concerns with the exemptions for landfill (section 250.45-2). We think that in no instance should a landfill be closer than 500 feet from a -public or private water supply. Nor should the natural soil barrier or liner be less than five feet from the water table. It is unclear just how EPA proposes to integrate 11 hazardous waste regulations with other programs administered 12 not only by EPA but also by other agencies— such as the 13 Strip Mining Act. It seems to us that this is extremely important in the implementation of Section 3004 of RCRA. Further, the League urges that no part of the hazardous waste program be turned over to a state unless the state program is no less stringent than the Federal regulations and there is an assurance of sufficiant oersonnel for administratioi Also we encourage EPA, in the interim, to provide an adequate 20 staff to implement the regulation of hazardous wastes. And in conclusion, despite the mandate under RCRA's 22 Section 7004(b) that there will be "Public participation 23 in the...implementation, and enforcement of any regulation... * or program," there are no proposed nublic participation oc guidelines included in the. proposed regulations. We strongly ------- 39 1 urge EPA to immediately begin the task of developing pronosed 2 public participation rules for its hazardous waste program and . 3 to issue them for public 'commen-t so that they will be 4 included in the hazardous waste rules when .they are issued 5 later this year in final form. Thank you. 6 CHAIRPERSON FRIEDMAN: Thank you, very much. Will 7 you answers questions from the panel? 8 MS. McNULTY: Yes. 9 MS. DARRAH: I have a couple of questions. First 10 of all, you suggested that EPA keep"recordkeeping to a minimum 11 and simplified procedures for small generators. Will you 12 be providing us with any more specific suggestions as to what 13 you think is less burdensome but adequate? 14 MS.McNULTY: If you would like us to/ we certainly 15 can. 16 MS. DARRAH: Yes. 17 MS.McNULTY: We know from our work, that a small 18 generator may not be able to keep up with all of your paper 19 work. We think it is most important to keep track of what 20 is happening and get the important information then to fill 21 out reams of paper. 22 MS. DARRAH: Okay. I take it though that you were 23 concerned at we keep an adequate track of this. If there are 24 specific suggestions, you make'them to us as- to how you think 25 we can do it adequately to meet your environmental concerns, ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 but also obviously everyone's concern that we not have people filling out useless forms. MS. McNULTY: We will certainly get back to you before the end of the comment period, MS. DARRAH: I just want a clarification. You said that on confidential information, that the regulations could impose a heavy burden on the disposer to demonstrate the need for secrecy, unless this section becomes a loophole for avoiding the intent of RCRA. What intent are you talking about MS. McNULTY: The intent o-f RCRA that the public shall know and the EPA shall know. The secrecy Act also could be, we think, misused. MS. DARRAH: Okay,- I guess we understand that enough to look at the issue. X MS. McNULTY: They really need it. MS. DARRAH: What you are saying, you want the public to be informed insofar as possible within the law? MS. McNULTY: Yes. MS. DARRAH: Thank you. CHAIRPERSON FRIEDMAN: Thank you very much. Our next speaker will be Mr. Wiley W. Osborne. MR. WILEY W. OSBORNE: I am Wiley W. Osborne, Chief, Plans and Programs Branch, Division of Solid Waste Management, Texas Department of Health. I am pleased to be able to offer these remarks on behalf ------- 41 1 of the Texas Department of Health and Mr. Jack C. Carmichael, 2 P.E., Director, Division of Solid Waste Management. Mr. 3 Carmichael is unable to be here today. The State Legislature 4 is in session and a number of legislative actions are pending 5 that require his attention in Austin. 6 Today, I wish to summarize our concerns regarding all 7 aspects of hazardous waste management from our perspective. 8 The State of Texas has, by legislation, delegated the authority 9 and assigned the responsibility for municipal solid waste 10 management to the Department of Health. The State Solid Waste 11 Disposal.Act further assigns to the Department of Health 12 authority and responsibility that extends to industrial solid 13 waste where it becomes involved with municipal waste in any 14 activity of collecting, handling, storing or disposal of 15 solid waste. 16 Our Texas Department of Water Resources has responsibilit; 17 for solid waste resulting from industrial, agricultural and 18 mining operations. 19 The State Solid Waste Disposal Act also establishes a 20 coordinating'mechanism between the Departments to allow 21 review of the actions of each Department as it may affect 22 the other. As the State Health Agency, we are responsible 23 for the.health aspects of all solid waste management activities 24 I mention our role in solid waste management so that 25 you may be able to better'evaluate our comments. ------- 42 1 Texas passed a meaningful solid waste disposal act in 2 1969 and over the past ten years we have built a workable 3 solid waste management program which we believe is second to 4 none. During our work with the EPA and the NGA, we have 5 based our comments on our years of experience dealing with 6 private interprise and municipalities. We have also stressed 7 the real world political problems in dealing with the general 8 public and State laws regarding public hearings and permitting * 9 requirements.' We -believe it is imperative that the EPA in 10 its promulgation of regulations under the RCRA recognize 11 the grass roots implementation problems by providing regulatory » 12 flexibility which allows States to continue on-going safe 13 and effective programs. As of this late date, we do not see 14 sufficient flexibility nor do we see an indication that the 15 EPA is willing to place trust in the-professional competency 16 of the States, although some flexibility has been added in the 17 notes of the latest oroposed regulations. 18 The basic problem always seems to come back to EPA's 19 basic approach, which in itself is inflexible. Packaging all 20 hazardous waste in one bag, regardless of degree of hazard 21 and then, attempting to regulate the single bag, has not worked 22 very well and cannot- orovide the needed flexibility. Today, 23 we wish to propose a re-arrangement of the past efforts to 24 orovide a more flexible framework which does not sacrifice any 25 significant regulatory control. ------- 43 1 We are concerned that closing of the comment period for 2 the rules being proposed on Sections 3001, 3002, and 3004, 3 prior to publication of proposed rules on Sections 3005 and 300 4 will not afford the States the-Proper opportunity to obtain 5 an overall view of the regulations prior to submitting comments 6 We therefore, request that comments continue to be 7 received on the proposed rules until all Subtitle C regulations 8 are proposed and comment periods are closed. 9 Within Texas there are 1156 municipal solid waste sites. 10 Fifty counties, of the 254 counties in the State of Texas, 11 comprise the twenty-five Standard Metropolitan Statistical Areas 12 of the State. (About 80 percent of the industries in the State 13 are located in these 50 counties.) There are 220 municipal 14 solid waste sanitary landfills operated in these 50 counties 15 which are capable of safely handling" waste which will become 16 hazardous under the proposed regulations. We accomplish this 17 through a mechanism of granting written approval on a site- 18 specific, waste-specific basis.- We consider the characteristics 19 of the waste and its volume and site conditions, design and 20 operations. 21 Mr- Thomas C. Jorling, in his January 20, 1979 memorandum 22 to solid waste directors, states, "a cost effective approach 23 . to industrial waste management requires effective State 24 regulatory programs under Subtitle D to supplement Subtitle C I proarams." We heartily concur in this statement. In Texas, it ------- 44 is particularly true because it is over 600 miles from many 9 industries to permitted industrial solid waste sites. Under the rules now being proposed, many sites would be closed to receiving, such waste, forcing the movement of waste over long distances, or the creation of new sites to accommodate in many cases, low volumes of waste. This will introduce an economic burden on industry that has grown to rely on municipal o solid waste disposal facilities, create a proliferation of q disposal facilities, increase transportation of solid waste and possibly result in the illegal disposal of solid waste that is presently being handled in a manner that protect the health and environment. Our assessment that these sites will be unable to cost effectively accept even the less hazardous waste generated by private enterprise, results from a discussion with several of the cities' solid waste managers. Their unanimous response is that cities will not particioate i-n hazardous waste activities as presently proposed. Although this strong reluctanie has not been apparent in previous workshops and public hearings, we find that the very reasons city officials do not olan to be involved in hazardous waste are also the same reasons they are reluctant to take a strong public position regarding prooosed 23 M regulations. Elected officials are concerned with the political inroact of advocatina acceotance of hazardous waste in oubliclv ov/ned < ------- 45 municipal solid waste sites . One of our city solid waste managers states, It would be political suicide to even condone acceptance of hazardous waste, much less subject ourselves to a public hearing required to obtain a permit." It is near 5 impossible to convince the public that the issue is limited to a truck load of rotton lemons, a few drums off.spec, vinegar outdated, treated seed grain, or a load of sheet rock. Hazardou Q waste connotes all the evils that are publicized by the "Love ' Canals." The public is influenced by such things as the political cartoon I have handed you and not the more rational editorial that appeared in the same issue of the Austin . American-Statesman. Unfortunately, RCRA places the hazard label on.all solid waste that is a subject of these regulations. These proposed regulations, in identifying hazardous 16 waste and establishing standards for hazardous waste management 17 fail to adequately provide for the flexibility needed to over- 18 come the objectives of city officials whose cooperation is 19 so sorely needed to obtain -a cost effective approach to 20 industrial waste management as pointed out by Mr. Jorling. 21 The flexibility proposed in the regulations, by defining 22 generators excluding retailers and farmers, setting arbitrary 23 ... quantity limits and allowing exceptions in treatment, storage 24 and disposal standards, based on demonstration by the owner/ 25 operator that less standards, are acceotable, does not adequately ------- 46 1 address our concern. When we discuss eliminating retailers 2 as a generator, we accept the fact that many retailers potentialJ.y 3 accumulate large volumes of solid waste that we would not want 4 placed in a' municipal landfill without adequate controls. 5 When a generator is defined by the quantity.of waste generated 6 alone, we are faced with a similar dilema, We can always find 7 the exception where the disposal of some waste may be acceptable 8 at one hundred or even a 1000 kg/month, we would hesitate to 9 accept other waste at much less quantities. . 10 At the same time, we see problems requiring the same 11 standards for treatment, storage or disposal of all. hazardous 12 waste.regardless of quantity, concentration and effects. The 13 notes accompanying the standards fail to provide the needed 14 flexibility. 15 My remarks today and during the next two sessions 16 and our more detailed written comments being submitted at 17 a later date, are intended to outline acceptable alteratives, 18 that can be incorporated into these proposed regulations, that 19 meet the requirement of the Act and provide what we see as 20 necessary to the implementation of a cost effective hazardous 21 waste management program. This involves a basic requirement 22 to divide hazardous waste into sub-sets, based on the degree 23 of hazard. We are recommending identifying two sub-sets 24 of hazardous waste, establishing standards for generators, 25 transporters and owner/operators commensurate with the level ------- 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 of hazard associated with each set o.f waste. In our letter of July 5, 1977 .commenting on draft regulations for Section 3001, we emphasized the need to identif two levels of hazardous waste. We reiterate that request today My remaining comments relate to Subpart A of 40 CFR 250 and recommendations related to the requirements of Section 3001, RCRA. Comments Subpart A: We agree with the preamble statement that Section 3001 is the keystone to Subtitle C. We find it difficult to discuss Subpart A without relating to Subpart B and Subpart D. And even more difficult, discussing Suboarts B and D without involving A. The premise of our comments on 40 CFR, Part 250, Subpart A, is to establish a provision within the regulation that would allow the Regional Administrator or the authorized state to classify hazardous waste into two sub-sets. We prooose the * use of the terms Primary Hazardous Waste and Special Waste. Primary Hazardous waste refers to the mo-re noxious waste, while Special Waste is used to refer to waste that meets the hazardous criteria, but there is no reasonable probability of significant adverse effect on human health or the environment unless the waste is improperly managed.. The Congress, in defining hazardous waste in Section 1004 (5) of the Act, establishes the requirement for classifying ------- 48 1 hazardous waste by its effect and potential hazard resulting 2 from improper management. 3 We propose that the following definition be incorporated 4 into Section 250.11: 5 (b)(3) "Hazardous Waste" has the meaning given in 6 Section 1004(5) of the Act as further defined and identified 7 in this Subpart. 8 (i) "Primary Hazardous Waste" means a sub-set of hazardous 9 waste which causes, or significantly contributes to, an increase 10 in mortality or an increase in serious irreversible, or 11 incapacititating reversible, illness. 12 (ii) "Special Waste" means a sub-set of hazardous 13 waste which poses a substantial present or potential hazard 14 to human health or the envioronment when improperly treated, 15 stored, transported, or disposed of, or otherwise managed. 16 It should be emphasized that the proposed definitions 17- will not result in any. loss of control. • All waste will be 18 subject to manifesting, but special wastes on a selected 19 basis may have greater exempt quantities and/or may not require 20 as rigid or inflexible construction standards. 21 Primary hazardous waste will include waste that have an 22 accute toxicity criteria with an LD50 value equal or less 23 than 500 mg/kg or an LC50 value equal or less than 100 ppm. 24 -Waste characterized by significant persistence in the 25 environment, bioassumulation, carcinogenicity, mutagencity , ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 49 or teratogenicity would be included under primary hazardous waste. Hazardous metals in Section 250.13(d) whose extract levels contain more than 100 times the EPA National Iterim Drinking Water Standards shall be primary hazardous waste. Under Section 250.13, our proposal is to use the followin characteristics of hazardous waste- to describe the characterist of special waste. 250.13(a) Ignitable waste is a special waste if a representative sample has the characteristics of subsection (1) (i) and (1) (iij . 250.13(b) Corrosive waste is a special waste if a representative sample has the characteristics of subsection (1) (i). 250.13(c) Reactive waste is a special waste if a representative sample has the characteristics of subsection (1) (ii). 250.13(d) Toxic .waste is a special waste if the acute toxicity LD50 is greater than 500 mg/kg or the LC50 is greater than 100 ppm. Heavy metals in Section.250.13(d) whose extract levels contain less than 100 times the EPA National Interim Drinking Water Standards shall be considered special waste. The heavy metals classification is consistent with the final report of the Hazardous Waste Management Task Force of the National Governors' Association. Because of their quantity, or characteristics, snecial wastes may become a nrimary waste ------- 50 1 if designated by the appropriate regulatory agency. 2 Examples from the list of hazardous waste in Section. 250. 3 Subsection (a), that would normally be special wastes are: 4 . 1. Waste nonhalogenated solvent (such as methanol, 5 acetone, isopropyl alcohol, polyvinyl alcohol, stoddard 6 solvent and methyl ethyl ketone) and solvent sludges 7 from cleaning, compounding milling and other processes 8 (1,0); 9 2, Waste lubricating oil (T,0); 10 3= Waste hydraulic or cutting oil (T,0); 11 4. Paint wastes (such as used rags, slops, latex 12 sludge, spent solvent) (T,I,0); 13 5. Waterbased paint wastes (T). 14 Infectious waste is a hazardous waste is it is included 15 in Class A or class B, as classified by the Commission on Hosp- 16 ital certification that will be referenced in the final report 17 of the Hazardous Waste Management Task Force of the National 18 Governors' Association (NGA). Infectious waste is a saecial 19 waste if it is Class B, as classified by the Commission on 20 Hospital certification. We noted, at the hearing in St. Louis, 21 that a number of industry and State agencies spoke to the need 22 to apply different standards to different levels of waste 23 quantities, concentrations and -effects. The National Governors' 24 Association Hazardous- Waste Management Task Force unanimously 25 supoorted this concent. The EPA regulations do not orovide ------- 51 1 sufficient flexibility for safe and realistic management of 2 hazardous waste primarily because- EPA does not have flexibility 3 in its criteria for identification. Significant problems will 4 be encountered in the application of controls unless the issue 5 of the level of hazard is addressed. 6 A workable system for the identification of hazardous waste by level of hazard has already been developed by the Department of Ecology of the State of Washington. The Texas Department of Health is actively working upon details of a system to achieve this purpose. 11 What we propose to identify as special waste is not 12 removed from the hazard category, but offers an opportunity 13 to make a simple variance in generator requirements and standard for the treatment, storage or disposal. 15 The special waste identified by the characteristics we 16 have chosen, although representing a lower level of hazard, 17 should be controlled through the solid waste management chain. 18 However, as will be evident from our comments oft Subpart B 19 and D, we would on a site-specific basis vary the standards -20 for special waste from those currently proposed to regulate 21 all hazardous waste. 22 Removing or minimizing the stigma of the term "hazard" 23 and identifying more flexible standards for a large portion 24 of the hazardous waste stream and allowing written approval 25 for special waste in lieu of repermitting will make available ------- 1 2 3 4 CHAIRPERSON FRIEDMAN: Thank you very much, Mr. * Osborne. Will you take questions from the panel? 6 MR. OSBORNE: Yes. ' MR. LEHMAN: Mr. Osborne, part of your commentary Q 0 involves the recommendation for sub-dividing the regulatory 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 52 municipal solid waste landfills for the continued safe disposal of a majority of the hazardous waste stream. Thank you. definition of hazardous waste into two sub-sets. The question is, under the current or regulations from the State of Texas, do you sub-divide the hazardous waste by regulation' now into more than one set, and if so, how does that work? MR. OSBORNE: Yes, we don't have a definition of liazardous waste. We have adopted in our statutory provisions what EPA will define as hazardous waste. In our industrial waste, it is classified as a Class I, II, or III waste, and, of course, municipal waste has no further classification other than to suggest municipal. We do have regulatory controls over industrial waste through the Class I,-II, III designation. MR. LEHMAN: Could I pursue that just a little bit. Which is the most hazardous' industrial waste? Is Class I, the most hazardous? MR. OSBORNE; Yes. MR. LEHMAN: What is the distiction between Class I and Class II? ------- 53 1 MR. OSBORNE: I think that the basic division is 2 on the LT50 milligrams per kilogram. 3 MR. LEHMAN: If the distinction then is based on 4 LT50, then it is related to some analysis of the waste for 5 a chemical constitutent? 6 MR, OSBORNE: Yes. 7 MR* LEHMAN: How does one account for the - 8 concentration of those materials in the waste under that 9 system? 10 MR. OSBORNE: I think what it is, Mr. Lehman, 11 going back to my earlier remark, the Department of water 12 Resources regulates industrial waste. We regulate any industrial 13 waste that goes into a municipal landfill. If it is in the 14 Class I category, the owner/operator of that site, must by 15 our regulation submit a request to receive that specific waste, 16 and then we will evaluate that specific waste. It is not 17 open to all Class I industrial waste, but it is on a -waste- 18 specific and site-specific basis. 19 MR. LEHMAN: So what I gather is that you have no 20 basic definition of hazardous waste, and everything is done on 21 a case-by-case basis? 22 MR. OSBORNE: Yes. Now, it would be in a form of 23 a special waste category that we would select from your list 24 of hazardous waste. 25 MR. LINDSEY: One more question on a slightly ------- 54 different topic. You indicated that there is roughly some 2 220 plus or minus municipal land fills in Texas which you 3 permit on a case-by-case basis to dispose of certain wastes which would fill the bill of hazardous under our regulations, and you felt those particular facilities would close as a result of these regulations. It seems to me there are three reasons why such a facility might close. One, because they don't meet the minimum standard we have, or can't demonstrate equivalency, 9 or (2) because of the regulatory burden they might chose not 10 to, and (3) the public participation problem of being involved 11 with hazardous waste. Is-that what you were referring-to when 12 you talked about political problems? 13 MR. OSBORNE: Yes, I think so. 14 MRy LINDSEY:. In your system, let me ask you a 15 question about that. If that is the basic problem with regard 16 to these facilities 'and the reason why the counties or cities, 17' whoever controls them, -would chose not to receive hazardous 18 waste, how do you handle that then in Texas, because you do 19 permit those facilities, you said, to handle certain of these 20 wastes. Why would our regulation be any different? 21 MR. OSBORNE: In our regulation, we have the 22 requirement for a permit. Well, in the Department of Health, 23 all municipal solid waste facilities go through a public hearinc process under our State Administrative Procedures Act. Any 25 waste that is in this too one, that is our highest order of ------- 55 I site, provides for the Acceptance of certain classes of 2 industrial waste, based.-on a written approval from the Departme 3 of Health. Now, we do not go back through another permit 4 procedure. 5 MR. LINDSEY: I still don't think I follow that. 6 Forihese 220 municipal sites, they have been through a hearing, 7 right? 8 MR. OSBORNE: Right. 9 MR. LINDSEY: And in that hearing, it came out 10 they would be receiving on a case-by-case basis certain. 11 industrial waste? 12 MR. OSBORNE: Yes. It is understood. 13 MR. LINDSEY: That is Class I waste? 14 MR. OSBORNE: It is understood they may. 15 MR. LINDSEY: Well, I fail to see how our regulatior 16 would impose any additional burden because of public uproar 17 then what you are already doing? 18 MR. OSBORNE: I think what this would require, 19 would be to go back to a public hearing process, and using 20 the term hazardous waste, would be of public concern. We are 21 not proposing to take this special waste out of the hazardous 22 category. We would propose that this would be defined, to 23 include only the least hazardous waste. There is a number of 24 agencies that have spoken to the need to define waste by level 25 of hazard, and we feel this is absolute necessity that you can' ------- 56 have a requirement to have all sites meet strict requirements 2 just to receive some of the least hazardous waste. 3 MR, LEHMAN; Mr. Osborne, the way I understood you to say, you are proposing, that the term principal hazardous waste be used for materials that have an LD50 of less than 500 milligrams per kilogram; is that, correct? MR. OSBORNE: Yes. • ' MR. LEHMAN: And that is the same definition that you use for Class I industrial waste at the present time 10 in Texas? 11 MR. OSBORNE: Yes, it is not defined in the 12 regulations, but I think they use that as a guideline. 13 MR, LEHMAN: Well, let's'assume that is the same guideline, and yet you are saying, and from what I can under- 15 stand from what you are saying then, that Class I waste in 16 Texas, you have less problem with public reaction by calling 17 it a Class I industrial waste then by calling it a hazardous 18 ! waste, even though the basic criteria is the same? That is 19 what you are saying? 20 MR. OSBORNE: I think the connotation of hazardous 21 has gotten connected with the Class I waste. I am not that 22 familiar with the Department of Water Resources Ooerations, 23 but I know they have had a number of difficulties in trying 24 to permit a Class I hazardous waste, because of public 25 opposition. I think some of this we might be able to discuss ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 57 in more detail when we get into Subpart D requirements. CHAIRPERSON FRIEDMAN: Thank you very much. Our next speaker will be Jim Rouse from Envirologic Systems, Inc. MR. JIM V. ROUSE: By way of clarification, would you prefer if I addressed strictly 3001 today, and come back subsequent days? CHAIRPERSON FRIEDMAN: You have ten minutes, You can do whatever you want. MR. ROUSE: Let's first off go to 3001. I am grateful for the chance to address this hearing to present my views on the effect the regulations, proposed December 18thl-1978 under the Authority of Subtitle C of the amended Solid Waste Disposal' Act would have on the mining industry. These comments are not prepared from the viewpoint of their-specific impact on any single facility, but rather reflect the views of an individual with a 16 year history with the EPA and its predecessor agencies as a mining waste specialist, now serving as environmental consultant to a number of mining operations. The views offered thus draw on experience (resume attached) with regulatory agencies and with industry, and are presented in an attempt to develop fair and workable regulation which will not needlessly damage the industry. I recognize the difficult task facing the agency, to prepare far-reaching regulations under a short time limit on ------- 58 the basis of very limited data. I also recognize, from reading 2 the regulations, that the drafters had little or riot working knowledge of the mining industry and its practices. I would • recommend that the agency•personnel make a tour of representative sites prior to the preparation of'the final regulations. I stand ready to assist in the organization and conduct of such a tour. 8 I had been encouraged by the approach taken in the Q February 6, 1978 proposed "Solid Waste Disposal Facilities", in that recognition of the variations in site conditions and waste characteristics were allowed, and an allowance made 12 for the tremendous capacity of the vadose zone to sorb metals or radionuclides from percolating vadose water. This is similar to the approach taken by the recently" developed New Mexico -Environmental Improvement Division ground-water protection regulations. i then was very disappointed to find that the Subtitle C regulations did not take this progressive approach, but rather fell back to a single approach incorporating rigid design criteria, which does not recognize variations in waste or site characteristics, or the sorbtive ability of the vadose zone. As they now stand, the regulations would require the 23 same care for radium in a Florida gypsum on limestone, with 24 no vadose zone and in a sandstone waste rock der>osited on 25 shale in central Utah, with a 2000 ft. thick vadose zone. ------- 59 1 The regulations should be written- to allow for waste and site 2 characteristic variations. 3 The design criteria are copied from other regulations 4 such as the Texas Railroad Commission, and do not reflect 5 demonstrated need, or even the practicability of measurements. 6 I would recommend that specific design criteria be omitted, and 7 the operator be permitted to tailor the design to the specific 8 site and waste conditions. 9 The designation of "hazardous waste" is highly subjective 10 and lacking in valid demonstrated hazards. There are discrep- 11 ancies between the approach specified in the preamble, and 12 the wastes listed in 250.14. For example, the preamble states 13 wastes will only be listed on the basis of their, ignitability, 14 corrosivity, reactivity, or toxicity, but the'first five 15 wastes listed under 250.14 (b)(2) are listed because of their 16 proported "radioactivity",• which is the subject of a notice 17 of proposed rulemaking.- Thus it is obvious that EPA has 18 developed a de facto criteria for radioactivity, a criteria 19 so stringent as to include almost all waste generated by the 20 mining industry. We would recommend omission of the first 21 five wastes in 250.14 (b). (2) until a reasonable radioactive 22 limit is developed. 23 The criteria for a "corrosive" waste is defined by 24 250.13 (b) to include any aqueous was.te with a pH equal to or 25 less than 3.0. This would include manv streams of -Rocky ------- 60 1 Mountain spring water draining areas of sulfide mineralization, . 2 which frequently have pH values of 2.3 to 2.8. It would 3 also include Coca-Cola and other similar soft drinks. A value 4 of 1«5 pH units would be more reasonable. 5 A "reactive" waste is specified by 250.13Ccj to include 6 "cyanide or suLfide bearing waste which can generate toxic 7 gases, vapors, or fumes when exposed to mild acidic or basic 8 conditions." This definition is vague, does not meet the 9 intent of 250.10 (a), and would probably include virtually all. 10 mining waste, depending on how tightly one applies the- 11 definition. More definitive criteria for reactive wastes are 12 required. 13 Toxic wastes are defined on the basis of an arbitrary 14 Extraction Procedure, with no attempt to relate the results 15 to any real hazard. Two of the listed elements (arsenic and 16 selenium) are mobile under oxidizing alkaline conditions, 17 but not under acidic conditions. This could lead to a false 18 sense of security, in cases where selenium-bearing waste was 19 exposed to alkaline conditions. On the other hand, other 20 metals might be mobilized under the Extraction Procedure but 21 not under expected site conditions. The testing should 22 duplicate expected field and waste conditions. 23 Many of the "wastes" listed i-n 250.14 (b) 02) are not 24 wastes at all, but rather are returned to the process. Their 25 inclusion will needlessly generate requirements of record ------- 61 1 keeping without environmental advantages. Examples include 2 copper smelter dusts, etc. This again demonstrates a need to 3 know the industry. 4 Section 250.15 provides a mechanism to demonstrate that 5 a waste is outside the arbitrary EPA criteria, and hence should 6 not be considered as hazardous. Within this section, 250.15(5) 7 provides a mechanism to demonstrate that a waste is not 8 radioactive (a non-existent criteria under 250.12).. The 9 waste must contain less than 5 picocuries per gram radium, 10 which automatically means'that all marine shales, granites, 11 most brick's, etc, are "hazardous". In fact, almost any basement 12 excavation in Denver results in the generation of a "hazardous" 13 waste. 14 If concentrations are to be used, a limit of 25 5o 30 S • • • ' 15 picocuries per gram would be more consistent with the intent. 16 However, a better approach would be to use the leach tests, to 17 see what amount of the radium- was subject to leaching, and 18 hence available to the biosphere. Such tests should be run prior 19 to regulations being drafted. 20 The definitions for "Attenuation", "Endangerment", and 21 "Underground Non-Drinking Water Source", found in 250.41, 22 indicate that, at one time, the Subpart D regulations envisioned 23 an aporoach similar to the Sanitarv Landfill Criteria, with 24 recognition of the attenuation provided by vadose and saturated 25 zone sorbtion, and allowance for naturally-occurring ------- 62 1 contamination. Unfortunately, these concepts were omitted 2 from the proposed regulations, and replaced by a rigid set of 3 design criteria which do not prov-ide for variations in site 4 or waste characteristics. In my opinion, all necessary 5 design criteri-a are contained in Section 250.42-1. Specific 6 design should be left to the various operators, with allowance 7 made for the concepts as expressed in the definitions of 8 "allenuation", "endangerment", and "underground Non-Drinking 9 Water Source". 10 Many of the subsequent sections .of Subpart D are clearly 11 not applicable for mining1 wastes. Their inclusion under the 12 requirements of Section 250.46 demonstrates a lack of under- 13 standing of the mining industry. .Again, we suggest an extensive 14 tour of representative facilities prior to preparation of the 15 final regulations, and offer our assistance in arranging for 16 such a tour. 17 There is no environmental advantage associated with the » 18 securit-y requirements, although there are significant environ- 19 mental and economic disadvantages. The material inside the 20 fence is identical to thousands of tons of similar rock outside 21 the fence. Similarly, there is no need for a daily inspection 22 to see that the rock is still inside the fence. The closure 23 and post-closure requirements are unnecessarv except for truly 24 hazardous materials, which do not include mining wastes. 25 in closing, I recognize that the agency was faced with ------- 63 1 a tough job on preparing far-reaching regulations covering'a 2 number of industries they did .not understand. Perhaps time 3 precluded becoming familiar with the industry prior to prepa- 4 ration of -the draft regulations, but it is hoped you can 5 become familiar with the industry before you finish the• 6 ' final regulations. I would be glad to assist in this familiar- 7 ization. It is important that you understand the wide 8 variation in site'and waste characteristics, and provide 9 sufficient flexibility to design around these variations, makinc 10 use of the sorbtive capacity of the vadose zone. 11 Thank you very much. 12 CHAIRPERSON FRIEDMAN: Thank you very much. Will 13 you take questions from the panel?" 14 MR.- ROUSE: Yes, I will be glad to. ^ 15 MR. CORSON: Just wondering, in terms .of -your 16 concept of site-specificity for definition, were you looking 17 at a floating system, or were you advocating the same sort of 18 thing that Mr. Osborne did, where we put in- a- special category, 19 subject to less, or whether in fact that this takes it.out of 20 the system entirely. I am wondering'what method of controls 21 you would advocate? - . 22 . MR- ROUSE: We will be.addressing on Friday some 23 points we have in mind under the Section 3004, the standards 24 aoolicable to disposal sites. However, the point I am trying 25 to make at this time under 3001 is, that manv of the wastes ------- 64 I you are listing are listing are not truly'hazardous. The 2 criteria that you have you promulgated are extremely arbitrary, 3 and I have not seen a demonstrated hazard associated, for 4 example, with the pH of Coca-Cola, but rather I think you 5 need to really start seeing what the nature.of this material 6 is with respect, not only to the waste characteristics., but 7 to the site hydrogeology, because•there is a vast difference 8 between the radium associated with the phosphate byproduct 9 of gypsum in Florida, and the same amount of radium associated 10 with a sandstone deposited on 5,000 feet of shale in Central 11 Utah, where it rains four inches a year. Each approach needs 12 to be taken. The site conditions need to be taken on a 13 site specific condition, and you would get around the problem 14 of the blanket value for radium, for example, if you did use 15 a testing procedure wherein, you would see a portion of radium 16 that would be subject to leaching and movement into the biosphere 17 CHAIRPERSON FRIEDMAN: Thank you very much, Mr. 18 Rouse. We will take a short recess. 19 " (Whereupon a short recess was taken.) 20 CHAIRPERSON FRIEDMAN: Our next speaker will be' 21 Clara Lou Humphrey. ' 22 MS. CLARA LOU HUMPHREY: Good morning, my name is 23 Clara Lou Humphrey and I am speaking for the League of Women 24 Voters of Colorado. 25 The League of Women Voters of Colorado has requested ------- 65 1 permission to speak at these hearings because of our special 2 concern. The dangers of inadequate hazardous waste handling 3 were apparent to us long before there was nationwide interest 4 in the subject. Residents not far from this building had their 5 water services contaminated and subsequently abandoned because 6 because of disposal practices at the Rocky Mountain Arsenal. 7 Wildlife and cropland were also harmed when injection was • 8 used as a remedy, the procedure caused the "Denver Earthquakes" 9 and had to be stopped. Colorado and Utah are currently involvec 10 in debate over the transportation-and disnosal of the "Weteye" 11 bombs currently stores, and in some cases leaking, at the arsenc 12 The Colorado Department of Health estimates that in Colorado 13 there are approximated 6,311 possible generators of hazardous 14 waste; 195 possible transporters of hazardous waste and 315 15 possible processors and/or disposers of hazardous wastes. 16 A bill (SB 121) introduced this session in the Colorado 17 legislature -states "currently wastes which are hazardous are 18 being disposed of indiscriminately in sanitary landfills in 19 the state without regard to the location of such landfills or 20 the bydrology or geography of the landfill site." 21 The League of Women Voters of Colorado under an EPA 22 grant, presented a seminar on hazardous waste last summer. 23 The purpose was to raise awareness of the problems and to 24 explore some of the ways they might be solved. The overriding 25 immediate problem identified at the seminar was the lack of a ------- 66 1 definition of what will be considered hazardous waste and 2 uncertainty as to what the standards and regulations will be.. 3 We believe that EPA should set the standards and agree that the 4 states are the preferred level of government for implementation 5 of this program, so long as they meet the minimum standards. 6 We have both state and national positions that the states 7 should be allowed to be more stringent. We urge you to adopt 8 these standards and regulations as soon as possible 'so that 9 the states may set their machinery in motion to implement. 10 Our members found it very difficult to attend the public 11 meetings held by the state and the EPA prior to this hearing 12 and would suggest at least one of them should have been held 13 in the Denver metro area. We also suggest that the structure 14 of the hearings makes it very difficult for people to reach 15 an understanding of the total picture. Shorter sessions, 16 perhaps three days of the same general program might make 17 citizen participation more meaningful. 18 3001 - In terms of citizen oarticination we request that 19 oublic notice be required whenever the results of a demonstration 20 of non-inclusion in the hazardous waste system results in the 21 material being excluded. Perhaps it could be patterned after 22 the water discharge permit system in which there is public 23 notice soliciting public comment. We do not feel that a person 24 must show that he is aggrieved, but only that there is a 25 reasonable doubt as to the public health or the environmental i ------- 67 1 effects of the decision. This would allow for the possibility 2 of new data on harm to human health to be introduced. 3 3002 - We are uncomfortable with the 100 KG exemption 4 as proposed although it may make sense to control the large 5 amounts first. Any exemptions should be based solely on the 6 protection of human health and the environment. Once the 7 orogram has been implemented as proposed,-a combination of 8 option.3 and 5 might be initiated. The exemption might be 9 based on the degree of hazard with lesser administrative 10 requirements for the generators of smaller amounts. We support 11 the requirement for annual renewal of exemption. Since 12 Colorado has a history of hazardous waste accidents we would 13 support a requirement for contingency spill plans for generators 14 which store hazardous waste less than 90 days. The "cradle 15 to grave" concept should include inclusive contingency plans. 16 The plan may be part of the contingency or emergency plan of 17 the generator. 18 3004 - We support the use of the Human Health and 19 Environmental standards and of design and operating standards 20 as a way to assist the regulated community. We do not support 21 the frequent use of notes authorizing deviations. We object 22 to the phrase at the time a permit is issued "in the notes 23 because of the effects on performance of such variables as 24 weather, instruction and makeup of the waste stream" The time 25 a permit is issued may not be representative of conditions. ------- 68 1. Floodplain: The act of building a structure in a 3 floodplain would cause that floodplain to change. If a 4 * facility is allowed in the floodplain, what protection from flooding is provided for those structures put in jeopardy by the new floodplain boundaries? 2, Recharge zone of sole source aquifer: any exemptions g must be able to demonstrate no endangerment of the sole source q aquifer at any time in the future. Special Wastes:' Colorado currently has problems with power plant fly ash and with mining wastes. We're concerned 12 about how you will handle- those wastes. " Our position is that the federal government should v encourage recycling of post-industrial and post-consumer wastes. We support assistance for recycling facilities and *° waste exchanges. *•' Thank you. 18 CHAIRPERSON FRIFDMAN: Thank you verv much, Mrs. 1Q Humphrey. Would you take questions from the oanel? 20 MS. HUMPHREY: If there are any cmestions. 21 " MR. LIHDSEY: Ms 7 Humphrey, we talked about, or 22 you talked about being uncomfortable with the small — what 23 we call the small quantity exclusion, and suggested that to 24 some extent that probably should be reduced , but to make sense , 25 we should have somewhat less administrative burden on generators ------- 69 1 category. I guess the problem I have is in setting up the 2 so called administrative controls, that is the recordkeeping 3 and manifest, if you will. We try to cut that to a bare 4 minimum, and you will find that that- we in fact have less 5 recording and so forth than many of the states which already 6 have programs. I wonder, with the further cuts,.if we were 7 to incorporate many many more small generators, what controls 8 might make sense to cut? We couldn't cut out the manifest, 9 for example, or we wouldn't have any control. I wonder if 10 you have any thoughts on that? 11 MRS. HUMPHREY: First of all, I have not' seen all 12 the forms that the various and sundry states have, so I am 13 only responding to your proposed guidelines, and the question 14 that was in there. Our feeling is, there will be probably a 15 need for more naper work for a larger producer; that it is 16 possible that there may be a form like the IRS, the short form 17 for those that generate small quantities. I would have to 18 look at the specific form to decide. We just wanted to 19 support consideration of having some shorten version or easier 20 method. 21 MR. LINDSEY: If you could in your written comments 22 take another look at the control form and the annual reporting 23 form of the miscellaneous forms that were involved with 24 International shiraments and the exception form when a manifest 25 is not received, and give us any ideas you may have on what you ------- 70 think might be acceptable for smaller facilities and that would 2 not be required for smaller facilities that might be necessary 3 for bigger quantities. 4 -MS. HUMPHREY: Just a wild guess. I would suspect that some of the generators of smaller quantities would probably be more helpful. We are especially concerned with more hazard- ous waste that any quantity being tracted very carefully. MS. . SCHAFFER: I have a question. Can vou give us an example of what you mean by inclusive? What kinds of things should be included or should we require a contingency plan for generators, if not now, perhaps in your written comments, we would really appreciate that. MS. HUMPHREY: Well, again, I am responding to a specific note in the guidelines saying that you were consider- ing this, and we would certainly would have to have a thirty day oeriod where there is no required olan for emergency. Our history here is not real good of things staying safe while they are being stored. MS. SCHAFFER: If you could tell us in your written comments the kinds of things we should require in the contingency plan, we would really aopreciate that. 22 CHAIRPERSON DARRAH: Thank you. Our next" sneaker is Dr. Carl Johnson of the Jefferson County Health Department. 2 Is Dr. Johnson here? Is Howard Runion of the American Petroleun 25 Institute here? ------- 71 MR. HOWARD RUNION: Good morning, my name is Howard 2 Runion and I am currently employed ' as manager of the Gulf 3 Oil Corporation, Industrial Hygiene and Radiation Department, Pittsburg, Pennsylvania. My formal graduate training includes a M.A. in Zoology and a MPH in Environmental and Occupational Health. I am here today on behalf of the American Petroleum Q 0 Institute (API) to discuss the implications for inudstry and the country of the proposed regulations under Section 3001 of the Resource Conservation and Recovery Act (RCRA) as published 11 in the -Federal Register, on December 18, 1978. 12 I am joined today by Dr. Ray Harbison, a Toxicologist at 13 Vanderbilt Medical Center, Mr. Jeff.Jones, a regulatory policy 14 analyst with Industrial Technological Associates/ Inc., Mr. 15 John Fitzpatrick, an attorney with Gulf Oil Company, Mr. 16 Stephen Williams, an attorney and staff member of the American 17 Petroleum Institute and Dr. Steven Swanson, an Economist and 18 staff member with API. 19 - Since the enactment of RCRA, API has been participating 20 in the development of the proposed regulations through the 21 submission of comments to and conferences with EPA personnel. 22 We have been impressed by the serious commitment of the members 23 of the Office of Solid Waste to prepare a regulatory program 24 which addresses this complex health and environmental issue. Furthermore, we have appeared in court to support EPA in its ------- 72 1 attempts to obtain the requisite time to promulgate realistic, 2 workable regulations. However, despite the time granted by 3 Judge Gesell, API has had a scant three months to review 4 intensively this new and comprehensive program. The thoughts 5 we share with you today require further refinement, expansion, 6 and reinforcement. We shall seek relief in the form of 7 additional time for specific projects underway, however we will 8 have substantial input ready for EPA by the March 16, 1979 9 deadline. 10 API views the Resource Conservation and Recovery Act 11 as a logical extension of other environmental legislation for 12 control of environmental pollution and we are in accord with 13 the mandate of EPA to regulate the disposal, handling and 14 storage of industrial residues. The primary purpose of our 15 presentation today is to.present to the EPA our concerns about 16 the process which EPA has proposed to designate industrial 17 residues as hazardous wastes. 18 We are particularly concerned that EPA, in a sincere 19 attempt to develoo "simple" and "inexpensive" methods for 20 waste classification, has adopted an approach which"-when applied 21 will so dilute industry's and government's scarce resources 22 as to compromise efforts to eliminate the serious environmental 23 hazards. API believes that Congress in enacting RCRA, intended 24 that a flexible program be develoned which (1) identifies 25 wastes as "hazardous" based upon the degree of risk they oose 4 ------- 73 1 to human health and the environment, and (2) tailors control 2 efforts that are commensurate with the degree of risk and 3 which can be expected to reduce that risk. Moreover, Congress 4 indicate that the "hazard" a waste presents is a product of 5 "its quantity, concentration, or Physical, chemical or infecti- 6 ous characteristics." (Section 100405)). 7 EPA has elected to focus its regulatory scheme on the ° physical and chemical characteristics of waste, thereby fails 9 to give proper consideration to characteristics such as volume 10 and degradability which are certainly germane to an assessment 11 of risk. Furthermore, for those wastes listed the Agency 12 has neither demonstrated with field exnerience. nor provided 13 documentation with epidemiological studies, that the designated 14 wastes have significantly contributed to an increase in 15 mortality or an increase in serious irreversible or incapacitat- 16 ing reversible illnesses. Instead they have relied upon other 17 statutes or regulatory programs, and inconclusive incidents 18 of "harm" to conclude that the wastes listed "pose a substantial 19 present or potential hazard to human health or the environment." 20 Under the proposal being advanced by the Agencv in 21 Section 3001, the definition section, most, if not all, of the 22 petroleum industry's'wastes will be designated as hazardous, 23 Our industry, like many others will then be forced to comply 24 with a series of oreordained, costly compliance standards which 25 do not differentiate degrees or tvoes of hazard posed bv these ------- 74 wastes. The overly broad designation scheme which EPA has proposed results at least in part from the Agency's failure to consider seriously other factors, bearing on hazard determi- nations such as degradability, persistence, dose and probability of exposure. For example, exoosure. considerations are necessary 7 to determine which wastes "significantly contribute to an 8 increase in mortality and nose a substantial hazard "to human 9 health." 10 Section 3001 EPA has: 11 Identified a group- of characteristics (i.e./ toxicity, 12 corrosivity, ignitability and reactivity) to determine 13 whether a waste is hazardous; 14 Prescribed a series of tes-ts to determine whether a 15 waste possesses these characteristics; 16 Listed a series of wastes which they claim possess some 17 or all of these characteristics and then others for 18 which tests have hot been prescribed (eg. mutagenicity, 19 teratogenicitv.) 20 We cannot determine whether the wastes which are listed 21 have failed any of the orescribed test nor any other test for 22 characteristics for which tests have not been described. Finall 23 test results for the puroose of determining whether a waste is 24 hazardous are not used to establish a differentiated degree of 25 risk. The- disregard for deqree of risk stems from a concentual ------- 75 1 flaw, which is that the proposed regulations do not consider 2 exposure. 3 In light of these criticisms, we feel it is incumbent 4 on us- (the industry) to offer positive suggestions for correctin 5 the deficiencies we have identified. For that reason, I'd like 6 to spend a few moments describing -some of the critical elements 7 of alternative approaches to hazardous waste regulations. We 8 are continuing to refine these alternatives as the'March 16 g deadline approaches so I can only speak generally today.' 10 In broad terms, the API alternative deoends on a risk 11 assessment approach to regulation. Our risk assessment proced- 12 ures provide in the first phase for a ranking of notentially 13 hazardous wastes according to chemical and toxicological risk. 14 Rather than a simplistic hazard/no hazard designation, API 15 oroposes to distinguish more carefully among wastes of widely 15 varying hazard. We believe our aporoach more fully exoloits 17 the results of testing by taking into account all of the 18 information generated by the prescribed series of tests, in 19 order to differentiate among degrees of risk. As currently 20 prooosed EPA uses the tests only to determine whether a waste 2i passes or fails a hazardous/not hazardous determination. 22 In the second chase of our alternative EPA would combine 23 what I will call exposure factors with first chase results. 24 By exposure factors I mean particular site, operational, and 25 management factors. Our objective in this chase is to overcome ------- 76 1 EPA's across-the-board application of the 10-fold dilution 2 factor as a substitute for adequate exposure analysis. We 3 intend to develop and justify a system that provides for varyinc 4 exposure factors. Additionally, we intend that this type of 5 exposure, analysis will be utilized for all wastes whether they 6 are listed or not. 7 Under the API scheme, once the overall hazard assessment 8 is complete, EPA would tailor the regulatory requirements to 9 the degree of hazard. In other words, just as API proposes 10 a scale for hazard assessment, we also envision a system that 11 varies the stringency of regulatory requirements according 12 to the degree of hazard. 13 In addition, to the overall risk assessment approach API 14 will also propose a procedural adjustment to EPA's listing 15 process that overcomes the problems discussed earlier. 16 To correct these problems API suggests that EPA clearly 17 identify the criteria and scientific data that were used in 18 the listing process heretofore. Further, API recommends that 19 the initial listing of wastes be a presumptive listing, with 20 an opportunity for public comment. During the comment period, 21 industry would have- the opportunity to supply the Agency with 22 information that might rebut this presumption. 23 We appreciate the opportunity to offer our views in 24 this forum and we will be working diligently in the next week 25 to more fully develop the ideas I've discussed this morning. ------- 77 1 We are prepared at this time to answer any questions the 2 panel may have. Thank you. 3 CHAIRPERSON DARRAH: Thank you very much Mr. Runion 4 Will you and the people who have accompanied you accept questions 5 from the panel? 6 MR. RUNION: Yes. 7 MR. CORSON: I have one question about your last 8 statement, Mr. Runion. You indicate that you recommend the 9 initial listing be a presumptive listing with the opoortunity 10 for public comment. I am wondering what you envision different 11 then what that list currently is, which is a listing for 12 public comment. 13 MR. RUNION: We do not understand all the parameter 14 surrounding the decision that'.was made by EPA, and in selecting 15 the various materials that happen to wind up on that list. 16 So to be able to address ourselves to subsequent questions we 17 suggested that. 18 MR. CORSON: One other question. I am just wonder- 19 ing, does your risk assessment look at waste individually? 20 Does it also provide a mechanism? I am looking forward to 21 seeing that with great anticipation. Does it also provide 22 some means for adding the risk of several waste or is that 23 oart of the exposure model? 24 MR. RUNION: I can't get into the nuts and bolts 25 of this because in fact, all the nuts have not been nut on the ------- 78 1 bolts, but essentially, we have three general categories 2 here. One is you have the physical chemical properties or 3 characteristics. Some material expose with greater ease and 4 greater movement, if you wish, then others, and the same thing 5 in all these other categories. One must look at the matrix 6 of the physical chemical properties, then the biological. 7 Then looking at all these factors, come up with some decision 8 as to what the net risks will be. And part of the concern 9 that you speak of inescapably then filters into this. None 10 of us have the answers to all the questions about synergism 11 and so forth that come to mind. 12 MR. LINDSEY: I am a little troubled, and I am havi4g 13 a little trouble following you through that. Apparently then 14 the approach which you are going to propose will include 15 classes of waste based on some hazard level as the point some 16 things exclude more readily than others, then that will be 17 coupled on a case-by-case basis presumably with how the waste 18 how in fact handled; is that correct? 19 " MR. RUNION: You have to look, not only at the 20 potential of the waste,- but you have to in both respects, 21 chemical and biological. You have to look at it in light of 22 where it is setting, where it is in relation to people, how 23 it is being managed and so forth, and then you come up with 24 a bottom line assessment of risk. 25 MR. LINDSEY: The wav, as I read the Act that is ------- 79 1 set up, is for Section 3001 to decide that there should be 2 potential harm, and then the individual case-by-case analysis 3 of risk proposed is handled under the regulation, under 3004, 4 and then, of course, the permitting requirement that go along 5 with that. 6 MR. RUNION: As we have evolved our thoughts, we 7 recognize that. 8 MR. LINDSEY: It doesn't seem fit. 9 MR. RUNION: It does it if you look at it from a 10 total system approach. It is just the way you have your 11 regulations written down. You have to reshape your approach 12 a little bit, but if you really want to deal with this problem 13 as a total system problem, then you simply have to rearrange 14 some of the way that the text of your regulations came out. 15 MR. LINDSEY: It is a big comnlex operation. 16 MR. RUNION: This is a complex problem and complex 17 problem, as we both know, don't have easy answers. 18 MR. LINDSEY: I will be looking forward to whether 19 or not you can characterize it. 20 MR. RUNION: We will do our very best. We are 21 trying to be helpful. We really are. 22 MR. LEHMAN: Mr. Runion, I have a question about 23 the first part of your proposed scheme. This is concerning 24 the ranking in terms of chemical toxicological risk. Now, this 25 implies, as I understand it, any scheme based on that approach, ------- 80 I implies a fairly rigorous chemical evaluation of the waste for 2 its constituent followed by an evaluation of the chemical and 3 toxicological evaluation of those risks. This implies a barely 4 substantial testing cost to do this as opposed to the approach 5 we were going on. So it appears to me that we have a tradeoff 5 situation here where you are talking about substantial increase 7 in the testing cost over what we have proposed. Would you 8 care to comment on that? g MR. STEVE SWANSON: I am Steve Swanson and I am a 10 member of the API staff. First of all, I think that one of 11 the things we tried to make clear in .Mr. Runion's statement 12 was that EPA is not using the results of the tests they have 13 already prescribed. So in one sense, you can talk about a 14 leachate containing some quantity of "X", and the way you se 15 up 3001,, you have made it a dichotomy determination, it is ig hazardous or not hazardous. So we are saying you can use 17 the results of tests already prescribed within 3001 to make lg a finer determination of the degree of risk. It does not 19 necessarily imply that you do further testing, that is, further 20 in terms of most sophisticated testing. However, we also pointed 2i out that the listing of the substance should be rebuttable 22 resumption, so therefore, if industry choses to attempt to 23 rebut that presumption, based on whatever procedure it wishes 24 to follow, there should be that opportunity to rebutt the 25 presumptions. ------- 81 1 MR. LEHMAN: The way I understand the Act is 2 structured, you have that opportunity at the present time 3 through Section 250.15, the non-inclusion section, plus the 4 section 7002, with respect to petition. 5 MR. SWANSON: You want me to respond to that? 6 MR. LEHMAN: Yes. 7 MR. SWANSON: It seems to me that the path one 8 takes, and I think we have to go back to what Mr. Runion 9 said, we don't have all the details down at this point. We 10 are really trying to make some broad generalization. I don't 11 think the path to rebut' or a presumption is very clear. 12 CHAIRPERSON DARRAH: Thank you very much. Our 13 next speaker is Mr. Kenneth Ladd of.the Utility Solid Waste 14 Activities Group. 15 MR. KENNETH LADD: Good morning. My name is Kenneth 16 Ladd. I am employed as Senior Environmentalist by the Southwest 17 Public Service Company of Amarillo, Texas. I am also Chairman 18 of the Resources Recovery & Utilization Technical Committee 19 of .the Utility Solid Waste Activities Group ("USWAG") , and am' 20 appearing today on behalf of USWAG and the Edison Electric 21 Institute. 22 For those of you not familiar with USWAG, let me 23 briefly describe the group. USWAG is an informal consortium 24 of electric utilities and the Edison Electric Institute. 25 Currently, over 70 utility operating companies are participants srr ------- 82 1 in USWAG. These companies own and operate a substantial 2 percentage of the electric generation capacity in the United 3 States. EEI is the principal national association of investor- 4 owned electric light and power companies. t 5 The Technical Committee that I chair focuses on issues 6 relating to the reuse of utility by-products, including fly 7 ash, bottom ash, scrubber sludge, and boiler slag. Encouragement 8 of these reuses is both environmentally and economically 9 significant. For example, at Southwestern Public Service 10 Company — a relatively small utility — we generate 400 tons 11 a day of ash. If reuse were impossible, we would be required 12 to spend — even without RCRA subtitle C requirements — twenty 13 to forty dollars per ton to dispose of this ash, and to dedicate 14 many acres to this purpose. Fortunately, however, all of this 15 ash is marketable in our area, and, although we do not makeaa 16 profit on its sale, we have substantially lowered our "disposal" 17 costs. 18 (I might note parenthetically at this point that we 19 occasionally find it necessary to accumulate ash for considerable 20 periods of time in order to have enough to make marketing 21 feasible. This fact seems to have been ignored by EPA in its 22 arbitrary proposal of a ninety day cutoff to distinguish when 23 a person accumulating waste on-site engages in "storage" and 24 becomes a TSDF. At least as to utility by-products, this 25 period is totally inappropriate, and would certainly impede ------- 83 our resource recovery efforts if implemented.) 2 As I mentioned a moraerit ago, Southwestern Public Service's 3 activities represent only a small portion of the reuse of utility by-products. Reuses have been growing remarkably over the last ten years. In 1966, 3.1 million tons of fly ash, bottom ash and slag were reused; j.n 1977, this figure had increased to 14 million tons. Q 0 This represents an increase of from three percent of the * total material generated to 20.7 percent. This increase in reuse has largely been possible because, after great effort, 11 we have managed to see major, recognized specifications for concrete products and similar materials revised to allow use 13 of ash. This effort has greatly benefited from strong endorsements of the use of ash from the Federal Highway Administration, the Army Corpos. of Engineers, the Bureau of Mines, and other Federal and State government agencies. Besides the replacement additive'for concrete, there are numerous other uses that have to do with fillers and road base, material additives to manufacturing processes, aggregate, highway icing control, sheetrock and a number of other types of reuses that these utility by-products are used 22 for. 23 I understand that in a number of previous hearings on these proposed RCRA regulations, members of the panel have 25 asked why the utilitv industrv is concerned with the Subtitle ------- 84 I C regulations. It has been suggested by the panel that there 2 is no reason to believe that fly ash and other utility by- 3 products are "hazardous"/ and thus regulated under these rules, 4 and that therefore the utility industry should not be concerned. § But let me indicate today one important reason why we are 6 concerned: the proposed regulations on their face presume 7 the hazardousness of utility by-products, and have hung a 8 label of "hazardous" on them, and thus may severely limit or 9 even eliminate the reuse of these materials. 10 For example, in the preamble to the oroposed regulations, 11 EPA presupposes the "hazardousness" of fly ash. The preamble 12 states that "the Agency (has) realized that some portions of : 13 certain high volume wastes" — including utility wastes — 14 "Will be hazardous under Subpart A," and continues. "The S 15 Agency is calling these high volume hazardous waste "special 16 waste",. . ."(pp. 58991-92). In short, the EPA is assuming 17 that large volumes of fly ash are "hazardous". IQ In addition, the proposed interim regulations for utility 19 wa-stes are buried in the regulations implementing "section 20 3004" of RCRA — which regulations aoply only to "hazardous 21 waste." Again, EPA seems to-be endorsing the conclusion that 22 utility bv-products are hazardous, rather then simply indicating 23 it isn't sure about these materials. 24 (We hasten to note that we strongly believe that the 25 Agency in fact has no basis for concern with regard to utility ------- 85 1 wastes, which, we submit, constitutes no substantial threat 2 to human health or the environment whether reused or disoosed 3 of.) The result of these proposed regulations is to hang a public label of "hazardous" on fly ash and other utility by- * products. This will have a number of inappropriate effects. ' First, it will substantially 1 imit the market for these materials: one simply cannot expect a home owner to be willing to use "non-spec readi-mix concrete" in the foundation for his new home after EPA has labeled a major constituent of the readi-mix as "hazardous." Second, it will deter development 12 of new uses for utility by-products, despite considerable promising R&D work. Third, it will deter many potential customer from even considering the substitution of ash for virgin or alternative materials, in order to avoid the nighmare of paperwork that is likely to. result under RCRA. This paperwork problem is an important one. When we try to develop markets for fly ash and bottom ash, we are competing with other, locally-available products, including, ^ in some cases, dirt. We do not have any substantial price advantage over these alternative products. Thus, every 2 additional penny per ton cost that is added to ash, and every 33 J extra regulatory complication, decreases the potential reuse 24 of this material. We believe this result directly contradicts the intent ------- 86 1 of Congress in enacting RCRA, which was, after all, to promote 2 resource conservation and recovery. 3 Of course, there are substantial regional variations in 4 costs of reusing utility by-products. For example, a major 5 element in ash marketing costs are transportation costs. For 6 this reason, we strongly object to the portions of the proposed 7 Section 3003 regulations that would require shipment of fly 8 ash in soecially-designed and placarded vehicles. There simply 9 is no need for this. There generally isn't even a need for 10 tarps on top of dump trucks carrying ash, since once wetted, 11 the ash does not create dust or cause any other environmental 12 problem. 13 Ladies and Gentlemen, there is an enormous potential 14 market for fly ash and other utility by-products in the United 15 States. Speaking in Atlanta, Georgia, on February 26, 1979, 16 Ms. Penelope Hanson of the EPA cited figures that indicated 17 that the reuse of fly ash in federally-soonsored concrete 18 construction could save tax-payers ten to fifteen percent of 19 the cost of those projects. She also indicated that a twenty 20 oercent use of fly ash in cement would result in a fifteen 21 percent savings in the amount of energy used to produce that 22 cement. As a result, a different division of EPA than the 23 one holding this hearing has put fifty percent of its effort 24 in developing regulations to promote the use of ash in Federal 25 construction. Yet these oolicies will be substantially undercut ------- 87 1 by the regulations now proposed under Subtitle C of RCRA. 2 USWAG will file detailed comments with EPA that will 3 set forth a number of alternatives to the arbitrary approach 4 to implementation of RCRA reflected in these proposed regula- 5 tions. Le me just summarize a few of our suggestions today: 6 First, EPA should adopt an appropriate method tti define 7 "hazardous waste," based on a recognition that-only discarded 8 materials are wastes, and reflecting realistic consideration 9 of the actual environmental impacts from disposal of wastes. 10 Second, EPA should include in its proposed regulations 11 a "commercial product standard" that will allow use of 12 recovered materials in place of virgin materials, if the 13 recovered materials have no significantly different impact on 14 the environment than the virgin materials, and that will not 15 subject the reused materials to any regulatory requirements. 16 Third, if EPA concludes that it cannot yet make a 17 decision as to whether some utility waste nroducts may be 18 hazardous in some situations, EPA should adoot only such 19 regulations as are necessary to keeo track of utility waste 20 disposal — at the least possible economic and operational 21 impact — until the Agency's concerns have been factually 22 addressed. The Agency should set forth these regulations in 23 a subpart of regulations that clearly establishes that no 24 decision has yet been reached as to the "hazardousness" of 2$utility wastes, and should assure that no steps are taken in ------- 88 the interim period, before completion of any review of utility waste disposal, that will interfere with the marketing and reuse of environmentally innocuous fly ash, bottom ash, and other utility by-products I appreciate the opportunity to appear this morning, and would be happy to answer your questions to the extent I am able Thank you, 8 MR. LEHMAN: Mr. Ladd, for the benefit of the 9 audience, I think it is fair to say, we have heard essentially 10 the same presentation in three previous hearings, and rather 11 than respond at each one, and rather than take the time to do 12 that here, I think we will just pass. 13 MR. LADD: Real fine. We appreciate it again. 14 CHAIRPERSON DARRAH: Thank you very much. Our 15 next speaker will be Mr. Richard H.Dreith. 16 MR. RICHARD H. DREITH: My name is Richard H. 17 Dreith, I am a Staff Engineer in the Environmental Affairs 18 Department of the Shell Oil Company. Shell Oil and its Divisions are pleased to comment on the proposed "Hazardous 20 Waste Guidelines and Regulations" appearing in the 'December 21 Ji '18, 1978 "Federal REgister". Shell Oil Company is an integratec 22 oil company involved in oil and gas production, refining, chemical manufacturing, transportation, marketing, and mining activities. We have facilities for producing, transporting, pc manufacturing and marketing of Shell products in fortv -four ------- 89 1 of our fifty states. Activities of our subsidiaries are 2 involved with products that range from- agricultural chemicals 3 to plastics. Because of our wide range of activities nationally 4 we are vitally interested'in the development of workable national 5 solid and hazardous waste guidelines and regulations. 5 Scope of Shell Comments 7 We have participated with the Agency in commenting on S drafts and proposals throughout the solid waste regulation g development process. We are also participating in-the preparaticjn 10 of comments and recommendations to be submitted by the American 11 Institute and the Manufacturing Chemists Association and other 12 industrial associations relating to the December 18, 1978 draft 13 of the regulation. We support the submittals of the API and 14 MCA as representing certain general and specific concerns 15 held by Shell. We wish, however/ to offer the following 15 additional comments and recommendations summarizing Shell's 17 views on the proposed hazardous waste regulations. 18 Corporate Policy, RCRA and Existing State Programs. 19 ' Our corporation's written public oolicies state that we 20 will strive to attain environmentally acceptable disposal 21 techniques for all of our wastes. In our view Shell's commitmen 22 to achieving environmentally acceptable disposal methods is 23 consistent with our understanding of the legislative intent 24 to the Resource Conservation and Recovery Act of 1976 as it 25 applies to waste disposal. ------- 90 1 In addition, our activities in Texas and California 2 are subject to state hazardous, waste management regulations. 3 These state programs are proving to be effective in maintaining 4 acceptable control of hazardous waste activities consistent 5 with the.intent of RCRA; therefore, we support such state 6 programs. ? General Concern with Proposal Approach ° We have some concerns with specific issues that apoear to 9 permeate the proposed- regulations and would like to recommend 10 conceptual changes in the overall approach so that the regulatio; 11 will reflect more closely the mandate of the federal legislation 12 Suggest Following Path Similar to Air and Water Act 13 Implementation. 14 Your overview comments state that reliance is placed on 15 "waste specific standards versus industry specific standards". 16 Further, "EPA experts believe that most waste classified as 17 hazardous requires similar management techniques ... with 18 respect to performance, design and operating standards for 19 treatment, storage and disposal facilities". We suggest a 20 much more site-soecific and industrv-soecific aporoach to 21 standards is possible and workable. Examples of present 22 performance standards are set forth below: 1) The Clean Air 23 Act contains provisions which require that air emissions 24 meet existing ambient air standards and establish new limits 25 where standards do not exist; 2) Surface runoff is addressed ------- 91 1 under the Clean Water Act; and 3) The Safe Drinking Water Act 2 when implemented will likely contain standards relating to 3 subsurface leachate. We are suggesting that, under.these 4 existing Acts, waste disposal on and in the land would be 5 allowed to continue. 6 Regulations under RCRA should recognize the assimulation 7 and retention capacities of soil to receive and retain contami- 8 nants and that the retention can be verified by monitoring 9 wells near the disposal site. The allowable leachate quality 10 should depend on site-specific performance standards which 11 accurately reflect the potential for inflicting harm to human 12 health and the environment-based upon the specific geological 13 parameters of the particular site. 14 A site—specific based regulatory scheme would need to 15 grant considerable discretionary authority to administer an 16 effective waste management program. The effective use of 17 this discretionary authority has proven effective in the 18 implementation of the Clean Air And Water Acts and the Texas 19 Industrial Solid Waste Management orogram. A similar approach 20 would be effective in administering a workable RCRA program. 21 Burden of Proof of Compliance with Site^Specific 22 Standards, would rest with the Site Operator - Assuming site- 23 specific standards are established as disposal permit conditions 24 in order to more accurately reflect the potential for 25 contamination of usable aquifers, monitoring wells can ensure ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 92 compliance with the site-soecific leachate standards. A hydrogeological study of the area can be used to establish monitoring well olacement and the information obtained from such wells can be used to check compliance. For existing facilities we recommend, that monitoring wells be allowed to establish compliance with site-specific leachate quality stand- ards, rather than requiring costly retrofitting of facilities in order to meet rigid arbitrary liner thicknesses specified to avoid any groundwater contamination. Guidelines for designing new facilities to meet essenti- ' ally no contaminant release can specify a liner thickness to maintain the integrity of the liner and thereby meet a performance standard; however, for existing facilities the most practical approach is to recognize the contamination release potential of the specific-site and require retrofitting only -for those facilities which cannot meet the performance standards. Suggested General Alterations to Prooosal Tone is too rigid - While we recognize the "note" system which suggests that "equivalency" to rigid engineering standards can be demonstrated, we question the legality and workability of this approach and oronose a system similar to that used in Texas be adopted. The Texas system sets general oerformance standards and provides guidelines to meet those standards. In some instances literal comnliance with the orooosed ------- 93 1 standards appears impossible; i. e.. strict requirements of 2 proving a negative. In addition, prohibiting wastes to be 3 stores or accumulated in certain facilities places in jeopardy 4 the use of facilities considered acceptable in spill containment 5 olans called for under the Water Act. 6 Hazardous Waste Definition is too Broad - The proposal 7 defines hazardous waste characteristics so broadly that 8 essentially all wastes generated in our'industry will be 9 classified as hazardous waste. We urge a concent of "degree 10 of hazard" be adopted along with a consistent degree of 11 environmentally secure disposal. This approach would allow 12 greater flexibility in the classification of wastes and the 13 most effective use of disposal capacity which may well 14 become or is the limiting factor in implementing waste manage- 15 ment programs. 16 Specific Issues Summary - The attachments list additional 17 concerns expressed in summary form and directed to specific 18 sections and paragraphs in the proposed regulations. A more 19 detailed presentation of these and other comments will be 20 discussed in statements submitted by the API and MCA. 21 We offer these comments, suggestions and recommendations 22 with full recognition of the formidable task of promulgating 23 workable regulations. The experience with development and 24 implementation of the air and water regulations and existing 25 state hazardous waste regulations yields confidence ------- 94 1 that the task can be accomolished. Flexibility in meeting 2 performance standards coupled with discretionary authority 3 to allow a site-specific approach to compliance is the most 4 workable scheme without compromising environmentally sound 5 waste disposal. 6 We look forward to continued involvement in the regulatory 7 development activity and trust that our participation is 8 constructive. 9 Thank you,. 10 . CHAIRPERSON DARRAH: Thank you very much. Are 11 there questions? 12 MR. LINDSEYs Mr. Dreith, I have one. 'You made 13 one statement that I just didn't understand. You said that 14 some of the requirements which we have would not be possible • " S 15 to meet. And the term which you used in describing those 16 was strict requirement of proving a negative. Can you 17 translate that for me? , . 18 MR. DREITH: A waste can be placed on a hazard 19 classification, and the testing procedure to declassify are 20 not available. So you are saddled with the difficulty of 21 declassifying a waste without the procedures available to 22 declassified waste. 23 MR. LINDSEY: In other words, the regulations 24 under 3001, 250.15 demonstrates a non-inclusion hazardous 25 waste system, which leaves out— in other words what-you are ------- 95 saying, there is no method in"here which allows something to 2 be delisted or certain things to be delisted? 3 MR. DREITH: Yes, that is correct. MR. LINDSEY: If you could point out which ones of those kinds of things that are listed, which there is no 6 way of getting off the list, maybe that would enlighten us. ' MR. DREITH: We are concerned about the acceptability Q 0 of testing procedures for it. * MR. LINDSEY: The procedures are not here? MR. DREITH: But the acceptability of the procedures 11 to declassify waste. Once it is on the hazardous waste list, 12 how you get the declassified item off and be legally comfortable 13 that you have it in fact declassified. That is a conceptual statement and we hope the API approach will deal with that also. The MCA statements are also dealing with it in particular 16 MR. LINDSEY: The other point I would like to bring out is, that you .very strongly suggested a site-specific regulatory scheme, which I might add, we endorse, because basically that was the intent of the note system, which I think 20 you took cognizance of, and I gather you don't think that the note system then is sufficiently flexible? -MR. DREITH: I use the term that we are concerned 23 M about the legality and workability of that note system, and I fall back on what we are familiar with, and in our operation 25 in Texas, and that is a set of regulations with guidelines, ------- 96 and they are strictly guidelines, and there is no question about the equivalency classification. MR. LINDSEY; Let's follow through, if that is practical. One of the problems we had in designing these things, and one of the original approaches we were going to be using was, to try to set UD some sort, as you put it, performance standards from maximum contamination of ground water, for example, say drinking water standards at the fence line. We are unable to come up with a scheme ahead of time which could be used to demonstrate by a company or by EPA or 11 anyone whether or not a facility would in fact meet that 12 criteria. In other words, we could find no modeling scheme along those lines that would allow those sort of things to 14 be done. S 15 MR. DREITH: I think what I am saying is, that 16 the expertise that exists in the hydrogological community can vouch for or discuss the hydrology of an area, the I8 likelihood that the waters will be used as drinking waters, and parameters of that source, "and with discretionary authority 20 of the administrator of the program to work out a workable 21 scheme for that particular site. For example, if the waters 22 underneath the sites are on their way to a ship channel with 23 brakish water, it is inappropriate to protect the ground waters 24 for drinking water purposes. It is thus inaporooriate to install significant liner thicknesses when that in fact is ------- 97 provable to the degree that hydrogology can prove something, that water is moving in that direction. Does that make sense? MR. LINDSEY: That does. That is the site specific approach. CHAIRPERSON DARRAH: I notice there is-a gentleman in the audience with a question. Sir, if you have a question, ' could you please write it on a piece of paper and bring it ° up to the panel, or if you like to make a statement, please register with our registration clerk. Thank you. • -MR. CORSON: Just one question, .Mr.Dreith. I 11 did notice in your statement that you made some comment that 12 support at least, operating under management programs in 13 Texas and California. We heard something on the Texas program this morning. I guess my last review of the California program indicates, that among other things, you do a chemical analysis of the waste to determine whether or not there are those things of a list of some 600 chemicals in a quantitative analysis, that you get percentages of those waste for determining the toxicity of the waste as the result of the concentration of 2" these toxic constituents. I am wondering if you are advocating that sort of an approach to assessing a degree of hazards as 22 opposed to what we have done as a threshold system within the 3001 note system, which provides for a broader discretionary 24 23 program. 25 MR. DREITH: As far as classifying a waste, I will ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 ) 15 16 17 18 19 20 21 22 23 24 25 98 avoid it by saying, that although all that approach is in the regulation, that the workability and how the administrators of the program have applied that to the activity in the instate seems to be a workable program. We have taken many materials and classified them as hazardous knowing full well that they • are not hazardous, and so I 'will say we have dodged the analysis and have chosen to take the cautious way out, and a material that I will use as an example, cracking catalyst that we have data in the industry that the leachability of the heavy metals of that'material is quite low, or non-existence. Howevei it is fine, and we have chose to let it go out as a hazardous waste. That has been the conservative Shell approach, and we find it workable and acceptable. . CHAIRPERSON DARRAH: Thank you very much. I understand that Dr. Carl Johnson is now present. Could he please come forward to the lectern.' DR. CARL J. JOHNSON. I wish to thank the panel for allowing me to speak. In reviewing the Federal Register in the outline of the oroposal for hazardous waste, I note that one group of characteristics contains radioactive items. I have some interest in what further details or guidelines are being developed in relation to this property of many hazardous waste, namely, the prooerty of radioactivity. This is of some imoortance because one of the orincinal constituents of waste from the I ------- 99 1 nuclear industry is Plutonium. 2 A large area of land, primarily to the east and south- 3 east of the Rocky Flats plant in Jefferson County, Colorado 4 is contaminated with plutonium (1-3). Concentrations in the 5 respirable dust on the surface of the soil on private land 6 offsite range as high as 3390 times the background from 7 fallout due to weapons testing. Plutonium 239 is the predominant 8 isotope, but the 238, 240 and 241 isotopes are also present. 9 Americium 241 is an additional contaminant, and cesium 137 10 is present in concentrations as high as 83 disintegrations 11 per minute per gram (dpm/g) 5.5 kilometers downwind from the 12 plant in the surface respirable dust, 17 times greater than m 13 similar samples collected from other parts of the state. 14 Uranium has been released by the open burning of 'over 1,000 15 barrels of lathe oil used to mill uranium metal. 16 In addition to the routine release of plutonium particles 17 in the exhaust plumes from plant stacks that began in 1953, 18 there have been other emissions of'Plutonium offsite on a 19 number of occasions, including major fires in 1957' and 1969, anc 20 accidental releases of Plutonium to the air in 1968 and in 21 April of 1974. Recorded concentrations of plutonium in air 22 leaving the main exhaust stack of the plant ranged as high 23 as 948 picocuries/M^ (pCi/M )', recorded eight days after the 24 fire in 1957, which burned out the filter system. This 25 concentration is about 19,000 times the present United States ------- 100 Department of Energy guidelines for maximum permissible stack 2 emissions (0.05 pCi/M ), and represents the equivalent of 3 124 million 5 micrometer particles of plutonium oxide released, exceeding federal standards for a fifty year period in a single day. There are no records of emissions for the eight days period during or immediately after the fire. In the year after the 1957 fire, the average concentration of plutonium in the stack exhaust was 2.18 picocuries/M^, and later the average annual concentration was as high as 2.33 pCi/M for 1962. In recent years smaller amounts are being released, due to an improved filtration system, although one air sampler on site continued to show 100 to 600 times the monthly surface "air concentration of plutonium found in New York City. .Much of the plutonium now present off site became airborne between 1964 and 1970 from a spill of lathe oil containing metal millings of plutonium leaking from several thousand corroded barrels- stored outside at the olant 18 site. jo - Contamination of the large Arapahoe aquifer with plutoniurr 2Q levels of 2.5 picocuries per liter (oCi/L) has been reported as has the contamination of a stream, Walnut Creek (maximum 22 recorded level of 209 pCi/L), draining into the Great Western 23 Reservoir serving the citv of Broomfield, which at times has 24 elevated levels of plutonium (as high as 2.29 pCi/L) in the 25 "finished water" used in homes. A recent reoort confirms ------- 101 1 that plutonium in chlorinated finished water is in the Pu 2 VI form, rather than the Pu IV form, considered in setting 3 maximum permissible limits for Plutonium in finished water 4 (1600 pCi/L). Animal experiments demonstrate an uptake of 5 Plutonium from chlorinated drinking water 1570 times greater 6 than previously thought, as measured by deposits of plutonium 7 in bone and liver. 8 Part of the contaminated area is now utilized for 9 residential development and extensive further development 10 is planned, which could result in an increase in population H of the contaminated area by as much as 100,000 people. There 12 is community concern regarding nossible health effects for 13 populations living in this area and for the safety of further 14 residential development near the plant. 15 No health effects have been demonstrated previously 16 for residents of areas contaminated with plutonium. Based 17 on work with experimental animals, the effects of low levels 18 of plutonium on man are thought to include leukemia, neoplasms 19 of- bone, lung, and liver, and genetic injury. Lymphocyte 20 chromosome aberrations in plutonium workers have- been 'found 21 to exceed tho-se of controls in the lowest exposure group 22 (1-10%.maximum permissible body burden of Plutonium). Myers 23 has pointed out that the trachiobronchial lymph nodes could be 24 considered as a critical organ for inhalation exposure to 25 plutonium and, if this were done, a maximum permissible oulmonary1 ------- 102 dose for insoluble plutonium of.67 picocuries (pCi) could be recommended. Morgan, by an entirely different approach, has also recommended,a maximum allowable does that is similar to. that proposed by Myers. Inhalation and retention of two particles of plutonium oxide of respirable size (5 micrometers) would exceed this dose. Preliminary epidemiological evaluations of lung cancer 8 and leukemia death rates in census tract areas with measured 9 concentrations of plutonium (figure 1}, indicated that rates 10 were significantly higher near the Rocky Flats plant. 11 Method. 12 In.order to confirm earlier risk estimates "for health 13 effects from low concentrations of plutonium.in the environment, 14 and the preliminary work with death rates from leukemia and S 15 lung cancer in persons living in census tracts with measured 16 levels of plutonium contamination, cancer incidence data was 17 required by census tract from the Third National Cancer Survey 18 (1969-1971). The census tract data has not been published, 19 but is available in computer storage. The request was made on 20 August 5, 1.977 and the data became available on February 6, 21 1979. 22 The cancer incidence data was evaluated with the same 23 approach utilized to evaluate lung cancer and leukemia death 24 rates (figure 1). Cancer incidence rates for each of the 46 25 senarate cancer sites were reported according to levels of ------- 103 1 soil plutonium concentration, selecting census 'tracts within 2 the appropriate concentration isopleths.. Areas were ranked 3 according to decreasing levels of plutonium concentrations. 4 The position of the concentration isopleths of plutonium 5 in the soil is indicated in figure 1. The 0.8 mCi/km2 isopleth 6 does hot appear in Figure 1. The area between the 1.3 and the 7 0.3 isopleths was divided approximately midway, following 8 census tract boundaries (listed in Table 1). The area within 9 the concentration range 50-1.3 millicuries per square kilometer 2 10 (mCi/km ) lies between 2 and 10 miles in distance from the 11 center of the Rocky Flats plant site along the.principal 12 wind vector (Figure 2)." The area between isopleths 1.3 to 13 0.8 mCi/km2 extends from 10 to about 13 miles, the 0.8 to 0.3 14 mCi/km2 area, from 13 to 18 miles and the 0.3 to 0.2 mCi/km2 15 area, from 18 to 24 miles from the center of the plant site. 16 The area outside the last isopleth was utilized as a central 17 populations comprising the remainder of the Denver Standard 18 Metropolitan Statistical Area (population 423,866). Populations 19 of- the study areas are (proceeding from the plant) respectively, 20 46,857 for area la, 107,313 for area lb..194,190 for area II 21 and 246,905 for area III. This study represents a 100 percent 22 sample of a population of 1,019,131 people over a three year 23 period. 24 The levels of Plutonium contamination found in the soil 25 in these areas may be compared to some of the current standards ------- 104 I establishing maximum permissible contamination concentrations . 2 for areas that provide risks of human exposure. Only a Russian 3 standard of 2 millicuries per square kilometer (mCi/km2, 100th 4 of the proposed U. S, Environmental Protection Agency guideline 2 5 of 200 mCi/km for plutonium in residential areas, is in the 6 same order as the concentrations of plutonium in three of the 7 areas studied (Table 2). Although the isopleth values are 8 in mCi/km2, these are also expressed in terms of disintegrations 9 of plutonium per minute per square centimeter or per gram of 10 dry soil. A comparison of units in common usage to express 11 soil contamination with plutonium is given in Table 3. 12 The contamination of soil with. Plutonium is not the only 13 source of exposure. Particulate plutonium which has been 14 released in exhaust emissions from the smoke stacks at the 15 Rocky Flats plant since 1953 are in large in the orders of size lg smaller than .1 micron. t.hese particles are smaller than many 17 viruses, and do not settle out to cause appreciable soil 18 contamination but may be inhaled by persons who are .in the 19 exhaust plumes from the plant, no matter how great the distance. 20 Soil contamination does give some indication as to the predominant 21 direction of these plumes. A third route of exposure may be 22 through the water. 23 While the incidence rates of cancer in the more highly 24 contaminated area near the plant is of considerable interest, 25 the population there in the years studied (1969-1971) is small ------- 105 1 and also is the result of a rapid rate of development and 2 in-migration. This results in many persons having an 3 insufficient exposure to permit the expression of increased 4 rates of cancer because of the long latent period for most 5 neoplasms, i.e. two to seven years or more for leukemia, seven 6 to 30 or 40 years for bone cancer. Although the plant has 7 been releasing plutonium to the environment since 1953, any 8 effect on cancer rates would be more likely to be noticed in 9 the .larger population areas with lower rates of in-migration. 2 10 For this reason the 50-1.3 mCi/km isopleth area was combined 11 with the 1.3-0.8 isopleth area to form Area I for the comparison 12 with the areas of lesser .-concentration and the control populatioji 13 Expected numbers of cancer cases in each category of 14 age, sex, and exposure status were derived from age-standardizec S 15 rates for all of the Standard Metropolitan Statistical Area 16 CSMSA) for comparison with the actual cases observed". Because 17 of the higher rates of cancer observed (see results) in each 18 of the contaminated areas, the number of expected cases of 19 cancer were predominantly higher than actually observed in 20 the unexposed population. Because of this problem, a more 21 valid comparison must be made with the actual incidence rates 22 (age-adjusted) found in the unexposed population. The 23 "expected cases" figures in the tables are actually higher 24 than would be expected from incidence rates in the unexposed 25 population, in most cases. Risk rates for neoplasms in each ------- 106 category are calculated by both.methods, but the X2 and probabili values are computed with the number of cases in each category and the risk ratio compared to the unexposed population. Results and Comment. The relationship between soil levels of Plutonium and the total Anglo incidence of neoplasms for the 46 categories of cancer listed in the Third National Cancer Survey-are 8 shown in Table.4. The control area (Area IV) consisting of ** the Denver S.M.S..A. outside the isopleths of contamination 10 shown in figure 1, comprised some 423,866 people. There appeared 11 to be a direct association between concentrations of Plutonium 12 in the soil and the risk ratio for cancer, for Anglo males 13 and females and for both seses combined. -The risk ratio- 14 increases in each case with greater soil concentrations of 15 Plutonium. The exception is the small population nearest the 16 plant, which because of the small numbers, rapid development 17 and influx of new residents, probably has an average period 18 of exposure much less than the areas more distant, which include 19 much of Denver. These differences are highly significant 20 when compared to the control population. Compared to the 21 control area outside the isopleths there is an excess rate 22 for cancer of 8 percent in men in Area III, most distant 23 from the plant (extending as far as 24 miles downwind), 15 Per- 24 cent in'Area II, nearer to the plant, and finally, a rate 25 of 24 percent higher in Area 1, which includes the plant and ------- 107 1 miles downwind from the plant. The corresponding values for extends to the 0.8 mCi/km2 isopleth, located approximately 13 2 Anglo females are +4%, +5% and +10%, and for men and women A combined, +6%, +10% and +16% for the three year-period 1969- 1971). The higher values are statistically significant 6 (pCO.Ol to p<0.005) with the exception of the females in the most distant isopleth area (Area III) who had cancer rates 8 only 4 percent higher than females in the unexposed population. 9 A tentative classification of the relative sensitivity of organs and tissues to cancer induction by radiation as suggested by the International Commission on Radiation 12 Protection is summarized in Table 5. In this 'investigation, it was felt that lung cancer, leukemia and bone cancer might 14 ' be prominent, since plutonium is known to be a potent pulmonary carcinogen, is concentrated in lymph nodes, and is a bone seeker. The minute particles of Plutonium are carried great distances in exha'ust plumes from the smoke stacks at the 18 plant, and the irritant effects of smog can result in a much 19 greater respiratory deposition rate of such very small particles 20 (as much as 60 percent greater in animal studies). 21 Because of the small population in subarea a, and the 22 rapid rate of development and in-migration, it was combined 23 with subarea b to form Area I extending as far as 13 miles 24 downwind from the plant. This area had a 1970 population of 25 134,170. Rates for all classes of neoplasms in this area ------- 108 1 were compared to the unexposed population of 423,806 persons 2 over a three year period (1969-1971). There was a higher 3 rate of lung and bronchial cancer in the contaminated area 4 for men, with a risk ratio of 1.1 compared to the expected 5 rate (calculated from standarized rates for the S.M.S.A.), 6 and 1.3 compared to the control area (X2=2.68), but not for 7 women. There were higher rates for neoplasms of the nasopharynx 8 and larynx for men and women in the contaminated area. This 9 finding was also reported by Mason and McKay. The rate for 10 men was of borderline significance compared to the control 11 area. 12 There was a significantly higher rate of leukemia among 13 men (X2=5.88). The rates were higher for women in the 14 contaminated area but the difference was not significant 15 statistically. 16 Neoplasms of the testis could be expected because of 17 the demonstrated propensity of plutonium to concentrate 18 in this organ. Rates were higher than expected in the 19 contaminated area, and when compared to the control area, 20 which had a somewhat lower rate than expected, the difference 21 was significant (X2=8.90). Neoplasms of the ovary were also 22 higher than in the control area but in this comparison, the 23 difference was not great enough to be statistically significant. 24 Neoplasms of the liver, gall bladder and "other biliary" 25 were higher in males but not in females. The difference for ------- 109 1 the males in this comparison was not significant (X2= 2.90). 2 The rates for cancer of the pancreas were higher in females 3 but not in males. Again the difference in this comparison 4 was not significant (X2- 2.40). 5 Rates of neoplasms of the stomach were higher in men, 6 but not in women. The difference in this comparison was not 7 significant (x2-2.25). Rates of neoplasms of the colon and 8 rectum however, were much higher for both men. and women than 9 for those in the control area {158 cases expected, 203 cases 10 found, X2=12.86 for men and 6.61 for women). The rates 11 compared to those of the unexposed population were a highly 12 significant statistically. Rates of other types'of gastro- 13 enteric neoplasms were not significantly higher. 14 Neoplasms of the brain and other nervous system 15 neoplasms were higher in men but not in women. The difference 16 was not signifcant, because of the'low frequency. 17 There was no evidence of elevated rates of neoplasms of 18 the bone. This could reflect a longer 'latent period required 19 for such tumors to develop. A higher rate of cancer of the 20 thyroid was found in women (18. cases expected, 24 cases found) . 21 The difference was not significant (X^-2.88). Neoplasms of 22 the breast were higher in both men and women than in the 23 control population, but not significantly so. This same was 24 true for other types of miscellaneous neoplasms. 25 In Table 7, neoplasms of nine sites are further investigated, ------- 110 Isopleth areas are combined to assist in removing non-uniformity 2 in rates of neoplasms of low frequency and to' examine the total 3 rates of neoplasms with higher' frequency compared to the cancer 4 incidence rates in the control population. The incidence of 5 cancer of the lung and bronchus in the combined isopleth 5 area 50-0,3 mCi/km2 (a 1970'population of 348,360 in an area 7 extending as far downwind as 18 miles from the plant) over the 8 three year period, 1969-1971, was much higher than that in 9 the unexposed area (1970 population 423,866). This difference 10 was very significant (X2-38.44). When the entire area of Plutonium contamination within all the isopleths (a 1970 12 population of 595,226 in an area extending as far as--24 miles • downwind from the plant) is compared to the population in the 14 unexposed area C1970 population of 423,866) the difference 15 persists, with 497 cases found, 462 expected. Because of the lower-than—expected rates found in the unexposed copulation, 17 the X again is large, 33.93. Cancer of- the testis for the combined isopleth area, 50-C.3 mCi/km2 was also higher than expected (18 neoplasms' 20 expected, 25 cases found, X2z20.98 compared to the control population) . The difference was even more significant' when 22 the total area of contamination was compared to the unexoosed 23 population (30 cases expected 40 cases found, X2-31.12 compared 24 to the control population.) The same comparisons made for 25 neoplasms of the ovary in the entire area of contamination also ------- Ill 1 revealed a significant difference (X2 of 3.80 in the 50-0.3' 2 mCiAm2 area, and 7.51 in the 50-0.2 mCi/km2 area, compared to 3 the unexposed population.) 2 4 Neoplasms of the liver were higher in the 50-0.3 mCi/km" 5 area for men compared to the expected rates and for both men 6 and women compared to the unexposed population. The higher 7 rates were significant when the total area (50-0.2 mCi/km2) 8 was compared to the control ponulation because of the low rates 9 in the unexposed population. 10 Interestingly, cancer incidence rates for tongue/ 11 pharynx and esophagus were significantly higher for both men 12 and women in both areas compared to the' unexpo'sed population. 13 Neoplasms of bones and joints were not significantly different, 14 nor were the rates for thyroid neoplasms, except for women 15 in the 50-0.3 cMi/km2 area (X2=5.36). 16 In summary, an analysis of cancer incidence rates over 17 a three period (1969-1971) found significantly higher total 18 rates of all neoplasms'in the area contaminated with nlutonium, 19 compared to the unexoosed area. In general, the higher rates 20 appeared to have a direct relationship with increasing levels 21 of Plutonium soil contamination. Thatis, in areas with higher 22 concentrations of Plutonium in soil, higher incidence rates of 23 cancer were found. The excess rates were as much as 24 percent 24 higher for men in the contaminated area as in the unexposed 25 area. The rates were higher for women, also, about ten percent ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 112 higher than for women in the unexposed area. Sites of cancer most responsible forthe increase in total rates are neoplasms of the lung and bronchus/ colon and rectum, leukemia, lymphoma and myeloma in men, neoplasms of the tongue, pharynx, esophagus, stomach, liver, and the thyroid in women. Neoplasms in sites such as the brain and pancreas were slightly elevated but rates were too low to be significant. An observation of special concern are the higher rates of neoplasms of testis and ovary in the contaminated area. This corroborates an observation by Mason and McKay in their investigation of death rates from cancer in the .period 1950-1969 (25). These findings indicate the importance of continuing complete surveillance of cancer incidence and death rates in this area. Some types of tumors, s.uch as those in bones, have long latent periods before development. A long period of surveillance is necessary to monitor late effects in this population and the investigation should be extended. A grant application has been filed with the National Cancer Institute to -carry out such a study. It is important that a thorough investigation be conducted to determine the adequacy of the filtration system presently in use at the plant, to determine if sub-micron particles of Plutonium and other nuclides listed in the Rocky Flats Environ- mental Impact Statement are not being released in much larger quantities than is being measured. This is of soecial concern ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 113 in view of clans to markedly increase the operations at the plant. Definitive actions should be taken by responsible agencies to minimize health effects from exposure to low levels of plutonium, including the establishment by the E.P.A. of a much more conservative guideline for plutonium contamination of soil. CHAIRPERSON DARRAH: Dr. Johnson, I would just like to xnterrun-t you for a moment. We have had some discussion up here on the panel, and we are not sure, based on what you have said so far, that the kind of waste that you are talking about is even regulatable under RCRA. DR. JOHNSON: Because it is Federal? CHAIRPERSON DARRAH: No, because of the definition of solid waste, which states that a solid waste is not a source, especially nuclear or the by-product material as defined by the Atomic Energy Act'of 1954. The material that you are talking about, .does that fall into that category? DR. JOHNSON: Source material? Could you define that for me? MR. LINDSEY: As we understand the kinds of waste, the only types of radioactive waste which are even coverable under RCRA are naturally occurring waste, such as naturally occurring materials which become waste, such as overburden. and things of that nature. If they are radioactive, such things as ohosphate slime nits and things like that would be ------- 114 I regulatable if we chose to regulate them, and must be things 2 which are generator produced materials and things like that/ 3 but not materials which are the result of fission or fusion 4 reaction, and military kind of things. ' 5 DR.JOHNSON; This wouldn't include then Plutonium 6 in waste from a nuclear power plant? 7 MR, LINDSEY: No", that would be covered under the 8 Atomic Energy Act Regulation., which are covered by the 9 Department of Energy and fay the Nuclear Regulatory Commission 10 as opposed to the EPA, as I understand it. So it is very H limited. The kinds of things which we are able to cover here 12 are very 'small and limited. 23 DR, JOHNSON: Milltailings? j4 MR. LINDSEY: Well, the milltailings are now 15 I covered under the Mill .Tailings'Act. It was just passed, in 16 November bv Congress, and the regulations haven't been drafted 17 for that, but wastes from other uranium or radium producing 18 activities that is 'in the mine tailings, and so on from that 19 sort of activity would be covered, plus things which are the 20 result of the cyclotron accelerator waste, and that is about 21 it- 22 DR. JOHNSON: Then I think that waste would be 23 covered in the language of the nrooosed guidelines, and would 24 certainly include emitting natural wastes, so the comments i 25 am making do apolv to alpha emitters. I just have one brief ------- . 115 1 paragraph left, 2 MR. LINDSEY: Okay. 3 DR. JOHNSON: The .total number of excess cases 4 of cancer was 501, due mostly to an increase in cancer of 5 the lung and bronchus, as high as 41 percent in men, leukemia, 6 40 percent in men, lymphoma and myeloma, 40 percent in men, 7 10 percent in women, and carcimoma of the colon and rectum, 8 43 percent in men and 30 percent in women, tongue, pharynx, 9 esophatus and stomack, mostly in men, and cancer of the testis, 10 about twice as many cases, and ovary, about 24 percent higher. 11 Higher rates were also observed for liver, pancreas, thyroid, 12 and brain. In general, the higher rates appear to -have a 13 direct relationship with increasing levels of plutonium soil 14 contamination. That is, in areas with higher, concentrations 15 of Plutonium in soil, higher incidence rates of cancer were 16 found. 17 So the point of this is, I think the guidelines should 18 address all aloha emitting ratioactive waste and would call for, 19 I think, a very adequate method of containment, and would also 20 call for potential exposure to large populations, and a 21 complete surveilance of cancer incidence rates. Thank you. 22 CHAIRPERSON DARRAH: Thank you very much. Will 23 you take questions from the panel? 24 DR. JOHNSON: Yes. 25 MR. LINDSEY: Just let me clarify one noint, if ------- 116 I can, with regard to this discussion we just had a few moments ago. The data which you are reporting here of the increase incidence is largely as a result of the proximity to the Plutonium emitted from the Rocky Flats Plant; is.that the e 3 contention, or is it from alpha emitters from home piles and 6 things like that? DR. JOHNSON; I think this represents exposure Q to alpha emitters, and there are compounds in that category, Q ' I think, in nuclear waste to address in these EPA regulations. 10 From that standpoint, I think there is a lesson to be learned from the study. 19 if" MR. CORSON: Just one request, Dr. Johnson. This is a chance for a commercial. At the back end of our proposal, we did have an advance news of proposed rulemaking and we are considering a characteristic of radioactivity to our definitions of hazardous waste. I wish you could take the time in some written response to give us the benefit of the translation of the data today so it might be an implementable regulation. DR. JOHNSON: Thank you very much. 20 CHAIRPERSON DARRAH: Our next speaker will be Orville Stoddard of the Colorado Department of Health. 22 MR. ORVILLE STODDARD: I am Orville Stoddard, Engineer with the Division of Radiation and Hazardous Waste Control. I am here speaking for Mr. Hazle, who is the Division 25 Director. ------- 117 1 • I would like to preface my comments with some brief 2 general comments in a form of a letter, and then go into a 3 few more specific comments with regard to a proposed regulation. 4 The Colorado Department of Health has received the proposefc 5 regulations under Sections 3001, 3002 and 3004 of the Resource 6 Conservation and Recovery Act. The attached comments include 7 issues and concerns expressed by members of an ad hoc hazardous 8 waste committee, comprised-of generators, transporters and 9 site operators, persons attending four regional public informati 10 meetings, the Solid Waste Advisory Committee, several technical 11 and professional societies, the Intergovernmental Methane Gas 12 Task Force, Department staff members and other parties of 13 interest. 14 Public and private entities support the needs for 15 regulatory controls to apply available technology and improve 16 hazardous waste management practices. All are of the opinion 17 that regulatory control measures must be workable, reasonable 18 and applicable to meet State, local and regional needs. 19 - The proposed regulations define and list hazardous waste 20 without providing for categories that differentiate between 21 hazardous waste and marginal or moderately hazardous waste. 22 The exemption of 100 kg/mo, should not be annlicable to 23 extremely hazardous waste. This categorization would enable 24 the establishment of priorities to effectively control and 25 manage hazardous waste. ------- 118 I The format of the processed regulations includes "notes" 2 after requirements that allow for deviation from stated 3 requirements. The notes describe allowable alternatives that 4 should be included' within the regulation. 5 The proposed "extraction procedure" to determine toxic 6 properties of possible leachate is a laboratory procedure 7 designed to simulate -landfill conditions. This proposed 8 procedure is questioned as the testing of some special waste 9 categories such as utility waste may indicate disposal as • 10 a hazardous waste regardless of actual disnosal conditions. 11 The need for perpetual monitoring and surveillance of 12 sites receiving extremely hazardous wastes may require sites 13 and facilities be located on federal lands with provisions 14 for monitoring .by a federal agency. 15 The financial requirements for private entities or 16 public agencies and high costs for ooerating acceptable 17 treatment, storage and disposal sites and facilities are 18 significant. Financial considerations and the notential risk 19 factors are constraints that discourage the location and 20 operation of accentable facilities by either private firms 21 or public agencies. 22 I am concerned that the total financial impact of these 23 orooosed regulations has not been determined. This financial 24 impact should include the costs of conducting a regulatory 25 program. ------- 119 1 The position of federal agencies that essentially 2 prohibits the location of hazardous waste treatment storage 3 and disposal sites and facilities on federal lands has consider- 4 able impact on the availability of suitable sites in Colorado 5 as approximately 1/3 of Colorado is under the jurisdiction of 6 federal agencies. 7 1. Page 58953 reads: 8 "For the purposes of calculating the dilution 9 that a leachate olume would undergo between 10 the time it enters the underground aquifer 11 until it reaches a well, it was assumed that 12 wells will be situated no closer than,500 13 feet from the disposal site. Examination of 14 the available data indicated that a 10-fold 15 dilution factor, while probably conservative, 16 would be reasonable. It should be emphasized 17 that there are instances where dilution has 18 been higher as well as cases where it has been 19 ' lower at a distance of 500 feet. 20 Based on this model, before human exposure is 21 expected to occur, the leachate from the waste 22 would become diluted by a factor of 10. Thus, 23 in order to protect human health, the maximum 24 allowable contaminant concerntration permissible 25 in the EP extract would be 10 times the level that ------- 120 I " would be acceptable in drinking water/ Con- 2 sequently, waste whose EP extract shows more 3 than 10 times the-' levels of certain contaminants 4 allowed by the EPA National Interim Primary Drink- 5 ing Water Standards '(40 CFR Part 141) will be 6 considered to be hazardous." 7 In groundwater, assignment of "dilution factors" is 8 questionable because formational variations (i.e. lateral and 9 vertical facies changes within the formation) as well as the 10 fact that the formation could be completely unreactive whereby 11 the only dilution is by diffusion. Conversely, the "toxic 12 substances" may be diluted or detoxified within a few feet 13 but the subsequent chain o-f chemical reactions can produce new 14 totally different toxic substances as well as disturbing the 15 overall useability of the aquifer. 16 The plume of contamination has a characteristic, somewhat 17 bell shaped plot and is dependent upon time and distance. 18 In some instances a^10'X peak may not be allowable. 19 The allowable dilutions should be determined on a site 20 specific basis and other parameters of measurements in 21 addition to 10 X. The drinking water standards should be 22 considered. 23 Section 250.11 (b) (5) page 58955 reads: 24 "Representative sample" means any sample 25 of the waste which is statistically equivalent ------- 121 1 to the total waste in composition, and in 2 physical and chemical properties. Representative 3 samples may be generated using the methods set 4 out in Appendix I of this Subpart." 5 This definition of a representative is neither practical 6 or achievable in most instances. 7 This definition should be modified to include "selected 8 portions of the components of the waste which indicate the 9 physical and chemical properties of the total waste"". 10 Section 250.13 (a) (ii) page 58955 reads: 11 "Hazardous waste characteristics, (a) Ignitable 12 waste. (1) Definition - A solid waste is a 13 hazardous waste if a representative sample of 14 the waste: 15 (i) Is a liquid and has a flash point less -^ 16 than 60°C (140°F) determined by the method 17 cited below or an equivalent method, or 18 (ii) Is not a liquid_and is liable to cause 19 . fires through friction, absorption of moisture 20 spontaneous chemical changes, or retained heat 21 from manufacturing or 'processing, or when 22 ignited burns so vigorously and persistently 23 as to-'create a hazard -during its management, or" 24 A non-liquid material.... "when ignited burns so vigorously 25 and persistently as to create a hazard during its management".. ------- 122 I This characteristic could be construed to apply to non-hazardous 2 solid waste such as "corrugated". 3 It is recommended the -above phrase be more specific as to 4 the wastes being referred to or deleted. § Section 250,13 (d)(1) page 58956.reads; 6 " (d) Toxic Waste. (1) Definition - A solid 7 waste is a hazardous waste if, according to the 8 methods specified in paragraph (2), the extract 9 obtained from, applying the Extraction Procedure 10 (EP) cited below to a representative sample 11 of the waste has concentrations of a contaminant 12 that exceeds any of the following values: 13 Contaminant: Extract level. milligrams per liter 14 Arsenic 0.50 15 Barium 10.0 16 Cadium n.10 17 Chromium " 0.50 18 Lead 0.50 19 Mercury 0.10 20 Selenium 0.10 21 Silver 0.50 22 Endrin (1,2,3,4,10,10-hexacloro-6,7, 23 Eooxy l,4,4a,5,6,7, 8 , 8a,-octahydro-l 24 thalene 0.002 25 ------- 123 , Lindane ................ (1,2,3,4,5,6- 2 hexachlorocyclohexane gamma 3 isomer) ..... .. ......... • 0.040- Methoxychlor (1,1,1-Trichloreoethane) 2,2-bis (p-methoxyphenyl) . . 1.0 Toxaohene (Cin H, Cl--technical chlor- 7 inated camphene, 67-69 percent chlo- 3 rine) ................ 0.050 2,4-D, (2,4-Dichlorophenoxyacetic acid ) ................. 1.0 2,4',5-TP Silvex (2,4,5- Trichloroohenoxyproplonic acid 0.10 Note:- Extract levels specified for the above substances equal ten times the EPA National Interim Primary Drinking Water Standards for these substances. These standards are being revised. Extract levels specified above will be changed to reflect revisions to these standards Also, EPA is considering use of the Water Quality 20 Criteria under the Clean Water Act as a basis for setting extract levels, in addition, to the 22 FPA National Interim Primary Drinking Water 23 Standards. 25 In determining the allowable parameters, it was. assumed that wells would be no closer than 500 feet. Examination of ------- 124 1 data indicated a 10' fold dilution would be reasonable. 2 Therefore, the maximum allowable toxicant concentration 3 permissible in the extraction procedure would be ten times 4 the level acceptable in drinking water. 5 The assumptionsdo not consider any flow rate in the 6 underground aquifer, permeability and porosity. There are 7 no exceptions to the "rule of ten". 8 Testing solely for the contaminants listed in-drinking 9 water standards may be too limited. A hypothetical leachate 10 containing sodium chloride in the range of 1,000 mg/1 would 11 be acceptable by this definition. There are no limitations 12 on factors such as B'.O.D. (bio-chemical oxygen demand.) ; C.O.D. 13 (chemical oxygen demand); T.O.C. (total organic carbons) and < 14 free carbon dioxide. 15 It is.recommended other chemicals and parameters be 16 considered. 17 Section 250.13 (D) (E) page 58957 reads: 18 "(D) Add to the extractor a weight of 19 deionized water equal to 16 times the weight 20 of solid material added to the extractor. This 21 includes any water used in transferring the solid 22 - material to the extractor. 23 (E) Begin agitation and adjust the pH of the 24 solution to 5.0+_0.2 using 0.5N acetic acid. 25 Hold the pH at 5.0+0.2 and continue agitation for ------- 125 1 24+J).5 hours. If more than 4 mi of acid 2 for each gm of solid is required to hold the 3 PH at 5, then once 4 mi of acid per gm has been 4 added, coirrolete the 24 hour extraction without 5 . adding any additional acid. Maintain the ex- 6 tractant at 20-40° C *68-104°) during extraction. 7 It is recommended that a device such as the 8 Type 45-A pH Controller manufactured by Chemtrix 9 Inc., Hillsboro, Or 97123, or equivalent, be 10 used for controlling pH. If such a device is 11 not available then the following manual procedure 12 can be employed." 13 The toxic extraction procedure does not explain the 14 justification for dilution of the waste 1:16 nor is there 15 justification for selection of pH 5 and the use of acetic acid 16 in the adjustment of pH. 17 This is a crucial test in that special waste categories 18 such as "utility waste" could leach toxicants and be classified 19 as a toxic waste. Acetic acid does not occur naturally. 20- It is requested the toxic extraction orocedure be 21 amended to allow a closer simulation of conditions that could 22 be exDected on a site snecific basis. 23 Section 250.14 (b) Hazardous Waste Sources and 24 Processes.1) Sources generating hazardous waste. (i)(A) 25 Health Care Facilities, oaqe 58958 reads: ------- 126 "(b) Hazardous waste sources and processes. (1) Sources generating hazardous waste. The following sources generate hazardous waste unless the waste from these sources does not contain microorganisms or helminths of CDC Classes 2 through "5 of the Etiologic agents listed in Appendix VI of this Suboart. 8 V Cil' Health care facilities. CA) The following departments of hospitals as defined 1° by SIC Codes 8062 and 8069, unless the waste 11 has been treated as specified in Appendix VII of 12 this Subpart.(H) 13 Obstetrics department including patients' rooms. S Emergency departments Surgery department including patients' 1' rooms. Morgue ' Pathology department Autopsy department Isolation rooms Laboratories Intensive care unit Pediatrics department 25 Wastes from health cara facilities normally discharged ------- 127 1 into the sewage collection system should be specifically 2 excluded from autoclaving and incineration requirements. 3 The autoclaving and incineration facilities specified 4 are not available at many health care facilities. The costs 5 of providing these facilities will be extensive. 6 There are potential health hazards pertinent to on site 7 storage of infectious wastes and transporting to treatment 8 storage and disposal facilities. Each generator should be 9 equipped with appropriate facilities. 10 The list of infectious organisms such as E. Coli and Staph 11 A. are prevalent throughout health care facilities. Therefore 12 the criteria proposed may be excessively stringent as all 13 wastes from health care facilities (including tissue or 14 handkerchiefs containing nasal discharge) would be infectious 15 requiring incineration or autoclaving. 16 Section 250.14 (b) Hazardous Waste Sources and 17 Processes. 1) Sources generating hazardous waste, (i)(B) 18 Venerinary Hospitals, page 58958 and Aooendix VII - Infectious 19 Waste Treatment Specifications, nage 58964 reads: 20 "(B) The following deoartments"of veterinary 21 hospitals as defined by SIC Codes 0741 and 0742 22 unless the waste has been treated as specified 23 in Appendix VII.(N). 24 Emergency deoartment 25 Surgery department including oatients' rooms ------- 128 1 Morgue 2 pathology department 3 Autopsy department 4 Isolation rooms 5 Laboratories 6 Intensive care unit * 7 (ii) Laboratorities, as defined by SIC Codes 8 7391, 8071 and 8922, unless the laboratories 9 do not work with CDC Classes 2 through 5 of 10 Etiologic Agents as listed in Appendix VI. (N) 11 Appendix VII - Infectious Waste Treatment 12 Specifications 13 Infectious waste from departments of health 14 care facilities as defined in 250.14(b)(i) may be 15 rendered non-hazardous by subjecting the waste 16 to the following autoclave temperatures and 17 dwell times: 18 Steam Autoclave 19 -' (1) Trash: 250 F (121 C) for 1 hour with 15 I 20 minutes prevacuum of 27 in. hg. 21 (2) Glassware: 250 F (121 C) for 1 hour with 22 15 minutes: prevacuum' of 27 in.Hg. for filled 23 NIH Glassware can- 24 (3) Liquids: 250 F (121 C) for 1 hour for 25 each gallon. ------- 129 (4) Animals: 250 F (121 C) for 8 hours with 2 .15 minutes orevacuum of 27 in.Hg. 3 (5) Animal Bedding 250 F (121 C) for 8 hours with 15 minutes prevacuum of 27 in. Hg. - * or equivalent treatment methods such as gas " sterilization or oathological incineration. ' Temperatures and dwell time will vary in relation o 0 to the volume of material, moisture content 'and other factors." The proposed rules beginning on page 58957 (250.14) 11 apparently apply to various departments in veterinary hospitals ^ *> i 12 as facilities that discharge hazardous etiologic agents 13 according to CDC classification. The proposed rule appears applicable if such a facility does not discharge waste into an approved sewerage system but does perhaps utilize a trash 16 pickup service, then the requirements on page 58964-Appendix VII Infectious Waste Treatment Specifications would aoply. The various listed deoartments of veterinary hospitals would discharge microbial agents including bacterial, fungal, 20 viral, rickettsial and chlamydial up to and including a Class III hazard. Any such patheogens would have to be treated as 22 per Appendix VII by steam autoclave or equivalent treatment 23 methods. This would require all veterinary hospitals to install at least an incinerator to process material such as 25 3 trash, glassware, liquids, animals, and animal beddina and ------- 130 1 render it non-infectious. The economic impact of these 2 proposed rules could result in an investment for each facility 3 or hospital 53,000 to 510,000 'for adequate incineration 4 and/or autoclaving equipment. 5 The data base which defines the present hazard from 6 etiologic agents in waste effluents as classified^in Appendix 7 VI is not mentioned. Observations have been that occupationally 8 exposed people - the trash collectors themselves - do not 9 appear to suffer any higher disease rate than other tseople 10 in the public sector. Our epidemiological investigations 11 generally have not revealed disease transmission that has 12 occurred from waste material whether properly improperly 13 disposed of, but it is admitted that a potential hazard exists 14 in a sanitary landfill disoosal -system for disease transmission. 15 Nevertheless, the need for these oronosed rules is 16 questioned based on the actual incidence and subsequent 17 reporting of disease. Also, other problems such as air 18 pollution may be created by drastically increasing the 19 number of incinerators necessary to adequately treat such '20 hazardous waste. 21 Section 250., Subpart A, Appendix XI cage 58966 regarding 22 the oersistance of chemicals. What is a biodegradation assay 23 and does it really represent conditions of -actual release? 24 No biodegradation assay is specified. Certain compounds with 25 allegedly short half lives have'- inexnlicably oersisted ------- 131 1 (ex.chemical five incident and parathion) over a period of 2 years, 3 It is recommended the degradation option be deleted until more data is obtained. Section 250.15 pages 58959-60. Demonstration of Noninclusion in the Hazardous Waste System. 1. Wastes from certain manufacturing process and other sources listed are considered hazardous unless proven non-hazardous by the generator. 2. The testing procedures listed are extensive and specific. It would be costly for generators, especially 12 small generators without laboratory testing capabilities to 13 conduct tests to confirm or deny the generation of hazardous wastes. There are few if any private laboratories equipped 15 and capable of performing the tests specified. 16 3. When in doubt generator may be expected to consider the waste generated as hazardous rather than perform tests. This will place a considerable burden on hazardous waste treatment, storage and disposal facility and require more 20 testing by the facility operator. 21 Thank you. 22 CHAIRPERSON DARRAH: Thank you. Would you answer 23 questions from the panel? 24 MR. STODDARD: Yes. 25 MR. LINDSEY: I have one point I would like to cret ------- 132 i clarified. You mentioned that you were orohibiting location 2 on Federal land. These regulations don*t do that. Is that 3 correct? 4 MR. STODDARD: No, they do not. This is more or 5 less a governmental'policy that we have been confronted with @ in Colorado. The BLM, for instance, certainly has taken a 7 position that they do not want this disposed of on their land. 8 MR, YEAGLEY: That is specifically listed in BLM 9 regulations. 10 CHAIRPERSON DARRAH: Thank-you very much. Our 11 next speaker will be Stewart H. Miller from the Electro-Phos 12 Corporation. 13 ' MR. STEWART H. MILLER: Mr. Chairman and ladies 14 and gentlemen, my name is Stewart: H. Miller. I am manager 15 of Electro-Phos Corporation's phosphorus furnace facilities 15 at Pierce, Florida. I appreciate the opportunity to speak 17 to vou today. I missed you in Washington. Unfortunately, the 18 weather was inclimate. ig . I propose to address my comments to the classification 20 of phosphorus furnace .slag as a hazardous waste under 40 CFR 21 Part 250 subpart A of the proposed regulations. In addition 22 to the remarks I will make 'here, I am attaching a more detailed 23 analysis of our position, with support documentation, to be 24 considered as electrophos corporations official statement of 25 record. I agree that indiscriminate and irresponsible disposal ------- 133 1 of hazardous wastes must be prevented, and I commend the EPA 2 for their efforts in this regard. However, I must point out 3 what I consider to be significant errors.in the identification 4 and listing rationale in 40 CFR'Part 250 Suboart A. 5 First, I submit that calcium silicate slag from electric 6 furnace smelting of phosphate rock is not a waste. Electro-. 7 Phos Corporation co-produces calcium silicate slag in the 8 approximate ratio of 8.5 tons of slag per ton of elemental 9 phosphorus produced. All of the slag produced at Electro- 10 Phos is sold to a processing and marketing company as produced. 11 The slag rock coproduced in the manufacture of phosphorus 12 is very hard and durable. It is chemically inert in soil 13 acids and weathers well in surface applications. It is also 14 easily wettable with asphaltic compositions. These attributes, 15 plus the fact that there is no other locally available aggregate 16 possessing these superior qualities within 500 miles of the 17 producing area make calcium silicate slag the first and sometime 18 only choice in Central Florida.for: 19 • ' Highway paving and roadbed stabilization 20 Railroad Ballast and Roadbeds. 21 Septic tank Drainage Fields. 22 Commercial and utility use for roadways, Sub-stations 23 and soil stabilization. 24 Municipal sewage treatment plants 25 Parking lot and driveway naving ------- 134 1 Private use for Driveways/ patios and drainage 2 . Built up roofing aggregate 3 Concrete products uses. 4 of special interest is the use of coarse slag in the filter beds of Tampa, Florida's,-new municipal sewage treatment plant which incorporates the very latest technology for treatment of waste effluents entering Tampa Bay. Assuming the currently proposed regulations are interpreted so as to remove slag from the market place the economic impact 1° will be at least three-fold. 11 A vital three million dollar aggregate processing and 12 marketing industry will be eliminated with the direct loss of 13 thirty (30) jobs and an immediate write off of capital investmen 14 The Central Florida area will feel-ripple effects from: 15 Loss of truck driving jobs associated with distribution 16 and hauling of slag. 17 Higher costs to consumers for imported out of state 18 aggregate materials. 19 - Loss of revenues to the local service industry and 20 heavy machinery business. 21 There will be a net cost to Electro-Phos of approximately 22$1.0MM per year, an inflationary increase which the 23 ultimate.consumers would have to bear. 24 Second, I submit that calcium silicate slag from electric furnace smelting of phosphate rock is not a hazard. ------- 135 1 The EPA final draft document, "identification and listing 2 of hazardous radioactive-waste pursuant to the resources 3 conservation and recovery Act of 1976", expresses a concern 4 for airborne radiation from radon gas and its progeny in 5 h omes built on reclaimed land. The EPA measured radium 6 concentration in soil materials and attempted to relate these 7 measurements to interior radiation working' levels that might 8 be anticipated in structures built upon these soils. However, 9 the data upon which the subject regulations are based apparently 10 does not include the latest EPA "studies, and does not adequately 11 define such a relationship. The EPA's graph purporting to show 12 such a correlation shows extreme data point scatter and an '13 almost meaningless correlation factor. 14 Among the many factors affecting the nrecision of a 15 correlation of radium content and radon gas flux is the 16 emanating power of the particular material involved. The 17 emanating Dower may be defined as the ratio of the radon gas 18 escaping from a material to the total amount of radon gas 19 being generated in the material from the* decay of radium 226. 20 if for example, we take two different materials each with the 21 same radium concentration, but different emanating powers, the 22 one with the lower emanating power will*give off or diffuse 23 a lower amount of radon gas into the atmosphere. 2^ Since the measure of airborne-radiation is a measure " of the amount of radon gas and its orogeny, it is evident that ------- 136 1 we have to look at the total radon flux present to properly 2 evaluate health exposure risk. This is especially significant 3 in evaluating slag as a health exposure risk\ Industry data 4 shows that slag has an extremely low emanating power, ranging 5 from 16/1000 of one percent to 42/100 of one percent depending 6 on material sizing. Compared to the proposed standard of 7 5 PCI per gram for soil, on which the standard was based, to 8 obtain an equivalent radon flux from slag would require that 9 the slag contain a minimum of 227 PCI per gram (for fine- • '•" 10 particles) and up to 6000 PCI per gram for lump aggregate, 11 relating this to the real world in Central Florida, slag 12 which nominally contains radium 226 at a level of 50-70 PCI 13 per gram has a radon flux equivalent to soil at well under 1 14 PCI per gram. 15 Further, the results of independent studies on airborne 16 radiation at phosphorus furnaces, where the accumulation of 17 slag is many .times greater than any known commercial or private 18 use site, indicate working levels 1/10 to 1/20 of the nuclear 19 regulatory commission standard of 0.03 WL. Obviously, it is 20 completely irrational to classify calcium silicate slag as a 21 hazard. 22 In summary, 23 Calcium silicate slag is not a solid waste and therefore 24 cannot under the provisions of the Act be declared a hazardous 25 waste. ------- 137 1 The proposed radiation activity level of 5 PCI/GM. 2 was derived from reclaimed land measurements primarily for 3 protection against indoor airborne radiation and is not 4 applicable to the vast majority of Florida slag use. 5 No allowance or consideration was made in establishing 6 the 5PCI/GM. standard for the extremely low emanating power 7 of dense slag. 8 Airborne radiation working level measurements made at »x 9 plant sites with heavy slag concentrations are well below 10 the NRC limit 0.03 WL for continuous public exposure (168 11 hours per week). 12 - The potential ,SI.OMM/year increased production cost 13 impact on elemental phosphrous due to the classification and 14 regulation of slag is inflationary. 15 The proposed classification and regulation of slag 16 could shutdown the vital slag aggregate industry in Florida, 17 eliminating 30 jobs and increasing aggregate costs for Central 18 Florida consumers. 19 . We believe the above technical and socio-economic 20 conclusions form an overwhelming basis for the elimination of 21 the classification of slag as a'hazardous waste. No evidence 22 has yet come to our attention indicating that Florida slag 23 poses anything other than a raerfectly acceptable health risk 24 to radiation exnosure. 25 Thank you. ------- 138 CHAIRPERSON DARRAH: Thank you. Will you answer 2 questions for the panel? 3 MR. MILLER: Yes." MR. LINDSEY: Let me see if I understand this 5 correctly, Your problem is with the fact that it-is listed "6 as a hazardous waste and listed as a hazardous waste presumably because of the five PicoCuries. 8 MR. MILLER:/ Yes. MR, LINDSEY: Do you feel the five PicoCuries 10 per gram is too strict? I think the figure you used is 220. MR, MILLER: I think the five PicoCuries per gram 12 is arbitrary number and does not take into account the emanating- 13 account of the various materials. 14 MR. LINDSEY: How would we set a standard. How do 15 you set a standard? I am. not a nuclear engineer, but how do 16 you consider them emanating power? 17 MR. MILLE"R: There are tests which are known 18 and proven which can evaluate emanating - power of material. 19 That is how we got our data. 20 MR. LINDSEY: Would you in your written presentatior 21 or maybe now, if you can, discuss what significant or rather 22 appropriate concentration levels or emanating oower level, 23 or whatever you call the emission level would be? 24 MR.'MILLER: I have not included recommendations, 25 in that within the Appendices, which indexes the various items ------- 139 1 I used in the report. However, I will try and get back within . 2 the next week and comment on that. 3 MR. LINDSEY: If you would, it would be helpful. 4 .MR. CORSON: I have one question, Mr, Miller, and 5 I am just wondering, .because you didn't indicate in both your 6 earlier remarks and your summary of the relationship to our 7 concern about protecting against indoor airborne radiation. 8 i agree that is our concern. Now, it would just seem to me 9 without some level of control, some of the uses to which you 10 cite in your comments, that slag might be used,, could- possibly 11 end up causing some of these problems, because once you allow 12 it, for example, in these concrete or whatever, there is no 13 way to ensure that does not become the base for a house. I 14 am wondering If you would suggest- that perhaps- for those 15 concrete placed in this fashion, there should be some restricte 16 use categories? 17 MR. MILLER: If the''basic problem is indoor, 'and 18 by the way, I understand EPA is currently undergoing, and I 19 alluded to this, but they are doing a tremendous amount of 20 additional testing in the Florida area. There is a serious 21 question as to whether the original data, which was found, 22 which was very limited, is actually and factually correct. 23 But the basic data that was taken was based agaon on reclaimed 24 land, and had nothing to do, and had no relevancy with slag 25 at all, and I am told, and I feel you can indicate in some ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 140 manner that slag and radiation from slag does pose a problem. , Then it really should not be regulated. If you can find it does pose a problem, then I think you should severely limit or completely eliminate its potential use withint the home market. Ninety percent.of the slag used in Florida is not used in home building today. It is used for road paying and a lot of other areas. MR. CORSON: That leaves me with an interesting ten percent that I am very concerned about. If ninety percent is not used, that implies that perhaos the ten percent is used in home building. • • MR. MILLER: There is another gentleman here today who I hope can fully clarify that for-you, but I am not going to say, because I don't positively know that the other ten oercent is used in the home building market, or .if i-tf is even a problem. If it is used in that market, I think that is what needs to be determined. MR. CORSON: Following up on Fred's question with regards to the fact we didn't show these damages came from slag as opposed to reclaimed land, I am wondering if in addition to the emanating power, there is some difference between the radioactivity from the phosohorous slag as opposed to whatever else there was in Florida. MR. MILLER: There is different concentrations of radium within, for example, overburden slime, slag and all ------- 141 1 the various chemicals, and the point being made is, it is not 2 really how much is chemical, but what is it emanating power 3 and how much'is given off, and that is the point I alluded to 4 in stating that it was based on five PicCuries, which supposedly *, .5 equates to a working level of .03, but does not take into 6 account the emanating power. 7 MR. YEAGLEY: In order to consider your concerns 8 as far as emanating power, would you be satisfied with the 9 standard that was an either/or type standard, either five 10 PicoCuries per gram or say .03 working level? * 11 - MR. MILLER: I would suggest that since our main 12 concern is in environment, that.the working levels of the s 13 material really ought to be.the criteria, if our concern truly 14 is for the environment and health protection, why not set the 15 standards based on what would people's exposure be as opposed 16 to what the material might contain. 17 MR. YEAGLEY: One other comment relative to the 18 ninety percent of material today that is not being used in 19 housing or construction related. The fact that the radium 20 has a half life of 1600 years, can you give some assurance 21 that property which is used in effect for roadbeds and railroad 22 beds, once in the future time it will not be used for residentic 23 construction? 24 MR. MILLER: Basically, and here again, I am not 25 an expert in that area, there is somebody here who deals in that ------- 142 1 area, but you are dealing with different sized aggregate, 2 based on its end use, and primarily something that size is 3 not necessarily or could readily be used for another type.' 4 I don't think anybody can give that kind of assurance,, Nobody 5 can guarantee anything 1600 years from now. 6 MR. LINDSEY: Leaving for a moment the question 7 of whether or not this kind of way should or should not be 8 listed, as you pointed out, there is a number of studies going 9 on, including within the Agency, and by others concerning 10 this whole thing, and hopefully that will clear that up. 11 However, let's assume for the moment that it is listed, and 12 we have the special waste'.regulations.. You indicated earlier 13 that these special wastes that the regulations, if implemented, 14 and I presume you are talking about the special waste regulatior 15 would cause your waste not to be reused, and that would cost 16 your company a million dollars a year? 17 MR. MILLER: You keep on referring to what is a 18 waste product, which we sell. 19 . MR. .LINDSEY: Whatever. The point is, that you 20 then said that the material which you sell has something like, 21 I think you said one-fifth or one-tenth of .03 working level 22 unit. If that is the case, I don't see which of these standards 23 are going to cause you any problem. 24 MR. MILLER: In fact, two things combined. What 25 I said was, that there had been studies 'at ohosnhorous furnace ------- 143 I locations, which obviously, by the nature of their production, 2 contains large volumes of slag, which have been there for many 3 many years, and then in tests .run at those areas, including 4 our plant, the working level was found to be from one-tenth 5 to one-twentieth of the NRC regulations. I am talking about 6 a building which houses the offices at the Electro-Phos Corpor- 7 ation, which sets on about three feet of slag, and the emanatior 8 studies were run inside of that building, and found working 9 levels, as I say, one-tenth to one-twentieth below Federal 10 requirements. 11 MR. LINDSEY: Well, even'if it was listed, none 12 of the regulations would limit the use of those things. 13 MR. MILLER: You can go back to the five PicoCuries 14 MR. LINDSEY: No, you would still be listed in the 15 frontend, but the regulations under 250.46-3, which say what 16 you can do with it wouldn't apply. 17 MR. MILLER: These specify specifically five Pico- 18 Curies. 19 . MR. LINDSEY: They soecify .03 working levels. 20 MR. MILLER: They specify both, unless I misunder- 21 stand. 22 . MR. LINDSEY: Well, the listing itself is based 23 on the five PicoCuries, but then the regulation with regard 24 to what you can do with the waste once it is listed, and as 25 I read this, anyway— let me suggest something. Why don't you ------- 144 1 go through 25CK46.23, and for your company, determine in your 2 own mind, and then let us know whether or not any of these 3 create the problem that you are talking about. 4 MR. MILLER; I carl see- one problem, which I can 5 address right now, and which I think one of the'former speakers 6 mentioned, and that, is simply the fact of classifying this 7 material as a hazardous wasteland then going out and trying 8 to seel that material and trying to use that material. That 9 right there presents a major problem. 10 MR. LINDSEY: It is guilt by association as opposed 11 to any standard or.requirement there... . 12 CHAIRPERSON DARRAH: Thank you very much. We 13 will recess for lunch and reconvene at 1:45.. 14 (Whereupon the'noon recess was taken.) 15 16 17 18 19 20 21 22 23 24 25 ------- 145 1 AFTERNOON SESSION 2 T *'" ' CHAIRPERSON DARRAH.: We can now begin our afternoon session. Our first speaker is Mr. Steve Allen, President of 5 Southern Stone Company. 6 MR. STEVE ALLEN: I am Steve "'.Allen, President of the Southern Stone Company and SI Minerals, both of which 8 are wholly owned subsidiaries of Southern Industries of Mobile, q y Alabama. My comments will be on the expansion of the speaker that was right before lunch, Mr. Miller's comments concerning 12 phosphorus furnace slag. Southern Industries commends the EPA in its endeavors " to limit or eliminate any irresponsible disposal of hazardous wastes/ however, based upon scientific, and technical studies conducted by various producers and others in the Florida 1' and Tennessee areas, we feel that phosphorus furnace slag cannot be classified under 40 CFR Part 250 Suboart A as a ha-zardous waste. on tw There are two reasons for this: 21 1. Phosphorus furnace slag is not a "waste". 22 2. Phosphorus furnace slag is not hazardous. 23 Slag is Not A "Waste" 24 At the present time Southern Industries purchases 100 25 oercent of all phosphorus furnace slag generated by two ------- 146 1 elemental phosphorus producers in Florida and two elemental 2 phosphorus producers in Tennessee. The combined annual tonnage 3 amounts to approximately 1.3 million tons. Before selling this 4 material into a diversified market,.which will be outlined be- 5 low, it is crushed and sized into several di'fferent grades or 6 sizes, each supplying a vital product source for its particular 7 market. To process this material for market required a sub- 8 stantial outlay of capital investment in land, plant equipment g and material inventories. It also requires the services of 78 10 employees, along with many outside contractors and industrial 11 supply vendors. 12 In 1978, Southern Industries sold phosphorus furnace 13 slag into the following market areas: 14 1. Railroad Ballast 236,907 tons 18% 15 2. Road Aggregates 788,740 tons 60% 16 3. Sewage Treatment 154,018 tons 12% 17 4. Concrete Blocks 90,498 tons 7-% 18 5. Roofing ' 40,034 tons 3% 19 . 6. Misc. (Driveways, etc) 377 tons 2Q 1,311,074 "tons 100% 2i This tonnage represents approximately 70% of all 22 phosphorus furnace slag in Tennessee and 100% of all phosnhorus 23 furnace slag in Florida that is generated by the various 24 elemental phosphorus producers. 25 Gross sales of phosphorus furnace slag in 1978 amounted ------- 147 1 to 55,934,206. 2 Phosphorus furnace slag is marketed and shipped in 3 Florida, Alabama, Tenn., Kentucky, Mississippi, Louisiana, 4 Texas, North Carolina, South Carolina and Indiana by SI 5 Minerals and Southern Stone Company, both wholly owned 6 subsidiaries of Southern Industries. 7 Unlike limestone, which is the primary construction 8 aggregate in the Southeastern United States, it has non- 9 polishing characteristics and is specified in lieu of limestone 10 by the Federal Bureau of Roads .for use in non-skid bituminous 11 wearing surface pavements. This greatly enhances the safety 12 characteristics of asphalt highway pavements. 13 Another unique feature of slag versus limestone is 14 the non-cementing properties which is possesses. This is a 15 very important quality/Vhen- used as railroad ballast. This f . 16 feature insures good drainage on railroad beds and greatly 17 increases the life expectancy of RR crossties and railroad 18 track life, which'in turn is a definite safety 'factor. 19 If the 1.3 million annual tons of phosphorus furnace 20 slag is witheld from the marketplace, not only will the 21 replacement cost be exorbitant, but, in some cases, an aggregate 22 of equal qual'ity is simply not available. 23 How could a vital product such as this be designated as 24 a "waste"? 25 Slag is not "Hazardous". ------- I 148 I The EPA evidently lists Phosphorus furnace slag as 2 hazardous because of its concern for airborne radiation from 3 radon gas and its progeny, arising from earlier EPA studies 4 of the phosphate industry, 'and in particular homes built on 5 reclaimed land. g Since Florida slag shows a higher radium 226 decay 7 activity (40-70 pci per gram), than Tennessee slag (3-5 pci g per gram), our comments are directed to results of studies 9 relating to phosphorus furnace slag generated by Florida 10 elemental phosphorus producers... 11 A major contributing factor concerning the concentration 12 of radon gas in a particular area is a direct function of the 13 emanating power of the particular material involved. The 14 emanating power is defined as the ratio of the radon gas 15 escaping from a material to the total amount of raaon gas 15 being generated in the material, from the decay of radium 226, 17 A study made by one Florida company reveals the fallowing 18 conclusion as we quote:' 19 "Data available to us shows that slag has an extremely 20 low emanating power, ranging from 16/1000ths of 1 percent to 21 42/100ths of 1 percent, depending on material sizing. Compared 22 to the proposed standard of 5 pci per gram for soil, on which 23 the standard was based, to obtain an equivalent radon flux • 24 from slag would require that the slag cojitaih a minimum of 227 25 pci per gram (for fine particles) and up to 6000 pci per gram ------- 0 1 2 3 4 5 6 7 8 9 10 11 • 12 13 14 15 16 17 18 19 20 21 22 23 24 25 149 for lump aggregate. Conversely, slag which nominally contains radium 226 at an activity level of 40-70 pci per gram would have a radon flux equivalent to soil at -well under 1 pci per gram." Three other studies of airborne radiation were made, including one in 1976. by U.S.E.P.A. with the following results: Universitv of Florida New York -University U.S..E.P.A. (External) (External & Internal) (Internal) > . .003 WL .0012 WL .0006 WL .007 WL .0011 WL .005 WL .0006WL .0022 WL .003 WL .0011 WL .005 WL .0010 WL ,0003 WL The results of these studies made at phosphorus furnace sites where the accumulation of slag is many times greater than any commercial or private use site, shows airborne, radiation at working levels 1/10 to 1/20 of the Nuclear Regulatory Commission standard of 0.03 WL for continuous - public exposure (168 hours per week) . A further study to determine the concentration of radium 226 in water at a particular elemental phosphorus olant site gave the following results : Sample Identification Radium 226 nci/liter 1. Floridan aquifer well 0.25 2. Hawthorne aquifer well n.79 ------- 150 1 3. Recirculated pond water 0.08 2 4= Slag cooling water 6.12 3 5. Slag Processing water 0.25 4 6= Leachate from slag storage area 4.30 5 These results are well below the 50 pci/liter proposed 6 standard and all but one is below the 5 pel/liter EPA standard 7 for drinking water. 8 Other tests have been conducted by the University of 9 Florida Institute of Food and Agricultural Sciences on sugarcane 10 fields in the South Florida area. These tests indicate no 11 trace of any measurable radiation in sugarcane fields where 12 phosphorus "furnace slag had been applied to the soil to 13 increase sugarcane production per acre. 14 In Summary, Southern Industries maintains that: 15 1. EPA has no authority under RCRA to regulate slag jg sold as a oroduct since it is not a solid waste. 17 2. EPA has no authority to list slag as' hazardous 13 because of radioactivity without first establishing aooropriate 19 radioactivity hazardous waste characteristic criteria. t 20 3. The classification of slag as a hazardous waste would 21 eliminate slag from vital markets creating: 22 a. The loss of 78 jobs 23 b. Substantial assets to be written off 24 c. The loss of 5,900,000 in annual gross sales to 25 Southern Industries. ------- 151 1 d. Loss of revenue to outside contractors and 2 industrial vendors 3 e. Loss of jobs and revenue to small private trucking firms. f. An increased inflationary cost of vital construction aggregates. g. An increased inflationary cost to elemental phosphorus producers which may jeopardize their continued operation and thus the source of our business. 10 Thank you. 11 MR. ROBERT GALLAGHER: My name is Robert Gallagher 12 and I am president of Applied Health 'Physics in Pittsburg, 13 Pennsylvania. I have worked in this phosphate industry, * 14 radiological aspect for some'thirty years. The EPA evidentially 15 lists phosphorus furnace slag as hazardous because of its 16 concern for public exposure to airborne radiation from radon 17 gas, and the progeny, the so called radon daughters. 18 Now, their concern was the result of an admitted inconclus 19 ive- earlier study, which is still continuing in Florida, and 20 in particular homes, and especially those homes in Florida 21 which were built on reclaimed land. However, from a review 22 of the documents purported to prove the scientific justificaion 23 or rationale for EPA's inclusion of the phosphate slags as 24 hazardous and has radioactive, and further as waste, it fails 25 to indicate any measurements of radon from nhosphates slag, ------- 152 1 neither has the EPA's laboratory in Las Vegas, or Montgomery, 2 Alabama, ever been asked to measure radon from phosphates slag0 3 I think it is important for us to realize that the five Pico 4 Curies per gram limit, which has been established by the EPA, 5 is the main criteria as to whether or not the slag would be 6 included as a radioactive material, has been derived on the 7 materials ability to release radon, and inert radioactive gas 8 from the amount of .03 working levels. 9 Unfortunately, the EPA has not done the necessary 10 analysis to prove or'disprove that other radium bearing 11 materials do or do not emit radon to the same extent. Our 12 own tests show that radon remains trapped to varying degrees 13 on several orders of magnitudes less than the material then 14 they have indicated as the basis for their supposition of 15 five PicoCuries per gram limit. 16 Our major concern here must be addressed to the ability 17 of the material to release radon. The so called emanating- 18 power, which the previous speaker, Mr. Stewart Miller defined 19 it.more correctly as the ratio of gas escaping from the material 20 to the total amount of radon gas being generated in that 21 material into radon 226. 22 We have found on the basis of numerous test that the 23 low emanating power of phosphate slag can be 1600-thousanths 24 of one percent to 42/100th of one oercent, deoending uoon the 25 moisture, particulate size, temperature and so on of 'the materiail ------- 153 1 being evaluated, arid we need to have a factual scientific basis 2 for claiming something, is hazardous, not an1 assumption 3 predicated on the administrator's judgment. When you think 4 the slag that we are talking about here normally contains 5 from 40 to 70 PicoCuries oer gram, the material to release 6 .03 working levels of radon, would have to be from 127 Pico 7 Curies per gram up to 6>r)00 PicoCuries per gram. We have 8 conducted airborne radon studies, and have found a few 9 measurements that the-EPA field people made, but never bothered 10 to include in their reports, which further eirrohasize the 11 fact that the highest working level of radon that they found 12 over several feet of phosphate .slag was from .03 to .006 working 13 levels, well within the standard. 14 So, to continue, we also checked the amount of radium 15 that would come from these phosphate slags. They are fired 16 at very high temperature. Their ability to release soluable 17 radium into the water stream is miniscule. In fact, well 18 within the limit that the EPA has postulated. Our study will, 19 be" included in a formal presentation within the deadline. 20 We have also done tests and followed the test by the 21 University of Florida's Institute of Food and Agricultural 22 Science on sugarcane fields in Southern Florida. These test 23 indicate that no trace of measurable radiation in sugarcane 24 field were phosnhorus furnace slag had been applied to the 25 field to increase sugarcane nrodnction oer acre. ------- 154 1 In conclusion the technical aspects, we feel the EPA 2 has no authority under RCRA to regulate slag to be sold as 3 a product, since it is not to be considered a solid waste. 4 Secondly, the EPA has no authority to list slag as 5 hazardous because of its radioactivity without first establishing 6 approoriate radioactive hazard characteristics, and that as 7 a technically valid finding which can be confirmed by independ- 8 ent scientific tests. 9 Thirdly, that slag is not released in any way shaoe 10 or form as uncontrolled waste product. Thank you. 11 CHAIRPERSON DARRAH: Mr. Gallagher, will you 12 accept 'questions . 13 MR. GALLAGHER: Yes. 14 CHAIRPERSON DARRAH: I guess there aren't any 15 questions. Our next speaker is Mr. Robert S. Hearon 16 representing the International Minerals and Chemical Corporatior 17 MR. ROBERT S. HEARON: My name is Robert Hearon 18 and I represent the Florida Phosphate and Mining Division of 19 the International Minerals and Chemical Corooration. 20 • We have been mining in Central Florida since 1907, and 21 last year we produced right at-13 million tons of phosphate 22 rock, which makes us the larges independent producers of 23 phosphate rock'-in the world. During the course of that production, 24 we generate or or less on a one-to-one basis, 13 million tons 25 of Phosnhate, and move or disturb approximately 20 million tons ------- 155 of sandy soil overburden in getting to the ore matrix. So we 2 are talking about, as you can see, millions of tons on an 3 annual basis of materials which have been, as of December 18th, 4 classified as hazardous waste. At the same time, we are reclaiming about 7,000 acres a year of land as required by law. We are required to reclaim every acre that we'mine, so that much of the phosphate tailings Q 0 and other materials are either just redistributed where they were initially disturbed, or recycled directly from the plant back to the mine site for active reclamation. 11 About four years ago we were visited by the Office of 12 Radiation Program, probably as one of their initial contacts 13 in this study of reclaimed land in Florida, and cooperated 14 quite extensively over a two-year oeriod. At the same, or following that initial contact, we were already contacted 16 by Federal Environmental scientists who were doing a study for EPA on mining and waste proglems. T"re sat oatiently for those reports for almost two years, and instead of those reports being published, were presented with the regulations 20 as you saw on December 18th. 21 The EPA states in 40 CFE Part 25o Subpart D of the 22 proposed regulations that "The agency has very little informatioi 23 on the comoosition, characteristics, and degree of hazard oosed by these wastes, nor does the agency yet have data on the 25 effectiveness of current or ootential waste management ------- 156 I imposing the Subpart D standards on facilities managing such 3 waste," The phosphate industry agrees with this statement 4 and submits that any "rule of reason" would require that this 5 information be compiled and evaluated by the EPA before 6 standards are proposed even under a limited "special waste" 7 ^ . designation. 8 The EPA states in a final draft document entitled 9 "Identification and Listing of Hazardous Radioactive waste 10 11 Pursuant to the Resource Conservation and Recovery Act (RCRA) of 1976" (December, 1978), that: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "Data are not available to demonstrate unequivocably a linear, non»-threshold dose-effect relationship at doses as low as those usually found in the environment. However, the data from the miner studies are consistent with a linear non-threshold hypothesis down to the higher levels measured in some structures in Grand Junction, Colorado, and in Central Florida, It is therefore prudent to assume that on the basis of this as well as more general experience with radiation exposure, that individuals occupying structures containing elevated levels of radon are subject to a potential hazard from lung cancer industion in proportion to the total accumulated exposure." ------- 157 1 This comment points out several facts which the phosphate 2 industry feels are critical: 3 None of the materials generated during the mining of 4 phosphate ores present any significant hazard to the 5 environment or to public health so long as they remain 6 confined on industrial property. The word "significant" 7 ' in this case implies any risk that would exceed the 8 variability of the natural radiation background, assuming 9 that any radiation exposure represents some risk. The 10 assignment of a hazardous waste label to mining waste 11 • because of the definition written into RCRA has a 12 punitive effect on industry far greater than is warranted. 13 The word "hazardous" connotes to the general public some- 14 that that is immediately dangerous to life or health, 15 whereas low levels of radioactivity should be considered 16 in terms of remote chances of detrimental health effects, 17" The EPA's proposed application of Section 250.43-2 18 security orovisions to mining wastes illustrate the ease 19 with which individuals lose sight of the relative risks 20 involved. 21 The evaluation of historical epidemiological surveys and 22 the calculation of extrapolated health risks are both 23 subject to the aonlication of "qualifying factors: and 24 assumptions. . Their assigned-significance depends to 25 a large degree on the individual doing the study. ------- 158 A bv-product of the Natural Radiation Exposure Assessment 2 being conducted on the phosphate area by the University 3 of Florida is a graduate.-dissertation by Darrell Reed 4 Fisher entitled "Risk Evaluation-and Dosimetry for 5 Indoor Radon Progeny on Reclaimed Florida Phoabhate Lands," Mr. Fisher presents a detailed discussion on the data on uranium miners and other radon daughter related cancer research with the conclusion: 9 . "The-strong/evidence "of" the" important role'of 10 uranium^dust, other "carcinogens in uranium 11 mines, and smoking on the incidence of lung 12 cancer among uranium miners refutes the claim 13 that the additional lung cancer mortality 14 resulted from the inhalation of radon daughters 15 alone. This is an important concept which-must 16 be remembered when applying uranium miner risk 17 data to non-mining populations exposed to radon 18 progeny, For-extension to the general population, . a risk coefficient determined from uranium 20 miner data probably estimates a cautious over- 21 estimate rather than a nearest approximation of 22 the biological effects 'of the inhaled radioactivity." 23 Also certain health risk "factors" were ignored by the 24 EPA in their calculations. For instance, health statistic 25 for uranium miners to be related to the general oublic ------- 159 1 should address the fact that their exposure included 2 "heavy work" respiration rates and mine atmosphere 3 oarticulate loadings. Working respiration rates calcu- 4 lated to be approximately three times normal were applied 5 on a twenty-four hour basis in the EPA risk evaluation. 6 This already conservative epidemiological data is when 7 subjected to additional exaggerated calculations by the i 8 EPA to suoport the proposed limitations. For instance, 9 instead of calculating excess cancers and years of life 10 lost on the basis of 100,000 people exposed to 0.03 11 working level for a lifetime, it would be much mpre 12 realistic to calculate the health detriment to a population 13 of 100,000 in which the -maximum exposure might be 0.03 14 working level, but the average might be one-tenth of 15 that. 16 We disagree that the data from miner studies are consistert 17 with a linear non-tnreshold" hypothesis. In the • 18 Lundin studv of American uranium miners, no increase 19 in lung cancer mortality was found in the group with a 20 cumulative exposure of less than 120 WLM, and the 21 oossibility of a threshold does was suggested. We recog- 22 nize the- possible existence of some risk at lower 23 exposure levels and that work published since the 24 Lundin study has indicated lower thresholds. The 25 point is that existing epidemiological data on uranium ------- 160 . miners and its application to the general public is 2 not as black and white as the EPA seems to indicate 2 at times. One must realize that at levels this close M to background, the health effects are stochastic, I.E., the kind of health effects in which a probability of the effect occurring may be calculable, but for which there* is no way of determining when or where the effect will occur. We are talking in terms of statistical additions or substructions from statistical lives- or health, not from the health or well-being of any identifiable .. individuals. This is- illustrated by the fact that, after ninety years of phosphate mining in Polk County, 13 Florida, the county ranks 31st (41.3/100,000_ among «, the 67 Florida counties with respect to the average annual age-adjusted mortality rates due to malignant neoplasm of the trachea, bronchus and lungs (ICD 162 & 163 ' for the years 1950-1969 as reported by the National Institute of Health. The porjected health effects have thus not been sunoorted by epidemiological studies 2Q of the population at large even though thousands of «. • the people in Polk County have been exposed as employees 2« in the industry 'in.addition to living in the area since the late 1800's. Perhaps the most significant point which must not be lost in • the pages of supnorting documentation, especially when ------- 10 161 developing regulations under Sectiort 3004, is that the exposure route under consideration is long term radon progeny inhalation in residential or other structures constructed on radium bearing soil (primarily reclaimed land) or the use of radium bearing by-products in home construction- The key words here are structure and long term. The attempt to establish-secondary standards (i.e., external gamma exposure rates or radium concentrations in materials) in order to control exposures to airborne radon progeny leads to a regulation that is both unfair and unscientif .c Recognizing that indoor radon progeny concentrations are 12 determined by a large number of variables, the EPA insists on oversimplifying to a point that makes the standard almost I4 meaningless. Adding to this the fact that the proposed criteria levels are only slightly above natural background-/ the appli- cation of proposed levels on a site or material specific basis is undefined and the limits are being applied prior to land reclamation and potential residential development industry must conclude that the regulations are unwarrented 2° and essentially unsupported by existing data. The EPA draft 21 development document states: 22 »it is recognized that measurement error (+25% for 23 TLD air sampling) and the relatively small sample size are qualifying factors in drawing firm con- 25 elusions as to a defined correlation between soil ------- 162 radium and radon progeny concentrations in structures, However, the relationship is sufficiently defined to permit broad projections for radium concentrations in excess of 5 pCi/g." "Sufficiently defined" is a subjective opinion which the industry does not share with the author. ' Similar correlation work done by the University of Florida ° on the relationship between surface soil radium-226 and indoor radon progeny levels showed considerable data scatter (degree ™ of FIT R - 0.64) and a significantly different line slope. The question is should a relationship "sufficiently defined 12 to permit broad projections" be utilized to set standards slightly above background to meet health risk projections based on many "qualifying factors" at cost of hundreds of thousands of dollars to the industry? We think not. ^ It should be noted.that a small number of houses on high activity overburden or debris, reclaimed land accounted for 38 percent of the total population exposure identified in the Polk County study. In term "debris" identifies the type 20 of coarse waste product generated by the industry prior to the advent of froth flotation in the late 1940's. Technological advances in metallurgical recovery techniques in recent years have resulted in higher and higher plant recoveries leaving less and less radioactive material (complexed with the phosphate 25 in plant waste streams. Land reclaimed with these materials ------- 163 should continue to exhibit lower 'soil radium content and any 2 effect on present and future mining is of a considerably 3 lower magnitude than wyould be- inferred by merely reviewing survey data from existing Central Florida structures-. 250.43-1 General Site Selection - new sources. The phosphate industry would' feel safe in saying that virtually no other industrial concern receives any more environmental surveillance than a new phosphate mine in Florida. Floodplain concerns, wetlands, endangered species, recharge zones, property line setbacks, reclamation, dam construction 11 and many other areas are covered in detail both in the Federal 12 Environmental Impact Statement and the Florida Department of 13 Regional Impact Document. Recent new source mines have 14 averaged close to four years time and spent in excess of three 15 million dollars each just to address environmental questions 16 and obtain the necessary permits. • We feel- strongly that another layer of permitting and reporting under RCRA is 18 redundant, unnecessary,"inflationary, and in direct opposition 19 to the stated policy of the Federal Administration. 20 250.43-2 Security 21 On the basis that the only hazard tentatively defined 22 for mining waste involves long -term occupancy of structures 23 constructed on reclaimed land, it is ludicrous to require security measures against unauthorized entry above the normal " posting procedures employed ------- 164 250.43-5 Manifest System, Recordkeeping and Reporting The reclamation of all lands mined by the industry have been mandatory since 1975. The sand tailings generated in the process are returned in a continual basis to the mine sites to meet this requirement. Clay wastes are pumped to 'settling areas which are.reclaimed on a longer timetable using one of 7 several techniques. All reclamation is controlled and super- 8 vised as to the location and type by the county and Florida Department of Natural•Resources. Detailed maps are submitte 10 on an annual basis 'and site specific criteria" must be approved 11 before initiation of individual projects. 12 we feel this is sufficient to document reclamation such that no additional reporting: or recordkeeping is required. 250.43-6 Visual Inspection 15 visual inspections are conducted on all clay settling 16 areas on a minimum of once per week by trained personnel. 17 Active areas receive almost constant surveillance by various 18 personnel during the regular course of various duties, i.e., 19 recycle water control, normal mine traffic. Detailed 20 inspections are conducted once a year by a professional 21 consulting engineer with appropriate records and resorting 22 of each phase. All of this is in compliance with existing 23 state regulations. Specific state requirements must also be 24 met for abandonment or.reclamation of the older settling areas. 25 250.43-7 Closure and Post-closure ------- 165 1 State and county reclamation regulations are very specific 2 and stringent enough to cover any closure or post-closure 3 considerations of the proposed applicable subsections. 4 250.43-8 Groundwater and Leachate Monitoring . • 5 Very little factual basis for groundwater monitoring exists 6 when the radium-226 content of mining -recycle water including 7 that in the settling areas is within the EPA Drinking- Water 8 Standard. None of the recent studies on radiation has provided 9 a rationale for this requirement. It should be deleted. 10 250.46-3(c)(1) Reference Maps 11 Reference maps of reclaimed areas are currently submitted 12 to the State on an annual basis as previously stated. 13 250.46-3 (c) (2) Residential Development 14 The industry feels that the 0103 working level unit above 15 background restriction is reasonable as a limit for homes on 16 reclaimed land and supported by work by the Florida Department 17 of Rehabilitative Services. The proposed regulations are not 18 clear, however, as to whether the 0103 WL is intended to be an 19 individual dose limit and.if so, how it could be predicted 20 with any degree of certainty before construction, monitored 21 or enforced in most situations. An -exposure to 0.03 WL for 22 .60 years at 25 WLM per WL-yr= 45 WLM as the lifetime exposure. 23 Accepting the relative risk of 3 percent per WLM applied to 24 lifetime accumulated exposure, this maximum exposure would' 25 indicate an increase of 135 percent in lung cancer risk after ------- 166 i sixty years. In other words, at this proposed upper limit for 2 continuous exposure, the risk of lung cancer death would 3 approximately double. However, the risk of lung cancer prior 4 to age sixty would be rather small because of the extended 5 induction-latent Period that appears to be related to low 6 concentration exposures, beyond age sixty, the risk of death 7 from all causes increases rather rapidly so -that the increase 8 in risk of lung cancer, is not such a large fraction of the 9 total risk. Considering today's mobile society, it is also 10 highly unlikely that an individual would spend sixty years 11 in the same residence. 12 We have not reviewed any information or recommendations 13 in background or supporting documents to justify the 5 uH/hour 14 gamma restrictions other .than the EPA's goal of exposure as If low as reasonably achievable (AtARA). The correlation between 16 gamma levels and indoor radon progeny is even poorer than the 17 soil radium correlation? no definition is given for measurement 18 location (indoor or outdoor) or methodology and gamma exposure 19 is-only mentioned briefly in general terms in the EPA back- 20 ground document. 21 An addition of 5 uR/hour represents an approximate 22 doubling of the Central Florida background. Specification 23 of this limit with respect to an individual industry is 24 discriminatory in that there are lilely to be instances of 25 building and fill materials from non-phosphate sources that ------- 167 1 result in indoor levels exceeding this value including a 2 large percentage of the beach sand in the State. An exposure 3 level of 5 uR/hour is, in effect, an order of magnitude more 4 restrictive than the National Council on Radiation Protection 5 and Measurements (NCRP) recommended-maximum dose above back- 6 ground for individuals of the general public. 7 I would also like to say I agree and back up the comments 8 made by the Phosphate Council at the hearing in Washington. 9 • CHAIRPERSON DARRAH: Thank you. 10 MR, CORSON: Will you be providing us some support 11 data-of the material that you referenced in your oral comments 12 today with your written material? 13 MR. HEARON: It depends on which particular point. 14 MR. CORSON: You said there was some reports in. 15 ther e that may or may not be part of our background documentation 16 and I think in order for us to consider it in any reevaluation, 17 we should have those before, and some further citation 'to 18 enable us to get those 'reports. 19 MR. HEARON: If you will let me know. It is 20 Dr. Fischer's report, or something like that, I will be glad 21 to provide you with a copy. 22 CHAIRPERSON DARRAH: Thank you. Is Mr. J. E. Reill] 23 here? 24 MR. J. G. REILLY: My name is John G. Reilly, I 25 am Director of Environmental Control, Mining Division, St. Joe ------- 1 2 3 4 5 6 7 8 9 10 •11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 168 Zinc Company, and in this instance, I am representing St. Joe Minerals Corporation. St, Joe Minerals Corporation operates mine, mills and smelters in the lead and zinc industries, and operates mines and processing facilities in the coal industry. We are seriously concerned with some of the aspects of the proposed hazardous waste regulations, which can seriously . and unnecessarily impact our present and future operations. Some of our particular concerns are in the potential requirements for compliance with hazardous waste regulations, for waste which are not hazardous. Those portions of the proposed regulations that are more stringent than necessary according to the Act. We appreciate the difficulty and the task undertaken by the Agency in developing regulatio-ns to . cover all of the solid waste situation in the entire United States.' It is understandable, and therefore, that conditions and situations exist where the prooosed regulations are not applicable, not effective or not practical. Some of the defects are identified in our comments and suggestions which have been made, where we think they may be of help. -It is our intent to be included within the context of the more extensive comments submitted by the American Mining Conference, except where those comments might conflict with our own. We will be sending you our detailed comments by the deadline period. I have a few more important aspects of the proposed ------- 169 regulations that I would like to address at this time. 2 In our comments that we will be submitting to the -EPA, 3 we have also tried in each case to give suggestions on how we thought they might 'be improved. This is off the record. • " (Whereupon a discussion was had off the record.) ~ •• In Section 250.13(d) hazardous waste characteristics, 7 toxic waste, and this section the Agency has proposed a defini-r 3 tion and identifying methods with toxic waste. We are strongly objecting to the methods proposed in defining and identifying 10 toxic waste. As an operator of mines, mineral processing and smelter facilities,- we are particularly concerned with proposed 12 criteria regarding metals leaching from waste piles. The 13 method proposed to determine toxic waste and subsequent assignment of hazardous waste categories goes beyond the 15 purpose stated in the Act, which attacks human health and the lg environment. 17 The reason that the proposed toxic test for metals is more stringent than necessary, is because it is based on a 19 serious worst case assumption. The assumption was aoplied 2Q that the facility was improperly managed, and arbitrary factor of ten compared to drinking water standards was selected and 22 stated to be "probably conservative". A drinking water well 23 was assumed to be located within 500 feet, and lastly, the 24 proposed leach extraction test assume an acid pH of five would 25 develop within those waste oiles similar to a garbage dump. ------- 170 I This test for toxic determinability makes no allowance for 2 relative site conditions as to whether or not a waste is actualljy 3 hazardous or not. For example-, no opportunity was proposed 4 to consider the location that the distance to populated areas 5 and underlying soils and rock cbnditions, rainfall', the 6 existence of and the characteristics of an aquifer, of any, 7 the degree of'toxicity and so forth.- 8 Our suggestion is, that a provision should be included 9 in the existing section 250.15, which is entitled, "Demonstratiojn 10 of non-inclusion in the Hazardous Waste Category." -And this 11 would be to allow the right to demonstrate by considering all 12 the facts that are particularly waste, althought "Determined 13 to be Toxic" by extraction leach"screen test is not a hazardous 14 waste. In other words, we are suggesting that by whatever . 15 method a hazardous waste is identified, a person may have the 16 opportunity 'to show that in his site for his waste and for 17 his conditions, this is not a hazardous waste. This is what 18 we are suggesting. 19 Our second major point in this section is all those number 20 there in the extraction procedure. This section describes 21 proposed extracted leach test procedure which would determine 22 whether a waste is toxic, and therefore is subject to hazardous 23 waste regulations. We are objecting to the proposed extraction 24 tests because it is unrealistic and compounds the worst case 25 definition assumed in the definition of a toxic waste. The ------- 171 1 test has not been scientifically evaluated, and the most 2 unrealistic feature of the test is duplicated landfill and 3 open dumps, which specified the solution of a pH of five with 4 acetic acid during 24-hours. • \ 5 Our Missouri tailing piles consisting principally of 6 dolometic limestone will turn 'acidic. 7 Our New York tailing piles contain major quantities of 8 calcite, which neutralize any acid forming tendencies. 9 Number three is the silicate comprising the lead blast 10 furnace, slag pile are not acid forming.- I wonAt go any 11 farther into this, except to tell you that wa have tried to 12 run simulated EPA leach test with our various waste piles, 13 and we compared them in some cases to water leach tests. 14 We were concerned in most cases with lead and cadmium. We • 15 have found that our dolometic tailings in the Missouri area 16 will report to be hazardous waste by using acetic acid, 17 according to the definition given in the guidelines, perhaps 18 ten parts per million of lead in the leachate. We went out 19 to; an old tailings pile that runs pretty near as. much lead 20 in that old tailings pile as our current tailings pile, and 21 we got a realTleachate that was running out underneath the pile, 22 and we find it to be less- than .1 milligrams per liter. 23 Now, that is a real live situation, but if that tailings 24 pile was to be judged under this leach system, it would be 25 hazardous waste, and here it is less than a tenth of a percent— ------- 172 pardon me, less than a tenth of a millimeter per liter of lead. 2 Another extreme example was a lead smelter blast furnace 3 slag which is a two million ton pile, which have been accumulat- 4 ing since the early 1900's, and very similar to this phosphate. 5 It is a glass type calcium silicate furnace product. It does g have some lead in it with a simulated EPA-leach test, we got 7 100 milligrams per liter of lead. One lab got that and another g lab got 22, and yet we run a similar water leach test to it, and we are getting .5 and less.." Here again is the situation- with a pile that will never turn acidic. No way that it can. This data will be submitted with our comments. 13 I am going to say a couple of things about part 3 004. One of our major thrust will be to ask that EPA consider to have the furnaceyslag products be incorporated with special waste. " They all into every category of factors for which 17 the waste that were put into special waste. We are talking about some very large piles and we don't consider them to be 19 toxic, but if they are declared toxic, they should be declared 20 under the special waste. With the time left to me, I will address the groundwater 22 monitoring that is .being proposed by the EPA, and we are 23 objecting to it, which we believe is unrealistic when based 24 on a test well sampling which "significantly differed" as 25 determined by the students. ------- 173 I For example, if a background quality for lead was 2 determined to be non-detectable, and in the course of our 3 operation of a facility, the lead content was found to be 4 .02 milligrams per liter, which is well under the drinking 5 water standard, the operation could be shut down because it 6 showed that the water was significantly different from backgrounji 7 I thank you for letting me use my ten minutes and I will 8 be happy to answer any questions if you have any. 9 CHAIRPERSON DARRAH: Thank you for summarizing 10 your remarks for us. I guess there are no questions. Thank 11 you. 12 Our next speaker is Earl R. White. 13 MR. EARL R. WHITE: Good afternoon. I would like 14 to welcome the out of- state panel members and out of state 15 members of the audience to our beautiful State of Colorado. 16 My name is Earl R. White. I" am the Health and Regulatory 17 Affairs Chemist for Arapahoe Chemicals, Inc. located in Boulder, 18 Colorado. Arapahoe Chemicals is a manufacturer of bulk 19 Pharmaceuticals and fine organic chemicals with facilities 20 located in Boulder, Colorado employing 273 people and in Newport 21 Tennessee, employing 206 'people. • 22 Arapahoe Chemicals is committed to the concept of social 23 responsibility that includes active and convincing participation 24 in national pblicymaking. We have also made commitments of 25 responsibilitv in our relationships with our shareholders, our ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 174 employees and our community. In responding to these proposed measures we do not wish to imply that we are fighting the concept of social responsibility, nor are we blind to the real causes of environmental insults. We appreciate the difficulties in writing responsible regulations to enforce the technicalities of reasonable legislation. Especially recognizable are the difficulties encountered when dealing rn the highly complex area of environmental protection. We believe that public-policy should be based upon an informed view - one that is far-sighted, fiscally responsible, realistic, supportable and non-selfserving. We believe in facing this regulatory dilemma squarely without resorting to exaggeration and overstatement of the possible ramifications to EPA's proposals - a tactic which we recognize would polarize the exchange of ideas. Furthermore, we believe that responsible business can play a constructive role and not just a defensive one in the formulation of regulatory policy. In the comments to follow we have, identified and responded to.certain technical, legal and economic issues which we feel will have a profound impact on our business. Equally important, however, is the fact that neither RCRA nor the orooosed imple- menting regulations deal with the- scarcity of hazardous waste treatment and disposal facilities or the extreme difficulties faced by government and private industry in siting additional facilities. It is clear that these regulations, if finalized ------- 175 1 in their present form, would place many generators in the 2 position of having no feasible means of disposing of some or 3 all of their waste. There is a good possibility that there 4 will be no approved hazardous waste disposal sites (landfills) s * 5 in either Colorado or Tennessee. Furthermore, the' legislatures 6 of both states may refuse to fund another expensive Federal 7 program. The Colorado Legislature took that posture this past 8 year when it stopped funding COSH, the State arm of the Federal 9 OSHA program. 10 Arapahoe Chemical's principal concerns with the proposed 11 regulations contained in Section 3001 are discussed first 12 and our detailed comments follow in a section-by-section format, 13 In the ooinion of Arapahoe Chemicals, there are three bas~ic 14 problems with the proposed Section 3001 hazardous waste 15 regulations. These include: 15 (1) The potentially high cost, in both time and money, 17 of performing the tests to determine whether or 13 not a waste 'is hazardous. 19 (2) The exceptionally broad definition of a solid 20 waste, and 21 (3) The proposed controversial Extraction Procedure. 22 Our first concern centers around EPA's proposal beginning 23 with 24 Section 250.10(d) (1) (i) : 25 "Generators of solid waste may elect to declare their ------- 176 I waste hazardous and subject to the regulations of this Part. 2 In these cases, generators need not perform the specified 3 evaluation." 4 Arapahoe's Comments: 5 Since the cost, in both time and money, of performing 6 the tests to classify industrial wastes is so high and since 7 the penalty for not being in compliance is so great, the 8 tendency for small and medium sized generators is going to 9 be to declare all industrial wastes as hazardous. This in 10 turn is going to put an unnecessary and greater burden- on the 11 approved hazardous waste landfill sites in the country and 12 consequently decrease their useful life, resulting in the 13 wasting of a valuable natural resource. Furthermore, as the 14 easily accessible sites are filled and it becomes-necessary 15 for industry to haul its wastes greater distances, the S35 to 154200 per metric ton EPft^disposal cost estimate, which is 17 approximately four to 43-6 times our current disposal cost, 18 will be greatly exceeded. 19 . We recommend that EPA develop-and adopt-less expensive 20 and easier tests, to make the determination of whether or not 21 a waste is hazardous. .This would surely be a good use of 22 public money. 23 Our second concern centers around EPA's proposal 24 beginning with 25 Section 250.13 (a) (1) (ii): ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 •19 20 21 22 23 24 25 177 "A solid waste is a hazardous waste if a representative sample of the waste:...when ignited burns so vigorously and persistently as to create a hazard during its management." Arapahoe's Comments; It is the intent of this section to regulate non-domestic waste paper, cardborad, wood scraps, sawdust, etc., as hazardous wastes? Certain wastes, such as waste paper from office facilities of chemical companies maybe non-hazardous. These should ndt be classified as hazardous merely -because of the source, nor should companies have to justify by testing that their waste paper is not hazardous. . Waste paper from the office facilities of chemical companies should be treated no differently than normal household refuse (Refer to Page 58969, Column 3 of these proposed regulations, which addresses the intent of Congress). The clause "or when ignited burns so vigorously and persistently as to cause a hazard during its management" should be stricken from the regulations: Our third major concern centers around EPA's proposal beginning with Sec. 250.13(d)(1): " A solid waste is a hazardous waste if, according to the methods specified in paragraph (2), the extract obtained from applying the Extraction Procedure (EP) ^cited below to a reoresentative sample of the waste has concentrations of a contaminant that exceeds any of the following values ------- 178 e.g,, cadmium at 0.10 mg/1." And Sec. 250.13 (d) (2) (E): "Begin agitation and adj-ust the pH of the solution to 5.0+0.2 using 0.5 N acetic acid." Arapahoe's Comments. It appears that the intent of this section is to incorporate discarded concrete, piping, ductwork and other e construction discards to the EP test. Therein, it appears that building contractors, wreckers, etc. would be classed 1° as generators of solid waste and- would be required to apply 11 the EP to determine if their solid waste were hazardous. 12 A classic example being a fragment of concrete from drain tile, an aqueduct, a dam, a bridge, a highway, an airport runway, a skyscraper, a neighborhood sidewalk, the foundation of a home, or the storage pad 'of a chemical plant which, when subjected to the proposed EP results in a "leachate" containing cadmium in escess of 0.10 mg/1. 18 The EP test appears scientifically unsound- in that: (a-) This laboratory test may not be indicative of actual 20 environmental situations; (b) Two chemicals used in the test, namely acetic acid and deionized water, are not commonly found in nature; (c) Disposal of acid waste is not considered state-of-the-art practice by industry; (d) The proposed acid-extraction nrocedure will not provide a valid indication of a waste's characteristics when landfilled in the normally ------- 179 I alkaline soils found in the arid and serai-arid Western two- 2 thirds of the nation? and (e) No consideration of soil types 3 or characteristics (other than acidity) was acknowledged or 4 dealt with in this section. 5 This concludes our public statement of concerns relative 6 to Section 3001. We appreciate the opportunity to have present- 7 ed our concerns, opinions and suggestions. 8 Thank you. I will be open for questions-. 9 CHAIRPERSON DARRAH: Thank you -very much. 10 MR. LINDSEY: Mr. White, one of the comments you 11 made earlier on was that you felt that the cost of running 12 the tests, which we put in here as far as the criteria goes, 13 would be "very high, and this would potentially cause many 14 companies to simply decree their waste hazardous rather than 15 running these tests. This is a little different than what 16 the information we have is, in that the information we have, 17 and I forget the exact figures, but it indicates that tests 13 cost would run in the neighborhood of about $400 or something 19 along those lines. Do you have any information that indicates 20 that? 21 MR. WHITE: We just received the Arthur D. Little 22 Economic Impact Analysis the day before yesterday. In there, 23 it is my understanding that 450 to 500 dollars is an average, 24 that it could go to$1900, depending upon the type of business 25 you are in. ------- 180 MR. LINDSEY: Depehd;±rig on the number of waste that 2 you have to test, if you have a lot of different waste? 3 MR; WHITE: Right.. 4 MR, LINDSEY; And presumably it would be -some 5 multiple of 450? is that what the figure was? 6 MR. WHITEs Yes. 7 MR. LINDSEY: I would assume that would be some 8 multiple, and you figure that is like a one shot operation, 9 isn't it, to determine whether it is hazardous? 10 MR. WHITE: I fail to comment up front that 11 Arapahoe Chemical is in the business of batch operation rather 12 than continuous processing. This is why this would affect 13 us particularly hard. 14 MR. LINDSEY: That would certainly multiply your 15 situation, but let me ask you this, can a batch speciality lg operation— how many distinct, kinds of waste do you have? 17 In other words, every batch you run is not distinctly different 18 from every other batch? - You must produce certain product lines 19 in each one of those, which has a waste that is characteristic 20 that product line; is that the way it works? 21 -MR. WHITE: - We could .have. I am going to use some 22 ballpark figure, anywhere from six to twelve waste streams to 23 deal with over a period of time. 24 MR. LINDSEY: It would be distinctly different? 25 MR. WHITE: If we had to go through this testing ------- 181 1 requirement, we would have to isolate these separate waste 2 treatment and separate storage facilities- and hold on to these 3 until we got the testing results back, and in a batch operation 4 where maybe- you may have 6DO gallons of a waste stream off of 5 one plant process, it may be 3,000 a day off o.f another one, 6 this becomes very burdensome- to keep track of each process 7 and keep the waste separated and to monitor the testing that 8 would be required for this. 9 MR. LINDSEY: Under your current practice, that 10 is to simply mix all these waste streams together, and since 11 you run different processes simultaneously, you would have on 12 a day to day basis a waste stream that would be varying? 13 MR. WHITE: Our current process is to segregate 14 as much as possible solid and organic solvents. We are trying 15 to reclaim the organic solvent. 16 MR,. LINDSEY: They wouldn't be covered? 17 MR. WHITE: It is aquesus. material that will give 13 us the most fits under "the. oroposal. 19 MR. LINDSEY: What do you do with that material 20 now? Is it put in drums and hauled away or what? 21 MR. WHITE: The makeup of our aquesus material is 22 usually 95 percent or better water, and the remainder is made 23 up of mixed salts. To concentrate aquesus waste is a very 24 complex and sensitive orocedure. Right now we haven't 25 considered our aaueous waste as toxic or hazardous. If they ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 182 are contained properly at a disposal site, which we are doing under license now, MR. LINDSEY: It is a land disposal facility? MR. WHITE: Yes. MR. LINDSEY: On-site? MR. WHITE: Yes, CHAIRPERSON DARRAH: Thank you very much. Our next speaker is Ms. Francine Bellet. Kushner. MS.' FRANCINE BELLET KUSHNER: Good afternoon, my name is Francine Bellet Kushner, Associate Director for Legislative and Regulatory Affairs, Chemical Specialties Manufacturers Association. CSMA is a voluntary non-profit organization consisting of more .than 400 member companies engaged in the manufacture, processing and distribution of chemical specialty products. Production processes in the manufacture and formulation of members' products generate substances that-are directly affected by the proposed regulations for identification and listing of hazardous wastes as well as. the proposed standards for generators and owner/onerators of treatment, storage and disposal facilities. Accordingly, CSMA offers the following comments regarding the hazardous waste regulations proposed under 3001 of the Resource . Conservation and Recovery Act (RCRA). These points and others will be further developed in our subsequent written submission. ------- 183 1 We welcome this opportunity to present our views to 2 the Environmental Protection Agency on issues raised by these 3 hazardous waste regulations which will have significant impact 4 on our industry. The vitality of the chemical specialties 5 industry is dependent upon"the opportunities for constant 6 innovation» We are concerned that the proposed hazardous 7 waste regulations will have a negative impact on essential 8 process and product innovation and will impact disproportionatel 9 on small companies. 10 Identification Criteria should Reflect Degree of Hazard 11 • The proposed regulations create but one category of 12 hazardous waste and lump all wastes identified as hazardous 13 in the category regardless of the differing degree of hazard, 14 persistence, degradability and bioaccumulation exhibited by 15 the wastes actually classified as hazardous. EPA's failure 16 to consider degree of hazard in identifying and, classifying 17 hazardous wastes-^violates the provisions and intent 'of RCRA 18 and will result in an irrational regulatory scheme which 19 vastly over-regulates many wastes while possibly under- 20 regulating others. 21 Both the legislative history and RCRA itself indicate 22 the degree of hazard should be considered in setting standards 23 for hazardous waste management.- Section 1004(5)- of RCRA 24 indicates Congressional i-ntent to consider relative hazard 25 in its definition of hazardous waste as a "solid waste, or ------- 184 1 combination of solid wastes, which because of its quantity, 2. concentration, or physical chemical or infectious character- 3 istics...". Section 3004 of RCRA recognizes that financial 4 responsibility should be based on degrees of risk. This 5 section refers to "assurances of financial-responsibility 6 and continuity of operation.consistent with the degree and 7 duration of risks associated with the treatment, storage, or 8 disposal of specified hazardous waste". 9 Any designation of hazardous waste as such, because of 10 the management standards created by the RCRA regulations, 11 should be according to relative degree of hazard. This concept 12 of relative degree of hazard.has been recognized in state 13 hazardous waste management programs of many states, including 14 Washington and Maryland, as well as in the designation of 15 special wastes under 250.46 of these regulations. Any regulator 16 system based on relative degree of hazard must recognize factors 17 of persistence, degradability, concentration form, quantity, 18 and exposure, 19 A regulatory system assessing relative degree of hazard 20 is also necessary in establishing an exemption mechanism. It 21 is more realistic to key the exemption mechanism under 250.29 22 to relative degree of hazard than to provide a blanket exemption 23 An exemption system based ucon relative degree of hazard would 24 be more likely to afford greater protection against hazardous 25 waste mismanagement than an exemption system based on an across- ------- 185 the-board exemption level. Such a ystem would provide signif- icant relief from extraordinary economic and technical burdens imposed by the regulatory structure' for less hazardous wastes and would reduce the number of insignificant generators covered by the regulation, thereby avoiding a shortage in treatment, storage and disposal capacity while not reducing ' protection from hazardous waste mismanagement. A management Q and exception system based upon relative degree of hazard • would also improve oversight of 'hazardous waste management by freeing the Agency to concentrate on those wastes which exhibit t " truly serious hazards and would establish priorities for 12 hazardous waste management review. Criteria for Designation as Hazardous Waste Should be Consistent with DOT Hazardous Materials Regulations EPA criteria for designation of a substance as a hazardous waste should be consistent with the DOT criteria for hazardous substances. CSMA urges that these criteria be consistent because the entire industry approach to hazardous materials is based on th)s DOT regulations. Industry has already geared up to deal with the DOT criteria. Any deviation from the DOT criteria would not only necessitate a massive reeducation effort on the part of those involved in the hazardous waste management chain but would also be 20 22 25 9A significantly complicated by any further deviation from the criteria instituted in state programs. ------- 186 1 For example, 250.13(a) designates as an ignitable waste 2 subject to these regulations any substance with a flashpoint 3 less than 60°C (140°F) determined by a specified method. 4 EPA should adopt a definition of hazard based upon the DOT 5 designation of flammable substances as those with a flashpoint 6 of less-than 100°F and of combustible substances as those 7 with a flashpoint between 100°F and 200°F. Such a definition 8 would be consistent with existing DOT regulations and would 9 also recognize relative degrees of hazard. As another example, 10 both EPA and DOT establish as corrosive any substance which 11 corrodes steel in excess of one-quarter inch per year. Never- 12 theless, EPA has gone beyond existing DOT regulations to identifjy * 13 PH, in and of itself, as"an indication of corrosivity. 14 Section 250.13 (b) adds an additional criterion for designation 15 of a waste as corrosive a pH of less than three or greater 16 than twelve. The invalidity of pH as an indicator of corrosive 17 hazard has .been recognized by the Consumer Product Safety 18 Commission and by its predecessor Bureau of Product Safety 19 within the Food and Drug Administration in detergent toxicity 20 surveys. Therefore, EPA should delete pH as a criterion 21 for corrosive waste, 22 Definition of "Other Discarded Material" 23 The Section 250.10 (b) definition of "other discarded 24 material" includes substances or wastes that are reused, 25 reprocessed, recycled or recovered, including materials treated ------- 187 1 prior to reuse. The extension of the definition to such 2 substances is clearly not contemplated by RCRA. The legislative 3 history (H. Rept. No. 94-1491,- Part I) states that the term 4 "other discarded materials" is not to include reused waste. 5 "Much industrial and agricultural waste is reclaimed or put 6 to new use and is therefore not a part of the discarded 7 materials disposal problem the committee addresses". 8 (H.Rept. No. 94-1491, Part I, p.2). Materials that are reused, 9 regardless of how, are not subject to regulation under RCRA. 10 This inclusion of material having economic value in the term 11 "other discarded material" is also inconsistent with the 12 ordinary usage of the term "discarded". % 13 The proposed regulations should recognize that, by 14 definition, a waste has no commercial or economic value, and 15 any used substance with commercial or economic value should: 16 not be subject to these requirements.' And, this recognition 17 should incorporate "a'-presumption that- if' a"waste~has inherent 18 economic value, it will" be used for the purpose that will 19 exploit that commercial or economic value. 20 Furthermore, where the commercial or economic value 21 of a hazardous waste is based upon heat generation from 22 incineration, the current definition of -"other discarded 23 material" would result in regulation of this waste under these 24 hazardous waste regulations. This would result in making a 25 waste incinerator used for heat generation purposes, a treatment ------- 188 facility subject to the design standards proposed under 3004 * 2 and the permit requirement of 3005. Such a result was not contemplated by Congress. Accordingly, the definition of 4 "other discarded material" should be amended to clarify that reprocessed,.recovered, or returned reusable chemicals do not constitute waste subject to regulation under RCRA and that treatment of wastes prior to reuse is not subject to regulation 8 under 3004 of RCRA. 9 Regulatory treatment under RCRA of reused, recycled, or reprocessed waste should be consistent with rules -under 11 5 of the Toxic Substances Control ACt (TSCA) which recognize 12 that exploitation of full potential of a waste or end product does not constitute sufficient basis for regulation. For 14 example, 40 CFR 720.13 (d), a rule under 5 of TSCA, does not classify co-products as chemical substances subject to TSCA "if the only commercial purpose is for sale to municipal or private organizations who burn it as a fuel". Accordingly, waste materials burned -primarily for heat recovery should not be considered "other discarded material" for purposes 20 of disposal under 3004 regulations of RCRA. 21 in summary, the proposed regulations under 3001 of RCRA 22 should be amended to reflect CSMA's major concerns, which are: 23 1. Identification criteria and listings to designate 24 hazardous waste should reflect relative degrees Of hazard. The regulatory system and any exemptions ------- 189 1 thereunder should incorporate relative degrees of 2 hazard. 3 2. Criteria for designation as hazardous waste should 4 be consistent with criteria under DOT hazardous 5- materials regulations. 6 3. The definition of "other discarded material" should 7 not include wastes that are reused, reprocessed, 8 recycled, or recovered, including materials treated 9 prior to reuse.. ' 10 CSMA appreciates this opportunity to share our views and we offer our firm commitment to work with the Environmental 12 Protection Agency toward development of viable hazardous waste management regulations. " •' •-. • ••--:- - 14 I would just like to state our membership ranges in •• 15 size from small chemical producers xvith sales in the neighborhood lg of four to five million dollars a year on up to very very 17 large chemical companies, many.of which produce commodity lg chemicals as well. 19 Thank you. I will now answer questions. 20 -MR. LINDSEY: The last of the 'three items had to 21 do with the definition of other discarded materials, and I 22 think maybe it is not clearly written, and maybe that is our 23 problem, but by in large, unless your use constitutes disposal, 24 recycle, reclaimed, reused materials are not subject to this. 25 That is what that says. If you would like to identify or ------- 190 suggest wording which would make this clearer, sometimes we can't see the forest for the trees, but we know what we are saying, but maybe it doesn't always come through tjhat way, that would be helpful. I might go so far as to say that as far as use constituting disposal, you recommended, for example, that rather than have this kind, of language, that we use an' ' economic value as a criterion, and we did consider that, and I will lay out for y.ou the problem we had and see if you can * suggest maybe some other way we can get around it, if it 1° still bothers you. There have been a number of cases where 11 wastes materials significantly hazardous materials that we 12 have examples of, have been used to oil down, if you will, various dusty areas. One of the most explicit cases where all those horses were killed by the use of a material containing waste, and oiling materials, and that had an economic value in that case. That is one, among other cases which caused this act to be passed in the- first place. We have to see if we can keep this kind of thing in the system.- 19 . MS. KUSHNER: Well, I would like to call your 20 attention to certain elements in the legislative historv. it indicated that the nurpose of the legislation was twofold, 22 and it was to encourage .resource conservation and resource recovery. We think that clarification of reprocess,, recycle is not contemplated but would only encourage that ourpose. 25 That is recoverv of the material. ------- 191) 1 MR. LINDSEY: But you don't in your category of 2 recovery, you don't mean the spreading of materials on the 3 ground, and say we are using them for oiling/ if you will? 4 MS, KUSHNER: Absolutely. 5 -MR. LINDSEY: Then I think we are in agreement. 6 We may not be in agreement with how the wording should be 7 spelled, but that is essentially what this says or meant to 8 say. 9 CHAIRPERSON DARRAH: Thank you very much. Our 10 next speaker is Mr. Kent Olson of Rio Blanco Oil Shale 11 Company* 12 MR. KENT OLSON: Good afternoon, my name is Kent 13 Olson and I am an attorney, and I am here representing Rio 14 Blanco Oil Shale Company, Pio Blanco is a.general partnershin 15 comprised of Standard Oil Company of Indiana, and Gulf Oil 16 Corporation. Those two companies are the lessees of Track cA 17 Oil Shale Lease out in the Piceance Basin in Northwestern 18 Colorado, and it is a Federal prototype oil shale tvpe program. 19 i do have copies of our written submittal, which was 20 mailed today to Mr. Lehman. A cony has been given to the 21 court reporter. However, if any member of the nanel would like 22 to have a cony now, I will be glad to distribute them now. 23 I did attend to have one of our experts present, who is out 24 of town today, with me, if you get into some questions I 25 can't answer, we can either file'an addendum to our written ------- 192 1 comments or reapnear on Friday. 2 Rio Blanco finds itself in the posture of at best, to 3 eat a half a loaf, and maybe we should be content with the 4 half a loaf rather than a full loaf, and we certainly appreciate 5 the special waste category, and other mining waste subcategories. 6 Those of us out here who follow the Broncos, would know what 7 I mean when I characterize it as "Lou Sabin's half a load." 8 By necessity, I have to emphasize the negative because 9 I pick out tho-e things that are most concerned to us in the 10 ten minutes alloted to me. I don't mean to be, or create the 11 impression of being unduly negative. I think EPA did a fine 12 job on the Subpart B regulation on generator. We do have about 13 four comments under those, and depending on the time, I mav 14 refer to a couple of those comments. I also will not treat 15 in my verbal remarks here the trust fund concept. I think 16 there is another way to skin that cat, and that is also treated, 17 not in lieu of your trust fund, but as a supplement to it. 18 That is treated in our'-written presentation as well. Even thoucjh 19 that concept, as I understand, would not apply to other mining 20 wastes. We are trying to be helpful on that. Unfortunately, 21 part of my philosophy, to start out, we could philosophize 22 what EPA should be doing. I am trying to figure out what you 23 are doing and what Congress intended should be done. Congress' 24 philosophy, it seems to> me, after reading the legislative histoi 25 all of which is cited in our written submittal, if mining waste ------- 193 1 is not known to be hazardous or~none-hazardous, you do not 2 presently regulate, but if EPA should suddenly under Section 3 8002 of the Act, whereas EPA's. apoarent philosophy as reflected 4 in these proposed regulations, it seems to me that mining 5 waste is not known to be hazardous, then you regulate in part 6 by creating a special waste category, and then "carrying out 7 a sub-category called uranium mining waste or other other mining 8 waste, or what have you. And until the particular minina 9 industry involved accumulates data at its cost, rather than 10 as Congress has mandated EPA should accumulate that data as 11 part of this study at its cost. 12 Mining waste, the basic argument is, that it should be 13 presently subject only to the 8002(f) study. 14 With regard to oil shale in particular, I would read 15 this portion of our presentation, and that is, these oil shale 16 operations, and I am speaking only of the Federal prototype 17 oil shale lease operations, not any private oil shale operations 18 that might be anticipated in the future, that these operations 19 including any generation, transportation, storage, treatment 20 and disposal of the solid waste and hazardous waste are and 21 have been from their inception, regulated by numerous stringent 22 lease stipulations and permits, both Federal and State. These 23 operations are closely scrutinized by the area oil shale 24 supervisor of the USGS in frequent consultation with the Oil 25 Shale Environmental Advisorv Panel, which did meet quarterly, ------- 194 I believe until this moratorium, and now it is going to resume 2 meeting quarterly, I understand this April. To superimpose 3 another layer of regulation on these already regulated operations in my view, would be the example of the kind of situation that Congress did not intend to be subject to regulations like the three proposed. 7 Our second point is mining overburden is not a solid g waste, and the legislative history is very clear on that. 9 In 43 Fed. Reg 58946 - 59022 (Dec 18, 1978), the U.S. Environmental Protection Agency (EPA) caused to be published certain proposed regulations under paragraph 3001 (691), 12 3002 (6922) and 3004 (6924) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA) which was aassed by Congress on October 21, 1976. Submission of written comments on these proposed regulations has been invited by EPA and are due on or before March 16, 1979. In response to this invitation, Rio Blanco Oil Shale Company, a general partnership comprised of Standard Oil Company! a general partnership comprised of Standard Oil Company 2Q (Indiana) and Gulf Oil Corporation (RBOSC), would like to take this opportunity to submit our written comments thereon for 22 EPA's consideration. In addition,'by letter under date of 23 February 23, 1979 to Mrs. Geraldine Wyer of EPA, RBOSC has 24, requested an opportunity to make an oral presentation on these 25 proposed regulations at the Denver hearing scheduled March 7-9, ------- 195 1 1979. A cony of this letter will be submitted as part of that 2 hearing record. Mr. Kent P. Olson will make RBOSC's oral 3 presentation. 4 Before addressing RBOSC's specific concerns, perhaps 5 some background information on how our writ-ten comments are • 6 organized would be helpful. We have elected to treat the 7 outset certain fundamental legal questions which we believe 8 affect all three of these proposed regulations. For this reason 9 these legal comments do not."identify the regulatory docket ' 10 or notice number" as requested in EPA's invitation to comment, 11 but they should be understood to apply to paragraph 3001 (6921) 12 3002 (6922} and 3004 (6924) collectively. Thereafter, we will 13 nresent our specific comments, whenever practical, in the 14 order in which these proposed regulations appear in the Federal 15 Register and in the chronological order in which they appear 16 within each such proposed regulation. Where, t'o't example, a 17 comment on some feature of the proposed regulation under 18 paragraph 3001 (69211) "would also certain to a concern of 19 ours on an aspect of the proposed regulation under paragraph 20 3002(6922) and/or paragraph 3004 (6924), we will attempt to 21 coordinate those comments and cross-reference the appropriate 22 subsections in a manner so as to avoid any confusion or repetit- 23 ion. 24 Fundamental Legal Comments. 25 1. It is premature to presently include "mining waste" ------- 196 1 within the coverage of paragraph 3001 (6921), 3002 (6922) and 2 3004 (6924) of RCRA and within any regulations promulgated 3 thereunder. The definition of "solid waste" in paragraph 1004 4 (27) (6903) (27)) of RCRA could be read as suggesting (erroneousijy) 5 that, because discarded material from "mining...operations" 6 is "solid waste," such waste may be presently regulated under 7 these three sections of RCRAc However, the legislative history 8 of RCRA refutes that suggestion and makes it clear that Congress 9 intended that any such regulatory effort must be preceded by 10 the study, reporting and consultation procedures in paragraph 11 8002(f) '(6982(f)). 12 "Further, there are other aspects of the discarded 13 materials problem, namely mining wastes and sludge, 14 that could pose significant threats to human life 15 and the environment. Because of a lack o^ (sic) 16 information, the Committee is unable to determine 17 the hazards associated with the improraer management 18 of these wastes.- The Committee has" therefore 19 directed the Environmental Protection Agency to 20 study the sources and composition of these wastes; 21 the existing methods of disposal; and the potential 22 dangers to human health and the environment caused 23 by the imoronjer management of these wastes. 24 "Three areas in narticular are of such a nature as to 25 require either a special study or a special program. ------- 197 These three areas are: mining waste, sludge, and 2 discarded automobile tires. 3 "A thorough study of mining waste is essential because mining eastes represent 1.8'billion tons of waste a year. (The second largest waste generated by volume is agriculture'at 687 million tons, industrial at 200 million tons, followed by municipal waste at 135 million tons.) The traditional theory regarding mining waste has 10 been that it is generally inert.. However, a few 11 recent studies indicate that some mining wastes can 12 be harmful; some-particularly so when mixed with 13 water. Other mine tailings, particularly those- • containing heavy metals may be inert but nonetheless 15 toxic even in their elemental form. Committee 16 information on the ootential danger posed by 17 mining waste is not sufficient to form the basis 18 for legislative"action at this time. For this 19 reason, the Committee has mandated a study of 20 mining wastes. 21 "EPA will undertake a study of mining easte, its 22 sources, and volumes, oresent disposal nractices 23 and will evaluate the potential danger to human health and environmental vitalitv. EPA will study 25 surface runoff or leachate from mining wastes and ------- 198 1 air pollution by dust, as well as alternatives 2 to current disposal methods and the costs.of 3 such alternatives..." .. 4 "The intent is for EPA to look at all mining waste 5 disposal practices, past and present, identify the 6 adverse effects of such wastes on the environment, 7 including people and property located beyond the 8 boundary of the mine, evaluate the adequacy of those 9 practices from a technical standpoint, including 10 the adequacy of governmental regulations governing 11 such disposal, and make recommendations for 12 .additional R&D, for improvement of such practices 13 and, where appropriate, for the development and 14 utilization of alternative means or methods of 15 disposal that are safe and environmentally "sound.." 16 Until these paragraphs 8002(f) (6982 (f)) procedures are 17 met, thereby giving to EPA the information Congress found 18 lacking to reasonably and non-arbitrarily regulate 'that 19 "mining waste" which is "hazardous," "mining waste" cannot be 20 so regulated as though it were "hazardous." In considering 21 H.R. 14496, whose provisions in this regard were essentially 22 those of RCRA as finally passed, the staff of the Subcommittee 23 on Transportation and Commerce of the House Interstate and 24 Foreign Commerce Committee (which was the subcommittee that 25 reviewed this bill) requested and received from EPA conies ------- 199 1 of all the damage reports, totalling some 400 reports, for 2 the express purpose of ascertaining what kinds of waste from 3 what kinds of activities and facilities should be covered 4 in RCRA's definition of "solid waste." Not one of these 5 reports involved "mining waste," nor could EPA then (as it 6 probably could not now if requested under the Freedom off 7° Information Act) produce any information on "mining waste" for 8 that exhaustive sub-committee staff effort. It was precisely 9 for this lack-of-information reason that Congress mandated 10 EPA to conduct the paragraph 8002 (f) (6982 (f)) study on "mining 11 wastes." 12 This is not to say thatEPA is precluded from finding now 13 that specific mine wastes from a specific site are "hazardous1," 14 but rather that any finding that certain mining wastes generally S 15 are "hazardous" can occur only "at some time in the future," 16 after the paragraph 8002(f) (6982(f)) nrocedures are met. 17 By this method, Congress sought to give EPA the latitude to 18 formulate the scientific basis and data by which "hazardous" 19 "mining wastes" thereafter could be so regulated by EPA without 20 the necessity of EPA's having to return to Congress to obtain 21 the requisite regulatory authority; once EPA has met these 22 paragraphs 8002(f) (6982 (f)) procedures, it then can promulgate 23 regulations under paragraphs 3001 (6921), 3002J[6922) and 24 3004 (6924) for such "mining wastes" without any further 25 legislation. ------- 200 I With respect to RBOSC's oil shale operations relative 2 to Federal Prototype Oil Shale Tract C-a in Rio Blanco County, 3 Colorado, these operations, including any generation, transpor- 4 tation, storage, treatment and disposal of "solid waste" 5 and"hazardous waste" are, and have been from their inception, 6 regulated by numerous and stringent lease stipulations and 7 permits (federal and state). Moreover, such operations are 8 closely scrutinized by the Area Oil Shale Supervisor in 9 frequent consultation with the Oil Shale Environment Advisory 10 Panel. To superimpose yet another layer of regulation over 11 these already regulated operations would be an example of the 12 kind of situation Congress did not intend should be subject 13 to regulations like the three proposed, unless, in implementing 14 the paragraph 8002(f) (6982(f)) study procedures, a regulatory 15 "hazardous waste" hiatus in this federal prototype oil shale jg program was unexpectedly discovered. 17 2. Assuming, arguendo, that paragraphs 3001 (6921) , 18 3002 (6922) and 3004 (6924) of RCRA presently are applicable 19 to "mining waste," and that EPA may promulgate regulations 20 thereunder, it is SBOSC's understanding that oil shale mining 21 waste, including processed (retorted) shale, falls under the 22 proposed "other mining waste" subcategory in paragraph 250.46-5. 23 If this, however, is not EPA's intent, RBOSC would appreciate 24 prompt notification thereof and would he res by request, without 25 prejudice to any of the fundamental legal comments herein, that * ------- 201 a separate "oil shale mining waste subcategory," which would include processed (retorted) shale be created under the "special waste standards" category in paragraph 250.46. Oil shale development, like many other kinds of mining, includes extracticjn crushing, handling, processing and transporting steps, and therefore should be treated equitably with other mining. 3« It is unclear if EPA intends to regulate overburden under the "other mining waste" subcategory in paragraph 250.46-f as it proposes to do for certain enumerated "mining eastes." If so, any such regulation would have no basis either in RCRA 11 or in the legislative history thereof. The term "Solid waste" 12 is defined in RCRA to mean only certain kinds of "discarded 13 material." Therefore, unless a material is "discarded," it never is a "solid waste" under RCRA, nor can it ever be a "hazardous waste" under RCRA, because the term "hazardous waste" is defined in RCRA to mean only certain kinds of "solid waste." Nor can E^A's proposal to expansively redefine 18 both the RCRA term "hazardous waste" (by defining this term to mean not only what RCRA says it means but also "as further 20 defined and identified in (this subpart by EPA)" and the language "other discarded material" in the RCRA term "solid 22 waste" (by incorporating a "reuse" concept) circumvent this basis statutory definition. Normallv, such overburden is stockpiled and protected for eventual return to the mine or other use. It is not "discarded." Moreover, even assuming, ------- 202 arguendo, that mining overburden in certain isolated instances 2 W3re "discarded," such discarded overburden would have to meet the paragraph 1004(5) (6903(5-)) "hazardous" test in RCRA 4 before it would come within paragraph 3001. (6921) , 3002 (6922) or 3004 (6924) of RCRA or any regulations promulgated there- under 4. The data collection and reporting procedures proposed to be made' applicable to "other mining waste" are at variance 9 with the paragraph 8002 (f) (6982 (f)) study procedures. 10 Those procedures require the EPA Administrator to "conduct 11 this study, "in consultation with the Secretary of the -Interior, 12 and, upon completion thereof, to "publish a report of such 13 study and.., include appropriate findings and recommendations 14 for Federal and non-Federal actions..." There is no requirement 15 in RCRA that a generator or transporter of "hazardous waste'" 16 or the owner/operator of a facility for the treatment, storage 17 or disposal of "hazardous waster" prepare or participate in 18 that study or that renort, or collect any raw data therefore, either at the sole cost ofEPA or, as- EPA proposes, at the 20 . generatbr's, etc. sole cost. In effect, EPA proposes to force 21 a generator, etc. to work for' EPA in the preparation of this 22 study free of charge to EPA. The cost of such forced labor 23 to the generator, etc. will inflate the cost of mineral 24 development. 25 5. EPA has failed to follow the reauirement in paragraph ------- 203 1 3001(b) (6921(b)) of RCRA that any regulations "listing 2 particular hazardous wastes" and "identifying the charactefisti 3 of hazardous waste" be "based .on the criteria promulgated 4 under subsection (a) of this section." The legislative history 5 clearly discloses that Congress had three specific reasons 6 why this bifurcation, in kind and chronology, of the'development 7 of criteria, on the one hand, and the identification and listing 8 of "hazardous wastes," on the other hand/ was adopted. For 9 example, EPA has identified the characteristics of "hazardous 10 waste" and made them applicable to "mining waste." Yet, no 11 criteria have been promulgated upon which such identification 12 are supposed to be based-. It would appear, that EPA already 13 has decided on such characteristics and then, after the fact, 14 will prepare first the proposed, and then the final, criteria 15 required by paragraph 3001(b) (6921 (b)) of RCRA. 16 6. RBOSC is concerned that these proposed regulations, 17 if promulgated as presently written, could inadvertently 18 create a federal cause "of action in tort between a "generator," 19 etc. and third-parties, and, if so, that a violation of 20 the standard could be negligence per se and/or the liability 21 therefor could be absolute. Present state case law and 22 statutes adequately cover such a cause of action, and the 23 creation of such a federal cause of action could overwhelm an 24 already overburdened federal judiciary. Nothing in the 25 legislative historv of RCRA even suggests this was Congress' ------- 204 1 intent. EPA's final regulations should make this crystal-clear, 2 ?„ EPA's use of "notes" throughout these proposed 3 regulations is, at worst, legally confusing and, at best, 4 cumbersome. It is RBOSC's understanding that these "notes" 5 would be a part of the final regulations- and therefore on an 6 equal legal footing with the other portions of these regulations 7 To avoid the potential unintended result that a cpurt might 8 rule otherwise, and to clean up this awkward syntactical- 9 approach, EPA should incorporate each "note" into the body 10 of the regulation to which it pertains through the use of 11 "unless" language or something similar, and delete the intro- 12 ductory-language portion- of the "note. " 13 Specific Comments. 14 Without waiving, abandoning or diluting any of the 15 fundamental legal comments hereinbefore, RBOSC would like to 16 show its desire to be h elpful with respect to EPA's invitation 17 to comment by now addressing certain specific asoects of the 18 proposed Subpart A, B and D Regulations. 19 Proposed Subpart A Regulations (3001 (6<*2l) of RCRA) : 20 1. 250.14(b) The "source/process" distinction for 21 listed "hazardous waste" is confusing. Why is such a 22 distinction made? Isn't the bottom line whether a particular 23 "solid waste" is or is not "hazardous," regardless of whether 24 it comes from a "source"or a "process"? 25 Proposed Subpart B Regulations (3002 (6922) of RCRA): ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 205 In general , RBOSC finds these proposed regulations well-written and balanced, and we would like to compliment EPA on a fine job. Our specific comments are as follows: 1. Reference is made on page 58972, column 1, to the obligation of the "generator" to report to EPA if it fails to receive a copy of the manifest" "within 30 days." - Presumably, this relates to the requirement in 250.43-5 (a) (2) T page 59003. But how does a "generator" know what this 30-day period is and when it expires? 2. 250.20(c)(l) — -Similarly, how is a "generator" to know if a "permitted hazardous waste management facility" really is permitted? By. asking that facility? 3. A "generator's'* obligation to principally shoulder the operation of this manifest system should- not be expanded into the area of enforcement by EPA's adopting the four options under consideration which are described on page 58973, column 3, especially those in the fourth option,, quoted immediately hereinafter: . " (4) Requiring that a generator who has not received the original manifest from the facility designated on the manifest within 35 days after the date of shipment, or who determines that the returned manifest is inconsistent with the original manifest, • must: ------- I 206 1 " (a) Take all actions necessary to 2 determine the cause of non-receipt or 3 inconsistency; .. 4 " (b) Assure that all steps are being § taken to locate and receive the manifest 6 and to assure that the-waste is properly 7 disposed of; 8 (c) If he has been unable to accomplish 9 his requirements under (a) and (b) above/ 10 within 30 days, the generator must prepare 11 and submit a report to the Regional 12 Administrator. This report must be submitted 13 within 65 days after the date of shipment, 14 and must contain the information required 15 in 250.23(c) except (2). In addition, 16 this report must'include: 17 "l. The name, address and identification 18 code of the designated facility; 19 "2. The actions which have" been or will 20 be taken by the generator to determine 21 the reason the original manifest was not 22 retuned; 23 "3. The results of the generator's 24 investigation, including any and all 25 information involving the shioment and ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 207 cause of non-receipt; and "4. The identity of all parties who may be responsible for the non-receipt of the manifest." It is one matter for a "generator to be required to reasonably keep records and report to EPA, and quite another matter for a "generator" to be coniDelled to work for free as a policeman for EPA. In this connection, please see-also the last sentence in 250.43-5Ca) (4). • 4. 250.20(c)(2) Storage of a "hazardous waste" by a "generator" for more than 90 days should not necessarily mean that that "generator" is an "owner/operator of .a facility for the storage of hazardous waste" under paragraph 3004 (6924) and 3005 C6925) of RCRA and thus subject to all of the Subpart D and E Regulations. In this connection, olease see also paragraph 250.41(b) (83). Some flexibility should be injected into this- absolute "90-day standard," especially in view of the far Beaching" implications of one's being subjected to the sweeping Subpart B, D.and E Regulations if this "90-day standard" is absolute, instead of only the Subpart B Regulation: Proposed Subpart D Regulations (3004 (6924) of RCRA): 1. The following four comments pertain to the paragraph 250,4Kb) definitions: (a) "contamination" (19) — To define this term solely as a "degradation" is vague, overly broad and simplistic, ------- 208 | (b) "fugitive dust" (36) — For consistency, this 2 term should be defined identically to the definition thereof 3 in EPA's PSD Regulations and in EPA's " Emission Offset 4 Interpretative Ruling." § (c) "hazardous waste facility personnel" (40) •— 6 This term is defined, in part, as those persons "whose actions 7 or failure to act may result in damage to human health or the 8 environment" This "damaae" standard is vague, overly broad, 9 and ignores the definition of "hazardous waste", in RCRA, 10 which uses the qualifying language, inter alia, "significantly,* "'serious" and "substantial." 12 W) It would be helpful if paragraph 250.41(b) includ a definition of "landfill" (.cf. definition of "surface impoundment" C851). . • 15 2, 250.43(f) RBOSC fails to see any reason for determining in detail what the chemical or physical properties of any waste rock might be, because the only change in the waste rock from its natural state is its location. 3. 250.43-1— With respect to this "general site 2Q selection" requirement, it should be recognized that, unlike most sited facilities, a mineral developer does not have 22 much, if any, flexibility in "selecting" a site. It is 23 difficult enough to find a commercial ore body; the "selection" 24 of a site follows the "find," not vice-versa. These standards 25 should reflect this reality. Also, the term "new sources" ------- 209 1 should be very carefully defined and should exclude all mining 2 activities currently in existence and any expansion of such 3 existing activities. 4 4* 250.43-2(a) — The requirement herein for a "2-meter 5 (6 foot) fence completely surrounding the active portion of 6 the facility capable of preventing the unknowing and/or 7 unauthorized entry of persons and domestic livestock" or 8 "a natural or artificial barrier" equivalent thereto is 9 unrealistic. Flexibility should be provided for those mining 10 sites which are remote and isolated, which is usually the case. 11 Is it EPA's intent that this fence be constructed to "float," 12 i.e./ to move with the "active portion of the facility" as 13 mining progresses? If so, this will greatly inflate mining 14 costs. 15 5. 250.43-6(a) — RBOSC fails to see the need for a 16 detailed daily inspection of materials which EPA lists or 17 requires to'be characterized as "mining wastes." Most mines 18 are in operation seven "days a week, 24 hours oer day, so the 19 "facility" is in use. In the semi-arid regions of the West, 20 frequent inspections during the rainier months might orove to 21 be desirable, but daily visual inspections are unnecessary. 22 6. 250.43-7 (b) — An "operator" is without any legal 23 right to insert such a covenant in an "owner's" deed. 24 7. 250.43-8 (a) Note — This Proposed regulation properly 25 recognizes there may be times when the rigorous requirements ------- 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 210 of 250.43-8(a) are unnecessary to ensure groundwater is being properly protected. However, the Note provides relief only where there is no potential for a discharge to groundwater. If there is not such potential, no monitoring is necessary. The provision for a lesser degree of monitoring should apply when there is a low potential for contamination. RBOSC suggests the addition of the words "little or" after the word "indicate" at the end of line 7 of the Note. 8. 250.43-8 (c) — This requirement would entail much unnecessary work and expense. Section 250.43 (f) requires a detailed analysis of .the waste to be treated, stored or disposed of. It seems unreasonable to require such comprehensiv constituent data on groundwater background when the possible pollutants may be only certain items. - It would appear to be / more useful- to require a background determination only on those constituents that have caused the wastes in question to be classified "hazardous." Certainly the determination of the long laundry - list of interim primary and proposed secondary drinking water standards for dirt and rock that is merely being relocated will generate a lot of data that will be of little or no value. 9. 250.43-8 (c) (4) — RBOSC would recommend that a different identification of "a statistically significant amount" be utilized. The student's T sinqletailed test at the 95% confidence level is too restrictive. Very minute • ------- 211 fluctuations in baseline levels not attributable to the facilit 2 would be encompassed by this level of significance. One 3 consideration which makes the. T-test inappropriate here is that to use a T-test, it has to be assumed that the mean background level is constant over time so that all of the variation in sampling for the background level comes from special variation, because otherwise there would not be independent sampling. This is particularly severe because the 9 proposed rules require three monthly samples to establish the 10 background levels. This is much too short a time period to 11 determine sampling error where there are seasonal variations, 12 no matter how the data is analyzed. Another problem with the 13 method here is that the confidence level of 95% is too low. Even assuming'there were independent samples and that there 15 was no change from the background levels after the facility 16 went into operation, Tyt>e I error would occur 5% of the time. 17 In other words, because there are six measurements to be made 18 quarterly and an additional six to be made annually, it would 19 be-expected that about once or twice a year there would be 20 a significant result and the orovisions of this subsection 21 would go into effect, including the requirement in (c)(4)(iii) 22 that the "facility" discontinue operation until the EPA 23 Regional Administrator determines what actions are to be taken. 24 10. 250.43-8 (c) (4) (iii) — the "Owner/onerator" should 25 not be required to idefinitely ("until the Regional Administrate ------- 212 1 determines what actions are to be taken") shut down the 2 "facility" without due process, e.g., a hearing, unless an 3 emergency situation exists. 4 11. Although the "trust fund" financial security § concept for closure and post-closure of a "facility" in paragrapji 6 250.43-9 is not proposed to be made applicable to "other mining 7 waste" by 250.46-5, RBOSC would respectfully offer the 8 following comments on this "trust fund" concept in case EPA 9 finds them helpfuls 10 (a) An "owner/operator" should be given the option of 11 posting a surety bond. EPA's fear that no one would qualify 12 for such a bond is unfounded. If an "owner/operator" can- 13 qualify therefore, the proof is in the pudding; if not, then 14 the "trust fund" concept should kick in. EPA's further fear 15 that surety bonds are subject to year-to-year renewal and 16 therefore are insecure can be overcome by requiring that 17 such a surety bond provide for no cancellation without 30 18 days' prior written notice to EPA. Following receipt of any 19 such cancellation notice by FPA, the "owner/operator" would 20 have to comply with the "trust fund" concept. 21 (b) Re post-closure secruity, no funds should be releasec 22 to EPA upon notice of a violation, as provided in 250.43-9(a) 23 (2) (ii); due process, e.g., a hearing, first must be afforded 24 the "owner/operator." 25 (c) Provision for a 2% annual inflation factor in ------- 213 calculating the amount of both the closure and post-closure "trust funds" is unrealistic. It is noteworthy that EPA, relative to re-evaluating the ''adequacy of the amount in these "trust funds" would require a bi-annual evaluation. The annual inflation factor should be tied to an escalator, realistic at the outset and adjusted bi-annually, based on the actual inflation rate. RBOSC appreciates this opportunity to submit these 9 written comments to EPA, and we hope-'that EPA will give them 10 its most serious consideration. Thank you. 11 CHAIRPERSON DARRAH: Will you answer questions? 12 MR. OLSON: Yes. 13 MR. LINDSEY: The whole question of oil shale, 14 as it fits under these regulations is something which I guess 15 we can own up to that we haven't fully considered. In order 16 to be covered, it would have to fail one of the criteria, 17 or the test under whatever that section is, 250.13. In other 18 words, it would have to be the ignitable, which the waste 19 isn't, or the exolosive or reactive, which it wouldn't be. 20 MR. OLSON: If it-meets one of those tests, it 21 should have been listed by EPA? 22 MR. LINDSEY: It wouldn't necessarily have to be 23 listed, but it would be covered whether or not it is listed. 24 in other words, if a waste meets these criteria. 25 MR. OLSON: Are you talking about the first four? ------- 214 1 MR. LINDSEY: Yes. 2 MR. OLSON: Okay. 3 MR. LINDSEY: Plus, toxicity. 4 MR. OLSON: Explosiveness and reactive? 5 MR. LINDSEY: Yes, as I recall, the oil shale 6 industry, this is an in situ process, which is the drilling 7 sort of thing, right, and then there is mining operation, where 8 you mine hardrock, bring it out, crush it and extract it? 9 MR. OLSON: You oversimplified. There are three 10 basic processes, and one is true, in situ, which all of the 11 oil shale rock, which is rubbelized underground, would be • 12 retorted, burned underground. There is a modified in situ, 13 which is my understanding that both tracks, cA and CB, and 14 my client and Occidental track cB are oroposing to follow, 15 where you would take out approximately, this is just a 16 number out of the air, twenty-five percent of the rock, 17 store it above ground. You would then rubbelize the remaining 18 seventy-five percent, and you would burn it. 19 MR. LINDSEY: Underground? 20 MR. OLSON: Underground. With respect to the 21 twenty-five percent you take up on top of the ground, you 22 could retort that above ground at some future date, if and 23 when you go commercial, using a toxic tvne two process, the 24 lurgi process, and a number of other processes. 25 The fourth wav is just all above ground retorting. ------- 215 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Take it all up above ground and retort. MR. LINDSEY: Then it would be, I imagine, the waste which is left over from-those above ground retorting, that would be what we are .'considering here? MR. OLSON: You would not be considering the waste left over from below ground retorting. Do I.read that into your question? MR. LINDSEY: That is a very good question. I will reserve an -answer to that. MR. OLSON: That was just a~-question- It wasn't cross examination. MR. LINDSEY:- I am not sure we can respond to that right away, but anyhow, you can give us whatever information you can give us on 'these retorting processes and it may help us make up our own minds on it. MR. OLSON: We regard the whole thing part and parcel of the mining and retort as one process, if you will, and in the definition of other mining wastes, you use the term extraction, beneficiatibn and processing of ores and minerals, and that seems to me what we are doing by your very own language, but I would surely like some confirmation on that, because if I have'to deal with all of the Subpart B and D regs, then we are in surface impoundment and some other problems. CHAIRPERSON DARRAH: Thank you verv much. Our ------- 216 next speaker is Rita E. Ewing representing Utah International, Inc. MS. RITA E. EWING..' Good afternoon, my name is Rita Ewing. I am Senior Environmental Supervisor at Utah International, Inc., whose headquarters are located in San " Francisco, California. Thank you for the opportunity to ' appear before you today. g 0 Utah International Inc. is an diversified mining * company with surface mining operations in the western United States. We shall be submitting written technical contributions 11 addressing the Proposed Hazardous Waste Guidelines and Regulations. Today we would like to offer our general comments, giving a few specif-ic examples relating to the proposed regulations. Before beginning our comments, we would like to express our appreciation to EPA for the tone and format which the Agencv has offered in soliciting constructive public comment. We 18 fully support the premise that the disposal of hazardous waste is a crucial environmental and health problem that, if 20 regulated, must be regulated by a sound and balanced program. 21 We h ope the following comments will assist in formulating 22 the roost desirable strategy for 'phasing implementation of the 23 Resource. Conservation and Recovery Act of 1976. 24 our comments today address the following issues: 25 Subpart A - Identification and Listing of Hazardous Wastes I ------- 217 1. Extraction Procedure 2. Definition of a Toxic Waste 3. Uranium Mining Waste Rock and Overburden Subpart B - Standards Applicable to Generators of Hazardous Waste 1. Conditional Exclusion Based on Volume of Waste 7 ' produced per Month. o 2. Alternative Means of Regulating Small Quantities of Wastes 1° Subpart D - Standards Applicable to Treatment, Storage and 11 Disposal Facilities 12 i. "Notes" Category for Standard Deviation 2. Duplication in the Regulation of Mining Wastes 3. Conflict between Regulations 4. Assurance of Post-Closure Costs A recurring theme in our comments is the need for standards 1' based on the degree of hazard which depends on the character istics of specific wastes and the environment in which thev are deposited. 20 Subpart A — Identification and Listing of Hazardous Wastes l. Extraction Procedure 22 The legislative history of the Resource Conservation 23 and Recovery Act of 1976 makes it evident that EPA 24 is responsible for determining and listing all hazardous 25 wastes using criteria developed by EPA (see e.g., H. ------- o 21 8 I Report 94-1491,pp5,25). 2 While in some cases it may be appropriate to require 3 industry to determine which wastes are hazardous 4 ' according to EPA criteria, we feel that industry 5 should also be afforded the flexibility to use 6 alternative tests, methodologies and techniques 7 which, in fact, may be more appropriate for a particu- 8 lar waste and also meet the EPA criteria. 9 We cite the "Extraction Procedure" specified in 250.13 10 Cd)(2) as an example. This Procedure has been 11 designed to "model" improper management by 12 simulating the leaching action of rain and ground- 13 water in the acidic environment present' in open 14 dumps and landfills. However, this "model" just 15 does not reflect all possible conditions, circumstances 15 or processes. Mining wastes, for example, are usually U disposed of without the mix of non-mining wastes as 18 in the case of public landfills. In-fact some mining 19 operations have alkaline rather than acidic wastes. 20 Therefore, the flexibility of allowing alternative 21 tests should be included in the regulation. 22 • 2. Definition of a Toxic Waste 23 The proposed identification criteria define a broad 24 array of materials as hazardous based upon reactivity, 25 ignitability, toxicity and corrosivity, These various ------- 219 1 "hazardous substances" are all subject- to-the same 2 performance standards. However, some -of the 3 identification, design -and operating standards as presently drafted are based on certain assumptions and specific conditions which are not necessarily universal for all kinds of hazardous wastes and disposal environments. For example, a waste is defined, as toxic and therefore hazardous if application of the specified Extraction Procedure to a representative sample of the waste yields an extract having concentrations of contaminants 12 that exceed ten times the National Interim Primary 13 Drinking Water Standards for those particular 14. substances. The attenuation factor of 10 is 15 qualified in the preamble as being based upon the 16 assumption that the waste is in a "nonsecure landfill" 17 located over a fresh water aquifer and that a pumning 18 well is located 500 feet down gradient. These 19 assumptions may not, in fact, be correct or 20 appropriate for analysing o'ther disposal circumstances. 21 Therefore, we recommend that the identification 22 orocedures and performance standards be made specific 23 to the waste and the disposal environment. 24 3. Uranium Mining Overburden 25 The orocedure under which uranium mine waste is ------- 220 1 regulated as a hazardous waste needs clarification. 2 At present, waste rock and overburden from uranium 3 mines are listed as hazardous because of inherent 4 radioactivity, A "non-hazardous" .classification - 5 can only be attained if tests show that a 6 representative sample has an average concentration 7 of less than 5 PicoCuries per gram. 8 We believe that a judgment of the allowable measure 9 • of radioactivity based on a single radium concentration 10 value is questionable, because overburden characteristics 11 such as density, moisture content, particle size and 12 soil type all effect the .amount of radon emanation 13 and the gamma dose generated by uranium mining 14 waste. These factors must be considered in forecasting 15 the degree of radiation hazard. 16 The Nuclear Regulatory Commission recently made this 17 same observation in the issued Branch Position paper 18 entitled, "interim Land Cleanup Criteria for 19 Decommissioning Uranium Mill Sites." The paper states, 20 and I quote, "The interrelationshio between radium 21 226 soil concentrations, radon 222 flux and gamma 22 dose rates is a complex function of many factors— 23 therefore, since no simple numerical criteria in 24 terms of radium 226 concentrations in soil is applicable, 25 no attempt has been made to exoress criteria directly • ------- 221 in terms of radium 226." 2 EPA also makes this same observation in the background 3 document for radioactive, waste. Your agency states that the relationship between soil radium concentrations 5 and the resulting radiation levels observed in 6 Florida phosphate lands (on which the 5 PicoCuries per gram criterion was based)- "may not", and I quote, "be representative -of radium/indoor radon progeny relationships- in a more extensive sample obtained from a wide geographic area." 11 I might add that the preamble (p. 58950) states 12 and I quote, "EPA proposes to rely only on consid- 13 eration of the first four characteristics because 14 those are the only ones for which the Agency 15 confidently believes test protocols are available." 16 Radioactivity is not one of these; therefore, we 17 would argue that the radiation criterion as proposed 18 is inappropriate.- 19 . We recommend that radon flux and gamma dose be 20 designated as the limiting factors in setting the 21 radiation standard to circumvent the proven 22 difficulties of relating radium concentration 23 to actual radon and gamma levels. Subpart B - Standards. Aoolicable to Generators of Hazardous 25 Waste. ------- 222 1. Conditional Exclusion based on Volume of Waste Produced. We feel that determination of conditional exclusion 4 on the basis of waste volume produced should be 5 replaced by a more scientific determination based g on the characteristics of the specific substance, 7 and the conditions under which those substances g will be disposed. g A broad range of wastes have been identified as hazardous, and within this category, toxic potentials vary widely. We believe that the amount of toxic 12 waste'that can be disposed of legally should be 13 determined on the basis of the level of hazard 14 inherent in 'a specific waste. Further, the site for 15 waste disposal should also be considered in determin- ing appropriate levels. For example, one hundred kilograms per month of a lg specific substance may be an appropriate limit in an industrial metropolis where thousands of industrial 2Q facilities may cumulatively affect the same hydrologic and air quality systems. However, the effect of 22 disposing of that same one hundred kilograms might 23 be minimal and insignificant in a more remote, less 24 industrialized area that does not have to accommodate 25 large amounts of hazardous wastes. ------- 223 1 Further, the degrees of danger involved in disposing 2 of 100 kilograms of waste oil per month is very 3 " different from the danger inherent in disposing of the same amount of PCB's per month. We recommend that the regulations be altered to reflect both site-specific and waste-specific conditions. Moreover, we feel that the individual states have a better idea of local tolerances and 9 that each state should' be given the flexibility 10 to administer and enforce a hazardous waste disposal 11 program that not only meets the environmental 12 intent of RCRA but also considers the economic 13 impact on the specific disposal site. 2. Alternatives Addressing Regulation of Small Quantities 15 of Hazardous Waste. 16 In response to your invitation for comment oh the six 17 alternatives, addressing small quantities of hazardous 18 waste, we propose a combination of alternatives three 19 and four, which would provide for: 20 Unconditional Federal exemption for small quantities 21 of hazardous wastes. 22 Cutoff quantities based on degrees of hazard, 23 State responsibility' for regulations of exempted waste groups under the approved state plan and regulatory program under Subtitle D of RCRA. ------- 224 1 Subpart D - Standards Applicable to Treatment, Storage and 2 Disposal Facilities 3 1. "Notes" Category for Standard Deviation 4 in the preamble, EPA admits that very specific 5 requirements "might" discourage the development of new 6 technologies or that different design and operating 7 requirements might be necessary for a oarticular 8 facility which is disposing of only one kind of 9 waste". 10 Recognizing this problem, EPA has offered the "Notes" 11 category to allow for standard deviation. We find 12 this approach unsatisfactory. Although a note may 13 have the same degree of legal significance as the 14 regulation it follows, the practical effect is 15 to subordinate the note to the regulation. A clearer 16 procedure would be to incorporate the body of the 17 note into the standard qualified by the word "unless". 18 A specific example demonstratina this suggestion (as 19 . it relates to 250.43-1(g)) will be provided in our 20 written comments. 21 2. Duplication in the Regulation of Mining Waste. 22 The tone and format of the EPA invitation for comment 23 imply that EPA agrees with industry's sense of 24 operating in an environment of over-regulation. 25 EPA apoears to be seeking to remedy this situation, ------- 225 1 but we feel that the guidelines and regulations 2 may actually have the effect of compounding the 3 over-regulation problem... 4 The guidelines and regulations as proposed require 5 mine and mill operators to obtain hazardous waste 5 disposal permits for certain mine wastes,' including 7 overburden in the cases of uranium and phosphate 8 mining. The permits would be conditioned by • 9 compliance with EPA's-proposed "Standards for Owner 10 ' and Operators of Hazardous Waste Treatment, Storage H and Disposal Facilities." 12 In the case of coal mining,activities, some of the 13 requirements duplicate the Surface Mine Control 14 and Recalamation Act regulations administered by 15 the Department of Interior. "Duplication of regulations 15 and thus of industry permit applications also exist 17 because several states already have reclamation .• 13 programs that adequately address the disppsal of all 19 mining wastes, toxic or otherwise. In fact, some 20 state laws require that open nits be backfilled 21 by returning overburden to the pits and this may not 22 • be acceptable under RCRA. 23 ' We believe that additional regulation in this area 24 by RCRA is a duplication of effort. Additional 25 regulation will cause more work for both the public ------- 226 I sector and private sector, perhaps without sub- 2 stantive benefit to either. Thus, we urge EPA 3 to function as a coordinator among the Department 4 of the Interior and the various states to avoid 5 this duplication with other regulations. 6 3. Inconsistency with Other Regulations ? In addition to the problem of duplication of 8 regulations, there is also inconsistency and conflict 9 between the proposed -regulation and other existing 10 regulations. 11 Sections 250.43 (c) , 250.44-1, -2 and 25.45 - 3 (d) 12 (2), for example, specificy a 24 hour-25 year .design 13- storm, .which conflicts with the 24 hour-10 year storm 14 required by the Clean Water Act regulations (40 15 CFR, Subchapter N, Effluent Guidelines and Standards). 16 As a result, an approved treatment oond designed 17 pursuant to an NPDES permit would still be in non- 18 compliance with the hazardous waste regulations This 19 . kind of inconsistency should be avoided. 20 4. Assurance of Post-Closure Costs 21 We would be remiss without mentioning the necessity 22 for a provision to allow for the assurance of post- 23 closure costs by alternative means such as the use 24 of surety bond guaranties. Although eligibility 25 for surety bonds is often regulated stringently, ------- 227 1 and is thus limiting to many owners and operators/ 2 we believe that owners and operators who can obtain 3 bonding should not be handicapped by a provision 4 that assumes bonding will not be available. In- 5 reality, the availability of insurance covering 6 "non-sudden and accidential occurrences", as 7 required by regulation, is equally difficult to 8 obtain. 9 Although we recognize that the responsibility of 10 developing a viable insurance market does not rest 11 with EPA, inherent in the proposed regulations is 12 the requirement that owners and operators obtain 13 "non-sudden and accidental" insurance policies which 14 are very .difficult, if not impossible, for most owners 15 and operators to acquire. It would therefore be ex- 16 tremely helpful as we attempt to comoly with the 17 regulation if insurance companies, through government 18 encouragement, we're educated on the positive cost/ 19 benefit ratio of providing this coverage on a less •20 restricted basis. 21 In summarizing our general comments today, we urge the EPA 22 to be more specific in addressing' the hazardous levels of 23 specific wastes and factor into your regulations consideration 24 for the disposal site. We urge you to function as the coordi- 25 nator among Federal Deoartments and State agencies to achieve ------- 228 1 a Hazardous Waste program that does not duplicate other 2 regulations and result in more work for both the private and 3 the public sector. We urge you to create regulations 4 appropriate for the environmental goals you are trying to 5 achieve, and regulations that are appropriate for the sub- 6 stances addressed and feasible for the companies that must •7 work with the regulations to dispose of hazardous wastes. 8 We again refer you to our technical written comments, and 9 we thank you for the opportunity to assist you in the formulaticjn f 10 of these regulations. 11 Thank you for your time. 12 CHAIRPERSON DARRAH: Thank you. Will you 13 answer questions? 14 MS.'. EWING: Yes. 15 . MR, LEHMAN: Ms. Ewing, you mentioned in your 16 opinion some of the requirements in the proposed regulation 17 duplicate those of the Office of Surface Mining Regulations. 18 We have made an attempt" to make sure that didn' t happen. In 19 other words, we reviewed their regulations, and they have 20 reviewed ours, but evidentially you feel that you found 21 places where there are duplications, and so I would just urge 22 you to highlight those in any written submission that you make 23 to us. If you will cite chapter and verse so we can ferret 24 those out. 25 MS. EWING: We should submit additional comments ------- 229 1 before March 16th? 2 CHAIRPERSON DARRAH: Yes. Thank you very much. 3 Let's take a recess. 4 (Whereupon a recess was taken.) * 5 CHAIRPERSON DARRAH':' Mr. Frank Lee, Independent 6 Petroleum Association. Is he here? I guess he is not here. ^ 7 I will next call Mr. Rees Madsen of the White River Shale 8 Project. 9 MR, REES C. MADSEN: Good afternoon, my name is 10 Rees Madsen and I am manager of the White River Shale Project. 11 Our office is located in Vernal, Utah at this time. • 12 The purpose of my appearance here is to transmit our 13 comments concerning the subject proposed rules as published 14 in the 43 CFR, 58946, on.December 18th, 1978. Our review 15 has shown that the proposed rules pose a severe potential 16 impact on our planned shale oil production operations. 17 By way of background, the White River Shale Project 18 (WRSP) is a joint venture of Phillips Petroleum Comoany, 19 Sohio Natural Resources Company and Sunoco Energy Development 20 Company. WRSP was formed by these companies in order to 21 develop two Federal oil shale leases located in Utah. No 22 processing operations are currently occurring on the leases. 23 But plans have been prepared for the construction and operation 24 of a 100,000 barrel-per-day commercial shale oil aroduction 25 facility. Such a facility would require the underground mining, ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 .23. 24 25 230 crushing and processing of 160,000 tons per day of oil shale rock. . • . • Processing the rock involves heating the crushed material to over 930°F in some type of equipment. At this temperature most of the organic material in the rock separates from the inorganic matrix and is recovered,, The rock, holding much less organic material than before,. will then be discharged for ultimate disposal. Aboutl29,000 tons-per-day of processed shale rock will need to be disposed of under WRSP'S planned 100,000 barrel-per-day shale oil production rate. This processed shale will be disposed of above ground on WRSP leases near the shale oil production facility. The processed shale, in our opinion, constitutes a low risk nonhazardous waste, the disposal of which can be adequately handled under existing and proposed mine waste disposal regulations. However, the proposed Subpart A regulations under Section 3001 "identification and listing of hazardous wastes" 'could erroneously show processed shale to exhibit a hazardous waste characteristic. This characteristic 'is "toxicity" as established by the proposed "extraction procedure" for determination leachate concentrations of several contaminants. The fundamental problem with the extraction orocedure is that it assumes an ------- 231 1 acidic environment in the waste pile* As noted in the preamble 2 "The EP (extraction procedure) that is included in the proposed 3 rulemaking has been designed .to 'model' improper management 4 by simulating the leaching action of rain and groundwater in 5 the acidic environment, present in landfills or open dumps." 6 We recognize that some screening mechanism is necessary, 7 But we have a real concern with the acidic assumption, since 8 processed shale, or raw shale for that matter, produces 9 alkaline leachate waters. .-This is important because the 10 leachability of the contaminants of interest are generally 11 affected by the pH. 12 A report distributed by Region VIII of the Environmental 13 Protection Agency in May 1.977 entitled "Trace Elements 14 Associated with Oil Shale and Its Processing" discussed the 15 leachabijklty of several trace elements. The report noted 16 that data showed Selenium, Molybdenium, Boron and Fluoride 17 are present in processed shale in only partially soluable 18 forms. This is primarily because these materials can form 19 water soluble anionic species under alkaline conditions 20 (e.g., Se04=, Mo4=, Bo3 ,F~). In contrast, Cadmium, Arsenic, 21 Chromium, Copper, Zinc and Iron are present in essentially 22 insoluble forms. Th is is so because, except for Arsenic, 23 these elements form insoluble hydroxides, oxides, or sulfides. 24 It is generally understood that as the alkalinity of the 25 leachate as produced by processed shale materials increase, ------- 232 most metals exist in less soluble forms„ It should also be recognized that the oil shale rock is a common material found in ..Utah and Colorado. Nature is eroding oil shale formations continuously. It is important, in ouroopinion, to recognize the similarities in quality ^ ' v between the leachate from a processed shale pile and the leachat .or runoff produced from natural dissolution of the extensive o 0 parent rock formations around the disposal area. It would be unreasonable, in our opinion, to severely regulate a processed 1° shale disposal site when natural deposition of similar materials * is occurring on a large, scale all around the site. F0r these reasons we take strong exception to the use of the extraction procedure as proposed -in Part 250, Subpart A 14 250.13 (d), for determining whether processed shale'exhibits ^a hazardous waste characteristic-. 16 Further to this concern of ours, we note that EPA feels a quantitatively stringent extraction procedure "is"necessary, because only waste designated as hazardous is subject to transport controls as well as disposal controls." Apparently, 20 EPA desires to be conservative in identifying and regulating hazardous waste sources so as to prevent serious accidents 22 during transport even though ultimate disposal could be 23 adequately regulated for some "hazardous" wastes under Subtitle D of RCRA, Section 4004. nc In this regard we would like to point out that processed ------- 233 1 shale will not be transported far. Handling costs are too 2 great. In the case of WRSP, for example, the material will 3 be diposed of near the oil production facility on WRSP leases. 4 So a stringent extraction procedure is not required in the » 5 interest of getting processed shale under the "hazardous" 6 waste umbrella for the purpose of insuring the rock reaches 7 a disposal site safely. 8 It seems advisable for the EPA to build more flexibility 9 into the toxicity hazardous waste characteristic test. We . 10 suggest EPA consider providing for alternate tests that can 11 be shown to more closely duplicate the actual disposal condition 12 expected. 13 At this time we have no specific comments regarding 14 Part 250, Subpart B, regarding proposed regulations pursuant 15 to Section 3002 (Standards Applicable to Generators of 16 Hazardous Wastes). 17 However, bur review of Part 250, Subpart D, pursuant 18 to Section 3004 (Standards Applicable to-Owners and Operators 19 of Hazardous Waste Treatment, Storage and Disposal Facilities) 20 did result in some comments. 21 • First, if processed shale were to be classified as a 22 hazardous waste, we assume it would be handled as some type 23 of special waste, and more specifically some type of an 24 "other mining waste" as described in 250.46-5. It would 25 seem that a unique classification comprised of a modified ------- 234 I "special other mining wastes" type would be advisable. We 2 understand that rulemaking concerning treatment, storage 3 and disposal of special wastes will be developed in the 4 future. We very much want to have the chance to participate 5 in this development. 6 We fully expect processed shale to not be considered as 7 a hazardous material. This should occur if the "toxicity 8 characteristic" is evaluated using a realistic procedure that 9 recognizes processed shale's.alkaline nature and the 10 continuously occurring natural decomposition of shale rock 11 in the disposal area vicinity. The disposal of processed 12 shale should be adequately controlled by applicable regulations 13 for disposal of nonhazardous wastes and State mining waste 14 handling regulations. 15 We appreciate your consideration of our comments. 16 Thank you. I will be happy to resoond to questions. 17 CHAIRPERSON DARRAH: Thank you very-much. 13 MR, LINDSEY:: You seem to have reason to believe 19 that the toxicity test method that spent shale would fail 20 the toxicity requirement for heavy metals. Do you have data 21 on that/ or what makes you reach that opinion? 22 MR. MADSEN: I think it is more uncertainty at 23 this point time time. The work we have done has been done 24 using natural waters or distilled water, letting the nH fall 25 where it will during leachate test. I have no data on pH 5, ------- 235 EPA extraction procedure, but the fear is that the~EPA procedure 2 as proposed would erroneously result in exceedence, We have no data to show that would be the case, but we are also 4 concerned that this material is expected to be used for other tests beyond just comparison with drinking water standards, 6 and it seems advisable at this point to set up a test which will resolve in a most realistic leachate water being developed 8 CHAIRPERSON DARRAH: Thank you very much. I will 9 next call Mr. R. N. Heistand, Vice president Development 10 Engineering, Incorporated. MR, ROBERT N. HEISTAND: I am Robert Heistand, 12 president of DEI, Development Engineering, Inc., which is a subsidiary of Paraho Development Corporation. 14 Since 1973, DEI has been engaged in oil shale retorting 15 This research has proved the operability of the Paraho retort research at the Anvil Points Oil Shale Research Facility. 16 and has produced 100,000 barrels of crude shale oil for 18 refining into fuels for further testing and research. The 19 next step in the development of the Paraho technology is the 20 construction and operation of a module which could produce 21 6,000 barrels of shale oil per day. 22 During the past five years of research and production, 23 many retorted shale studies have been directed towards the 24 evaluation of its chemical and physical properties and the 25 assessment of disposal techniques. DEI has been directly ------- 236 involved in many of these studies and has cooperated with many researchers and "investigators working under contract with the EPA and other government agencies (see references). Our comments expressed in this letter are based on our experience and knowledge of Paraho retored shale properties and the geography of the Colorado-Wyoming-Utah shale country and the data " 'obtained from studies of the Paraho operations at Anvil Points. ° CA) The proposed extraction procesure (EP) outlined in 10 Section (P250.13) used distilled water maintained to pH=5.0 + O.| This criterion is unreaslistic for oil shale operations in 11 Western U.S. First, the pH of various ground and surface 12 waters range from 7.5 to 8.1. Second, the leachate from vegetation lysimeters using Paraho retorted shale and Colorado River water and from laboratory studies ranged from pH=6.5 to 15 II 11.6. (B) Retorted shale, as produced by the Paraho operations, is not a hazardous waste. It does not appear in lists 18 II presented in P 250.14 of the proposed regulations. Paraho ^ - 19 retorted shale does not have the" characteristics of a hazardous 20 waste as identified in P 250.13 o.f the proposed regulations. 21 CP 250.13a) Paraho retorted shale is not an'-ignitable 22 waste. No autoignition potential was noted. During a one- year monitoring orogram, temperatures within a compacted shale 24 disposal site ranged from 45°F to 35°F. 25 (P 250.13b) Paraho retorted shale is not a corrosive 2. ------- 237 waste. The pH leachates, obtained under three sets of conditions, ranged from 615 - 11.60. These data meet EPA proposed specifications. (P 250.13c) Paraho retorted shale is not a reactive * waste. It is not normally unstable nor capable of detonation. 5 Under normal conditions of handling, compaction, and contact 7 ' with air and water, it is an inert material. As noted previous] a 0 it is an inert material under normal temperatures and pressures (P 250.13d) Paraho retorted shale is not a toxic waste. 10 Available data from lysimeter leachates show that Paraho 11 retored shale meets the proposed EPA Toxic Waste Standards. 12 Most of these data even meet the more restrictive Primary Drinking Water Standards. Although the natural oH of these leachates was about pH = 11, leachates from succeeding seasons from these lysimeters have pH ~ 5 and even lower concentrations of the toxic metals than those shown. More evidence that Parahc retorted shale is not a toxic waste is found in its chemical composition. Assuming 100 percent solubilization under the proposed EPA extraction procedure "for hazardous wastes, 20 cadmium, mercury, and silver would meet the oroposed EPA Toxic Waste Standards. Since the listed chlorinated hydrocarboi 22 are not naturally occurring substances and are not used in the Paraho retorting process, they are not present''in Paraho 24 retorting orocess, they are not nresent in Paraho retorted 25 shale. ------- 238 The foregoing comments are based on research results and experience gained by DEI during the Paraho oil shale 3 operations conducted at Anvil .-Points. Because Paraho retorted shale is not classified as a hazardous waste under the proposed regulations, we reserve comments on Subparts B-G 6 of the proposed regulation. Should there be any substantive changes or additions to the proposed regulations, we would like 8 to be informed so that we could make comments at that time. 9 Thank you. 10 "CHAIRPERSON DARRAH: Thank you. Will you answer 11 questions from the panel? 12 MR, HEISTAND: If I can. 13 MR. LEHMAN: Mr. Heistand, you are basing your 14 contention that oil shale is an unhazardous material based 15 on a number of research and development findings, but I 16 wonder if you actually applied the extraction procedures as 17 proposed in the December 18th Federal Register against the 18 shale and what you found? Did you do that? 19 MR. HEISTAND: We have not, but I would like to * 20 point out that I think the metals, based on their chemical 21 composition, if they were 100 'percent soluable, would still 22 meet it. The other metals were not more than two times over 23 that threshold, so that even ass.uming a. 100 percent soluability 24 of the target metals, they would come quite close as far as 25 we can tell. ------- || 239 1 MR. LINDSEY: But you do plan to do that? 2 MR, HEISTAND: Yes, we do. 3 CHAIRPERSON DARRAH-: Thank you very much. I 4 will next call Dr. John E. Tessieri.. 5 DR. JOHN E. TESSIERI: I am John E. Tessieri, 6 Texaco Inc's Vice President of Research, Environment, and 7 Safety. Texaco appreciates th is opportunity to comment on Q the regulations' being proposed by EPA for the Resource 9 Conservation and Recovery Act. Texaco personnel have participated with the American 11 Petroleum rInstitute- in the review of early drafts of these 10 regulations and I would like to commend the EPA staff with 13 whom we have worked, for their cooperative attitude and their 14 willingness to listen to our suggestions. Many of our suggest- 15 ions have already been incorporated into these proposed 16 regulations to make them adaptable to the needs of our industry. 17 This encourages us to believe that you will view our input durin|g 18 this comment period with the same positive attitude you have 19 shown in the past. 20 Texaco is preparing detailed written comments which will 21 be presented before the March 16 deadline, so I will not cover 22 those details today. Instead, I would like to limit my comments to only one. issue. This issue has been raised bv n* many others and we believe it to be of prime importance, and oc to be fundamental -to almost every detailed point about which ------- 240 1 we are concerned. 2 The issue I want to address here has- to do with Degree 3 of Hazard. That is, we must find a mechanism by which we can 4 apply a control-technology that is appropriate for the 5 particular class of waste being managed and its potential 6 hazard to the environment.- Otherwise, there will be a 7 devastating effect on our industry's ability to produce 8 needed energy and on our nationwide inflation problems problems 9 without producing a significant environmental protection benefit 10 Texaco agrees with the wholeheartedly endorses the 11 philosophy that extremely hazardous wastes should be controlled 12 in a very strict manner. We have little argument with the 13 basic approach presented in these proposed regulations for _that 14 type of waste. But we cannot endorse the application of the 15 same degree of control as would be used to manage a dioxin, ^ 16 PCS, or similar highly toxic material 'to a waste which fails 17 the criteria test simply because of the presence, for example, 18 of a minor amount of one of the drinking-water-standard 19 metallic species. 20 Thus, the proposed acidic extraction classification 21 criteria based upon the philosophy of possible mismanagement 22 in a municipal waste disposal system, has no place in many 23 industrial waste disposal situations. For instance, for 24 exploration operations in remote areas there is no possibility 25 that drilling wastes will be disposed of in a municipal ------- 241 1 landfill, thus the criteria which applies an acidic extraction 2 test because municipal landfills are acidic is totally 3 inappropriate. In a similar manner, on-site disposal"at 4 refineries never involves municipal wastes so the acidic 5 extraction is again applying an inappropriate test of potential 6 hazard. . . 7 As a result of this type' of classification criteria • ' _i 8 we find that a vast range of our operations will, inappropriate^ 9 require full compliance with these regulations as though we 10 were handling highly toxic wastes. 11 Our industry is studying the impact of these proposed 12 regulations. The first results of those studies will be 13 presented to these hearings by the American Petroleum Institute 14 spokesman so I will not repeat those details, but I would 15 like to reiterate the basic conclusions. Those studies 16 indicate that the cost for our industry alone to comply with 17 RCRA regulations will be several orders of magnitude higher 18 than EPA's estimate for" the total cost of the 17 industries 19 EPA studied. One impact of th is cost burden would be against 20 many stripper wells which could not afford the cost of pit 21 lining and cash deposits for closure. (Average stripper well 22 production was 2.9 barrels oer day in 1977,) This could mean 23 a loss of as much as 1 million barrels per day of crude 24 production, over 12 percent of our 1977 domestic production. 25 Many shallow exploratory and development wells would not be ------- 242 I drilled should the costs of pit lining, monitoring, and 2 closure be added to marginal profitability parameters. Yet, 3 these wells contribute significantly to industry's effort to 4 arrest the annual decline in domestic production. Also, § the committment of large cmounts of capital in cash funds 6 will, seriously affect the ability of other segments of the 7 industry to meet the country's energy needs. 8 The most significant point here, "however, is that these 9 losses of energy resources would be caused by the fact that 10 wastes of extremely low potential hazard have to be handled H with the same strict methods as the most hazardous waste, 12 while in fact, the potential damage to health and the environmen 13 in these cases is insignificant. 14 We recognize that the "note" mechanism written into the 15 regulations allows for modifications to the requirements on 16 a case-by-case basis, but we feel that the effort required 17 for the demonstrations to convince the administrator that no 18 hazard exists is in itself in many cases a wasteful burden. 19 We disagree with EPA's position that this issue of 20 degree of hazard is too complex to be handled. You have 21 yourself taken a first step in that direction by establishing 22 the "Special Wastes" category in the proposed regulations. 23 There are several other possible approaches available. We 24 direct your attention to the several states which are 25 incorporating degree of hazard in their classification criteria. 4 ------- 243 1 We endorse the categorization scheme being proposed by the 2 American Petroleum Institute. We also suggest that a type- 3 of-industry categorization similar to that used in the water 4 regulations could be applied to provide appropriate disposal 5 technology for each level of hazardous waste. 6 Consideration of the degree of hazard will provide the 7 additional benefit of reducing the initial regulatory load 8 with which EPA will be faced as the regulations take effect. 9 This will allow a more adequate coverage of the extremely 10 hazardous waste disposal problems and will provide time for 11 EPA to give further consideration to approaches for managing 12 the less serious wastes. 13 I thank you for your attention and trust that you will 14 seriously consider this issue and work to provide a sound 15 approach so that efforts may be applied to the most serious 16 problems without needlessly expending resources on programs 17 which provide little health or environmental benefit. 18 Thank you. I will be willing to respond to questions 19 as well as my colleague, Wendall Clark. 20 MR. LINDSEY: Yes, Mr. Tessieri, one of your 21 comments which was a little disturbing was that we— well, 22 you felt there was a good chance we would close down the 23 stripper wells, which as you point out, produce one million 24 barrels of crude. I think, maybe you don't understand. Is 25 there some waste, which is generated as a result of that oil ------- 244 1 fTeld activity which does not come under the category of gas 2 and oil drilling mud and oil and production brines? 3 OR- TESSIERI: Brines would be the thing we would 4 be dealing with.besides some of.amount of oil that gets 5 involved with these fluids. Many of these-wells use much 6 more water than they do oil, so you have a. considerable volume 7 to handle, but these brines would contain materials which 8 we think would classify them in. the hazardous area. 9 MR. LINDSEY: What do you do with those now; 10 do you reinject them? 11 OR- TESSIERI: They are held on the surface for 12 some period of time, yes, and then reinjection takes place, 13 and we have other regulations that deals with that reinjection 14 and control. 15 MR. LINDSEY: Is it within the special category 16 then, since that would be the category which these wastes 17 would fall under, which causes you. so much economic problem? 18 DR. TESSIERI-: Special waste categories still 19 requires foreclosure recordkeeping, and also monitoring, so 20 that twenty year period is still there. Now, although in 21 the exchange that I have seen that you started, you are talking 22 about removing the frontend money, the deposit money, so it 23 certainly would be a burden that would be intolerable in many ?4, *•»• cases, but there still is the eventual commitment of money. 25 MR. LINDSEY: It is an annual sampling and analysis ------- 245 1 of that sample that is a tremendous burden? 2 - DR. TESSIERI: You have to drill a well. Ydu 3 would have to sample periodically. 4 MR. LINDSEY; That would be enough of a burden 5 to cause these things to close down? 6 DR. TESSIERI: Every time you start increasing a 7 cost on a well, and there is 600,000 of them in the United 8 States, some of them you are going to trigger off the economic 9 list. If you were to identify a burden, which is only some 10 number, which we need not identify, as you progressively raise 11 that, the effect on the wells would increase, so yes, extra 12 holes that must be drilled, the monitoring that would be 13 required in handling, certainly would start the triggering 14 process, at least on the most marginal wells. Mr. Clark is 15 a coordinator for the Department of Environmental Affairs lg of Texaco. 17 MR. WENDALL CLARK: I am Wendall Clark, Texaco lg Environmental Coordinator. I just wanted to add one point. 19 There are other brine pits that have to take over when there 20 is a shutdown or some problem with the well. I don't think this 2i gets included in that exclusion of brine pits, and that is a 22 very large number of pits. 23 MR. LINDSEY: What goes into those, crude? 24 MR- CLARK: It would be crude. 25 MR. LINDSEY: I don't think crude would meet the ------- 246 1 category of a waste. 2 MR. CLARK: It is ignitable. 3 MR. LINDSEY: But it is not a waste under 250.10. MR, CLARK: When you empty the pit, you have a waste oil like dirt. - MR. LINDSEY: You have something left over after you use it then? MR. CLARK; If it ends up being an oily slop pit, which has to be handled in some manner. Therefore, you have 10 to have a safe pit, if you want to call it hazardous, and 11 you got to have a safe pit, and it requires all the requirements 12 of safe disposal. 13 , MR. LEHMAN: Dr. Tessieri, the later part of your testimony, you made some remarks that I would like to get some clarification or some amplification on. Let me just read it: "Consideration of the degree of hazard will provide the additional benefit of reducing the initial regulatory load with which EPA will be faced as the regulations take effect. This will allow a more adequate coverage of the 20 extremely hazardous waste disposal problems and will provide time for EPA to give further consideration to approaches for 22 manageing the less serious wastes". 23 Now, by that,,do you emply that you would, or are you suggesting by this statement that we should- regulate only the most serious, or the highest class of hazardous waste at this ------- 247 1 time, and defer regulation of the less serious hazardous waste 2 until later on; is that the implication? 3 DR. TESSIERI: Certainly we are suggesting that 4 the most serious ones be emphasized to start with. If we get 5 a degree of hazard which is what we are proposing, so rather 6 than having two categories, either in one of or the other, 7 you have a better listing of the degree of exposure, then you 8 could anply that technology required to solve that particular 9 problem and not apply technology that requires the most 10 hazardous case, and in this respect, that would take more 11 time. So from that standooint, yes, we would be saying to 12 focus on the most difficult ones. We do not believe that most 13 of our industry would have to be handled in the way hazardous 14 material would have to be handled. Petroleum in one respect 15 is a finite, it gets dirty, but it is not a hazardous material 16 as defined as chlorinated materials are, and many of the others 17 that are of a real concern. 18 MR. CORSON: - Just one question. When you indicated 19 about the level of hazard, I am just wondering how many levels 20 do you see that we might have in terms.of degree of hazard? 21 Many-states that you have referred to today will really have 22 two levels of hazardous and extremely hazardous or dangerous 23 and extremely hazardous. 24 DR. TESSIERI: Texas has three. 25 MR. CORSON: You refer several times, and I get. ------- 248 the implication that maybe you are thinking of lots. I am 2 just wondering if you want to file lots. 3 DR. TESSIERI: I will ask Wendall to comment 4 on thiSo In my own thinking, I would think we would get to 5 the category of four or five. g MR. CLARK: Yes, I agree with this. We are: not 7 looking for a continum. We are looking for something other g than yes and no. Some states have said two categories, and 9 some three, and the AIP has develoned a criteria technique 10 which gives you a ranking for each criteria on a.' range of one to ten or one to five, and then you add up all these 12 things and come up with an overall ranking, and then I think. 13 you would have to take blocks of that ranking and say-what I 14 want to do is two categories or three categories or whatever. 15 MR. LINDSEY: I think the question with regard 16 to that, once having made these categories he presupposes you are going to do something with each category. 13 DR. TESSIERI: That's right. MR. LINDSEY: What specific kind of things would 20 we do with extremely hazardous, hazardous, somewhat hazardous, whatever we might call them? What kinds of regulatory controls 22 would be relaxed or eliminated or increased or whatever? 23 DR. TESSIERI: I think you would find in many 24 cases the orocedures which we are currently usinc? to dispose 25 of these materials in pur operation would be acceotable. ------- 249 1 Therefore, we would not need to anply the hazardous material 2 criteria. You still must prevent it from discourse indiscrim- 3 inately into nature or to find its way into a system where 4 later on it would reappear and cause problems. We feel that 5 under the other regulations that we are already dealing with 6 that. We have worked out technology which allows us to handle 7 these in a reasonable way. Commensurate with a type of 8 toxicity or exposure to either people or environment, that 9 the degree of danger it represents. 10 MR. LINDSEY: -That is the point of the note 11 system under our Section 3004 is to allow that. 12 MR. TESSIERI: We are suggesting you are. now in 13 the process of setting up regulations to handle these, and 14 that if we would take the time to try to get more than just 15 duplicated, we could save a lot of the note processing activity, 16 You have been living with them longer and would respond, but 17 we don't believe this would take a great deal of effort and 18 delay your rulemaking tbV that extent. Now, you may have 19 later categories and come back to say, all right, I am going 20 to focus on the too of this and I will take a little longer 21 for the others. You may have to come back to that situation. 22 I don't know what your time table will allow from that stand- 23 noint. 24 CHAIRPERSON DARRAH: In addition to the classification 25 that API is going to propose, it also has been proposing a ------- 250 1 variety of 3"004 standards which it believe could be used to 2 handle the different categories adequately. 3 MR. CLARKs As you-.are well aware, this is a very 4 complex subject and we haven't had time to answer that thoroughljy 5 but in the back of our mind, we think, yes, we should come up 6 with some sort of categorization of type of treatment and 7 technology to match the characteristics and degree of hazard. 8 Maybe we can't do it. You haven'-t done it and maybe we can't, 9 but we think we haven't put enough effort in trying to do it 10 because of the time constraint you have been under. 11 CHAIRPERSON DARRAH: Thank you. I will next call 12 on Mr. Phillip W. Morton of Gulf Mineral Resources Company. 13 . MR. PHILIP W, MORTON: Ladies and gentlemen of 14 the panel, before I start my statement, I do have a copy of 15 the written comments that we have put in the mail this morning 16 to Mr. Lehman from Gulf Mineral Resources Comoany. 17 CHAIRPERSON DARRAH: Why don't you go ahead with 18 your statement. At the end, if you want to give us a copy, 19 we will be happy to look at it. 20 MR. MORTON: My name is Philip W. Morton, of 21 Gulf"Mineral Resources Company, a division of Gulf Oil 22 Corporation. GMRC has a great interest in all aspects 23 of the oroposed Title 40, Part 250 of the Code of Federal 24 Regulations as published on December 18 1978. However, today 25 mv testimonv will be limited to those aspects of the nronosed ------- 251 Sufapart A, of Part 250, issued under authority of Section 3001 of the Resource Conservation and Recovery Act of 1976 that appear to impact on GMRC's uranium mining operations presently being conducted in New Mexico. First, perhaps I should make sure everyone here under- stands exactly what our concern is. In paragraph 250. 14 (b) (2), ' the Environmental Protection .Agency, which I will hereafter Q 0 refer to as "the EPA", has chosen, erroneously we believe, to list all "waste rock" and "overburden" from uranium mining 1 as hazardous waste. Since neither Congress, in the legislation, 11 nor the EPA, in their proposals, has specifically defined the terms "waste rock" or "overburden", I will use the terms as generally used by the mining industry: Waste Rock - that dirt and rock, usually from underground mining, that must be moved to gain access to an ore 16 body. Any mineral content of interest would be of such 18 low concentration -that it would not be economically 19 feasible, at present, to recover it. 20 Overburden - almost exclusively used in surface or 21 strip mining, is the soil and rock that covers a mineral deposit that must, be moved to gain access oo 0 to the ore body. The term "waste" is also somewhat 'of a misnomer. Waste, oe as used bv the mining industry, means simply material that ------- 252 « has no economic value for mineral recovery. It may or may 2 not be discarded to then become "waste" or "discarded material" 2 in a sense generally accepted .by the public. * It is these items that I will be discussing today. I am in no way referring to mill tailings, which"are the "waste" (in mining terms) from the processing of the ore, Uranium mill tailings are regulated by the Nuclear Regulatory Commissior under the Atomic Energy Act of 1954, as amended by the Uranium Mill Tailings Radiation Control Act of 1978, and are not within the scope of RCRA. GMRC does believe there is some potential for hazard to health associated with tailings and supports a 12 reasonable, workable regulatory control of these tailings. .- GMRC contends there is no basis for including any .« mining overburden intended for return to the mine site in any listing of hazardous waste, as is done in Section 250:14. Congress was very explicit in its intent regarding mining overburden and mining waste. Specifically, Congress has exempted overburden intended for return to the mine site, and other mine reclamation activities, from regulation under 2Q RCRA -, It is, therefore, not within the scooe of the EPA's 22 statutory authority to even regulate mining overburden. The EPA did recognize its lack of statutory authority in the preamble to the proposed Section 3001 regulations, but then 25 erred in reading the referenced House Reoort. As stated by ------- 253 the EPA on page 58951 of the December 18th proposals ' 2 c "However, the House Committee Report also states 3 certain mining overburdens may be considered 4 hazardous; thus some are listed in Section 250.14." 5 (43 FR 58951) The referenced House Report actually 'states, on pages 2-3: "Similarly, overburden resulting from mining operations and intended for return to the mine site is not 9 considered to be discarded material within the 10 meaning of this legislation." (H.R Rep No. 94-1491, 94th Cong., 2nd Sess.3(1976)) 12 • GMRC further contends it is premature to presently 13 include "mining waste" or "waste rock'" within the coverage 14 under Sections 3001, 3002, or 3004 of RCRA, or within any 15 regulations promulgated thereunder. Congress, in Section 3 16 8002 (f) of RCRA, excluded mining wastes from RCRA coverage 17 until the completion of a "detailed and comprehensive study 18 on the adverse effects-of solid' wastes from active and 19 abandoned surface and underground mines on the environment". 20 Further this study, in "consultation with the Secretary of 21 the Interior", is to be conducted by the Administrator of the 22 EPA, who shall then "publish a report of such study and shall 23 include appropriate findings and recommendations for Federal 24 and non-Federal actions concerning such effects-" Thus, 25 it is clear that Congress intended that any regulatory effort ------- 254 1 must be preceded by the mandated study, consultation and 2 reporting procedures. 3 Until these procedures are met, thereby providing to 4 EPA the information Congress found lacking to reasonably 5 and non-arbitrarily regulate that "mining waste" is "hazardous", 6 "mining waste" cannot be regulated as though it were "hazardous" 7 In considering H.R. Bill 14496, the staff of the Subcommittee 8 on Transoortation and Commerce of the House Interstate and 9 Foreign Commerce Committee (which was the subcommittee that 1° reviewed this bill) requested and received from EPA copies 11 of all damage reoorts, totaling some 400 reports, for the 12 express purpose of ascertaining what kinds of waste from 13 what kinds of activities and facilities should be covered 14 in RCRA's definition of "solid waste". Not one of these 15 reports involved "mining waste", nor could EPA then produce 16 any information on '"mining waste"-for that exhaustive sub- 17 committee staff effort. It was precisely for this lack-of- 18 information reason that Congress mandated EPA in•Section 8002 19 (f) to conduct the study on "mining wastes". 20 The EPA, further, has failed to follow the requirement 21 in Section 3001(b) of RCRA that any regulations "listing 22 oarticular hazardous wastes" and "identifying the characteristic 23 of hazardous waste" be "based on the criteria nromulgated under 24 subsection (a) of this section". The EPA has recognized this 25 proper approach, in its draft prooosals of December 22, 1978 ------- 255 1 for Part 122, Title 40 CFR, the so-called "One-step Permitting 2 Program", thusly: (I quote from Section 122.27 (a)); 3 "Section 3001 of RCRA requires the Administrator to 4 'develop and promulgate criteria for identifying the 5 characteristics of hazardous waste and for listing hazardous waste, which should be subject to the -• provisions of this subtitle...1 and to .'promulgate regulations identifying, the characteristics of hazardous waste, and listing particular hazardous 10 wastes...which shall be subject to the provisions 11 of th is subtitle..' based upon the criteria." 12 However, the EPA then proceeded to list a "hazardous 13 waste", based on "the criterion of Section 250.12(b)(2) because the waste contains radioactive substances." Also, the EPA 15 has identified the characteristics of "hazardous waste" and 16 made them applicable to "mining waste". Yet, no criteria have 17 been promulgated uoon which such listing and identification 18 are supposed to be base'd. 19 It would appear that EPA already has decided on such 20 lists and characteristics and then, after the fact, will 21 prepare first the proposed and then the final criteria 22 required by Section 3001(b) of RCRA. .More specifically, 23 looking at the category of "Uranium Mining" in the "Special 24 Waste" table in 43 Fed. Reg. 58992 as illustrative, the EPA 25 has concluded (listed?) that 150 million metric tons per year ------- 256 1 is "hazardous", and thus proposed to regulate such "special 2 waste" under certain portions of the Subpart D regulations. 3 Yet, in view of the questions raised by the EPA itself, and 4 the complete lack of any data or information referenced in 5 the proposed regulatory package, how was this conclusion 6 derived? 7 In view of the above, and lacking the mining wastes 8 study discussed earlier, GMRC urges that all "processes" 9 listed because of radioactivity in Section 250.14, all 10 references to levels of specific Radium isotopes in Section 11 250.15, and Appendix VIII be eliminated from the proposed rules. 12 In the preamble to the December 18th proposals on page 58950, 13 the EPA states that only the first four of eight listed 14 hazardous waste characteristics will be relied upon because 15 "those are the only ones'for which the Agency confidently 16 believes test protocols are available." Further, "The 17 characteristics that EPA plans* to use immediately are relatively 18 straightforward, the tests are well developed, inexpensive, 19 and recognized by the scientific community, and they cover 20 a large proportion of the total amount of hazardous waste the 21 EPA believes should be controlled. Generators will not be 22 required to test for characteristics of waste outside these 23 characteristics for purposes of determining if the waste is 24 hazardous wastes using all the candidate characteristics." 25 If the test protocol for radioactivitv is not reliable ------- 257 1 enough to be included, it is unqonscionable for the EPA to 2 determine any specific waste is hazardous on this count, 3 and further use this unreliable protocol as the only means 4 to demonstrate non-inclusion of a waste within the hazardous 5 waste system. 6 GMRC is not aware of any instance where uranium mine 7 wastes have caused or significantly contributed to an increase 8 in mortality or an increase in serious irreversible, or 9 incapacitating reversible, illness; or posed a substantial 10 present or potential hazard to human health or the environment; 11 After more than 20 years of large scale uranium mining, none 12 of the above cited conditions have been demonstrated. Uranium 13 mining wastes should therefore be considered to be outside 14 the ambit of the Section 1004(5) definition. EPA's admission 15 of the low risk and the fact that these wastes have never 16 caused any harm through their radioactivity are conclusive. 17 Thus, these materials should not be listed, as EPA proposes. 18 EPA*s use of "notes" throughout these proposed regulations 19 is, at worst, legally confusing and, at best, cumbersome. It 20 is GMRC's understanding that these "notes" would be a oart of 21 the final regulations and therefore on an equal legal footing 22 with the other portions of these regulations. To avoid the 23 potential unintended result that a court might rule otherwise, 24 and to clean up this awkward syntactical apnroach, the EPA 25 should incorporate each "note" into the body of the regulation ------- 258 to which it pertains through the use of "unless" language or something similar, and delete the introductory-language portion of the "note",, ' • In. summary, GMRC urges serious consideration be given * to the following points in the formulation of any final rules 1» Overburden is not included within coverage of RCRA. 2o Mine waste should not be included within coverage of RCRA until completion of the Section 8002 (f) study. 3., No material be listed in 250.14 until criteria for 1° identifying the characteristics of hazardous waste 11 have been developed and promulgated. 12 4. Discontinue the use of "notes" throughout the 13 regulation. I thank you for this opportunity to present Gulf Mineral Resources Co.'s comments on the proposed regulations. Mr. Kent R. Olson or I will be happy to answer any questions you 17 may have regarding the issues raised in this testimony. ThanJc you. CHAIRPERSON DARRAH: Thank you. 20 MR. LEHMAN: -Mr. Morton, I think at one point in 21 your testimony you stated that there were no criteria for 22 listing a hazardous waste that was not backed up by a charac- 23 ristic, but I call your attention to Section 250.12 of the oroposed regulation which has a set of criteria for identifying a characteristic, and another set of criteria for listina a ------- 259 1 hazardous waste. And one of the criteria for listing is that 2 a waste posesses one of the characteristics that are defined— 3 one of the four characteristics. However, it goes on that the 4 waste meets the definition of a hazardous waste found in Sectior 5 1004-of the Act, a finding by the Administrator of the EPA 6 regardless of the existence of a characteristic that the waste 7 in fact is a hazardous waste by statutory definition. So 8 there are two criteria for listing, and-I believe you only 9 recognized one in your testimony. 10 MR. MORTON: That is more than likely true. We 11 have only recognized the one, and. that is certainly how we 12 feel. How can you have different criteria to determine whether 13 a waste, which is hazardous or non-hazardous. Either it is 14 or it isn't. To have a criteria to put it on a list or to 15 have a criteria to meet characteristics, that is the same 16 criteria. 17 MR. LEHMAN: Well, not necessarily. I don't want 18 to get into a debate on it at this point. 19 MR. MORTON; Somewhere I got lost in this two 20 method system to be very honest with you. 21 MR. LEHMAN: All right. I just wanted to point 22 that out. 23 • CHAIRPERSON DARRAH: I had a question. I recognize 24 that you aie quoting the legislative history about overburden 25 returned to the mine, but then you somehow say, okay, all ------- 260 1 overburden should be outside of RCRA is what you are saying? 2 All overburden is returned to the mine? 3 MR. MORTON: No, I did not say that. 4 CHAIRPERSON DARRAH: Am I correct in saying that 5 your statement says that overburden should be exempt or should 6 not be regulated at this time? You say overburden is not 7 included within coverage of RCRA, but at the same time you 8 quote from the legislative history which says overburden 9 returned to the mine is what the Committee was talking about. 10 MR. MORTON: Yes, I quoted the Committee, which 11 said overburden resulting from mining operations intended to 12 be returned to the mine site is not considered to be discarded 13 material within the meaning of this legislation. Yes, I said 14 that. 15 CHAIRPERSON DARRSH: Okay. Thank you. Our next 16 speaker is Dr. John T. Makens. 17 . DR.JOHN T. MAKENS: Madam Chairman and members of 18 the panel, I am John T'. Makens and I am President of the 19 Colorado Veterinary Medical Association, and I am here to 20 represent the Veterinarian in the State of Colorado as well 21 as the proxy veterinarians in Minnesota. 'I' hope I soeak for 22 all veterinarians concerning our aspect of this law. 23 I have listened to eight hours of information today, 24 most of which, I do not understand. I am going to take about J 25 two minutes of your time, and I guarantee you will all understand ------- 261 I what I have to say. Please do not interpret my brief remarks 2 as correlating with our lack of concern. This issue, has raised 3 more concern in the veterinary field than anything I have 4 encountered in sixteen years of practice. 5 There are those studies which establish the fact that 5 the waste from veterinary hospitals, clinics and associated 7 premises is a greater threat to the environment or human .health 8 than other forms of common waste matter if handled in the 9 presently accepted manner for-general waste disposal. 10 We are not generators. We generate nothing. The H veterinarian takes your pet, and we take the material you 12 bring to us and we transport it to our garbage can in a 13 sanitary manner and get rid of it. We have over the years, 14 and it is the policy of- all veterinarians societies to push, 15 to encourage, to conjole the most sanitary handling of 15 contaminated waste, the type'of contaminated waste that we 17 deal with'of any industry, should we say, in the country. IQ We ask that veterinarian hospitals as defined in the 19 Law now be exemoted from the regulations entirely. Can you 20 imagine how a veterinary hospital, and there are probably— 2i I am going to guess, 10,000 individual veterinary hospitals 22 i-n this country, and most of them with a gross income of 23 $100,000 spread throughout every little town in this country, 24 can afford to have either an autoclave in which we can steam 25 sterilize up to a 3,000 pound bull with many tons of bedding ------- 262 1 for eight hours. There is no equipment available in the ^ 2 first place to do .that. We cannot use sanitary landfills. I 3 That is already taboo. We cannot in most ins-tances use 4 incineration. For one thing, as you define incineration, 5 the incinerator must create 1,000 degrees centigrade and 6 maintain that to incinerate this creature. 7 Again, take the instance of a 1,000 pound horse or a 8 3,000 pound bull, it is impossible without an atomic explosion 9 to create the temperatures you require to sterilize or to 10 dispose of this creature. . I think if you are considering 11 toxic waste, and there is toxic waste associated with veterinary 12 practice, but that .is not our veterinary practices, that is the 13 research institute in this country, which is dealing with 14 new creatures, new bacterium, and new viral agents, manufacturing, 15 reproducing those creatures. We do'n't do that in practice. 16 Those agencies are already doing that. 17 I would estimate ninety-nine percent controlled by Federal 18 regulations. They are'establishing the criteria for destroying 19 these agents. They are already controlled. 20 The average veterinary practice does none of this. In 21 conclusion, I would just like to say that this regulation will 22 have such a profound effect, as we see it, on the veterinary 23 practice, that the advantages we don't see, it could be 24 devastating to veterinary medicine. I thank you all. I will 25 answer any Questions. 4 ------- 263 1 MR, LINDSEY: Dr. Makens you indicated that you 2 can't autoclave a dead bull. I am not trying to be humorous, 3 you can incinerate it and you can't landfill it, what do you 4 do with it? 5 DR. MAKENS: At the present time, dead animals are 6 either incinerated, but not in the equipment that you are 7 specifying in the regulation or taken to a rendering olant. 8 Now, most large animals are taken- to a rendering plants. 9 That is a special process, of course for eliminating animal 10 waste. The greatest thing about it, even though some people 11 don't like to think of it, it is all recycled. 12 MR. LINDSEY: So it wouldn't be covered under 13 these regulations, I don't think. 14 DR. MAKENS: They would become covered because 15 if they coisve out of a veterinary hospital, but if they are 16 agricultural— 17 MR. LINDSEY: If they were reused, I don't think 18 it would be covered under these regulations. 19 DR. MAKENS: If your wife's little poddle dies, 20 don't tell her it is going to be reused, please. 21 MR. LINDSEY-. That is true (laughter) . Let me 22 ask you another question. And I gather your answer is there 23 can be no problem with diseased animals is what we are talking 24 about. Let's say there was an indiscriminate disnosal of it. 25 Is there anv hazard? You said there is no studies, and I ------- 264 believe that is probably true. Is there any hazard in your opinion that can come to man from wandering around dumps and so on, that happen to dispose of these kinds of materials. Not everybody Is scrupulous, is the point I am trying to make. DR. MAKENSs That is true, except in everyday life, you contact the same organisms. I wouldn't go nuzzling around a certain dead animal. But as I say, those are not allowed 8 at the present time, at least in our state, to be put in landfill That is against the law. That has to be destroyed, either by 10 burial in a burial area. If you have a brucellosis cow, and 11 underlating fever is still a serious disease of both animals 12 and people. There is a program the Government has been working 13 on for forty to fifty years to try to eliminate brucellosis. 14 The procedure here will not even, in the slightest, help to 15 do that, but those animals, if identified, are'carefully 16 monitored from the time they are identified until the time they 17 are properly disposed of, and properly disposed of is what they 18 have been doing for forty years. So that type of animal is 19 eliminated already. Even the normal dead animal is no worse 20 in a landfill, if they are buried, but no, we don't want them 21 out because other animals are going to come and eat them. 22 I think we are more worried about other animals transmitting 23 these things and keening them going. 24 MR. LINDSEY: You then feel what you are saying is, 25 that the current rules of Colorado- for handling waste from ------- 265 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 veterinary hospitals and so forth are sufficient. Do you know if most states have those kinds of rules like Colorado's? DR. MAKENS: As far as I know. At least you know the largest city areas, they do, and again with all the concern about polluted water, polluted environment, the landfill, because of the special nature of a dead animal, as far as I know, do not accept them, and I think that is pretty well nationwide. But I think that the American veterinary medical association can probably answer that for you from'this stand- point. CHAIRPERSON DARRAH: Thank you very much. We will recess the hearing and reconvene tomorrow morning at 8:30 a.m. in this room. (Whereupon the hearing was recessed until the above time and dates indicated.) ------- ENERGY AND MINERALS DEPARTMENT OIL CONSERVATION DIVISION POST OFFICE SOX 2088 , STATE LAND OFFICE BUILOirjJ SANTA FE, NEW MEXICO 8750 March 6, 1979 15051827-2434 Hazardous Waste Management Division Office of Solid Waste (WH565) U.S. Environmental Protection Agency Washington, D.C. 20460 Gentlemen: Members of our staff have reviewed the various Hazardous Waste guidelines, regulations, proposals, etc., set out in the December 18, 1978, Federal Register. We find these proposals extremely comprehensive and their potential negative effect on oil and natural gas develop- ment and production a source of great concern. As a State body responsible for the regulation of the drilling for and production of oil and gas we are concerned with the effect of a number of the proposals; however, the high level of drilling activity experienced in the last few years as well as a variety of new federal programs imposed upon this agency has strained our ability to devote the time and manpower necessary to properly review and respond to this proposal. We would hope that EPA could extend the comment time for items related to oil and gas drilling and production for 12 months/ It is felt that any proposal which could have a severe negative impact on our energy base in this critical time of shortage should receive thorough study.. It should be noted that most major oil and gas producing states and the U.S. Geological Survey have prohibited the uncontrolled surface disposal of all but negligible volumes of oil field brines and that we know of no- instance where drilling mud disposed of at the well site has leaked or caused problems. Other preliminary comments and questions are attached. Yours very truly, JOE D. RAMEY Director JDR/RLS/fd enc. ------- ------- ^^ «•»• ^f HI a tn P- P- 3* CO en O P" rt C 3 a 0 0 TJ CD n CD 3- H. rr fli OJ O 3 rr -Q p- ui CD O o 3 rt to 3 sr (0 CD £L rr C CO 3 CD 1 p- to 3 rt P- O rr 3 0 C « 3 CD TJ P- M Ml p. 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CD oi . e O 03 Ol 01 3 3 a P* a • TJ W 3 1 H SP- 3- P- CO 03 01 P<03 TJ 3 tr P" C M tO P- P- p- to rr 3 n 01 CD 03 CD € rr a 3 O 3 co 3 01 01 e 3 - 01 H a rr rt pi co ta rr 01 O Oi CO H. O 11 S H) p- U en tn 3 rr c oi rr X CD O h- 3- H 3- rr ct rt w 3- a oi s: CD CD P- tn 01 en rr to £ TJ HI (0 (0 01 o o n o rr tn C rr CO 01 3 TJ p- i M a p- o rr 3 a TJ P- to en 3 P- 3 a rr P- co tn O 3 CO C CD 01 03 ID M ------- ------- STATEMENT OF S. NORMAN ASSISTANT TO THE VICE PRESIDENT, ENVIRONMENTAL AFFAIRS, ASARCO INC. ON BEHALF OF THE AMERICAN MINING CONGRESS WATER QUALITY CONTROL SUBCOMMITTEE CONCERNING REGULATIONS 40 CFR PART 250, SUBPART A PROPOSED ON DECEMBER 18, 1978, UNDER AUTHORITY OF SECTION 3001 RESOURCE CONSERVATION AND RECOVERY ACT BEFORE THE U.S. ENVIRONMENTAL PROTECTION AGENCY, IN DENVER, MARCH 7, 1979 ------- Ladies and Gentlemen of the panel: My name is S. Norman Kesten, of ASARCO, Incorporated, where I am the Assistant to the Vice President for Environmental Affairs. I am also Chairman of the Solid Waste Task Force of the Water Quality Control Subcommittee of the American Mining Congress and I appear here today on behalf of that group. The American Mining Congress is a national association of companies that produce most of the nation's supply of metals, coal, and industrial and agricultural minerals. While producing these essential materials the member companies necessarily generate large quantities of mine waste rock, waste materials from milling and other forms of beneficiation often called tailings, plus fur- nace slags and other similar processing wastes from later stages of total processing toward useable products, as well as other " wastes in relatively minor quantities. The American Mining Congress is thus very interested and" concerned about the economic impact upon the minerals industry of any regulations promulgated for the purpose of implementing -provisions of this amendment to the Solid Waste Disposal Act. In addition, we want to try to ensure that during the formulation of such regulations the Agency is fully " aware of the technological limitations that the very nature of its wastes places upon the industry and takes into account the large number of physical and chemical variables that tend to make each operation unique. In general, the industry has a series of « special problems in complying with proposed regulations because of the sheer volume of the wastes that are generated and the large areas of land that those wastes must occupy. ------- Using copper and copper ores as examples, new mind production, including beneficiation, smelting and refining, in this country is a magnitude that there is also produced annually about 600 million tons of mine waste rock, 250 million dry tons of mill tailings and perhaps million tons of furnace slag. If that mine waste were distributed in two new waste dumps each of which covers one section of land, the dumps would be built up to an average height of 30 feet by the end of a year. If tailings were deposited in one new tailings disposal site oc- cupying one section of land, the tailings would be built up to a height of about 25 feet in a year. The height of the pile of slag covering a section of land would be somewhat less during year, something like 6 or 8 feet. Obviously, each type of waste from one year's operations is not accumulated in one or two piles at individual sites but is distributed among and added to many existing piles. The cumulative volumes are similar to those des- cribed depending upon the length of time a particular site has been operated and the rate of production of wastes. Because of these volumes, the criteria for distinguishing between hazardous wastes and other wastes are crucial to the continued viability . of the operations in which the member-companies of the AMC are engaged. I have used copper as an example. Obviously the underlying principles are applicable to operations involving most other non- fuel minerals, including mining and beneficiation of phosphate rock and mining of uranium ore. The smelting of iron ore gener- ates 24 million tons of slag annually. — 2 — ------- In spite of the draft regulations and proposed regulations t that EPA has made available, member companies of the American Mining Congress still have no idea what the cost will be of solid waste disposal under the Act. If the terms "open dump" and "sanitary landfill" are strictly applied (and there v/ill be a great deal of pressure upon the Agency to apply them strictly) then very many piles of waste rock, tailings accumulations and slag dumps still being used might have to be classified as open dumps, to be up-graded or closed within 5 years. In many instances up-grading may be physically impossible. Replacement by new san- itary landfills would be so expensive as to greatly impair if not destroy the economic viability of the operations. If what is required of a disposal site for wastes not de- signated as hazardous is that there be no reasonable probability of injury to human health or the environment, another dimension of uncertainty is added. We would be dependent upon someone's assessment of that probability and of what is reasonable and of how much injury is permissible. The result of such assessment could be just as expensive and just as crippling as the direct application of the term "open dump". If the criteria for classifying waste as hazardous and the listing of waste and processes are finalized as now proposed, large tonnages of waste rock, tailings and furnace slags might very well be designated as hazardous even though those large tonnages « might be only a fraction of the total tonnage generated. The proposed standards of performance applied to these tonnages will ™ again lead to intolerable expense. In fact, except for the paper- work involved for hazardous waste, it might make no difference to us how these large-tonnage wastes are classified. ------- Of course, I am speaking of cumulative worst case situations. ^ One frustrating thing is that we do not know at this time, nor will we know at the time the proposed regulations become final, just what their effect upon our industries will be. Amidst all of this we feel there is a reasonable probability that our current methods of disposal do not damage human health or the environment except in minor, easily recognizable instances. In fact, we think that EPA should make that presumption. In addition, we con- tend, and are on record to this effect, that the legislative history of the Act states unequivocally that mining wastes are at this time exempt from the provisions of solid waste regulations. I refer you to the comments of the American Mining Congress on rules proposed under Section 4004 of the Act. For most wastes with which our members are concerned, the ™ principal property that determines whether they are hazardous or not is toxicity; for some others it is radioactivity, a comples matter to be dealt with in separate comments. A waste may not be designated as toxic 'by the simple procedure of saying it is so; it must be determined to be toxic because of the results of an objective, scientific test. EPA proposes a test in Section" 250.13(d)(2) and we do not agree that it is a test that is appro- priate to the purpose. We believe that it flies in the face of logic and reason for EPA to even attempt to establish a single procedure to be applicable nationwide to all kinds of wastes * regardless of the chemical and physical environment in which a waste is deposited. Without going into the entire history of -4- ------- the proposed test we should like to stand with the D19.12 Sub- committee of the American Society of Testing and Materials in decrying the unscientific approach that EPA has followed in creating the extraction procedure. We urge strongly that EPA work closely with ASTM to establish criteria for a test rather than a single test or extraction procedure. This would enable a generator, or anyone else who is required to determine toxicity, to devise a procedure within the framework of the testing criteria that would be applicable to his waste through the projected life history of his waste. At the very least a generator should be permitted and required to set up in his testing laboratory the nearest approach possible to the chemical and physical environ- ment of the disposal site. If the generator does not choose to make the test, he is free to concede that his waste is toxic, as that term is defined, and therefore hazardous. I should like to refer- the panel to a strongly worded letter of Denver 1, last, to the Administrator, from the chairman and the secretary of the ASTM Subcommittee D19.12, and to one from Professor D. K. Ham of the University of Wisconsin to John Lehman of the Office of Solid Waste dated January 24, 1979. My next point is of peripheral interest only, because I feel sure that the extraction procedure will be changed either before promulgation or, possibly as a result of judicial review, some- time afterwards. That point is that the apparatus to be used in carrying out the extraction procedure is not existing, standard equipment not is it readily available from the sole manufacturer listed by EPA. -5- ------- In Section 250.13(d)(l) are listed pollutants and the threshold values for concentrations in the extract which, if exceeded, cause the waste to be designated "hazardous." The numbers are, of course, ten times the National Interim Primary Drinking Water Standards for those substances and, according to the preamble, they are listed on the assumption that on the average the natural elutriate from a waste will be diluted by a factor of ten before it is used for drinking water. This is another instance of the Agency trying to establish a single standard applicable to all places at all times. This, of course, is in- defensible. A knowledge of the number of variables, and the de- gree of variability, at any one site might make it possible to estimate for that site the atteenuation that takes place between the disposal site and a present or future drinking water source. To arrive at a generalized figure is to perpetrate a nonsense. We were astonished when we examined "Processes Generating Hazardous Wastes" in 250.14(b)(2) because we find that most of the listings are not processes but the substances generated by certain processes. We were further surprised to find in that list, particularly in SICs prefixed with the numbers 33, sub- ." stances which are seldom wastes. Some are invariable or very often returned to the metallurgical processes for capture of the contained metals or are stockpiled for shipment to another plant for the same purpose. For them to be categorized as waste by « regulation is to throw them into the hazardous waste procedure from which the generator might extricate them only at considerable inconvenience. — 6 — ------- Section 250.15 discusses how a person might demonstrate that a solid waste that has been listed as hazardous is not, in fact, hazardous. If there is any serious doubt abou the toxicity or other hazardous characteristics of a substance, EPA should avoid listing it and avoid putting the generator or any other person to the expense and inconvenience of rebut- ting the presumption. EPA should rely upon the provisions of Subpart G, under Section 3010 of the Act, to ensure that every hazardous waste is identified. We believe that to some extent the lists are arbitrary and capricious. Section 250.15 does not discuss how a person might rebut the presumption of the part of EPA that a hazardous substance is a waste. The lack of understanding that exists among some EPA personnel was demonstrated by a staff member who in a related " context, included "low grade ore" in a list of wastes. Of course, this is a contradiction in -terms. It seems to me that the Agency has two alternatives: it can leave it to the generator or other person who owns or controls the material to judge whether or not it has the potential to be used or reused and therefore whether or not it is waste; or it can devise a set of reasonable criteria by which the material may be judged to be waste or otherwise. Our written comments on proposed Subpart A will be submitted in due course. In them we urge greater clarity and consistency as well as compatability of the regulations with actual conditions. « In addition to the points that I have just tried to make, we sug- gest that EPA's presumption that hazardous waste is mismanaged \ -1- ------- should be rebuttable on a case-by-case basis and that wastes that have only a low level of toxicity and are therefore only marginally hazardous might be managed under less stringent re- quirement than those for wates that significantly exceed the criteria. We do not feel that any of the suggestions, when acted upon, will have the effect of reducing the Agency's effectiveness to carry out the directive of Congress to pro- tect human health and the environment from injury occasioned by management of hazardous waste. — 8 — ------- f / STATEMENT ON PROPOSED HAZARDOUS WASTE GUIDELINES AND REGULATIONS UNITED STATES ENVIRONMENTAL PROTECTION AGENCY EY HESTER MCHDLTY, NATURAL RESOURCES COORDINATOR LFAGUE OF HOHEH VOTERS OF THE UNITES STATES PUBLIC HEARING — DENVER, COLORADO. MARCH 7, 1979 I am Fester McNulty, speaking for the League of Women Voters of the United States. Ue are pleased to have_this opportunity to comment on the proposed hazardous waste guidelines and regulations. The Leapue is a volunteer citizen organization with members in all fifty states, the District of Columbia, the Virgin Islands and Puerto Rico. The League's members in over 1,350 communities are deeply involved in finding ; solutions to solid waste problems. T-7e would like to commend EPA for an excellent job in providing supplementary explanatory information. Considering the difficult and technical nature of the regulations, we are especially pleased with the lucid introduction to Section 3001. However, we question the wisdom of dividing the hearings into separate days for each section of the proposed regulations. This means that all those interested in testifying on two or more sections must appear two or ------- -2- three times. Such an arrangement is likely to dampen meaningful public 4 involvement in the hearinp process. The Leapue has been involved in the protection of our land, air and water resources for a number of years. Our members, after two years of-.study, agreed that wastes which cannot be reused must be safely disposed of. The League supported the passage of the Resource Conservation and Recovery Act (RCRA), and were especially supportive of its provisions for hazardous waste management. We have examined the proposed regulations in light of the principal objective--.of the Act — to protect human health and the environment. Our comments are directed primarily to Subparts B and D of the proposed regu- lations. Regarding Section 3001 and Subpart A, we commend you for your lists of specific materials and the characteristics of these materials, but we urge m you to constantly update the lists and consider other materials. Section 3n02 Subpart P. — Standards Applicable to Generators of Hazardous Haste The Leapue does not apree with the exemption from these regulatory requirements - of ha^aTftou's waste'generators' that produce^ 100 ktloerams or less p£r~month. The League's opinion on this issue is based on three considerations. One, the derree of hazard associated with a particular waste is often more closely related to concentration than volume. Two, the small generator exemption sidesteps a major objective of RCRA, namely, to track hazardous wastes from their creation to their disposal through a manifest system. Three, there is no foundation in the Act for a blanket exemption. He find no support for this exemption in Section 3002 of RCRA which states ------- -3- that the standards will apply to generators identified or listed under Subtitle C of the Act. In fact, Section 3102(5) requires that the manifest system be applied to all wastes identified under Subtitle C: ... standards•shall establish requirements:respecting.-* (the) use of a nanifest system to assure that all such hazardous waste generated is designed for treatment, storage or disposal in...facilities for which a permit has been issneti.... In addition, EPA notes in the explanatory information that it has limited data on the numbers of small generators, the amount and types of wastes gen- erated, and the impact of these wastes on human health and the environnent. By requiring generators of 100 kilograms or less per month to comply with the requirements of Subpart !>, EPA will.-acquire-.the essential'information "that" it currently lacks. For instance, the requirements would allow EPA to pinpoint the snail p.enerstors' disposal sites to determine which ones are relied on heavily for disposal of their hazardous wastes. So that the requirements under Subpart B may not be burdensome to generators of 100 kilograms or less tier month of hazardous wastes, we would urj.e EPA to keep recordkeeping to a minimum and to simplify procedures. Further, the League believes that proposed section 25^.29(1) which allows- small generators to dispose in sanitarv landfills approved pursuant to Section 4104 of the Act is inconsistent with RC?>A. Subtitle C's section 3002(5) plainly states, "[A]ll> 'such .hazardous ;waste generated is designated'for ~ treatment, storage, or disposal in...facilities...for which a permit has been issued as provided in this subtitle." It does not include sanitary land-ri fills developed pursuant to Subtitle D of RCEA " Since approximately 67 percent of the hazardous waste is produced in ten of ------- -4- the fifty states, we are also concerned that if penerators of ]/>0 kilograms ™ or less per month are allowed to dispose of their wastes in sanitary landfills as opposed to hazardous waste sites, some sanitary landfills'may receive many contributions of 100 kilograms or less of hazardous wastes, thereby becorainp in the appresate major resting places for these substances. Because these landfills will not be as stringently developed and managed as hazardous waste sites, they may pose serious problems to public health and the •: -viron- environment . The oroposed repulations (section 250.27) also allow the hazardous waste generator to request that certain information be kept confidential. The repulations should clearly impose a heavy burden on the disposer to demonstrate the need for secrecy, lest this section become a loophole for avoiding the intent of ^CRA. Section 3"r>4 Subpart I) ~ Standards Applicable to Owners and Operators of Hazardous TTaste Treatment, Storape, and Disposal Facilities The League agrees with most" of the provisions in this subpart. However, we do not believe that the ?TOTES in this subpart, which substitute performance standards for environmentally sound facility siting, will accomplish the stated poals of P.CRA. He are especially concerned about the NOTE that allows a hazardous waste facility to be located in the recharge zone of a sole source aquifer. We believe the intent of both the Safe Drinking Uater Act and RCRA would be M negated by the location of any hazardous t*aste facility in such recharge areas. ------- -5- Eecause of the limited supplies of drinking water sources, it is imperative that r,PA repulations ensure their protection. He question that EPA can predict with any certainty adequate resources over the long term — at either the EPA or the state level — to ensure that the operation, maintenance, and monitoring of a facility will protect a sole source aquifer. The potential social, environmental and economic costs outweigh short-term accomodation. The League strongly urges that ru3 facilities be permitted in the recharge zone of sole source aquifers. Additionally, we are concerned with the facility exemptions permitted in floodplains, wetlands, and high hazard coastal areas. Because of the very nature of hazardous materials, there will be a latent threat to fragile ecosystems, water resources,narid*human health, if'facilities -are'located " in these areas. Performance standards at the time a pernit is issued cannot ensure future reliability. !Te ~ask that EPA remove these exemptions from the repulations as the intent of RCRA is protection of human health and the environment. Tie also think that the proposed NOTES providing exemptions for land farms (section 250.45-5) present an unnecessary risk, particularly to ground and surface water quality and may lead to possible contamination of public water snoolies. Demonstration of performance to the regional administrator when a permit is issued does not preclude future contamination. For instance, it is almost impossible to predict with certainty that there will be no direct contact with the water table when the treated area is less than five ^ feet above the historical high water table. ------- -6- ITe have the same concerns with the exemptions for landfills (section 250.45-2). tte think that in no instance should a landfill be closer than 500 feet from a public or private water supply. Nor should the natural soil barrier "or liner tbe:'.less than1:five" feet frdm-the water table. It is unclear just how EPA proposes to integrate hazardous waste regulations with other programs administered not only by EPA but also by other agencies — such as the Strip Mininp Act.* It seems to us that this is extremely important in the implementation of Section 3004 of RCEA. Further, the League ur^es that no part of the hazardous waste program be turned over to a state unless the state program is no less stringent than the Federal regulations and there is an assurance of sufficiant personnel for administration. Also we encourage EPA, in:-Che rinee*lm,' to -provi'de an'adequate ™ staff to implement the regulation of hazardous wastes. And in conclusion, despite the nandate under RCRA's Section 7fl04(b) that there x-rill be ''Public participation in the.. .implementation, and enforcement of any regulation...or program," there are no proposed public participation guidelines included in the proposed regulations. Ue strongly urge EPA to immediately bepin the task of developing proposed public participation rules for its hazardous waste Program and to issue them for public comment so that they will be included in the hazardous waste rules when they are issued later'.this-year in final form. ------- RESOURCE CONSERVATION AND RECOVERY ACT HAZARDOUS WASTE MANAGEMENT PROPOSED GUIDELINES AND REGULATIONS AND PROPOSAL ON IDENTIFICATION AND LISTING FEDERAL REGISTER, DECEMBER 18, 1978 GENERAL COMMENTS 40 CFR, Part 250 - Subpart A By Texas Department of Health to the U.S. Environmental Protection Agency Hazardous Waste Management Division Office of Solid Waste Public Hearing Denver, Colorado March 7, 1979 ------- ------- STATEMENT: Introduction: I am Wiley W. Osborne, Chief, Plans and Programs Branch, Division of Solid Waste Management, Texas Department of Health. I am pleased to be able to offer these remarks on behalf of the Texas Department of Health and Mr. Jack C. Carmichael, P.E., Director, Division of Solid Waste Management. Mr. Carmichael is unable to be here today. The State Legislature is in session and a number of legislative actions are pending that require his attention in Austin. Today, I wish to summarize our concerns -regarding all aspects of hazardous | waste management from our perspective. The State of Texas has, by Legislation, delegated the authority and assigned the responsibility for municipal solid waste management to the Department of Health. The State Solid Waste Disposal Act further assigns to the Department of Health authority and responsibility that extends to industrial solid waste where it becomes involved with municipal waste in any activity of collecting, handling, storing or disposal of solid waste. Our Texas Department of Water Resources has'responsibility for solid waste resulting from industrial, agricultural and mining operations. - ------- The State Solid Waste Disposal Act also establishes a coordinating mechanism between the Departments to allow review of the actions of each Department as it may affect the other. As the State Health Agency, we are responsible for the health aspects of all solid waste management activities. I mention our role in solid waste management so that you may be able to better evaluate our comments. Texas passed a meaningful solid waste disposal act in 1969 and over the past 10 years we have built a workable solid waste management program which we believe is second to none. During our work with the EPA and the NGA, we have based our comments on our years of experience dealing with private ^nter- ^ prise and municipalities. We have also stressed the real world political problems in dealing with the general public and State laws regarding public hearings and permitting requirements. We believe it is imperative that the EPA in its promulgation of regulations under the RCRA recognize the grass roots. implementation problems by providing regulatory flexibility which allows States to continue on-going safe and effective programs. As of this late date, we do not see sufficient flexibility nor do we see an indication that the EPA is willing to place trust in the professional competency of the States, although * some flexibility has been added in the notes of the latest proposed regulations. ------- The basic problem always seems to come back to the EPA's basic approach, which in itself is inflexible. Packaging all hazardous waste in one bag, 4 regardless of degree of hazard and then, attempting to regulate the single bag, has not worked very well and cannot provide the needed flexibility. Today, we wish to propose a re-arrangement of the past efforts to provide a more flexible framework which does not sacrifice any significant regulatory control. We are concerned that closing of the comment period for the rules being propose on Sections 3001, 3002, and 3004, prior to publication of proposed rules on Sections 3005 and 3006, will not afford the States the proper opportunity to obtain an overal view of the regulations prior to submitting comments. We therefore request that comments continue to be received on the proposed rules until all Subtitle C regulations are proposed and comment periods are closed. Within Texas there are 1156 municipal solid waste sites. Fifty counties, of the 254 counties in the State of Texas, comprise the 25 Standard Metropolitan Statistical Areas of the State. (About 80% of the industries in the State are located in these 50 counties.) There are 220 municipal solid waste sanitary landfills operated in these 50 counties which are capable of safely handling waste which will become hazardous under the proposed regulations. We accomplish ------- this through a mechanism of granting written approval on a site-specific, waste-specific basis. We consider the characteristics of the waste and its volume and site conditions, design and operations. Mr. Thomas C. Jorling, in his January 20, 1979 memorandum to solid waste directors, stated, "a cost effective approach to industrial waste management requires effective State regulatory programs under Subtitle D to supplement Subtitle C programs." We heartily concur in this statement. In Texas, it is particularly true because it is over 600 miles from many industries to permitted industrial solid waste sites. Under the rules now being proposed, many sites would be closed to receiving such waste, forcing the movement of waste over long distances, or the creation of new sites to accommodate, in many cases-, low volumes of waste. This will introduce an economic burden on industry that has grown to rely on municipal solid waste disposal facilities, create a proliferation of disposal facilities, increase transportation of solid waste and possibly result in the illegal disposal of solid waste that is presently being handled in a manner that protects the health and environment. Our assessment that these sites will be unable to cost effectively accept even the less hazardous waste generated by private enterprise, results from a discussion with several of the cities' solid waste managers. Their unanimous ------- response is that cities will not participate in hazardous waste activities as presently proposed. Although this strong reluctance has not been apparent in I previous workshops and public hearings, we find that the very reasons city officials do not plan to be involved in hazardous waste are also the same reasons they are reluctant to take a strong public position regarding proposed regulations. Elected officials are concerned with the political impact of advocating acceptance of hazardous waste in publicly owned municipal solid waste sites. One of our city solid waste managers stated, "It would be political suicide to even condone acceptance of hazardous waste, much less subject ourselves to a public hearing required to obtain a permit." -It is near impossible to convince the public that the issue is limited to a truck load of rotten lemons, a few drums off-spec, vinegar, outdated, treated seed grain, or a load of sheet rock. Hazardous waste connotes all the evils that are publicized by the "Love Canals." The public is influenced by such things as the political cartoon I have handed you and not the more rational editorial that appeared in the same issue of the Austin American- Statesman. Unfortunately, RCRA places the hazard label on all solid waste that is a subject of these regulations. ------- standards for hazardous waste management, fail to adequately provide for the flexibility needed to overcome the objectives of city officials whose cooperation is so sorely needed to obtain a cost effective approach to industrial waste manage- ment as pointed out by Mr. Jorling. The flexibility proposed in the regulations, by defining generators through -of retailers and farmers, setting arbitrary quantity limits and allowing exceptions in treatment, storage and disposal standards.based on demonstration by the owner/operator that less standards are acceptable, does not adequately address our concern. When we discuss eliminating retailers as a generator, we accept the fact that many retailers potentially accumulate large volumes of solid waste that we would not want placed in a municipal landfill withoug adequate controls. When a generator is defined by the quantity of waste generated alone, we are faced with a similar dilemma. We can always find the exception where the disposal of some waste may be acceptable at 100 or even a 1000 kg/month, we would hesitate to accept other waste at much less quantities. At the same time, we see problems requiring the same standards for treatment, storage or disposal of all hazardous waste regardless of quantity, concentration and effects. The notes accompanying the standards fail to provide the needed flexibility. ------- My remarks today and during the next two sessions and our more detailed written comments being submitted at a later date, are intended to outline acceptable alterna-* tives, that can be incorporated into these proposed regulations, that meet the requi: rnent of the Act and provide what we see as necessary to the implementation of a cost effective hazardous waste management program. This involves a basic requirement to divide hazardous waste into sub-sets, based on the degree of hazard. We are recommem identifying two sub-sets of hazardous waste, establishing standards for generators, transporters and owner/operators commensurate with the level of hazard associated with each set of waste. In. our letter of July 5, 1977 commenting"on draft regulations for Section | 3001, we emphasized the need to identify two levels of hazardous waste. We reiterate that request today. My remaining comments relate to Subpart A of 40 CFR 250 and recommenda- tions related to the requirements of Section 3001, RCRA. 7 ------- A10 Thursday, March 1, 1979 Jim Fain, Publisher Ray Manotti, Editor Governors ignore good energy plan The national wire services say the na- tion's governors reacted with collective in- difference to the Texas energy plan, a bi- partisan recommendation presented them by Gov. Bill Clements. That's sad, because if they took their heads out of the sand, they might realize the Texas plan has more vir- tues than faults. The plan may disdain environmental con- trols too broadly, but it recommends dere- gulation of the oil industry and the channel- ^1 ing of ail windfall energy profits into re- search and development, and advocates - energy sources. Clements asked for screams of protest when he suggested Texas might — stress the word — might, be able to accommodate a nuclear waste disposal site, something many states want to avoid. Eut if Texas is offering an energy plan, one which advocates diverse sources in- cluding nuclear power, it would be less than credible to announce, in effect, "nukes, yes; wastes, no." There may be no place in Texas which -- .iuld make a good waste disposal site. Tests are going on but with little encourage- ment. A better place might be in Nevada on old federal atomic test sites. Clements did say he agreed with two governors who sug- gested the federal government put its haz- ardous wastes on its own land. The governor's nuclear dump statement was so dotted with ifs, buts, maybes and the like, it looked like a fruitcake. And that is a proper approach to the question, hesitant and cautious. But it recognizes the problem, which is a lot more than some other states have managed. LADX Ail I KNOW IS •mATSOME&OayATlKIS ADDRESS TaD US ID *i?.vJ»y f;-.,— ^;~<223«-i* ^W^^Is^'H^/Pi^S^-f iff^gSMiM ^^t ^M^:-^PM il "1;^xMl ^ r^3s^i_± (I. iaP VllJt'yv. /?. 1 '*. *4 ------- Comments Subpart A: We agree with the preamble statement that Section 3001 is the keystone to Subtitle C. We find it difficult to discuss Subpart A without relating to Subpart B and Subpart D. And even more difficult, discussing Subparts B and D without involving A. The premise of our comments on 40 CFR, Part 250, Subpart A, is to establish at T& tzx/das-szet/ ^>n?/€ a provision within the regulation that would allow the Regional Administrator\to classify hazardous waste into two sub-sets. We propose the use of the terms PRIMARY HAZARDOUS WASTE and SPECIAL WASTE. PRIMARY HAZARDOUS WASTE refers to the more noxious waste, while SPECIAL WASTE is used to refer to waste that meets I the hazardous criteria, but there is no reasonable probability of significant adverse effect on human health or the environment unless the waste is improperly managed. The Congress, inadefining hazardous waste in Section 1004(5) of the Act, establishes the requirement for classifying hazardous waste by its effect and potential hazard resulting from improper management. We propose that the following definition be incorporated into Section 250.11: (b)(3) "Hazardous Waste" has the meaning given in Section 1004(5) of the Act as further defined and identified in this Subpart. ------- (i) "PRIMARY HAZARDOUS WASTE" means a sub-set of hazardous waste which causes, or significantly contributes to, an increase in mortality or an increase in serious ^P irreversible, or incapacititating reversible, illness. (ii) "SPECIAL WASTE" means a sub-set of hazardous waste which poses a sub- stantial present or potential hazard to human health or the environment when im- properly treated, stored, transported, or disposed of, or otherwise managed. It should be emphasized that the proposed definitions will not result in any loss of control. All waste will be' subject to manifesting, but special wastes on a selected basis may have greater exempt quantities and/or may not require as rigid or inflexible construction standards. £ Primary hazardous waste will include waste that have an acute toxicity criteria with an LD50 value equal or less than 500 mg/kg or an LC50 value equal or less than 100 ppm. Waste characterized by significant persistence in the environment, bioaccumulation, carcinogenic!ty, mutagenicity, or teratogenicity would be included under primary hazardous waste. Hazardous metals in Section 250.13(d) whose extract levels contain more than 100 times the EPA National Iterim Drinking Water Standards shall be primary hazardous waste. Unaer Section 250.13, our proposal is to use the following characteristics of hazardous waste to describe the characteristics of special waste. ------- 250.13(a) IgniCable waste is a special waste if a representative sample has the characteristics of subsection (l)(i) and (1)(ii). t •*. 250.13(b) Corrosive waste is a special was te if a representative sample has the characteristics of subsection (1) (i). 250.13(c) Reactive waste is a special waste if a representative sample has the characteristics of subsection (1)(ii). 250.13(d) Toxic waste is a special waste if the acute toxicity LD50 is greater than 500 mg/kg or the LC50 is greater than 100 ppm. Heavy metals in Section 250.13(d) whose extract levels contain less than 100 times the EPA National Interim Drinking Water Standards shall be considered special waste. The heavy metals classification is consistent with the final report of the Hazardous Waste Management Task Force of the National Governors' Association. Because of their quantity, or characteristics, special was tes may become a primary waste if designated by the appropriate regulatory agency. Examples from the list of hazardous waste in Section 250.14, Subsection (a), that would normally be special was tes are: 1. Waste nonhalogenated solvent (such as methanol, acetone, isopropyl f alcohol, polyvinyl alcohol, stoddard solvent and methyl ethyl ketone) 4 and solvent sludges from cleaning, compounding milling and other processes (1,0) ; ------- 2. Waste lubricating oil (T,0) ; 3. Waste hydraulic or cutting oil (T,0) ; 4. Paint wastes (such as used rags, slops, latex sludge, spent solvent) 5. Waterbased paint wastes (T) . Infectious waste is a hazardous waste if it is included in Class A or Class B, as classified by the Commission on Hospital Caro, that will be re- ferenced in the final report of the Hazardous Waste Management Task Force of the National Governors' Association (NGA). Infectious waste is a special Q------- A workable system for the identification of hazardous waste by level of hazard has already been developed by the Department of Ecology of the State of Washington. The Texas Department of Health is actively working upon details of a system to achieve this purpose. What we propose to identify as special waste is not removed from the hazard category, but offers an opportunity to make a simple variance in generator re- quirements and standards for the treatment, storage or disposal. The special waste identified by the characteristics we have chosen, although representing a lower level of hazard, should be controlled through the solid waste management chain. However, as will be evident from our comments on Subpart B and D,J we would on a site-specific basis vary the standards for special waste from those currently proposed to regulate all hazardous waste. Removing or minimizing the stigma of the term "hazard" and identifying more flexible standards for a large portion of the hazardous waste stream and allowing written approval for special waste in lieu of repermitting will make available municipal solid waste landfills for the continued safe disposal of a majority of the hazardous waste stream. ------- ------- John B. Ivey 155 So. Madi«on St Denver, Colorado 80209 (303)321-6057 Gen. Manager Curtu L. Amuedo »ry-Trea«urer ENVIROLOGIC SYSTEMS INC. ENVIRONMENTAL CONSULTANTS TO THE MINERAL INDUSTRY Comments of Jim V. Rouse before Public Hearing, Proposed Section 3001, 3002, and 3004 Regulations Solid Waste Disposal Act as amended by Resource Conservation and Recovery Act Denver, Colorado, March 7-9, 1979 I am grateful for the chance to address this hearing, to present my views on the effect the regulations, proposed Decem- ber 18, 1978 under the authority of Subtitle C of the amended Solid Waste Disposal Act, would have on the mining industry. These comments are not prepared from the viewpoint of their specific impact on any single facility, but rather reflect the views of an individual with a 16 year history with the EPA and its predecessor agencies as a mining waste specialist, now serving as environmental consultant to a number of mining oper- ations. The views offered thus draw on experience (resume attached) with regulatory agencies and with industry, and are presented in an attempt to develop fair and workable regula- tions which will not needlessly damage the industry. I recognize the difficult task facing the agency, to pre- pare far-reaching regulations under a short time limit on the basis of very limited data. I also recognize, from reading the regulations, that the drafters had little or no working knowledge of the mining industry and its practices. I would ------- Public Hearing Comments March 7-9, 1979 Page 2 recommend that the agency personnel make a tour of representa- tive sites prior to the preparation of the final regulations. I stand ready to assist in the organization and conduct of such a tour. I had been encouraged by the approach taken in the Febru- ary 6, 1978 proposed "Solid Waste Disposal Facilities", in that recognition of the variations in site conditions and waste char- acteristics were allowed, and an allowance made for the tremendous capacity of the vadose zone to sorb metals or radionuclides from percolating vadose water. This is similar to the approach taken by the recently developed New Mexico Environmental Improvement Division ground-water protection regulations. I then was very disappointed to find that the Subtitle C regulations did not take this progressive approach, but rather fell back to a single approach incorporating rigid design cri- teria, which does not recognize variations in waste or site characteristics, or the sorbtive ability of the vadose zone. As they now stand, the regulations would require the same care for radium in a Florida gypsum on limestone, with no vadose zone and in a sandstone waste rock deposited on shale in cen- tral Utah, with a 2000 ft. thick vadose zone. The regulations should be written to allow for waste and site characteristic variations. The design criteria are copied from other regulations such as the Texas Railroad Commission, and do not reflect demonstrated ------- Public Hearing Comments March 7-9, 1979 Page 3 need, or even the practicability of measurements. I would recommend that specific design criteria be omitted, and the operator be permitted to tailor the design to the specific site and waste conditions. The designation of "hazardous waste" is highly subjective and lacking in valid demonstrated hazards. There are discrep- ancies between the approach specified in the preamble, and the wastes listed in 250.14. For example, the preamble states wastes will only be listed on the basis of their ignitability, corrosivity, reactivity, or toxicity, but the first five wastes listed under 250.14 (b) (2) are listed because of their proported "radioactivity", which is the subject of a notice of proposed rulemaking. Thus it is obvious that EPA has developed a de_ facto criteria for radioactivity, a criteria so stringent as to include almost all waste generated by the mining industry. We would recommend omission of the first five wastes in 250.14 (b) (2) until a reasonable radioactive limit is developed. The criteria for a "corrosive" waste is defined by 250.13 (b) to include any aqueous waste with a pH equal to or less than 3.0. This would include many streams of Rocky Mountain spring water draining areas of sulfide mineralization, which frequently have pH values of 2.3 to 2.8. It would also include Coca-Cola and other similar soft drinks. A value of 1.5 pH units would be more reasonable. ------- Public Hearing Comments March 7-9, 1979 Page 4 A "reactive" waste is specified by 250.13 (c) to include "cyanide or sulfide bearing waste which can generate toxic gases, vapors, or fumes when exposed to mild acidic or basic conditions." This definition is vague, does not meet the intent of 250.10(a), and would probably include virtually all mining waste, depend- ing on how tightly one applies the definition . More definitive criteria for reactive wastes are required. Toxic wastes are defined on the basis of an arbitrary Ex- traction Procedure, with no attempt to relate the results to any real hazard. Two of the listed elements (arsenic and se- lenium) are mobile under oxidizing alkaline conditions, but not under acidic conditions. This could lead to a false sense of security, in cases where selenium-bearing waste was exposed to alkaline conditions. On the other hand, other metals might be mobilized under the Extraction Procedure but not under expected site conditions. The testing should duplicate expected field and waste conditions. Many of the "wastes" listed in 250.14 (b)(2) are not wastes at all, but rather are returned to the process. Their inclusion will needlessly generate requirements of record keeping without environmental advantages. Examples include copper smelter dusts, etc. This again demonstrates a need to know the industry. Section 250.15 provides a mechanism to demonstrate that a waste is outside the arbitrary EPA criteria, and hence should not be considered as hazardous. Within this section, 250.15(a)(5) ------- Public Hearing Comments March 7-9, 1979 Page 5 provides a mechanism to demonstrate that a waste is not radio- active (a non-existent criteria under 250.12). The waste must contain less than 5 picocuries per gram radium, which automati- cally means that all marine shales, granites, most bricks, etc. are "hazardous". In fact, almost any basement excavation in Denver results in the generation of a "hazardous" waste. If concentrations are to be used, a limit of 25 to 30 picocuries per gram would be more consistent with the intent. However, a better approach would be to use the leach tests, to see what amount of the radium was subject to leaching, and hence available to the biosphere. Such tests should be run prior to regulations being drafted. The definitions for "Attenuation", "Endangerment", and "Underground Non-Drinking Water Source", found in 250.41, indicate that, at one time, the Subpart D regulations envisioned an ap- proach similar to the Sanitary Landfill Criteria, with recogni- tion of the attenuation provided by vadose and saturated zone sorbtion, and allowance for naturally-occurring contamination. Unfortunately, these concepts were omitted from the proposed regulations, and replaced by a rigid set of design criteria which do not provide for variations in site or waste character- istics. In my opinion, all necessary design criteria are con- tained in Section 250.42-1. Specific design should be left to the various operators, with allowance made for the concepts as expressed in the definitions of "attenuation", "endangerment", and "Underground Non-Drinking Water Source". ------- Public Hearing Comments March 7-9, 1979 Page 6 Many of the subsequent sections of Subpart D are clearly not applicable for mining wastes. Their inclusion under the requirements of Section 250.46 demonstrates a lack of under- standing of the mining industry. Again, we suggest an extensive tour of representative facilities prior to preparation of the final regulations, and offer our assistance in arranging for such a tour. There is no environmental advantage associated with the security requirements, although there are significant environ- mental and economic disadvantages. The material inside the fence is identical to thousands of tons of similar rock outside the fence. Similarly, there is no need for a daily inspection to see that the rock is still inside the fence. The closure and post-closure requirements are unnecessary except for truly haz- ardous materials, which do not include mining wastes. In closing, I recognize that the agency was faced with a tough job in preparing far-reaching regulations covering a num- ber of industries they did not understand. Perhaps time precluded becoming familiar with the industry prior to prepa- ration of the draft regulations, but it is hoped you can become familiar with the industry before you finish the final regulations. I would be glad to assist in this familiarization. It is important that you understand the wide variation in site and waste characteristics, and provide sufficient flexibility to design around these variations, making use of the sorbtive capacity of the vadose zone. ------- John B. Ivey President Jim V. Rouse Vice President Gen. Manager Curtis L. Amuedo y-Treasurer 155 So. Madison St Denver, Colorado 80209 (303)321-6057 ENVIROLOGIC SYSTEMS INC ENVIRONMENTAL CONSULTANTS TO THE MINERAL INDUSTRY PERSONAL QUALIFICATIONS STATEMENT NAME: Oim V. Rouse BUSINESS ADDRESS: Envirologic Systems, Inc. 155 South Madison Street Suite 239 Denver, Colorado 80209 303/321-6057 HOME ADDRESS: 1528 South Lee Lakewood, Colorado 80226 303/986-1787 EDUCATION: Professional Degree, Geological Engineering, Colorado School of Mines, 1961 M. S., Hydrology, Stanford University, 1968 SPECIAL TRAINING: U. S. Government training courses: Water Quality Studies Control of Oil and Other Hazardous Materials Geohydrologic Relationships in Water Pollution PROFESSIONAL ORGANIZATIONS: Society of Mining Engine^--, - AIME National Water Well Asso; ition - Tech. Section Association of Engineer!-:j Geologists Colorado Mining Association TECHNICAL EXPERIENCE: September, 1977 to Present General Manager, Envirologic Systems, Inc. - Environmental consultants for the mineral industry. During project planning, address such factors as ------- baseline data collection and analysis, impact mitigation, and project design to minimize impacts and reduce costs. Serve as client representative during nego- tiations for permits and licenses, and advise on potential regulations. For operating facilities, assist in compliance monitoring and in relicensing and repermitting of plant. Serve as expert witness in public hearings on environ- mental impact of proposed facilities or practices. 1971 to September, 1977 Environmental Protection Technologist - Mining/Milling, Physical Science Specialist, U. S. Environmental Protection Agency, National Enforcement Investigations Center, Denver, Colorado. Specialist in heavy-metals and radiochemical pollution. Assignments included: preparation of interim effluent guidance for mining and other industries, investigation of radiochemical pollution from phosphate mining, specific waste surveys of gold, iron and uranium mines, development of agency policy on sub- surface injection of waste, investigations of subsurface movement of landfill leachate, and others. 1968 to 1971 Colorado River Basins Office, F.W.Q.A. Team Leader responsible for water quality investigations involving acid mine drainage, underground nuclear detonations, oil field brines, salt springs, and uranium milling wastes. 1964 to 1967 Colorado River Basins Salinity Project, U.S.P.H.S. and F.W.Q.A. Responsible for field personnel conducting investigations of sources of saline pollutants. Conducted special studies of salt springs and acid mine drainage. Utilized hydrologic techniques in design of sampling network and analysis of data. 1964 Woodward, Clyde, Sherard and Assoc., Staff Geologist Staff geologist responsible for design, construction, and testing of large- capacity water wells for sub-divisions, municipalities, and industries. 1961 to 1963 Great Lakes-Illinois River Basins Project, U.S.P.H.S. Geologist responsible for ground-water availability and rural land-use studies in Great Lakes and Illinois River Basins. ------- PUBLICATIONS AND TECHNICAL REPORTS: The Effect of Mining and Milling Wastes on Water Quality (1967) Colo. Mining Assoc. Meeting-Denver. Mineral Springs and Other Natural Point Sources of Saline Pollution (1967) FWPCA open-file report. Nature, Location, and Magnitude of Salinity Sources in the Colorado River Basin (1967) FWPCA open-file report. Mine Drainage and Other Sources of Heavy Metal Pollution in the San Juan Mountains and Other Portions of the Colorado River Basin (1970) FWPCA, Colo. River-Bonneville Basins Office. Mining and Milling Effluent Guidance (1972) Office of Permits Programs, EPA. Acid Mine Drainage from Hardrock Mines of the West (1972) in Air and Water Pollution Proceedings, Colo. Assoc. Univ. Press. Hydro!ogic Relationship of Jefferson County Landfill Leachate and Merramec Heights Area Springs, Jefferson Co., Missouri (1973) EPA, NFIC-D. Mineral Pollution in the Colorado River Basin (July 1973) Journal WPCF. Environmental Aspects of In-Situ Mining and Dump Leaching (1974) Proc. AIME Solution Meeting. Radiochemical Pollution from Phosphate Rock Mining and Milling (1974) Proc. AWRA Water Resources Problems Related to Mining. Removal of Heavy Metals from Industrial Waste, Presented at the ASCE Annual Convention, November 1975. Radiochemical and Toxic Pollution of Water Resources, Grants Mineral Belt, New Mexico, Presented at the 105th AIME Annual Meeting, February 1976, Las Vegas, Nevada. Removal of Heavy Metals from Industrial Waste (October 1976) ASCE Journal of the Environmental Engineering Division, Vol. 102, No. E.E5, Proc. Paper 12447, pp. 929-936. EPA Requirements with Regard to Water Pollution, Presented at Mackey School of Mines, Ground Water Hydrology and Mining Short Course, October 11-15, 1976. Applicable Regulation of In-Situ Mining of Uranium, Presented at 26th Annual Meeting, Rocky Mountain Section, AAPG, April 3, 1977. ------- EXPERT WITNESS TESTIMONY: October 1971 Enforcement Conference, Cheyenne River, South Dakota February 1973 Deposition, Reserve Mining Co., Federal Lawsuit October 1973 Deposition, Jefferson Co. Landfill Leachate Pollution, Private Lawsuit January 1975 Public Hearing, New Mexico Ground-Water Pollution Regulations November 1975 Public Hearing, New Mexico Ground-Water Pollution Regulations Feburary 1976 Public Hearing, Colorado Water Quality Control Commission, amendments to Subsurface Injection Regulations February 1976 Public Hearing, South Dakota Pollution-Control Agency, modification of Whitewood Creek Stream Standards June 1976 Public Hearing, New Mexico Ground-Water Pollution Regulations August 1976 Public Hearing, Colorado Water Quality Control Commission, proposed uranium in-situ mining operation license April 1977 Cluff Lake (Sask) Board of Inquiry, proposed uranium mine/mill license ------- The League of Women Voters of Colorado 1600 Race Street Denver, CO. 80206 303 - 320-8493 STATEMENT of the LEAGUE OF WOMEN VOTERS OF COLORADO on Proposed Guidelines and Regulations Public Hearing in Denver March 7, 8, 9, 1979 The League of Women Voters of Colorado has requested permission to speak at these hearings because of our special concern. The dangers of inadequate hazardous waste handling were apparent to us long before there was nationwide interest in the subj ect. Residents not far from this building had their water services contaminated and subsequently abandoned because of disposal practices « at the Rocky Mountain Arsenal. Wildlife and cropland wer^ also harmed when injection was used as a remedy, the "procedure caused the "Denver Earthquakes" and had to be stopped. Colorado and Utah are currently involved in debate over the transportation and disposal of the "weteye" bombs currently stored, and in some cases leaking, at the arsenal. The Colorado Department of Health estimates that in Colorado there are approximately 6,311 possible generators of hazardous waste; 195 possible transporters of hazardous waste and 315 possible processors and/or disposers of hazardous wastes. A bill (SB 121) introduced this session in the Colorado legislature states "currently wastes which are hazardous are being disposed of indiscriminately in sanitary landfills in the state without regard to the location of such landfills or the hydrology or geography of the landfill site." ------- The League of Women Voters of Colorado under an EPA grant, presented a seminar on hazardous waste last sunnier. The purpose- was to raise awareness of the problems and to explore some of the ways they might be solved. The over- riding immediate problem identified at the seminar was the lack of a definition of what will be considered hazardous waste and uncertainty as to what the standards and regulations will be. We believe that EPA should set the standards and agree that the states are the preferred level of government for implementa- tion of this program, so long as they meet the minimum standards. We have both state and national positions that the states should be allowed to be more stringent. We urge you to adopt these standards and regulations as soon as possible so that the states may set their machinery in motion to implement. Our members found it very difficult to attend the public meetings held by the state and the EPA prior to this hearing and would suggest at least one of them should have been held in the Denver metro area. We also suggest that the structure of the hearings makes it very difficult for people to reach an under- standing of the total picture. Shorter sessions, perhaps three days of the same general program might make citizen participation more meaningful. 3001 - In terms of citizen participation we request that public notice be required whenever the results of-a demonstration of non-inclusion in the hazardous waste system results in the material being excluded. Perhaps it could be patterned after the water discharge permit system in which there is public notice soliciting public comment. We do not feel that a person must show that he is aggrieved, but only that there is a reasonable doubt as to the public health or the environmental effects of the decision. This would allow for the possibility of new data on harm to human health to be introduced. 3002 - We are uncomfortable with the 100 KG exemption as proposed although it may make sense to control the large amounts first. Any exemptions should be based solely on the protection of human health and the environment. Once -2- ------- the program has been implemented as proposed, a combination of option 3 and 5 might be initiated. The exemption might be based on the degrer- of hazard with lesser administrative requirements for the generators of smaller amounts. We support the requirement for annual renewal of exemption. Since Colorado has a history of hazardous waste accidents we would support a requirement for con- tingency spill plans for generators which store hazardous waste less than 90 days. The "cradle to grave" concept should include inclusive contingency plans. The plan may be part of the contingency or emergency plan of the? generator. 300*1 - We support the use of the Human Health and Environmental standards and of design and operating standards as a way to assist the regulated community. We do not support the frequent use of notes authorizing deviations. We object to the phrase at the time a permit is issued "in the notes because of the effects on performance of such variables as weather, instruction and makeup of the waste stream." The time a permit is issued may not be representative of conditions. Specific notes with which we take exception include: 1. Ploodplain: The act of building a structure in a floodplain would cause that floodplain to change. If a facility is allowed in the floodplain, what protection from flooding is provided for those structures put in jeopardy by the new floodplain boundaries? 2. Recharge zone of sole source aquifer: any exemptions must be able to demonstrate no endangerment of the sole source aquifer at any time in the future. Special Wastes: Colorado currently has problems with power plant fly ash and with mining wastes. We're concerned about how you will handle those wastes. Our position is that the federal government should encourage recycling of post-industrial and post-consumer wastes. We support assistance for recycling facilities and waste exchanges. -3- ------- Statement of Howard Runion on behalf of the American Petroleum Institute before the Environmental Protection Agency Office of Solid Waste Denver, Colorado My name is Howard Runion and I am currently employed as Manager . * p QiL C&flf T+e(*J 4H *Js tf*t 1 f £** i K*W4'W'*' Sciences Department, Pittsburgh, Pennsylvania. My formal graduate x^c^t* training includes an MA in Zoology and MPH in Environmental and I Occupational Health. £ r r I am here today on behalf of the American Petroleum Institute (APT) l i. to discuss the implications for industry and the country of the [.' pigfcosed regulations under Section 3001 of the Resource Conservation I - - and Recovery Act (RCRA) as published in the Federal Register, on \ 1 I December 18, 1978. , p f \ I am joined today- by Dr. Ray Harbison, a Toxicologist at \ Vanderbilt Medical Center, Mr. Jeff Jones, a regulatory policy analyst with Industrial Technological Associates, Inc., Mr. John Fitzpatrick, an attorney with Gulf Oil Company, Mr. Stephen Williams, an attorney and staff member of the American Petroleum Institute and Dr. Steven Swanson, an economist and staff member with API. Since the enactment of RCRA, API has been participating in the development of the proposed regulations through the submission of co%nents to and conferences with EPA personnel. We have been impressed by the serious commitment of the members of the Office of Solid Waste to prepare a regulatory program which addresses ------- -2- eaith and environmental issue; Furthermore, we have appeared in :ourt to support EPA in its attempts to obtain the requisite time '' o promulgate realistic, workable regulations. However, despite :he time granted by Judge Gesell, API has had a scant three months :o review intensively this nenr and comprehensive program. The I ihoughts we share with you today require further refinement, expansion, and reinforcement. We shall seek relief in the fprm of' idditional time for specific projects underway, however we will have ' substantial input ready for EPA by the March 16, 1979 deadline. \ API views the Resource Conservation and Recovery Act as >a logical extension of other environmental legislation for control of \ environmental pollution and we are in accord with the mandate! of EPA,;,,, to^egulate the disposal, handling and storage of industrial residues!. W . - • 1 he primary purpose of our presentation today is to present to the \ i ; PA our concerns about the process which EPA has proposed to ' designate industrial residues as hazardous wastes. ' \ • ' We are particularly concerned that EPA, in a sincere attempt , jr | to develop "simple" and "inexpensive" methods for waste classification,! has adopted an approach which when applied, will so dilute industry's I and government's scarce resources as to compromise efforts to eliminate the serious environmental hazards. API believes that Congress in enacting RCRA, intended that a flexible program be ' developed which (1) identifies wastes as "hazardous" based upon the ; i degree of risk they pose to human health and the'.environment, and j • T«fl^T d?4» tailors control efforts^commensurate with the degree of risk 1 and which can be expected to reduce that risk. Moreover, Congress ------- -3- . indicated that the "hazard" a waste presents is a product of "its quantity, concentration, or physical, chemical or infectious :haracteristics." (Section 1004(5)). - t- i f EPA has elected to focus its regulatory scheme on the physical [ ^«k'»|l«l T* <^l^O f'tpV ^ilildlncht*' i ind chemical characteristics of waste, thereby i^uei'liig ethe*c I iharacteristics such as volume and degradability which are^germane | :o an assessment of risk. Furthermore, for those wastes listed :he Agency has neither demonstrated with field experience nor provided-- [ locumentation with epidemiological studies, that the designated astes have significantly contributed to an increase in mortality r an increase in serious irreversible or incapacitating,reversible llnesses. Instead they have relied upon other statutes or regulatory rq^ams, and inconclusive incidents of "harm" to. conclude that the astes listed "pose a substantial present or potential hazard to uman health or the environment." Under the proposal being advanced by the Agency in Section 3001, he definition section, most, if hot all, of the petrpleum industry's astes will be designated as hazardous. Our industry, like many thers will then be forced to comply with a series of preordained, \ \ ostly compliance standards which do not differentiate! degrees o# .ypes of hazard posed by these wastes. / \ • i > The overly broad designation scheme which EPA has proposed \ 1 \ •esults at least in part from the Agency's failure to consider ;eriously other factors bearing on hazard determinations such as leg^dability, persistence, dose and probability of exposure. For ixample, exposure considerations are necessary to determine which rastes "significantly contribute to an increase in mortality and :nd pose a substantial hazard to human health." - ------- -4- In Section 3001 EPA has: • Identified a group of characteristics (i.e., toxicity, : corrosivity, ignitability,and reactivity) to determine whether a waste is hazardous; | • Prescribed a series of tests to determine whether a T waste possesses these characteristics; t Listed a series of wastes which they claim possess some [ or all of these characteristics and others for which < tests have not been prescribed (eg. mutagenicity, teratogenicity.) ; i, -' i; We cannot determine whether the wastes which are listed have i i failed any of the prescribed test nor any other test for character- f istics for which tests have not been described. Finally, test results for the purpose of determining whether a waste is hazardous are not used to establish a differentiated degree of risk. The disregard for degree of risk stems from a conceptual flaw, which f is that the proposed regulations do not consider exposure. |\ c" In light of these criticisms, we feel it is incumbent on'us//'*4 M*w'rtf to offer positive suggestions for correcting the deficiencies we . i have identified. For that reason, I'd like to spend a few moments ;', t:' describing some of the critical elements of alternative approaches •:. / fc to hazardous waste regulation. We are continuing to refine these alternatives as the March 16 deadline approaches so I can only speak generally today. j i ^ In broad terms, the API alternative depends on a risk assessment ; approach to regulation. Our risk assessment procedures provide in ------- the first phase for a ranking of potentially hazardous wastes ac«:ding to chemical and toxicological risk. Rather than a simplistic hazard/no hazard designation, API proposes to distinguish more carefully among wastes of widely varying hazard. We believe our approach more fully exploits the results of testing by taking into account all of the information generated by the prescribed series of tests, in order to differentiate among degrees of risk. As currently proposed EPA uses the tests only to determine whether a passes or fails a hazardous/riot hazardous determination. In the second phase of our alternative EPA would combine what £. * '(' I will call exposure factors with first phase results. By exposure t, factors I mean particular site, operational, and management factors. i Our objective in this phase is to overcome EPA's across-the-board | f ! application of the 10-fold dilution factor as a substitute for adequate ! exposure analysis. We intend to develop and justify a system that K provides for varying exposure factors. Additionally, we intend . ' that this type of exposure analysis will be utilized for all wastes, | t whether they are listed or:;not. \' r Under the API scheme, once the overall hazard assessment is r complete, EPA would tailor the regulatory requirements to the degree of hazard. In other words, just as API proposes a scale for hazard assessment, we also.envision a system that varied the stringency of / regulatory requirements according to the degree of hazard. In addition to the overall risk assessment approach API will also propose a procedural adjustment to EPA's listing process that overcomes the problems discussed earlier. ------- To correct these problems API suggest*that EPA clearly identify teria and scientific data that were used in the listing.process^ irther, API recommends that the initial listing of wastes be a •esumptive listing, with an opportunity for public comment. During le comment period, industry would have the opportunity to supply , le Agency with information that might rebut this presumption. \ We appreciate the opportunity to offer our views in this , - arum and we will be working diligently in the next week to more • i ully develop the ideas I've discussed this morning. We are prepared t this time to answer any questions the panel may have. i ------- Statement ot Kenneth Lunu on benaif of The Utility Solid Waste Activities Group ana Edison Electric Institute Public Hearing on Proposed Regulations to Implement Sections 3001—3004 of the Resource Conservation and Recovery Act of 1976 U.S. Environmental Protection Agency March 7, 1979 Denver, Colorado Good morning. My name is Kenneth Ladd. I am employed as Senior Environmentalist by the Southwestern Public Service Company of Amarillo, Texas. I am also Chairman of the Resource Recovery & Utilization Technical Committee of the Utility Solid Waste Activities Group ("USWAG"), and am appearing today on behalf of USWAG and the Edison Electric Institute. For those of you not familiar with USWAG, let me briefly describe the group. USWAG is an informal consortium of electric utilities and the Edison Electric Institute. Currently, over 70 utility., operating companies are partici- pants in USWAG. These companies own and operate a substantial percentage of the electric generation capacity in the United States. EEI is the principal national association of investor- owned electric light and power companies. The Technical Committee that I chair focuses on is- sues relating to the reuse of utility by-products, including fly ash, bottom ash, scrubber sludge, and boiler slag. En- couragement of these reuses is both environmentally and eco- nomically significant. For example, at Southwestern Public ------- Service Company — a relatively small utility — we generate 400 tons a day of ash. If reuse were impossible, we would be required to spend — even without RCRA subtitle C requirements — $ao"*(0 per ton to dispose of this ash, and to dedicate many acres to this purpose. Fortunately, however, all of this ash is marketable in our area, and, although we do not make a pro- fit on its sale/ we have substantially lowered our "disposal" costs. (I might note parenthetically at this point that we occasionally find it necessary to accumulate ash for considerable periods of time in order to have enough to make marketing feasible. This fact seems to have been ig- nored by EPA in its arbitrary proposal of a 90 day cutoff to distinguish when a person accumulating waste on-site en- gages in "storage" and becomes a TSDF. At least as to utility by-products, this period is totally inappropriate, and would certainly impede our resource recovery efforts if implemented.) As I mentioned a moment ago, Southwestern Pub- lic Service's activities represent only a small portion of the reuse of utility by-products. Reuses have been growing remarkably over the last ten years. In 1966, 3.1 million tons of fly ash, botton ash and slag were reused; in 1977, this figure had increased to 14 million tons. ------- This represents an increase of from 3% of the total material generated to 20.7%. This increase in reuse has largely been possible because, after great effort, we have managed to see major, recognized specifications for concrete products and si- milar materials revised to allow use of ash. This effort has greatly benefited from strong endorsements of the use of ash from the Federal Highway Administration, the Army Corps of En- gineers, the Bureau of Mines, and other Federal and State gov- ernment agencies. J I understand that in a number of previous hear- ings on these proposed RCRA regulations, members of the panel have asked why the utility industry is concerned with the Sub- title C regulations. It has been suggested by the panel that there is no reason to believe that fly ash and other utility by-products are "hazardous," and thus regulated under these rules, and that therefore-the utility industry should not be concerned. But let me indicate today one important reason why we are concerned: .the proposed regulations on their face presume the hazardousness of utility by-products, and have hung a label of "hazardous" on them, and thus may severely limit or even eliminate the reuse of these materials. For example, in the preamble to the proposed re- gulations, EPA presupposes the "hazardousness" of fly ash. The preamble states that "the Agency [has] realized that some portions of certain high volume wastes" — including utility ------- wastes — "will be hazardous under Subpart A," and continues. "The Agency is calling these high volume hazardous waste "special waste". . . "(pp. 58991-92). In short, the EPA is assuming that large volumes of fly ash are "hazardous." In addition, the proposed interim regulations for utility wastes are buried in the regulations implementing "section 3004" of RCRA — which regulations apply only to "hazardous waste." Again, EPA seems to be endorsing the conclusion that utility by-products are hazardous, rather then simply indicating it isn't sure about these materials. (We hasten to note that we strongly believe that the Agency in fact has no basis for concern with regard to utility wastes, which, we submit, constitute no substantial threat to human health or the environment whether reused or disposed of.) The result of these proposed regulations is to hang a public label of -"hazardous" on fly ash and other uti- lity by-products. This will have a number of inappropriate effects. First, it will substantially limit the market for these materials: one simply cannot expect a home owner to be willing to use "non-spec readi-raix concrete" in the foundation for his new home after EPA has labeled a major constituent of the readi-mix as "hazardous." Second, it will deter develop- ment of new uses for utility byproducts, despite considerable ------- promising R&D work. Third, it will deter many potential cus- tomers from even considering the substitution of ash for vir- gin or alternative materials, in order to avoid the nightmare of paperwork that is likely to result under RCRA. This paperwork problem is an important one. When we try to develop markets for fly ash and bottom ash, we are competing with other, locally-available products — including, in some cases, dirt. We do not have any substantial price advantage over these alternative products. Thus, every additional penny per ton cost that is added to ash, and every extra regulatory complication, decreases the potential re- use of this material. We believe this result directly contradicts the intent of Congress in enacting RCRA, which was, after all, to promote resource conservation and recovery. Of course, there are substantial regional variations in costs of reusing utility by-products. For example, a major element in ash marketing costs are transporation costs. For this reason, we strongly object to the portions of the proposed Section 3003 regulations that would require shipment of fly ash in specially-designed and placarded vehicles. There simply is no need for this. There generally isn't even a need for tarps on top of dump trucks carrying ash, since once wetted, the ash does not create dust or cause any other environmental problem. ------- - b - Ladies and Gentlemen, there is an enormous potential market for fly ash and other utility by-products in the United ffe-a States. Speaking in Atlanta, Georgia, on tlaroh 26, Ms. Penelope Hanson of the EPA cited figures that indicated that the re- use of fly ash in federally-sponsored concrete construction could save tax-payers 10-15% of the cost of those projects. She also indicated that a 20% use of fly ash in cement would result in a 15% savings in the amount of .energy used to pro- duce that cement. As a result, a different division of EPA than the one holding this hearing has put 50% of its effort in developing regulations to promote the use of ash in Federal construction. Yet these policies will be substantially under- cut by the regulations now proposed under Subtitle C of RCRA. USWAG will file detailed comments with EPA that will set forth a number of alternatives to the arbitrary approach to implementation of RCRA reflected in these proposed regula- tions. Let me just summarize a few of our suggestions today: First, EPA should adopt an appropriate method to define "hazardous waste," based on a recognition that only discarded materials are wastes, and reflecting realistic consideration of the actual environmental impacts from dis- posal of wastes. ------- - 7 - Second, EPA should include in its proposed regula- tions a "commercial product standard" that will allow use of recovered materials in place of virgin materials, if the recovered materials have no significantly different impact on the environment than the virgin naterials, and that will not subject the reused materials to any regulatory requirements. Third, if EPA concludes that it cannot yet make a decision as to whether some utility waste products may be hazardous in some situations, EPA should adopt only such regulations as are necessary to keep track of utility waste disposal — at the least possible economic and operational impact — until the Agency's concerns have been factually addressed. The Agency should set forth these regulations in a subpart of regulations that clearly establishes that no decision has yet been reached as to the "hazardousness" of utility wastes, and should assure that no steps are taken in the interim period, before completion of any review of utility waste disposal, that will interfere with the market- ing and reuse of environmentally innocuous fly ash, bottom ash, and other utility by-products. I appreciate the opportunity to appear this morning, and would be happy to answer your questions to the extent I am able. ------- ------- STATEMENT OF SHELL OIL COMPANY PUBLIC HEARING ENVIRONMENTAL PROTECTION AGENCY HOLIDAY INN - AIRPORT DENVER, COLORADO MARCH 7, 8, 9, 1979 SOLID WASTE DISPOSAL ACT HAZARDOUS WASTE GUIDELINES AND REGULATIONS SECTIONS 3001, 3002, 3003, 3004 ------- My name is Richard H. Dreith, I am a Staff Engineer in the Environmental Affairs Department of the Shell Oil Company. Shell Oil and its Divisions are pleased to comment on the proposed "Hazardous Waste Guidelines and Regulations" appearing in the December 18, 1978 "Federal Register". Shell Oil Company is an integrated oil company involved in oil and gas production, refining, chemical manufacturing, transportation, marketing, and mining activities. We have facilities for producing, transporting, manufacturing and marketing of Shell products in forty-four of our fifty states. Activities of our subsidiaries are involved with products that range from agricultural chemicals to plastics. Because of our wide range of activities nationally, we are vitally interested in the development of workable national solid and hazardous waste guidelines and regulations. Scope of Shell Comments We have participated with the Aaency in commenting on drafts and proposals throughout the solid waste regulation development process. We are also participating in the preparation of comments and recommendations to be submitted by the American Petroleum Institute and the Manufacturing Chemists Association and other industrial associations relating to the December 18, 1978 draft of the regulation. We support the submittals of - the API and MCA as representing certain general and specific concerns held by Shell. We wish, however, to offer the followina additional comments and recommendations summarizing Shell's views on the proposed hazardous waste regulations. Corporate Policy, RCRA and Existing State Programs Our corporation's written public policies state that we will strive to attain environmentally acceptable disposal techniques for all ------- of our wastes. In our view Shell's committment to achieving environmentally acceptable disposal methods is consistent with our understanding of the legislative intent of the Resource Conservation and Recovery Act of 1976 as it applies to waste disposal. In addition, our activities in Texas and California are subject to state hazardous waste management regulations. These state programs are proving to be effective in maintaining acceptable control of hazardous waste activities consistent with the intent of RCRA; therefore, we support such state programs. General Concern with Proposal Approach We have some concerns with specific'issues that appear to permeate the proposed regulations and would like to recommend conceptual changes in the overall approach so that the regulations will reflect more closely the mandate of the federal legislation. Suggest Following Path Similar to Air and Water Act Implementation - Your overview comments state that reliance is placed on "waste specific- standards versus industry specific standards". Further, "EPA experts believe that most waste classified as hazardous requires similar management techniques . . .with respect to performance, design and operating standards for treatment, storage and disposal facilities". We suggest a much more site-specific and industry-specific approach to standards is possible and workable. Examples of present performance standards are set forth below: 1) The Clean Air Act contains provisions which require that air emissions meet existing ambient air standards and establish new limits where standards do not exist; 2) Surface runoff is addressed under f the Clean Water Act; and 3) The Safe Drinking Water Act when implemented ------- will likely contain standards relating to subsurface leachate. We are suggesting that, under these existing Acts, waste disposal on and in the land should be allowed to continue. Regulations under RCRA should recognize the assignation and retention capacities of soil to receive and retain contaminants and that the retention can be verified by monitoring wells near the disposal site. The allowable leachate quality should depend on site-specific performance standards which accurately reflect the potential for inflicting harm to human health and the environment based upon the specific geological parameters of the particular site. A site-specific based regulatory scheme would need to grant considerable discretionary authority to administer an effective waste management program. The effective use of this discretionary authority has proven effective in the implementation of the Clean Air and Water Acts and the Texas Industrial "Solid Waste Management program, A similar approach would be effective in administering a workable RCRA program. j u^^ Burden of Proof of Compliance with Site-Specific Standards*with the Site Operator - Assuming site-specific standards are established as disposal permit conditions in order to more accurately reflect the potential for contamination of usable aquifers, monitoring wells can ensure compliance with the site-specific leachate standards. A hydrogeological study of the area can be used to establish monitoring well placement and the information obtained from such wells can be used to check compliance. For existing facilities we recommend that monitoring wells be allowed to establish compliance with site-specific leachate quality standards, 4 ------- rather than requiring costly retrofitting of facilities in order to meet rigid arbitrary liner thicknesses specified to avoid any groundwater contamination. Guidelines for designing new facilities to meet essentially no contaminant release can specify a liner thickness to maintain the integrity of the liner and thereby meet a performance standard; however, for existing facilities the most practical approach is to recognize the contamination release potential of the specific-site and require retrofitting only for those facilities which cannot meet the performance standards. Suggested General Alterations to Proposal Tone is too rigid - While we recognize the "note" system which suggests that "equivalency" to rigid engineering standards can be demonstrated, we question the legality and workability of this approach and propose a system similar to that used in Texas be adopted. The Texas system sets general performance standards and provides guidelines to meet those standards. In some instances literal compliance with the proposed standards appears impossible; i.e. strict requirements of proving a negative. In addition, prohibiting wastes to be stored or accumulated in certain facilities places in jeopardy the use of facilities considered acceptable in spill containment plans called for under the Hater Act. Hazardous Haste Definition is too Broad - The proposal defines hazardous waste characteristics so broadly that essentially all wastes generated in our industry will be classified as hazardous waste. We urge a concept of "degree of hazard" be adopted along with a consistent degree of environmentally secure disposal. This approach would allow ------- greater flexibility in the classification of wastes and the most effective use of disposal capacity which may well become or is the limiting factor in implementing waste management programs. Specific Issues Summary - The attachments list additional concerns expressed in summary form and directed to specific sections and paragraphs in the proposed regulations. A more detailed presentation of these and other comments will be discussed in statements submitted by the API and MCA. We offer these comments, suggestions and recommendations with full recognition of the formidable task of promulgating workable regulations. The experience with development and implementation of the air and water regulations and existing state hazardous waste regulations yields confidence f that the task can be accomplished. Flexibility in meeting performance standards coupled with discretionary authority to allow a site-specific approach to compliance is the most workable scheme without compromising environmentally sound waste disposal. We look forward to continued involvement in the regulatory development activity and trust that our participation is constructive. ------- Issues On Subpart A-Section 3001 Identification And listing of Hazardous Waste 250.10 (b)(2)(a) Definition of "Waste" - "other discarded material" should be redefined to exclude waste such as "waste oil" for which a commercial market exists or has heating value. 250.10 (d)(l)(i) Arbitrary Declaration of Hazardous Haste - The DOT regulations pursuant to 49 CFR, Part 170-189 and proposed regulations published in "Federal Register" of May 25, 1978, do not permit a shipper to arbitrarily classify materials as a hazard subject to its regulations. 250.13 Definition of "Hazardous" - Too broadly defined such that many common materials will be classified as hazardous. Degree of hazard should be considered in setting applicable standards. 250.13 (a)(2) Inconsistent Testing Requirements - This section omits the Tag Closed Tester (ASTM D-56-70) as an identification method that is now authorized by the DOT in 49 CFR and 173.115 (d). 250.13 (d) The Toxicant Extraction Procedure - This procedure has not been verified by the Scientific Community as a valid test procedure. 250.14 Addition of List of Exempted Wastes - There should be incorporated into the listing of waste a category for substances which are exempt from the hazardous waste regulation. Possibly, the wastes could be classified as nonhazardous, relatively low hazard, and hazardous. 250.14 (a), (b)(2) -Broad Category of Listed Wastes - EPA has identified only four criteria to determine whether a waste is hazardous, yet it has identified wastes which have been placed on the list for other criteria ie mutagenic, toxic organic, radioactive, infectious etc. 250.15 (a)(b) Procedure for Biological Testing of Wastes - These procedures are not and have not been demonstrated to be ready for routine daily use. Even the Agency requests comments on these tests in the December 18, 1978 Advance Notice of Proposed Rulemaking. 250.5 (c)(4) Certification of Laboratory Analysis - The certification should read "to the best of my knowledge, information, and belief" because the person signing the certification may not have been intimately involved in running the tests. ------- Issues On Subpart B-Section 3002 Standards Applicable To Generators Of Hazardous Waste General - Degree of Hazard - The regulations should reflect degree of hazard waste. The 100 kg/month exclusion should be adjusted accordingly. 250.20 (b) State Program Requirements - States should not supplement the manifest format. The Agency should strive for a uniform system nationwide. 250.20 (c) Declaration - Generators should be allowed to declare themselves subject to the regulations. 250.20 (c) (2) The 90-Day Storage Exclusion - Should be adjusted upward to allow time to accumulate economic shipment quantities. 250.21 (a) General Definitions - All definitions should be spelled out in the regulations in their entirety instead of referring to the Act. This leads to great confusion, requiring generators to refer to a number of different sources for compliance with regulations. 250.21 (b)(9) Definition of Generator - The term generator needs further clarification to show that "person" means and pertains only to a facility that produces in excess of 220 pounds per month of hazardous waste. Other facilities owned by the same entity but producing less than 200 "pounds should not be considered generators in this part. 250.21 (b)(18) On-Site - Should be extended to sites under generators control but not contiguous to generators plant in remote locations. 250.22 Co-Publish with DOT - These regulations should be published by DOT in 49 CFR to avoid confusion and misunderstanding in attempting to comply with both DOT and EPA regulations. 250.22 (f)(3) Multiple Shipments - On multiple shipments the hazard class of each part of a shipment should be listed on the manifest and also clearly labeled. 250.22 (h)(5), (h)(6), (h.)(7) Manifest Requirements for Laboratory Wastes - For miscellaneous laboratory wastes, the identification of each hazardous waste is impossible as presently proposed. General identification based on DOT classifications could be made workable. 250.22 (h)(8) Format Variance on Manifest - Directions for action to be taken in case of emergency should be allowed as an attachment to the manifest instead of an absolute requirement that it be on_ the manifest, ------- 250.22 (h)(8) and (9) Interagency Coordination in Spill Notification - EPA should coordinate with other Governmental Agencies so that only | one Agency need be notified of an incident and other agencies would be notified by the Central Receiving entity (i.e. Coast Guard Emergency Assistance). 250.22 (h)(9) Manifest Spill Requirement - The manifest should caution the transporter to comply with applicable DOT and Water Act Spill notification requirements. 250.23 Reporting - Should clearly allow reports from each plant site. 250.23 (b)(9), (c)(9), (d)(9), (g)(9), h(9) Certification - The certification should read "to the best of my knowledge, information, and belief". 250.23 (c)(8) Exception Reporting - This section should be revised to require the generator to show that a hazardous waste shipment was accepted by a licensed carrier and it is the carrier's responsibility to fulfill the requirements of locating the final disposition of the waste. 250.25 Containers - Storage on-site for later shipment should not require DOT specified containers but only environmentally sound containers. 250.25 (a) Inconsistency with DOT Regulations - This section omits labeling requirements of other DOT title 49 CFR Part 172. 250.26 (a) Inconsistency^ with DOT Regulations - This section requiring generators to placard each shipment is in contradiction to DOT regulations in DOT title 49 CFR Part 172. 250.26 (b) Label ing-Practices - This section needs to be clarified and the reference to 49 CFR part 172 corrected. 250.29 (a) Exemption - This section exempts any person who produces and disposes of no more than TOO kilograms of hazardous waste in any one month period. It should be based on a yearly average to minimize the burden on those generators who may only have an occasional excursion above the 100 Kg limit. ------- Issues On Subpart C-Section 3003 Standards Applicable To Transporters Of Hazardous Waste 250.30 (c) Consistent with DOT Regulations - This section omits DOT regulations under 49 CFR part 172 and 173 which must be complied with. 250.31 (j) Definition of "Spill" - This term should be consistent with the definition given in 250.21 (b)(26). 250.34 (e) Container Condition - This section states that a transporter shall not transport containers which are leaking. It should be changed to "shall not accept for transportation or transport", because the containers could become damaged and leaking in transit. 250.35 (c) Consistent Manifest Format - The manifest described here and in 250.22 (h) are not the sained One or both of these sections should be revised to be consistent with each other. Also, the format should be suggested only and allowances made for variation in format or use of a computerized format. 250.35 (c)(l)(i) Consistency with other Sections - This section does not require the delivery document to show the transporters identification code whereas 250.32 (c) does. Both should be identical. ------- Issues On.Subpart D-Section 3004 Standards -For Owners And Operators Of Hazardous Haste Treatment, Storage And Disposal Facilities Preamble 43 Federal Register 58984, Column 2 Inactive Facilities - While inactive facilities are to be exempted portions of active facilities that are currently inactive should also be exempted. 250.40 (c)(2)(VIII)(A) and (B) Interim Status Requirements -This paragraph reauires each owner/operator of a facility receiving hazardous waste to provide a cash deposit equal to the closure cost and the estimated cost of complying with the post-closure monitoring and maintenance on the effective date of these regulations. It is recommended that additional time be given to existing facilities to provide these cash deposits because it is anticipated that significant changes in the proposed regulations will occur. Alternate language suggested is: "Each owner/operator of a facility receiving hazardous waste as defined in subpart A on the effective date of these regulations shall provide a cash deposit equal to the entire amount of the estimated closure costs of the facility and the post- closure monitoring and maintenance requirements at the time a permit application is submitted for approval." 250.41 (a)(2) Definition of Disposal - The term "disposal" has been given the meaning as found in the Act. However, it is recommended that the word "intentional" be inserted before "discharged" since many "non-intentional" incidents will fall under the catch-all term "disposal". It is our belief that only those willful Acts of "spilling" and "leaking" were to be regulated. 250.41 (83) Storage Facility - Temporary storage time of 90 days should be extended to allow accumulation of economic quantities for shipment. 250.41 (b)(28) Distinction Between New and Existing Facilities - Flexibility should be provided to allow existing facilities which may not fully meet equivalent EPA design and operating standards to continue operating until compliance can be reached after a reasonable time period. 250.42 Inclusion of Regulations Under Other Statutes - RCRA should not incorporate unknown future regulatory changes under other statutes. 250.42-2 Double Jeopardy - Facilities being operated pursuant to this section would potentially be liable under both RCRA and CWA. There needs to be a separation of responsibilities between these two laws. ------- 250.43 Storm Water Runoff Contaminant - This section requires diversion structures for surface water runoff from 24-hour, 25-year storm which is inconsistent with OSM Regulations for detention time requirements of such surface water runoff (30 CFR Section 816.46). 250.43-250.45-6 Variances or Alternative Standards - Should allow greater flexibility through a general variance for a facility not meeting the design and operating standards if it can meet health and environmental standards or equivalent performance. 250.43-1 General Site Selection - Standards too restrictive and rules out many industrial areas in river valleys and the Gulf Coast. 250.43-1 Facility Siting - The restriction of facility siting in coastal high risk areas, 500-year flood plains, wetlands, is unwarranted. 250.43-2 Security Requirements - Security requirements for six-foot fence and control gates are unnecessary where operations are manned 24-hours-a-day. For remote locations, where the possibility of public exposure is very limited, minimal fencing to keep livestock and other wildlife out should more than adequately suffice. 250.43-5 (a), (b)(l), (b)(6), (c)(5), (c)(6) Pipeline Transportation of Waste - To avoid unnecessary paperwork for Agency and permitters alike, the requirement for manifesting brine delivered by pipeline . from one lease to a central plant on another lease should be eliminated. \ Brine transported by truck should be manifested. 250.43-9 (a)(l)(ii) Flexibility in Financial Responsibility for Facility Closure - Alternatives such as self-certification, surety bonds or letters of credit should be allowed. In addition, a stipulated maximum level for all similar funds nationwide should be established so that.inordinate amounts of capital are not unavailable for productive investments. 250.43-9 (a)(2)(ii) Flexibility in Financial Responsibility for Post Closure Monitoring and Maintenance - Same discussion as above. 250.43-9 (b)(l)(i) and (b)(l)(iii) Clarification of Insurance Needs - As presently written, this section calls for a facility to show evidence of financial responsibility per occurrence per site. The "per site" should be omitted since insurance policies are normally written on a per occurrence basis for any site belonging to the insured. In addition, the proposed rules placed an annual aggregate of$10 million for non-sudden occurrences, however, aggregate limits for sudden occurrences were not addressed. It is recommended that an annual aggregate limit of $50 million be established for sudden and accidential occurrences. 4 ------- For multiple sites, it is recommended that financial responsibility of an maximum annual aggregate limit of$50 million for ten or more sites be established which parallels proposed rules by the US Coast Guard for setting rules to implement the DCS Pollution Liability and Compensation Act. In addition, the limitation of self-insurance to 10% of owners equity should be deleted for companies with more than 10 sites. 250.45-3,4,6 Coverage of NPDES Facilities - NPDES facilities should be regulated under the Water Act and at most should be subject to less stringent standards proposed for special wastes. 250.45 Inappropriate Use of OSHA Standard - The American Congress of Governmental Industrial Hygienist have prefaced the use of TLV's by stating "these limits are intended for use in the practice of industrial hygiene and should be interpreted and applied only by a person trained in this discipline. They are not intended for use, or for modification for use 1) as a relative index of toxicity, 2) in evaluation or control of community air pollution nuisances...". Thus the agency which developed the list specifically provided that it not be used for the purpose as proposed in this section. 250.45-2 Consistency with Other Regulations --Siting and operation of landfills need to be consistent with both existing 208 plans under the Clean Water Act and any regulations promulgated by RCRA. 250.45-3 Monitoring - Monitoring requirements of RCRA should be consistent with monitoring requirements of OSM (Office of Surface Mining) regulations (30 CFR Section 780.21). 250.45-3 Duplication of Coverage - It is inappropriate to apply RCRA standards to hazardous waste impoundments which are subject to pretreatment standards and/or a NPDES permit especially if such impoundments show no signs of leaching to groundwater. In addition, this would constitute duplicative regulations in violation of Section 1006 of the Act. 250.46-6 Inconsistencies for Special Waste - This section should be amended to eliminate inconsistencies in the record keeping and monitoring for oil field wastes. 250.46-6 Special Waste Standards - The scope of facilities covered should be extended to surface impoundments used in the oil field for emergency and safety purposes. Other types of impoundments found in the oil field operations of less than one-fourth of an acre should be exempted. ------- February 9, 1979 Epidemiological Evaluation of Cancer Incidence Rates for the Period 1969-1971 in Areas of Census Tracts with Measured Concentrations of Plutonium Soil Contamination Down- wind from the Rocky Flats Plant* Carl J. Johnson, M.D., M.P.H.** A large area of land, primarily to the east and southeast of the Rocky Flats plant in Jefferson County, Colorado is contaminated with plutonium (1-3). Concen- trations in the respirable dust on the surface of the soil on private land offsite range as high as 3390 times the background from fallout due to weapons testing (4)» Plutonium 239 is the predominant isotope, but the 238, 240 and 241 isotopes are also present. Americium 241 is an additional contaminant, and cesium 137 is present in concentrations as high as 83 disintegrations per minute per gram (dpm/g) 5.5 kilometers downwind from the plant in the surface respirable dust, 17 times greater than in similar samples collected from other parts of the state (5). Uranium has been released by the open burning of over 1,000 barrels of lathe oil used to mill uranium metal (6). In addition to the routine release of plutonium particles in the exhaust plumes from plant stacks that began in 1953, there have been other emissions of plutonium offsite on a number of occasions, including major fires in 1957 and 1969, and accidental releases of plutonium to the air in 1968 and in April of 1974 (6-8). Recorded concen- trations of plutonium in air leaving the main exhaust stack of the plant ranged as high 3 3 as 948 picocuries/M (pCi/M ), recorded eight days after the fire in 1957, which * A report to the Jefferson County Board of Health, the Colorado Board of Health, and the National Cancer Institute, N.I.H., P.H.S., U.S.D.H.E.W. ** Dr. Johnson is Director of the Jefferson County Health Department, 260 S. Kipling Street, Lakewood, Colorado 80226 ------- burned out the filter system. This concentration is about 19,000 times the present United States Department of Energy guidelines for maximum permissible stack emissions 3 (0.05 pCI/M )/ and represents the equivalent of 124 million 5 micrometer particles of plutonium oxide released, exceeding federal standards for a fifty year period in a single day (9). There are no records of emissions for the eight day period during or immediately after the fire. In the year after the 1957 fire/ the average concentration 3 of plutonium in the stack exhaust was 2.18 picocuries/M , and later the average 2 annual concentration was as high as 2.33 pCi/M for 1962. In recent years smaller amounts are being released, due to an improved filtration system, although one air sampler on site continued to show 100 to 600 times the monthly surface air concentration of plutonium found in New York City. Much of the piutonium now present offsite be- came airborne between 1964 and 1970 from a spill of lathe oil containing metal mill- ings of plutonium leaking from several thousand corroded barrels stored outside at the plant site. Contamination of the large Arapahoe aquifer with plutonium levels of 2.5 pico- curies per liter (pCi/L) has been reported, as has the contamination of a stream, Walnut Creek (maximum recorded level of 209 pCi/L), draining into the Great Western Reservoir serving the city of Broomfield, which at times has elevated levels of plutonium (as high as 2.29 pCi/L) in the "finished water" used in homes. A recent report confirms that plutonium in chlorinated finished water is in the Pu VI form, rather than the Pu IV form, considered in setting maximum permissible limits for plutonium in finished water (1600 pG/L) (10). Animal experiments demonstrate an uptake of plutonium from chlorinated drinking water 1570 times greater than previously thought, as measured by deposits of plutonium in bone and liver. ------- Part of the contaminated area Is now utilized for residential development and extensive further development is planned, which could result in an increase in pop- ulation of the contaminated area by as much as 100,000 people. There Is community concern regarding possible health effects for populations living in this area and for the safety of further residential development near the plant. No health effects have been demonstrated previously for residents of areas contaminated with plutonium. Based on work with experimental animals, the effects s of low levels of plutonium on man are thought to include leukemia/ neoplasms of bone/ lung/ and liver/ and genetic injury (11-12). Lymphocyte chromosome aberrations in plutonium workers have been found to exceed those of controls in the lowest ex- posure group (1-10% maximum permissible body burden of plutonium) (13). Myers has pointed out that the trachiobronchia! lymph nodes could be considered as a critical organ for inhalation exposure to plutonium and/ if this were done, a maximum per- missible pulmonary dose for insoluble plutonium of 67 picocuries (pCi) could be rec- ommended (14). Morgan/ by an entirely different approach, has also recommended a maximum allowable dose that is similar to that proposed by Myers (15). inhalation and retention of two particles of plutonium oxide of respirabie size (5 micrometers) would exceed this dose (16). Preliminary epidemiological evaluations of lung cancer and leukemia death rates in census tract areas with measured concentrations of plutonium (figure 1), in- dicated that rates were significantly higher near the Rocky Flats plant (17-20). Method In order to confirm earlier risk estimates for health effects from low concentrations of plutonium in the environment, and the preliminary work with death rates from ------- leukemia and lung cancer in persons living in census tracts with measured levels of plutonium contamination, cancer incidence data was required by census tract from the Third National Cancer Survey (1969-1971) (21). The census tract data has not been published, but is available in computer storage. The request was made on August 5, 1977 and the data became available on February 6, 1979. The cancer incidence data was evaluated with the same approach utilized to evaluate lung cancer and leukemia death rates (figure 1) (22). Cancer incidence rates for each of the 46 separate cancer sites were reported according to levels of soil plutonium concentration, selecting census tracts within the appropriate concen- tration isopleths (2). Areas were ranked according to decreasing levels of plutonium concentration (Table 1). The position of the concentration isopleths of plutonium in the soil rr in- 2 dicated in figure 1. The 0.8 mCi/km isopleth does not appear in Figure 1. The area between the 1.3 and the 0.3 isopleths was divided approximately midway, following census tract boundaries (listed in Table 1). The area within the concentration 2 range 50-1.3 millicuries per square kilometer (mG/km ) lies between 2 and 10 miles in distance from the center of the Rocky Flats plant site along the principal wind vector 2 (Figure 2) (3). The area between isopleths 1.3 to 0.8 md/km extends from 10 to 2 about 13 miles, the 0.8 to 0.3 mOA™ area, from 13 to 18 miles and the 0.3 to 0.2 2 mCiAm area, from 18 to 24 miles from the center of the plant site. The area outside the last isopleth was utilized as a control population comprising the remainder of the Denver Standard Metropolitan Statistical Area (population 423,866). Populations of the study areas are (proceeding from the plant) respectively, 46,857 for area la, 107,313 for area Ib, 194,190 for area II, and 246,905 for area III. This study represents a 100% sample of a population of 1,019,131 people over a three year period. ------- The levels of plutonium contamination found in the soil in these areas may be compared to some of the current standards establishing maximum permissible contamination concentrations for areas that provide risks of human exposure. Only a Russian standard of 2 2 millicuries per square kilometer (mCAm )/ 100th of the proposed U.S. Environmental 2 Protection Agency guideline of 200 mCiAm for piutonium in residential areas, is in the same order as the concentrations of plutonium in three of the areas studied (Table 2). 2 Although the isopleth values are in rnCi/km , these are also expressed in terms of dis- integrations of plutonium per minute per square centimeter or per gram of dry soil. A comparison of units in common usage to express soil contamination with plutonium is given in Table 3. The contamination of soil with plutonium is not the only source of exposure. Par- ticulate plutonium which has been released in exhaust emissions from the smoke stacks at the Rocky Flats plant since 1953 are in large part in the orders of sizes smaller than 1 micron. These particles are smaller than many viruses/ and do not settle out to cause appreciable soil contamination but may be inhaled by persons who are in the exhaust plumes from the plant/ no matter how great the distance. Soil contamination does give some indication as to the predominant direction of these plumes. A third route of ex- posure may be through the water. While the incidence rates of cancer in the more highly contaminated area near the plant is of considerable interest, the population there in the years studied (1969- 1971) is small and also is the result of a rapid rate of development and in-migration. This results in many persons having an insufficient exposure to permit the expression of increased rates of cancer because of the long latent period for most neoplasms/ i.e. two to seven years or more for leukemia/ seven to 30 or 40 years for bone cancer. Although the plant has been releasing plutonium to the environment since 1953/ any ------- effect on cancer rates would be more likely to be noticed in the larger population 2 areas with lower rates of in-migration. For this reason the 50-1.3 mCiAm isopleth area was combined with the 1.3-0.8 isopleth area to form Area I for the comparison with the areas of lesser concentration and the control population (Table 4). Expected numbers of cancer cases in each category of age/ sex, and exposure status were derived from age-standardized rates for all of the Standard Metropolitan Statistical Area (SMSA) for comparison with the actual cases observed. Because of the higher rates of cancer observed (see results) in each of the contaminated areas/ the number of expected cases of cancer were predominantly higher than actually observed in the unexposed population. Because of this problem, a more valid com- parison must be made with the actual incidence rates (age-adjusted) found in the un- exposed population. The "expected cases" figures in the tables are actually higher than would be expected from incidence rates in the unexposed population, in most cases. Risk rates for neoplasms in each category are calculated by both methods, 2 but the X and probability values are computed with the number of cases in each category and the risk ratio compared to the unexposed population. Results and Comment The relationship between soil levels of plutonium and the total Anglo incidence of neoplasms for the 46 categories of cancer listed in the Third National Cancer Survey are shown in Table 4. The control area (Area IV) consisting of the Denver S.M.S.A. outside the isopleths of contamination shown in figure 1, comprised some 423,866 people. There appeared to be a direct association between concentrations of plutonium in the soil and the risk ratio for cancer, for Anglo males and females and for both sexes combined. The risk ratio increases in each case with greater soil concentrations of ------- plutonium. The exception is the small population nearest the plant, which because of the small numbers, rapid development and influx of new residents, probably has an average period of exposure much less than the areas more distant, which include much of Denver (figure 1). These differences are highly significant when compared to the control population. Compared to the control area outside the isopleths there is an excess rate for cancer of 8% in men in Area III, most distant from the plant (ex- tending as far as 24 miles downwind), 15% in Area II, nearer to the plant, and finally, a rate 24% higher in Area I, which includes the plant and extends to the 2 0.8 mCi/km isopleth, located approximately 13 miles downwind from the plant. The corresponding values for Anglo females are +4%, +5% and +10%, and for men and women combined, +6%, +10% and +16% for the three year period 1969-1971. The higher values are statistically significant (p <0.01 to p <0.005) with the exception of the females in the most distant isopleth area (Area III) who had cancer rates only 4% higher than females in the unexposed population. A tentative classification of the relative sensitivity of organs and tissues to cancer induction by radiation as suggested by the international Commission on Radiation Protection is summarized in Table 5 (23). In this investigation, it was felt that lung cancer, leukemia and bone cancer might be prominent, since plutonium is known to be a potent pulmonary carcinogen, is concentrated in lymph nodes, and is a bone seeker. The minolo particles of plutonium are carried great distances in exhaust plumes from the smoke stacks at the plant, and the irritant effects of smog can result in a much greater respiratory deposition rate of such very small particles (as much as 60% greater in animal studies) (24). Becuase of the small population in subarea a, and the rapid rate of development ------- and in-migration, it was combined with subarea b to form Area I extending as far as 13 miles downwind from the plant. This area had a 1970 population of 154,170 (Table 6). Rates for all classes of neoplasms in this area were compared to the unexposed population of 423,806 persons over a three year period (1969-1971). There was a higher rate of lung and bronchial cancer in the contaminated area for men, with a risk ratio of 1.1 compared to the expected rate (calculated from standardized rates 2 for the S.M.S.A.), and 1.3 compared to the control area (X =9.68), but not for women. There were higher rates for neoplasms of the nasopharynx and larynx for men and women In the contaminated area. This finding was also reported by Mason and McKay (24). The rate for men was of borderline significance compared to the control area. 2 There was a significantly higher rate of leukemia among men (X =5.88). The rates were higher for women in the contaminated area but the difference was not significant statistically. Neoplasms of the testis could be expected because of the demonstrated propensity of plutonium to concentrate in this organ. Rates were higher than expected in the con- taminated area, and when compared to the control area, which had a somewhat lower 2 rate than expected, the difference was significant (X - -8.90). Neoplasms of the ovary were also higher than in the control area but in this comparison, the difference was not great enough to be statistically significant. Neoplasms of the liver, gall bladder and "other biliary" were higher in males but not in females. The difference for the males in this comparison was not significant (X *2.90). The rates for cancer of the pancreas were higher in females but not in males. 2 Again the difference in this comparison was not significant (X »2.40). Rates of neoplasms of the stomach were higher in men, but not in women. The ------- 2 difference in this comparison was not significant (X =2.25). Rates of neoplasms of the colon and rectum however, were much higher for both men and women than for those 2 in the control area (158 cases expected, 203 cases found, X =12.86 for men and 6.61 for women). The rates compared to those of the unexposed population were highly significant statistically. Rates of other types of gastro-enteric neoplasms were not significantly higher. Neoplasms of the brain and other nervous system neoplasms were higher in men but not in women. The difference was not significant, because of the low frequency. There was no evidence of elevated rates of neoplasms of the bone. This could reflect a longer latent period required for such tumors to develop. A higher rate of cancer of the thyroid was found in women (18 cases expected, 24 cases found). The 2 difference was not significant (X =2.88). Neoplasms of the breast were higher in both men and women than in the control population, but not significantly so. This same was true for other types of miscellaneous neoplasms. In Table 7, neoplasms of nine sites are further investigated. Isopleth areas are combined to assist in removing non-uniformity in rates of neoplasms of low frequency and to examine the total rates of neoplasms with higher frequency compared to the cancer incidence rates in the control population. The incidence of cancer of the lung and 2 bronchus in the combined isopleth area 50-0.3 mOA™ (a 1970 population of 348,360 in an area extending as far downwind as 18 miles from the plant) over the three year period, 1969-1971, was much higher than that in the unexposed area (1970 population 2 423,866). This difference was very significant (X =36.44). When the entire area of plutonium contamination within all the isopleths (a 1970 population of 595,226 in an area extending as far as 24 miles downwind from the plant) is compared to the population ------- in the unexposed area (1970 population of 423/866) the difference persists, with 497 cases found/ 462 expected. Because of the lower-than-expected rates found 2 in the unexposed population/ the X again is large/ 33.93. 2 Cancer of the testis for the combined isopleth area/ 50-0.3 mCi/km was also 2 higher than expected (18 neoplasms expected, 25 cases found, X =20.98 compared to the control population). The difference was even more significant when the total area of contamination was compared to the unexposed population (30 cases expected, 2 40 cases found, X =31.12 compared to the control population). The same comparisons made For neoplasms of the ovary in the entire area of contamination also revealed a significant difference (X of 3.80 in the 50-0.3 mCiA™2 area/ and 7.51 in the 50-0.2 mCi/km^ area, compared to the unexposed population). 2 Neoplasms of the liver were higher in the 50-0.3 mG/km area for men compared to the expected rates and for both men and women compared to the unexposed population. 2 The higher rates were significant when the total area (50-0.2 mCI/km ) was compared to the control population because of the low rates in the unexposed population. Interestingly, cancer incidence rates for tongue, pharynx and esophagus were sig- nificantly higher for both men and women in both areas compared to the unexposed pop- ulation. Neoplasms of bones and joints were not significantly different, nor were the 2 2 rates for thyroid neoplasms, except for women in the 50-0.3 mCi/km area (X =5.86). In summary, an analysis of cancer incidence rates over a three period (1969-1971) found significantly higher total rates of all neoplasms in the area contaminated with plutonium, compared to the unexposed area. In general, rhVhigher rates appeared to have a direct relationship with increasing levels of plutonium soil contamination. That is, in areas with higher concentrations of plutonium in soil, higher incidence rates of ------- cancer were found. The excess rates were as much as 24% higher for men in the con- taminated area as in the unexposed area. The rates were higher for women, also, about 10% higher than for women in the unexposed area. Sites of cancer most responsible for the increase in total rates are neoplasms of the lung and bronchus, colon and rectum, leukemia, lymphoma and myeloma in men, neo- plasms of the tongue,.pharynx, esophagus, stomach, liver, and the thyroid in women. Neoplasms in sites such as the brain and pancreas were slightly elevated but rates were too low to be significant. An observation of special concern are the higher rates of neoplasms of testis and ovary in the contaminated area. This corroborates an observation by Mason and McKay in their investigation of death rotes from cancer in the period 1950-1969(25). These findings indicate the importance of continuing complete surveiifaneettf cancer incidence and death rates in this area. Some types of tumors, such as those of bone, have long latent periods before development. A long period of surveillance is necessary to monitor late effects in this population and the investigation should be ex- tended. A grant application has been filed with the National Cancer Institute to carry out such a study (26). It is important that a thorough investigation be conducted to determine the adequacy of the filtration system presently in use at the plant, to determine if sub-micron particles of plutonium and other nuclides listed in the Rocky Flats Environmental Impact Statement are not being released in much larger quantities than is being measured. This is of special concern in view of plans to markedly increase the operations at the plant. Definitive actions should be taken by responsible agencies to minimize health effects from exposure to low levels of plutonium, including the establishment by the E.P.A. of a much more conservative ------- guideline for plutonium contamination of soil. Acknowledgement: Valuable assistance of Colorado Regional Cancer Center staff (Dr. John Berg and Dr. Jack Finch) who developed the computer program to retrieve, collate/ and age-adjust cancer incidence data by census tract from the computer archives of the National Cancer Institute's Third National Cancer Survey of 1969-1971, and Kathryn Van Deusen, who assisted with the analysis of the data. ------- References 1. Poet, S.E. and Martell, E.A.: Plutonium 239 and Amerlcfum 241 contamination in the Denver area. Health Physics 23: 537 (1972). 2. Krey, P.W. and Hardy, E.P.: US AEC Publ. HASL-235 (1970). 3. Johnson, C.J., TIdball, R.R. and Severson, R.C.: Plutonium hazard in respirabie dust on the surface of the soil. Science 193; 488 (August 6, 1976). 4. Johnson, C.J.: Offsite distribution of plutonium in the respirabie dust on the surface of the soil in the vicinity of the Rocky Flats plant. Unpublished report to the Jefferson County Board of Health, Lakewood, CO 80226 (March 30, 1977). 5. Johnson, C.J.: Distribution of cesium 137 in the surface respirabie dust in the vicinity of the Rocky Flats plant: Final report. Unpublished report to the Jefferson County Board of Health, Lakewood, CO 80226 (March 18, 1978). 6. Anon: Omnibus environmental assessment for the Rocky Flats plant of the U.S. Energy Research and Development Administration. U.S.E.R.D.A., Rocky Flats plant, P.O. Box 888, Golden, CO 80401 (1975). 7. Thompson, M.A. and Hombacher, D.D.: Annual environmental monitoring report. U.S. Energy Research and Development Administration, Rocky Flats plant (1970, 1971, 1972, 1973, 1974, 1975) Dow Chemical Company, P.O. Box 888, Golden, CO 80401. 8. Anon.: Rocky Flats Environmental Monitoring Results, P.O. Box 888, Golden, CO 80401 (May, 1970). 9. Anon.: Report of investigation of serious incident in building 71, on September 11, 1957. Unpublished report of the Dow Chemical Company, Rocky Flats plant, Golden, CO 80401 (October 7, 1957). 10. Larsen, R.P. and Oldham, R.D.: Plutonium in drinking water: Effects of chlorination on its maximum permissible concentration. Science 201: 1008-9, September 15, 1978. 11. Anon.: Proceedings of public hearings on plutonium and other trans-uranium elements. Vol. l-lll (No. ORP/CSD-75-1, U.S. Environmental Protection Agency, Washington, D.C. (1975). 12. Vaughan, J.: Plutonium - a possible leukemic risk. Unpublished report. The Bone Research Laboratory, Nuffield Orthopoedic Centre, Oxford, England (1976). 13. Brandon, W., Bloom, A., Saccomanno, G., Archer, P., Archer, V., Bistline, R., and Lilienfeld, A.u_Somatic cell chromosome and sputum cell cytology changes in humans exposed to Radon and plutonium. Progress Report, D.O.E. Contract ------- References - cont. 13.(cont.) No. E (2902)-3639 Rockwell International, Rocky Flats Division, Health Sciences Group. P.O. Box 888, Golden, CO 80401 (June 30, 1976). 14. Myers, D.S.: A plea for consistent lung burden criteria for insoluble alpha- emitting isotopes. Health Physics 22: 905 (June, 1972). 15. Morgan, K.Z.: Suggested reduction of permissible exposure to plutonium and other transuranium elements. Am. Ind. Hyg. Ass. J. 567-574 (August, 1975). 16. Johnson, C.J : Evaluation of the hazard to residents of areas contaminated with plutonium. Proceedings of the IVth International Congress of the International Radiation Protection Assoc., in Paris. 2: 243-246 (April 24-30, 1977). 17. Johnson, C.J.: Death rates from lung cancer in the eight census tracts near Rocky Flats and in Golden, and in nineteen census tracts at the south end of Jefferson County. Unpublished report to the Jefferson County Board of Health, Lakewood, CO 80226 (November 20, 1977). 16. Johnson, C.J.: Leukemia death rates of residents of areas contaminated with plutonium. Proceedings of the 105th Annual Meeting of the American Public Health Association, Washington, D.C. (November 1, 1977^. 19. Johnson, C.J.: Lung cancer death rates of residents of areas contaminated with plutonium. Proceedings of the 145th National Meeting of the American Association for the Advancement of Science, in Houston, Texas, 3-8 January, 1979. 20. Johnson, C.J.: Rates of leukemia, lung cancer and congenital malformations by census tract in areas contaminated with plutonium. Proceedings of the First International Congress on Human Ecology, in Vienna, Austria, October 26-31, 1978. 21. Anon.: Third National Cancer Survey: Incidence Data. National Cancer Institute Monograph 41, March, 1975 DHEW Pub. No. (N1H) 75-787 U.S. DHEW7 Public Health Service, National Institute of Health, National Cancer Institute, Bethesda, MD. 20014. 22. Anon.: U.S. Bureau of Census, Population and Housing: 1970 Census Tracts, Final Report PHT (l)-56 Denver, CO SMSA, U.S. Government Printing Office, Washington, D.C., 1972. 23. Anon.: Radiosensitivity and spatial distribution of dose. I.C.R.P. Publication #14 (1969). Published for the International Commission on Radiological Protection by the Pergamon Press. ------- References - cont. 24. Fairchild, G.A., Stulz, S. and Coffin, D.L.: Sulfuric acid effect on the deposition of radioactive aerosol in the respiratory tract of guieea pigs. (1975) U.S. E.P.A., National Environmental Research Center, Research Triangle Park, North Carolina 27711. 25. Mason, T.J. and McKay, F.W.: U.S. Cancer Mortality by County, 1950-1969, DHEW pub. (NIH) 74-615, Public Health Service, National Insitutes of Health, National Cancer Institute, Bethesda , Maryland. 26. Johnson, C.J.: Evaluation of rates of leukemia and neoplasms of the lung and other organs in a general population living in an area contaminated with low levels of plutonium. A grant application (CA 25729-01, July 20, 1978) to the National Cancer Institute, N.I.H., P.H.S., U.S. D.H.E.W. 27. Seed, J.R., Calkins, K.W., Illsley, C.T., Miner, F.J., Owen,J.B.: Committee evaluation of soil levels within and surrounding U.S.A.E.C. Installation at Rocky Flats, Colorado. Unpub. rep. RFP-INV-10 Dow Chemical Corp., Rocky Flats Division, P.O. Box 888, Golden, CO 80401 ------- I^SfJI.IIld IUI *WII WWI IIUIIIII IVJI |V the Rocky Flats plant (a'b) Area of report ' /' W I \ ; \ y \ s \ \ \ Calm 2% Variable 5% i N X X _ ' _ 30% -^ " ' "^ -, N / '• JOH , 6 - - ~ - i3 ^ \5 /|\ /' ' X s ' / X s' "7" 4 Colorado Fig. 2. Rose diagram showing average dire tion and velocity of wind at Rocky Flats f 1953 to 1970. Arrows point in the direction wind movement: velocity (miles per hour) given at the end of each arrow; concentric c cles show frequency of wind direction (2). ------- Table 1 Census tract! within Plutonium concentration isopleths in microcuries per square kilometer (mCi/km ) near the Rocky Flat* plant Millicurina per square kilometer 50 - 1.1 9801 9802 9801 9805 1O201 10202 10301 10302 1. 101 102 201 2O2 301 302 303 401 402 1101 1102 9302 9303 9305 9401 94O2 9501 9502 II. 3 - 0.8 9601 9602 9700 9750 9804 10402 1O4O3 10451 10601 10651 12704 13101 13102 III. 0.8 - 0.1 IV. 500 600 701 702 800 1000 1102 1500 1600 1701 1702 18OO 1900 2OOO 2100 2300 2401 24O2 250O 2601 2602 2701 2702 2703 2801 2802 2801 29O1 29O2 31O1 3102 3201 3202 3201 3300 34OO 3500 3601 3602 3603 3701 3702 3703 3800 4301 8501 8502 8503 8952 9200 9301 9104 9551 10502 10602 1O700 11100 12506 0. 901 902 903 1101 1401 1402 1401 3001 30O2 3003 3004 3005 3901 3902 4O01 40O2 4003 4004 4052 4101 4102 4103 4104 4201 4202 3 - 0.2 <*302 4101 4304 4105 4401 4502 46O2 49OO 4950 5000 5101 5102 5200 5250 5300 5350 5401 5403 5700 5800 5900 6100 6801 6802 6851 6852 6901 6902 6951 6952 7001 70C2 7051 7052 89O1 900O 9100 9806 9807 9900 10100 10501 10800 11000 11100 114OO 11500 11550 12703 12900 13000 Table 2 Standards establishing maximum permissible contamination concentrations for alpha radiation (i.e. plutonium) for areas that provide risk of human exposure. Country Milllcuries par Microcuries per Disintegration* per square kilometer square meter minute per gram dry soil or per square centimeter Remarks Type of Standard C.S.S.H. 6 15 0.002 0.006 0.015 0.44 1.33 3.33 Hands and work underclothing Occupational before cleaning. Work surfaces after cleaning. Occupational Work clothing and surfaces Occupational before cleaning. United States (U.S. E.P.A.) 20 40 200 0.02 0.04 0.2 4.44 8.8 44.0 Interstate Commerce Commission Occupational (Oept. of Transportation) pertains to interior of vehicles previously used for transportation of materials. Urban, suburban, recreation areas. General Pobli Soil surface in residential areas. General Publ! (proposed) (b)eco«raended by U.S. at an International Symposium on Radiological Protection of the Public in a Nuclear Mass Disaater (June 1968). ------- Relationship between units in common usage to express «oil contamination with plutonium Plutonium in toil equivalent* * Millicurios per square kilometer 50 10 5 3 1.3 d.8 0.3 0.2 Nanocuriea per square meter 50 10 5 3 1.3 0.8 0.3 0.3 Picocurios per square eentlme-cer or grate of dry anil 5 1 0.5 0.3 0.13" 0.08" O.03" 0.02*« Disintegrations per minute per square centimeter or gram of dry soil 11 2.2 1.1 0.66 0.29 O.lS 0.07 0.0------- Table 5 Classification of Relative Sensitivity of Organs and Tissues to Cancer Induction by Radiation in Adult Life* Grade Organ High Sensitivity: Established Apparent Low. Sensitivity; II III Not Classified Not Mentioned in ICRP 140) IV International Classification of Diseases Number (8th rev.) Bone Marrow & Thyroid Lymph Nodes & Recticular Tissue Pharynx & Bronchus Pancreas, Stomach & Large Intenstine Esophagus & Small Intestine Nose, Middle Ear, Sinuses & Larynx Lip, Tongue, Mouth & Salivary Gland Liver, Gallbladder & Bile Duct Testis, Penis & Kidney Skin, Connective Tissue & Bone Eye, Brain & Nervous Tissue Other Endocrine (excluding Thyroid) Ovary, Uterus & Breast Prostate & Bladder Lymphatic Leukemia & Other RES Neoplasms Rectum & Other Digestive Other & Unspecified Cancers 203; 205; 193 200-2 146-9; 162-3 157; 151; 153 150; 152 160-1 140-5 155-6 186-7; 189 170-3 190-2 194 180-4; 174 185; 188 204; 206-9 154; 158-9 195-9 * From the International Commission on Radiation Protection, Pub. * 14 (1) Included In Grade IV in this report. ------- Toble 6 Anglo cancer incidence rates for the period 1969-1971 by areas of census tracts with and without pluronium soil contamination by the Rocky Flats plant . 50-0.9 millicuries per square kilometer (mCiAm?) < 0.2 millicuries per square kilometer Male Cases (c) r CWExp (1) Total: All Neoplasms Chi-iquare Uukemia Oil-square lymphoniq, myeloma, etc Chi-iquare Lung & bronchus Chi-iquare Other respiratory Qu-square Tertis Chi-iquare Ovary Oil-square Other Urogenital Uver & biliary Chi- square Stomach Chi-squara Colon & rectum Chi-iquare Other geulo- enteric Brain Other nervous system Bones & joints Thyroid Chi-iquo>« Breast Other 644/563 27/ 18 35/28 109/98 20/14 ll/ 8 189/183 10/ 8 20/21 22/ 16 100/76 30/32 IV 10 4/5.3 1.134 1.5 1.2 1.1 1.4 1.4 — 1.0 1 1.2 1.0 1.4 1.3 0.9 1.3 1.7 0/1.5" 0 V5.6 2/0.8 49/46 0.5 2.5 1.1 (2) 1.240 30.11 1.6 5.88 1.4 4.17 1.3 9.68 1.5 3.77 2.1 8.90 1.1 1.6 2.90 0.9 1.4 2.25 1.4 12.86. 1.1 1.2 1.1 0 0.5 2.5 1.1 Female Cases r.r. Obs/Exp (1) (2) 636/600 1.060 IV I' 0.7 28/23 1.2 21/25*0.8 V 2 1.5 — 3V 32 1.1 100/100 1.0 7/ 10 0.7 1 21/17 1.2 11/ 12 0.9 103/82 1.3 IV 16 0.8 10/ 9 1.1 1/1.9 0.5 0/0.8" 0 24/ 18 1.3 190/186 1.0 56/46 1.2 1.095 5.11 0.8 1.1 0.9 1.5 1.2 1.54 1.0 0.7 1.4 2.40 0.9 1.3 6.6t 0.9 1.2 0.3 0 1.4 2.88 1.1 1.2 Total Cases r. OWExp (1) 1280/1168 41/ 37 6V 51 130/123 2V 16 289/ 283 17/ 18 41/ 38 3V 28 203/158 48/ 48 2V 19 V 4 0/2.3 27/ 24 192/ 187 105/ 92 1.096 1.1 1.2 1.0 1.4 — — 1.0 0.9 1.1 1.2 1.3 0.9 1.2 1.2 0 1.1 1.0 1.1 .r. (2) 1 .163 19.45 1.2 1.3 4.00 1.2 1.5 1.1 1.0 l.J 1.1 1.4 19.57 1.0 1.2 0.7 0 1.1 1.1 1.2 /Male Cases Ofas/Exp r.r. 1114/1219 0.914 45/ 47 0.96 59/ 68 0.87 174/210 0.83 30/ 32 0.94 IV 23 0.57 — 336/360 0.93 IV 18 0.78 4c/ 43 1.07 3V 34 1.00 14V 157 0.92 60/ 72 0.83 27/ 24 1.12 V 5 1.60 V4.3 1.16 18/ 16 1.12 2/ 2 1.0 99/ 104 0.95 Female Cases Obs/Sxp r.r. 1260/1302 0.963 38/ 42 0.90 56/ 51 1.10 SI/ 53 0.96 5/ 5 1.00 — 6V 73 0.86 227/223 1.02 20/ 19 r.05 30/ 33 0.91 27/ 23 1.17 146/ 151 0.97 33/ 35 0.94 20/ 22 0.91 7/ 4 1.75 2/ 2.8 0.71 4V 45 0.93 390/419 0.93 103/ 101 1.02 Total Co us Obs/Exp 2374/2521 0, 83/ 89 0 115/ 119 0 225/263 0 35/ 37 C — — 563/583 ( 34/ 37 ( 76/ 76^ 61/ 57 290/ 308 93/ 107 47/ 46. 15/ 9 7/ 7 60/ 61 39V 421 20V 205 (a) Rotas par 100,000 age-adjusted to U.S. 1950 population (rates for total S.M.S.A. age-adjusted, expressed as cases expected in each category) f>) Population of the 50-0.8 mCi area was 154,170 in 1970; population of the <0.2 mCi area was 423,366. (c) Expected rates calculated from standardized rates for area. (d) Relative risk: (1) Compared to standardized ratal for area. (2) Compared to the non-exposed graup(Area IV). X^ compares to this group. * However, o/e was 7/4 in the 50-1.3.aiCi/km2 area. - o/e wo» 10/10 in the 50-0.2 mG/Vin area. ------- COLORADO DEPARTMENT OF HEALTH < 4210 EAST 11TH AVENUE DENVER, COLORADO 8O22O PHONE 32O-8333 March 6, 1979 Mr. John P. Lehman, Director Hazardous Waste Management Division Office of Solid Waste (WH-565) Environmental Protection Agency Washington, D.C. 20460 RE: Hazardous Waste Proposed Guidelines Dear Mr. Lehman: and Proposal on Identification & Listing The Colorado Department of Health has reviewed the proposed regulations under sections 3001, 3002 and 3004 of the Resource Conservation and Recovery Act. The attached comments include issues and concerns expressed by members of an ad hoc hazardous waste committee, comprised of generators, transporters and site operators, persons attending four regional public information meetings, the Solid Waste Advisory Committee, several technical and professional societies, the Intergovernmental Methane Gas Task Force, Department staff members and other parties of interest. Public and private entities support the needs for regulatory controls to apply available technology and improve hazardous waste management practices. All are of the opinion that regulatory control measures must be workable, reason- able and applicable to meet State, local and regional needs. The proposed regulations define and list hazardous waste without providing for categories that differentiate between hazardous waste and marginal or moderately hazardous waste. The exemption of 100 kg/mo, should not be applicable to extremely hazardous waste. This categorization would enable the establishment of priorities to effectively control and manage hazardous waste. The format of the proposed regulations includes "notes" after requirements that allow for deviation from stated requirements. The notes describe allowable alternatives that should be included within the regulations. ------- Mr. John P. Lehman, Director Hazardous Waste Management Division Environmental Protection Agency Page Two, March 6, 1979 The proposed "extraction procedure" to determine toxic properties of possible leachate is a laboratory procedure designed to simulate landfill conditions. This proposed procedure is questioned as the testing of some special waste categories such as utility waste may indicate disposal as a hazardous waste regardless of actual disposal conditions. The need for perpetual monitoring and surveillance of sites receiving extremely hazardous wastes may require sites and facilities be located on federal lands with provisions for monitoring by a federal agency. The financial requirements for private entities or public agencies and high costs for operating acceptable treatment, storage and disposal sites and facilities are significant. Financial considerations and the potential risk factors are constraints that discourage the location and operation of acceptable facilities by either private firms or public agencies. I am concerned that the total financial impact of these proposed regulations has not been determined. This financial impact should include the costs of conducting a regulatory program. The position of federal agencies that essentially prohibits the location of hazardous waste treatment storage and disposal sites and facilities on federal lands has considerable impact on the availability of suitable sites in Colorado as approximately 1/3 of Colorado is under the jurisdiction of federal agencies. The attached comments are made concerning more specific points of concern pertinent to sections 3001, 3002, and 3004 of the proposed regulations. Sincerely, Albert J. Has Director, Radiation and Hazardous Wastes Control Division AJH/OFS:els Attachments ------- --"* COMMENTS OF - , THE COLORADO DEPARTMENT OF HEALTH CONCERNING REGULATIONS 40 CFR PART 250, 3001. SUBPART A, PROPOSED DECEMBER 18, 1978 AS AUTHORIZED IN SECTION 3001, OF THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1978 1. Page 58953 reads: Comment: In groundwater, assignment of "dilution factors" is questionable because formational varia- tions (i.e. lateral and vertical facies changes within the formation) as well as the fact that the formation could be completely unreactive whereby the only dilution is by diffusion. Conversely, the "toxic substances" may be diluted or detoxified within a few feet but the subsequent chain of chemical reactions can produce new totally different toxic substances as well as disturbing the overall useability of the aquifer. For the purposes of calculating dilution that a leachate plume wo undergo between the time it ent the underground aquifer until reaches a well, it was assumed tl wells will be situated no closer tr. 500 feet from the disposal site. Exai nation of the available data indical that a 10-fold dilution factor.- wb probably conservative, would be- r sonable. It should be emphasized tl there are instances where dilution 1: been higher as well as cases where has been lower at a distance of 5 feet. • . . .:, 3-. Based on this model, before hum exposure is expected to occur;, the: 1< chate from the waste would become factor of human mum allowable contaminant cor tration permissible In the EP extf would be 10 times the level that wou be acceptable in drinking water. Co sequently, waste whose EP extra shows more than 10 times the levels certain contaminants allowed.by tl " EPA National Interim Primary Drin ing Water Standards (40 CFR Pa 141) will be considered to be.hazar ous. -' - •- The plume of contamination has a characteristic, somewhat bell shaped plot and is dependent upon time and distance. In some instances a 10 X peak may not be allowable. Comment: The allowable dilutions should be determined on a site specific basis and other parameters of measurement in addition to 10 X^ The drinking water standards should be considered. ------- aec.Li.ou ^u.n MJM-U l'"B« Jo^jj i^uus. tiallcally equivalent to the total waste in composition, and in physical and Comment: This definition of a representative is chemical properties. Representative samples may be generated using the . , . . , , . methods set out in Appendix I of this neither practical or achievable in most instances, subpart. Recommendation: This definition should be modified to include "selected ™ portions of the components of the waste which indicate the physical and chemical properties of the total waste". 3. Section 250.13 (a) (ii) page 58955 reads: Comment: A non-liquid material .... "when ignited burns so vigorously and persistently as to create a hazard during its management" .... This characteristic could be construed to apply § 250.13 Hazardous waste characteristics. (a) Ignitable waste. (1) Definition—A solid waste is a hazardous waste if a representative sample of the waste: (1) Is a liquid and has a flash point less than 60°C (140*F) determined by the method cited below or an equiva- lent method, or (ii) Is not a liquid and is liable to cause fires through friction, absorp- tion of moisture, spontaneous chemi- cal changes, or retained heat, from manufacturing or processing, or when- ignited burns so vigorously and_£ersis.- tently as to create a hazardl during its to non-hazardous solid waste such as "corrugated", managprnent, or Recommendation: It is recommended the above phrase be more specific as to the wastes being referred to or deleted. 4. Section 250.13 (d) (1) page 58956 reads: Comment: In determining the allowable parameters, it was assumed that wells would be no closer than 500'. Examination of data indicated a 10 fold dilu- tion would be reasonable; Therefore the maximum allowable toxicant concentration permissible in the extraction procedure would be ten times the level acceptable in drinking water. (d) Toxic waste. (1)' Definite solid waste is a hazardous waste cording to the methods specified paragraph (2), the extract obtaii from applying the Extraction Prc dure (EP) cited below to a represen tive sample of the waste has cone trations of a contaminant that exce any of the following values: Extract level, Contaminant: milligrams per I Arsenic ----------------------- ........ „ ........ ------- Barium _________ .................... _____ . _____ ...... ..... Cadmium .................... .... ............... . ...... . ..... Chromium .......................... . ....... . ....... ... ..... Lead ____________ ....... _________ . ___________ . ___ .......... Mercury .......... ..................... ........ „ ............. Selenium ............... ~ .............. _ .................... Silver ______ , .............. . ........................ _....„.,. Endrin (1, 2.3.4. 10.10-hexacloro-6. 7- epoxy-1.4.4a,5.8,7.8.8a-octahydro-l. 4-endo, endo-5, 3-dl methano naph- thalene) ...... _ .............. _ ...................... -.,. Lindane ( 1.2.3.4.5.6- hexachlorocyclo hexane gamma Methoxychlor (1,1.1-Trichloroethane) 2,2-bts (p-methoxyphenyl) ................... Toxaphene (C,.H,,Cl,-technicai chlor- inated camphene, 67-69 percent chlo- rine)..../. [[[ 2.4-D. (2,4-Dlchlorophenoxyacetic acid) [[[ 2.4.5-TP Silvex (2.4.5- Trichloro phenoxypropionic acid) ... NOTE:— Extract levels specified for above substances equal ten times the E National Interim Primary Drinking W; Standards for these substances. TJ standards are being revised. Extract • specified above will be changed to reflect visions to these standards. Also, EPA is < sidering use of the Water Quality Crit under the Clean Water Act as a basis setting extract levels, in addition to ------- The assumptions do not consider any flow rate in the underground aquifer, permeability and porosity. There are no exceptions to the "rule of ten". ( Recommendation^ Testing solely for the contaminants listed in drinking water standards may be too limited. A hypothetical leachate containing sodium chloride in the range of 1,000 rag/1 would be acceptable by this definition. There are no limitations on factors such as B.O.D. (bio- chemical oxygen demand); C.O.D. (chemical oxygen demand); T.O.C. (total organic carbons) and free carbon dioxide. Recommendation: It is recommended other chemicals and parameters be considered. 5. Section 250.13 (D) (E) page 58957 reads: (D) Add to the extractor a weigh deionized water equal to 16 times weight of solid material added to _ _, . ., , extractor. This includes any Comment: The toxic extraction procedure does not used in transferring the solid m to the extractor. • explain the justification for dilution of the waste p^&sS^o 0.5N acetic acid. Hold the pH 1:16 nor is there justification for selection of pH 5 5.0±0.2 and continue agitation 24 ±0.5 hours. If more than 4 ml acid for each gm of solid is required and the use of acetic acid in the adjustment of pH. hold the pH at 5, then once 4 ml acid per gm has been added, compl the 24 hour extraction without add any additional acid. Maintain the This is a crucial test in that special waste cate- tractant at 20-40' C (68-104' P) dur extraction. It is recommended tha device such as the Type 45-A pH C gories such as "utility waste" could leach toxicants troller manufactured by Chemfc Inc.. Hillsboro, OR 97123, or equi lent, be used for controlling pH. and be classified as a toxic waste. Acetic acid such a device is not available then I following manual procedure can does not occur naturally. employed, Recommendation: It is requested the toxic extraction procedure be amended to allow a closer simulation of conditions that could be expected on a site specific basis. ------- „_- , . ,. . „ , „ . ,, , 'b) Hazardous waste sources and 6. Section 250.14 (b) Hazardous Waste Sources and processes, d) Sources generating haz- ardous waste. The following sources Processes. l)Sources generating hazardous waste. Derate hazardous wailc unless t ' ° ° waste from these sources does not o— tain microorganisms or helminths of (i) (A) Health Care Facilities, page 58958 reads: CDC Classes 2 through 5 of the Etlolo- gic Agents listed in Appendix VI of this Subpart. (i) Health care facilities. (A) The fol- Comment: Wastes from health care facilities lowing departments of hospitals as de- fined by SIC Codes 8062 and 8069, unless the waste has been treated as normally discharged into the sewage collection specified in Appendix VII of this Sub- part. (N) SVStem should be specifically excluded from Obstetrics department including patients' J rooms Emergency departments autoclaving and incineration requirements. Sur^ department including patients- Morgue Pathology department Autopsy department The autoclaving and incineration facilities isolation rooms Laboratories Intensive care unit specified are not available at many health care Pediatrics department facilities. The costs of providing these facilities will be extensive. There are potential health hazards pertinent to on site storage of infec- tious wastes and transporting to treatment storage and disposal facilities. Each generator should be equipped with appropriate facilities. A The list of infectious organisms such as E. Coli and Staph A. are prevalent throughout health care facilities. Therefore the criteria proposed may be excessively stringent as all wastes from health care facilities (including tissue or handkerchiefs 'containing nasal discharge) would be infectious requiring incineration or autoclaving. 7. Section 250.14 (b) Hazardous Waste Sources and (B) The following departments of veterinary hospitals as defined by SIC _ ... , , . Codes 0741 and 0742, unless the waste Processes. l)Sources generating hazardous waste. nas oeen treated as specif ied in Appen- dix VII. (N) (i) (B) Veterinary Hospitals, page 58958 and Emergency department Surgery department including patients? rooms Appendix VII - Infectious Waste Treatment Speci- Morgue rr ' •* Pathology department ' \ Autopsy department Isolation rooms 1 Laboratories ' Intensive care unit (ii) Laboratories, as defined by SIC Codes 7391, 8071 and 8922, unless theJ aboatie d laboratories do not work with Classes 2 through 5 of Etiologic \ Agents as listed in Appendix VI. (N) f. ------- APPENDIX VII—INFECTIOUS WASTE TREATMENT SPECIFICATIONS Infectious waste from departments | health care facilities as defined §250.H(b)(l) may be rendered non-harza dous by subjecting the waste to the folio' ing autoclave temperatures and dwell time Steam Autoclave (1) Trash: 250 P (121 C) for 1 hour with 1 minutes prevacuum of 27 in. Hg. (2) Glassware: 250 F <121 C) for 1 hot with 15 minutes prevacuum of 27 in. Hg. fc filled NIH Glassware can. (3) Liquids: 250 P (121 C) for 1 hour fa each gallon. (4) Animals: 250 P (121 C) for 8 hours wit; 15 minutes prevacuum of 27 in. Hg. (5) Animal Bedding: 250 P (121 C) for hours with 15 minutes prevacuum of 27 ir Kg. or equivalent treatment methods such a gas sterilization or pathological -inciner ation. Temperatures and dwell time wil vary in relation to the volume of material moisture content and other factors. fications. page 58964 reads: Comment: The proposed rules beginning on page 58957 (250.14) apparently apply to various depart- ments in veterinary hospitals as facilities that discharge hazardous etiologic agents according to CDC classification. The proposed rule appears applicable if such a facility does not discharge waste into an approved sewerage system but does perhaps utilize a trash pickup service, then the requirements on page 58964-Appendix VII Infectious Waste Treatment Specifications would apply. The various listed departments of veterinary hospitals would discharge microbial agents including bacterial, fungal, viral, rickettsial and chlamydial up to and including a Class 3 hazard. Any such pathogens would have to be treated as per Appendix VII by steam autoclave or equivalent treatment methods. This would require all veterinary hospitals to install at least an incinerator to process material such as trash, glassware, liquids, animals, and animal bedding and render it non-infectious. The economic impact of these proposed rules could result in an investment for each facility or hospital $3,000 to$10,000.00 for adequate incineration and/or autoclaving equipment. 4 ------- The data base which defines the present hazard from etiologic agents in waste effluents as classified in Appendix VI is not mentioned. * Observations have been that occupationally exposed people - the trash collectors themselves - do not appear to suffer any higher disease rate than other people in the public sector. Our epidemiological investigations generally have not revealed disease transmission that has occurred from waste material whether properly or improperly disposed of, but it is admitted that a potential hazard exists in a sanitary landfill disposal system for disease transmission. Nevertheless, the need for these proposed rules is questioned based on the actual incidence and subsequent reporting of disease. Also, other problems such as air pollution may be created by drastically increasing the number of incinerators necessary to adequately treat such hazardous waste. < 8. Section 250., Subpart A, Appendix XI page 58966 regarding the persistance of degradable chemicals. What is a biodegradation assay and does it really represent conditions of actual release? No biodegradation assay is specified. Certain compounds with allegedly short half lives have inexplicably persisted (ex. chemical five incident and parathion) over a period of years. Recommendation: It is recommended the degradation option be deleted until more data is obtained. ------- 9. Section 250.15 pages 58959-60. Demonstration of Noninclusion in the Hazardous Waste System. Comment: 1. Wastes from certain manufacturing process and other sources listed are considered hazardous unless proven non-hazardous by the generator. 2. The testing procedures listed are extensive and specific. It would be costly for generators, especially small generators without laboratory testing capabilities to conduct tests to confirm or deny the generation of hazardous wastes. There are few if any private laboratories equipped and capable of performing the tests specified. 3. When in doubt generator may be expected to consider the waste generated as hazardous rather than perform tests. This will place a considerable burden on hazardous waste treatment, storage and disposal facility and require more testing by the facility operator. ------- ------- RESOURCE CONSERVATION AND'RECOVERY ACT PROPOSED HAZARDOUS WASTE REGULATIONS COMMENTS BY ELECTRO-PHOS CORPORATION 1155 PEBBLEDALE ROAD MULBERRY, FLORIDA 33860 MARCH 7, 1979 ------- RESOURCE CONSERVATION AND RECOVERY ACT PROPOSED HAZARDOUS WASTE REGULATIONS COMMENTS BY ELECTRO-PHOS CORPORATION MR. CHAIRMAN AND LADIES AND GENTLEMEN, MY NAME IS STEWART H. MILLER. I AM MANAGER OF ELECTRO-PHOS CORPORATION'S PHOSPHORUS FURNACE FACILITIES AT PIERCE, FLORIDA. I APPRECIATE THE OPPORTUNITY TO SPEAK TO YOU TODAY. I PROPOSE TO ADDRESS MY COMMENTS TO THE CLASSIFICATION OF PHOSPHORUS FURNACE SLAG AS A HAZARDOUS WASTE UNDER 40 CFR PART 250 SUBPART A OF THE PROPOSED REGULATIONS. IN ADDITION TO THE REMARKS I WILL MAKE HERE, I AM ATTACHING A MORE DETAILED ANALYSIS OF OUR POSITION, WITH SUPPORT DOCUMENTATION, TO BE CONSIDERED AS ELECTRO- PHOS CORPORATION'S OFFICIAL STATEMENT OF RECORD. 1 AGREE THAT INDISCRIMINATE AND IRRESPONSIBLE DISPOSAL OF HAZARDOUS WASTES MUST BE PREVENTED, AND 1 COMMEND THE EPA FOR THEIR EFFORTS IN THIS REGARD. HOWEVER, I MUST POINT OUT WHAT I CONSIDER TO BE SIGNIFICANT ERRORS " IN THE IDENTIFICATION AND LISTING RATIONALE IN 40 CFR PART 250 SUBPART A. ------- FIRST, I SUBMIT THAT CALCIUM SILICATE SLAG FROM ELECTRIC FURNACE SMELTING OF PHOSPHATE ROCK IS NOT A WASTE. ELECTRO-PHOS CORPORATION CO-PRODUCES CALCIUM SILICATE SLAG IN THE APPROXIMATE RATIO OF 8.5 TONS OF SLAG PER TON OF ELEMENTAL PHOSPHORUS PRODUCED. ALL OF THE SLAG PRODUCED AT ELECTRO-PHOS IS SOLD TO A PROCESSING AND MARKETING COMPANY AS PRODUCED. THE SLAG ROCK COPRODUCED IN THE MANUFACTURE OF PHOSPHORUS IS VERY HARD AND DURABLE. IT IS CHEMICALLY INERT IN SOIL ACIDS AND WEATHERS WELL IN SURFACE APPLICATIONS. IT IS ALSO EASILY WETTABLE WITH ASPHALT1C COMPOSITIONS. THESE ATTRIBUTES, PLUS THE FACT THAT THERE IS NO OTHER LOCALLY AVAILABLE AGGREGATE POSSESSING THESE SUPERIOR QUALITIES WITHIN 500 MILES OF THE PRODUCING AREA MAKE CALCIUM SILICATE SLAG THE FIRST AND SOMETIMES ONLY CHOICE IN CENTRAL FLORIDA FOR: I - HIGHWAY PAVING AND ROADBED STABILIZATION - RAILROAD BALLAST AND ROADBEDS - SEPTIC TANK DRAINAGE FIELDS - COMMERCIAL AND UTILITY USE FOR ROADWAYS, SUB-STATIONS AND SOIL STABILIZATION - MUNICIPAL SEWAGE TREATMENT PLANTS - PARKING LOT AND DRIVEWAY PAVING - PRIVATE USE FOR DRIVEWAYS, PATIOS AND DRAINAGE - BUILT UP ROOFING AGGREGATE - CONCRETE PRODUCT USES ------- OF SPECIAL INTEREST IS THE USE OF COARSE SLAG IN THE FILTER BEDS OF TAMPA, FLORIDA'S, NEW MUNICIPAL SEWAGE TREATMENT PLANT WHICH INCORPORATES THE VERY LATEST TECHNOLOGY FOR TREATMENT OF WASTE EFFLUENTS ENTERING TAMPA BAY. ASSUMING THE CURRENTLY PROPOSED REGULATIONS ARE INTERPRETED SO AS TO REMOVE SLAG FROM THE MARKET PLACE THE ECONOMIC IMPACT WILL BE AT LEAST THREE-FOLD. - A VITAL THREE MILLION DOLLAR AGGREGATE PROCESSING AND MARKETING INDUSTRY WILL BE ELIMINATED WITH THE DIRECT LOSS OF THIRTY (30) JOBS AND AN IMMEDIATE WRITE OFF OF CAPITAL INVESTMENT. - THE CENTRAL FLORIDA AREA WILL FEEL A RIPPLE EFFECT FROM: - LOSS OF TRUCK DRIVING JOBS ASSOCIATED WITH DISTRIBUTION AND HAULING OF SLAG - HIGHER COSTS TO CONSUMERS FOR IMPORTED OUT OF STATE AGGREGATE MATERIALS - LOSS OF REVENUES TO THE LOCAL SERVICE INDUSTRY AND HEAVY MACHINERY BUSINESS - THERE WILL BE A NET COST TO ELECTRO-PHOS OF APPROXIMATELY $1 .OMM PER YEAR, AN INFLATIONARY INCREASE WHICH THE _ ULTIMATE CONSUMERS WOULD HAVE TO BEAR. SECOND, I SUBMIT THAT CALCIUM SILICATE SLAG FROM ELECTRIC FURNACE SMELTING OF PHOSPHATE ROCK IS NOT A HAZARD. ------- THE EPA FINAL DRAFT DOCUMENT, "IDENTIFICATION AND LISTING OF HAZARDOUS RADIOACTIVE WASTE PURSUANT TO THE RESOURCES CONSERVATION AND RECOVERY ACT OF 1976", EXPRESSES A CONCERN FOR AIRBORNE RADIATION FROM RADON GAS AND ITS PROGENY IN HOMES BUILT ON RECLAIMED LAND. THE EPA MEASURED RADIUM CON- CENTRATION IN SOIL MATERIALS AND ATTEMPTED TO RELATE THESE MEASUREMENTS TO INTERIOR RADIATION WORKING LEVELS THAT MIGHT BE ANTICIPATED IN STRUCTURES BUILT UPON THESE SOILS. HOWEVER, THE DATA UPON WHICH THE SUBJECT REGULATIONS ARE BASED APPARENTLY DOES NOT INCLUDE THE .LATEST EPA STUDIES, AND DOES NOT ADEQUATELY DEFINE SUCH A RELATIONSHIP. THE EPA'S GRAPH PURPORTING TO SHOW SUCH A CORRELATION SHOWS EXTREME DATA POINT SCATTER AND AN ALMOST MEANINGLESS CORRELATION FACTOR. AMONG THE MANY FACTORS AFFECTING THE PRECISION OF A CORRELATION OF RADIUM CONTENT AND RADON GAS FLUX IS THE EMANATING POWER OF THE PARTICULAR MATERIAL INVOLVED. THE EMANATING POWER MAY BE DEFINED «* AS THE RATIO OF THE RADON GAS ESCAPING FROM A MATERIAL TO THE TOTAL AMOUNT OF RADON GAS BEING GENERATED IN THE MATERIAL FROM THE DECAY OF RADIUM 226. IF FOR EXAMPLE, WE TAKE TWO DIFFERENT MATERIALS EACH WITH THE SAME RADIUM CONCENTRATION, BUT DIFFERENT EMANATING POWERS, THE ONE WITH THE LOWER EMANATING POWER WILL GIVE OFF OR DIFFUSE A LOWER AMOUNT OF RADON GAS INTO THE ATMOSPHERE. ------- S1NCE THE MEASURE OF AIRBORNE RADIATION IS A MEASURE OF THE AMOUNT OF RADON GAS AND ITS PROGENY, IT IS EVIDENT THAT WE HAVE TO LOOK AT THE TOTAL RADON FLUX PRESENT TO PROPERLY EVALUATE HEALTH EXPOSURE RISK. THIS IS ESPECIALLY SIGNIFICANT IN EVALUATING SLAG AS A HEALTH EXPOSURE RISK1. INDUSTRY DATA SHOWS THAT SLAG HAS AN EXTREMELY LOW EMANATING POWER, RANGING FROM 16/1000 OF ONE PERCENT TO 42/100 OF ONE PERCENT, DEPENDING ON MATERIAL SIZING. COMPARED TO THE PROPOSED STANDARD OF 5 PCI PER GRAM FOR SOIL, ON WHICH THE STANDARD WAS BASED, TO OBTAIN AN EQUIVALENT RADON FLUX FROM SLAG WOULD REQUIRE THAT THE SLAG CONTAIN A MINIMUM OF 227 PCI PER GRAM (FOR FINE PARTICLES) AND UP TO 6000 PCI PER GRAM FOR LUMP AGGREGATE. RELATING THIS TO THE .v REAL WORLD, SLAG WHICH NOMINALLY CONTAINS RADIUM 226 AT A LEVEL OF 50-70 PCI PER GRAM HAS A RADON FLUX EQUIVALENT TO SOIL AT WELL UNDER 1 PCI PER GRAM. FURTHER, THE RESULTS OF INDEPENDENT STUDIES ON AIRBORNE RADIATION AT PHOSPHORUS FURNACES, WHERE THE ACCUMULATION OF SLAG IS MANY TIMES GREATER THAN ANY KNOWN COMMERCIAL OR PRIVATE USE SITE, INDICATE WORKING LEVELS 1/10 TO 1/20 OF THE NUCLEAR REGULATORY COMMISSION STANDARD OF 0.03 WL. OBVIOUSLY, IT IS COMPLETELY IRRATIONAL TO CLASSIFY CALCIUM SILICATE SLAG AS A HAZARD. ------- IN SUMMARY, - CALCIUM SILICATE SLAG IS NOT A SOLID WASTE AND THEREFORE CANNOT UNDER THE PROVISIONS OF THE ACT BE DECLARED A HAZARDOUS WASTE. - THE PROPOSED RADIATION ACTIVITY LEVEL OF 5 PCI/GM. WAS DERIVED FROM RECLAIMED LAND MEASUREMENTS PRIMARILY FOR PROTECTION AGAINST INDOOR A1RBORN RADIATION AND IS NOT APPLICABLE TO THE VAST MAJORITY OF FLORIDA SLAG USE. - NO ALLOWANCE OR CONSIDERATION WAS MADE IN ESTABLISHING THE 5 PCI/GM. STANDARD FOR THE EXTREMELY LOW EMANATING POWER OF DENSE SLAG. - AIRBORNE RADIATION WORKING LEVEL MEASUREMENTS MADE AT PLANT SITES WITH HEAVY SLAG CONCENTRATIONS ARE WELL BELOW THE NRC LIMIT 0.03 WL FOR CONTINUOUS PUBLIC EXPOSURE (168 HOURS PER WEEK). - THE POTENTIAL$1 .OMM/YEAR INCREASED PRODUCTION COST IMPACT ON ELEMENTAL PHOSPHORUS DUE TO THE CLASSIFICATION AND REGULATION OF SLAG IS INFLATIONARY. - THE PROPOSED CLASSIFICATION AND REGULATION OF SLAG COULD SHUTDOWN THE VITAL SLAG AGGREGATE INDUSTRY IN FLORIDA, ELIMINATING 30 JOBS AND INCREASING AGGREGATE COSTS FOR CENTRAL FLORIDA CONSUMERS. ------- WE BELIEVE THE ABOVE TECHNICAL AND SOCIO-ECONOMIC CONCLUSIONS FORM AN OVERWHELMING BASIS FOR THE ELIMINATION OF THE CLASSIFICATION OF SLAG AS A HAZARDOUS WASTE. NO EVIDENCE HAS YET COME TO OUR ATTENTION INDICATING THAT FLORIDA SLAG POSES ANYTHING OTHER THAN A PERFECTLY ACCEPTABLE HEALTH RISK TO RADIATION EXPOSURE. THANK YOU. CVx^/ ------- ------- TABLE OF CONTENTS APPENDIX APPENDIX A APPENDIX B APPENDIX C APPENDIX D APPENDIX E APPENDIX F "ECONOMIC AND RADIOLOGICAL ASPECTS OF CALCIUM SILICATE SLAG FROM ELEMENTAL PHOSPHORUS PRODUCTION" "RADON EMANATION FROM PHOSPHATE FURNACE SLAG AND PHOSPHATE ORE" "EPA STUDY- INDOOR RADON LEVELS - FEBRUARY, 1976" "SURVEY OF THE MOBIL CHEMICAL NICHOLS PLANT FOR RADON AND RADON DAUGHTERS", M. E. WRENN, NYU, REPORT. "OCCUPATIONAL RADIATION EXPOSURE IN THE FLORIDA PHOSPHATE INDUSTRY", U. OF FLA. REPORT. "PEMBROKE LABORATORY ANALYSES OF SLAG EFFLUENT SAMPLES" ------- ------- RESOURCE CONSERVATION AND RECOVERY ACT of 7 PROPOSED HAZARDOUS WASTE REGULATIONS COMMENTS BY SOUTHERN INDUSTRIES CORP. The following comments outline the official position of Southern Industries Corp., P.O. Box 1685, Mobile, Alabama 36601, concerning the classification of phosphorus furnace slag as a hazardous waste under 40 CFR Part 250 Subpart A of the proposed regulations. Southern Industries commends the EPA in its endeavors to limit or eliminate any irresponsible disposal of hazardous wastes, however, based upon scientific and technical studies conducted by various producers and others in the Florida and Tennessee areas, we feel that phosphorus furnace slag cannot be classified under 40 CFR Part 250 Subpart A as a hazardous was te. , There are two reasons for this: 1. Phosphorus furnace slag is not a "waste". 2. Phosphorus furnace slag is not hazardous. SLAG IS NOT A "WASTE" At the present time Southern Industries purchases 100% of all phos- phorus furnace slag generated by two elemental phosphorus producers in Florida and two elemental phosphorus producers in Tennessee. The com- bined annual tonnage amounts to approximately 1.3 million tons. Before selling this material into a diversified market, which will be outlined be- low, it is crushed and sized into several different grades or sizes, each ------- 'age 2 of 7 supplying a vital product source for its particular market. To process this material for market required a substantial outlay of capital invest- ment in land, plant equipment and material inventories. It also requires the services of 78 employees, along with many outside contractors and in- dustrial supply vendors. In 1978, Southern Industries sold phosphorus furnace" slag into the following market areas: . 1. Railroad Ballast * - 236,907 tons 18% 2. Road Aggregates - 788,740 tons 60% 3. Sewage Treatment - 154,018 tons 12% 4. Concrete Blocks - 90,498 tons 7% 5. Roofing - 40,034 tons 3% 6. Misc. (Driveways, etc) - 877 tons 1,311,074 tons 100% This tonnage represents approximately 70% of all phosphorus furnace slag in Tennessee and 100% of all phosphorus furnace slag in Florida that *r is generated by the various elemental phosphorus producers. Gross sales of phosphorus furnace slag in 1978 amounted to $5,934,206, Phosphorus furnace slag is marketed and shipped in Florida, Alabama, Tenn., Kentucky, Mississippi, Louisiana, Texas, North Carolina, South Carolina and Indiana by SI Minerals and Southern Stone Co., both wholly owned subsidiaries of Southern Industries. Unlike limestone, which is the primary construction aggregate in the Southeastern United States, it has non-polishing characteristics and is specified in lieu of limestone by the Federal Bureau of Roads for use in non-skid bituminous wearing surface pavements. This greatly enhances ------- age 3 of 7 the safety characteristics of asphalt highway pavements. Another unique feature of slag versus limestone is the non-cementing properties which it possesses. This is a very important quality when used as railroad ballast. This feature insures good drainage on railroad beds and greatly increases the life expectancy of RR crossties and railroad track life, which in turn is a definite safety factor. If the 1.3 million annual tons of phosphorus furnace slag is witheld from the marketplace, not only will the replacement cost be exorbitant, but, in some cases, an aggregate of equal quality is simply not available. How could a vital product such as this be designated as a "waste"? ------- ige 4 of 7 SLAG IS NOT1"HAZARDOUS" The EPA evidently lists phosphorus furnace slag as hazardous because ^ of its concern for airborne radiation from radon gas and its progeny, arising from earlier EPA studies of the phosphate industry, and in particular homes built on reclaimed land. Since Florida slag shows a higher radium 226 decay activity (40-70 pci per gram), than Tennessee slag ( 3-5 pci per gram), our comments are di- rected to results of studies relating to phosphorus furnace slag generated by Florida elemental phosphorus producers. A major contributing factor concerning the concentration of radon gas in a particular area is a direct function of the emanating power of the particular material involved. The emanating power is defined as the ratio of the radon gas escaping from a material to the total amount of radon gas being generated in the 'material, from the decay of radium 226. •¥ A study made by one Florida company reveals the following conclusion and we quote: "Data available to us shows that slag has an extremely low emanating power, ranging from 16/1000ths of 1 percent to 42/100ths of 1 percent, de- pending on material sizing. Compared to the proposed standard of 5 pci per gram for soil, on which the standard was based, to obtain an equivalent radon flux from slag would require that the slag contain a minimum of 227 pci per gram (for fine par tides) and up to 6000 pci per gram for lump aggregate. Conversely, slag which nominally contains radium 226 at an activity level of 40- 70 pci per gram would have a radon flux equivalent to soil at well under . 1 pci per gram." ------- Three other studies of airborne radiation were made, including one in 1976 by U.S.E.P.A. with the following results: University of Florida New York University U.S.E.P.A (External) (External & Internal) (Internal) .003 WL .0012 WL .0006 WL .007 WL .0011 WL .005 WL .0006 WL .0022 WL .003 WL .0011 WL .005 WL .0010 WL . - - • .0003 WL - The results of these studies,^ made at phosphorus furnace sites where the accumulation of slag is*many times greater than any commercial or private use site, shows airborne radiation at working levels 1/10 to 1/20 of the Nuclear Regulatory Commission standard of 0.03 WL for continuous public exposure (168 hours per week). A further study to determine the concentration of radium 226 in water at a particular elemental phosphorus plant site gave the following results: Sample Identification Radium 226 pci/liter 1. Floridan aquifer well 0.25 2. Hawthorne aquifer well 0.79 3. Recirculated pond water 0.08 4. Slag cooling water • 6.12 5. Slag Processing water 0.25 6. Leachate from slag storage area 4.30 These results are well below the 50 pci/liter proposed standard and all but one is below the 5 pci/liter EPA standard for drinking water. Other tests have been conducted by the University of Florida Institute of Food and Agricultural Sciences on sugarcane fields in the South Florida area. These tests indicate no trace of any measurable radiation in sugarcane fields where phosphorus furnace slag had been applied to the soil to increase sugarcane production per acre. ------- Page 6 of 7 SUMMARY: Southern Industries maintains that: 1. EPA has no authority under RCRA to regulate slag sold as a product since it is not a solid waste. 2. EPA has no authority to list slag as hazardous because of radioactivity without first establishing appropriate radioactivity hazardous waste characteristic criteria. \ 3. The classification of slag as a hazardous waste would eliminate slag from vital markets creating: a. The loss of 78 jobs b. Substantial assets to be written off c. The loss of$5,900,000 in annual gross sales to Southern Industries d. Loss of revenue to outside contractors and industrial vendors e. Loss -x>f jobs and revenue to small private trucking firms f. An increased inflationary cost of vital construction aggregates g. An increased inflationary cost to elemental phosphorus producers which may jeopardize their continued operation and thus the source of our business. ------- Page 7 of 7 Please direct all response to: Steve Allen, President Southern Stone Co., Inc. 2111 Eighth Ave., South Birmingham, Alabama 35233 Tele: 205/252-6104 T. G. Smith, Vice President SI Minerals, Inc. P.O. Box 5108 Lakeland, Florida 33803 Tele: 813/646-5741 ------- ------- March 7, 1979 STATEMENT OF ARAPAHOE CHEMICALS, INC. In Re: HEARINGS ON THE PROPOSED REGULATIONS FOR THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976 - DENVER, COLORADO My name is Earl R. White. I am the Health and Regulatory Affairs Chemist for Arapahoe Chemicals, Inc. located in Boulder, Colorado. Arapahoe Chemicals is a manufacturer of bulk Pharmaceuticals and fine organic chemicals with facilities located in Boulder, Colorado employing 273 people and in Newport, Tennessee, employing 206 people. Arapahoe Chemicals is committed to the concept of social responsi- bility tha.t includes active and convincing participation in national pol icymaking. We have also made commitments of responsibility in our relationships with our shareholders, our employees and our community. In responding to these proposed measures we do not wish to imply that we are fighting the concept of social responsibility, nor are we blind to the real caus.es of environmental insul ts . ------- 2. We appreciate the difficulties in writing responsible regulations ' to enforce the technicalities of reasonable legislation. Especially recognizable are the difficulties encountered when dealing in the highly complex area of environmental protection. We believe that public policy should be based upon an informed view - one that is far-sighted, fiscally responsible, realistic, supportable and non-selfserving. We believe in facing this regulatory dilemma squarely without resorting to exaggeration and overstatement of the possible ramifications to EPA's proposals - a tactic which we recognize would polarize the exchange of ideas. Furthermore, we believe that responsible business can play a constructive role and not just a defensive one in the formulation of regulatory policy.. In the comments to follow we have identified and responded to certain technical, legal and economic issues which we feel will have a profound impact on our business. Equally important, however, is the fact that"neither RCRA nor the proposed implementing regulations deal with the scarcity of hazardous waste treatment and disposal facilities or the extreme difficulties faced by government and private industry in siting additional facilities. It is clear that these regulations, if finalized in their present form, would place many generators in the position of having no feasible means of disposing of some or all of their waste. There is a good possibility that there will be no_ approved hazardous waste disposal sites (landfills) in either Colorado or | Tennessee. Furthermore, the legislatures of both States may refuse ------- 3. to fund another expensive Federal program. The Colorado Legislature took that posture this past year when it stopped funding COSH, the State arm of the Federal OSHA program. Arapahoe Chemicals' principal concerns with the proposed regulations contained in Section 3001 are discussed first and our detailed comments follow in a section-by-section format. In the opinion of Arapahoe Chemicals, there are three basic problems with the proposed Section 3001 hazardous waste regulations. These include: (1) The potentially high cost, in both time and money, of performing the tests to determine whether or not a waste is hazardous. (2) The exceptionally broad definition of a solid waste, and (3) The proposed controversial Extraction Procedure. Our first concern centers around EPA's proposal beginning with Sec. 250.10(d)(l)(i): "Generators of solid waste may elect to declare their waste hazardous and subject to the regulations of this Part. In these oases, generators need not perform the specified evaluation. " ------- 4. Arapahoe's comments,: Since the cost, in both time and money, of performing the tests to classify industrial wastes is so high and since the penalty for not being in compliance is so great, the tendency for small and medium sized generators is going to be to declare all industrial wastes as hazardous. This in turn is going to put an unnecessary and greater burden on the approved hazardous waste landfill sites in the country and consequently decrease their useful life, resulting in the wasting of a valuable natural resource. Furthermore, as the easily accessible sites are filled and it becomes necessary for industry to haul its wastes • greater distances, the $35 to$4200* per metric ton EPA disposal cost estimate, which is approximately four to 436 times our current disposal cost, will be greatly exceeded. We.recommend that EPA develop and adopt less expensive and easier tests to make the determination of whether or not a waste is hazardous. This would surely be a good use of public money. *Memorandum from Cleary, Gottlieb, Steen & Hamilton to SOCMA dated December 27, 1978. ------- 5. I Our second concern centers around EPA's proposal beginning with Sec. 250.13(a)(l)(ii ): "A solid waste is a. hazardous waste if a representative sample of the waste: . . . when ignited burns so vigorously and persistently as to create a hazard during its management." Arapahoe's comments: Is it the intent of this section to regulate non-domestic waste paper, cardboard, wood scraps, sawdust, etc., as hazardous wastes? Certain wastes, such as waste paper from office facilities of chemical companies may be non-hazardous. These should not be classified as hazardous merely because of the source, nor should companies have to "justify by testing that their waste paper is not hazardous. Waste paper from the office facilities of chemical companies should be treated no differently than normal household refuse (Refer to Page 58969, Column 3 of these proposed regulations, which addresses the intent of Congress) . • The clause "or when ignited burns so vigorously and persistently as to cause a hazard during its management" should be stricken from the regulations'. ------- 6. Our third major concern centers around EPA's proposal beginning with Sec. 250.13(d)(l); "A solid waste is a hazardous waste if, according to the methods specified in paragraph (2)3 the extract obtained from applying the Extraction Procedure (EP) acited below to a representative sample of the waste has concentrations of a contaminant that exceeds any of the following values [e.g.,] cadmium at 0.10 mg/1." And Sec. 250.13(d)(2)(E): "Begin agitation and adjust the pH of the solution to 5,0 ± 0.2 using 0.5 N acetic acid." Arapahoe's comments It appears that the intent of this section is to incorporate discarded concrete, piping, ductwork and other construction discards to the EP test. Therein, it appears that building contractors, wreckers, etc. would be classed as generators of solid waste and would be required to apply the EP to determine if their solid waste were hazardous. A classic example being a fragment of concrete from drain tile, an aqueduct, a dam, a bridge, a highway, an airport runway, a skyscraper, a neighborhood sidewalk, the foundation of a home, or the storage pad of a chemical plant which, when subjected to the proposed EP results in a "leachate" containing cadmium in excess of 0.10 mg/1. The EP test appears scientifically unsound in that: (a) This laboratory test may not be indicative of actual environmental ------- 7. situations; (b) Two chemicals used in the test, namely acetic acid and deionized water, are not commonly found in nature; (c) Disposal of acid waste is not considered state-of-the-art practice by industry; (d) Acid analyGis as indicative of soil erosion d-oos not co-v-or the mwnal alkaline soilo found in the arid and 3cmi arid western two thirds of tho nation; and (e) No consideration of soil types or characteristics (other than acidity) was acknowledged or dealt with in this section. This concludes our public statement of concerns relative to Section 3001. We appreciate the opportunity to have presented our concerns, opinions and suggestions. j~-* i £c7«in l&*j]-rfi*c< in. ------- Suits 1120 1001 Connecticut Avenue, NW Washington. DC 20036 CHEMICAL SPECIALTIES MANUFACTURERS ASSOCIATION 202/372-3110 Testimony of Francine Ballet Kushner Associate Director, Legislative & Regulatory Affairs Chemical Specialties Manufacturers Association on Hazardous Waste Regulation Under §3001 the Resource Conservation and Recovery Act Good afternoon, my name is Francine Bellet Kushner, Asso- ciate Director for Legislative and Regulatory Affairs, Chemical Specialties Manufacturers Association. CS?1A is a voluntary non- profit organization consisting of more than 400 member companies engaged in the manufacture, processing and distribution of chemical specialty products. Production processes in the manufacture and formulation of members'products generate substances that are directly affected by the proposed regulations for identification and listing of hazardous wastes as well as the proposed standards for generators and owner/operators of treatment, storage and dis- posal facilities. Accordingly, CSMA offers the following comments regarding the hazardous waste regulations proposed under §3001 of the Resource Conservation and Recovery Act (RCRA). These points and others will be further developed in our subsequent written submission. We welcome this opportunity to present our views to the Environmental Protection Agency on issues raised by these hazard- ous waste regulations which will have significant impact on our industry. The vitality of the chemical specialties industry is dependent upon the opportunities for constant innovation. We ------- are concerned that the proposed hazardous waste regulations will have a negative impact on essential process and product innova- tion and will impact disproportionately on small companies. Identification Criteria Should Reflect Degree of Hazard The proposed regulations create but one category of hazardous waste and lump all wastes identified as hazardous in the category regardless of the differing degree of hazard, persistence, degrad- ability and bioaccumulation exhibited by the wastes actually classified as hazardous. EPA's failure to consider degree of hazard in identifying and classifying hazardous wastes violates the provisions and intent of RCRA and will result in an irrational regulatory scheme which vastly over-regulates many wastes while possibly under-regulating others. Both the legislative history and RCRA itself indicate the degree of hazard should be considered in setting standards for hazardous waste management. Section 1004(5) of RCRA indicates Congressional intent to consider relative hazard in its definition of hazardous waste as a "solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical or infectious characteristics...". Section 3004 of RCRA" recognizes that financial responsibility should be based on degrees of risk. This section refers to "assurances of financial respon- sibility and continuity of operation consistent with the degree and duration of risks associated with the treatment, storage, or disposal of specified hazardous waste". ------- Any designation of hazardous waste as such, because of the management standards created by the RCRA regulations, should be according to relative degree of hazard. This concept of relative degree of hazard has been recognized in state hazardous waste management programs of many states,including Washington and Mary- land's well as in the designation of special wastes under §250.46 of these regulations. Any regulatory system based'on relative degree of hazard must recognize factors of persistence, degrad- ability, concentration, form, quantity, and exposure. A regulatory system assessing relative degree of hazard is also necessary in establishing an exemption mechanism. It is more realistic to key the exemption mechanism under §250.29 to relative degree of hazard than to provide a blanket exemption. An exemption system based upon relative degree of hazard would be more likely to afford greater protection against hazardous waste mismanagement than an exemption system based on an across-the-board exemption level. Such a system would provide significant relief from extraordinary economic and technical burdens imposed by the regulatory structure for less hazardous wastes and would reduce the number of insignificant generators covered by the regulation, thereby avoiding a shortage in treatment, storage and disposal capacity while not reducing protection from hazardous waste mis- management. A management and exemption system based upon relative degree of hazard would also improve oversight of hazardous waste management by freeing the Agency to concentrate on those wastes which exhibit truly serious hazards and would establish priorities ------- for hazardous waste management review. Criteria for Designation as Hazardous Waste Should be Consistent with DOT Hazardous Materials Regulations EPA criteria for designation of a substance as a hazardous waste should be consistent with the DOT criteria for hazardous substances. CSMA urges that these criteria be consistent be- cause the entire industry approach to hazardous materials is based on the DOT regulations. Industry has already geared up to deal with the DOT criteria. Any deviation from the DOT criteria would not only necessitate a massive reeducation effort on the part of those involved in the hazardous waste management chain but would also be significantly complicated by any further devia- tion from the criteria instituted in state programs. For example, 0250.13(a) designates as- an ignitable waste sub* ject to these regulations any substance with a flashpoint less than 60°C (140°F) determined by a specified method. EPA should adopt a definition of hazard based upon the DOT designation of flammable substances as those with a flashpoint of less than 100°F and of combustible substances as those with a flashpoint between 100°F and 200°F. Such a definition would be consistent with existing DOT regulations and would also recognize relative degrees of hazard. As another example, both EPA and DOT establish as corrosive any substance which corrodes steel in excess of one-quar inch per year. Nevertheless, EPA has gone bevond existing DOT regulations to identify pH, in and of itself, as an indication of corrosivity. Section 250.13(b) adds an additional criterion ------- for designation of a waste as corrosive a pH of less than three or greater than twelve. The invalidity of pH as an indicator of corrosive hazard has been recognized by the Consumer Product Safety Commission and by its predecessor Bureau of Product Safety within the Food and Drug Administration in detergent toxicity surveys. Therefore, EPA should delete pH as a criterion for corrosive waste. Definition of "Other Discarded Material" The section 250.10 (b) definition of "other discarded material" includes substances or wastes that are reused, reprocessed, re- cycled or recovered/including materials treated prior to reuse. The extension of the definition to such substances is clearly not contemplated by RCRA. The legislative history .(H. Kept. No. 94-1491, Part I) states that the term "other discarded materials" is not to include reused waste. "Much industrial and agricultural waste is reclaimed or put to new use and is therefore not a part of the discarded materials disposal problem the committee addresses". (H. Kept. No. 94-1491, Part I, p.2). Materials that are reused, regardless of how, are not subject to regulation under RCRA. This inclusion of material having economic value in the term "other dis- carded material" is also inconsistent with the ordinary usage of ." the term "discarded". The proposed regulations should recognize that, by definition, a waste has no commercial or economic value, and any used substance with commercial or economic value should not be subject to these requirements. And, this recognition should incorporate a presump- tion that if a waste has inherent economic value, it will be used ------- for the purpose that will exploit that commercial or economic value. Furthermore, where the commercial or economic value of a. hazardous waste is based upon heat generation from incineration, the current definition of "other discarded material" would result in regulation of this waste under these hazardous waste regulations. This would result in making a waste incinerator used for heat generation purposes, a treatment facility subject to the design standards proposed under §3004 and the permit requirement of §3005. Such a result was not contemplated by Congress. Accordingly, the definition of "other discarded material" should be amended to clarify that reprocessed,recovered, or returned reusable chemicals do not constitute waste subject to regulation under RCRA and that treatment of wastes prior to reuse is not subject to regulation under §3004 of RCRA. Regulatory treatment under RCRA of reused, recycled, or re- processed waste should be consistent with rules under §5 of the Toxic Substances Control Act (TSCA) which recognize that exploita- tion of full potential of a- waste or end product does not consti- tute sufficient basis for regulation. For example, 40 CFR §720.13(d) a rule under 15 of TSCA, does not classify co-products as chemical substances subject to TSCA "if the only commercial purpose is for sale to municipal or private organizations who burn it as a fuel". Accordingly, waste materials burned primarily for heat recovery should not be considered "other discarded material" for purposes of disposal under §3004 regulations of RCRA. ------- Summary In summary, the proposed regulations under §3001 of RCRA \ should be amended to reflect CSIlA's major concerns, which are: 1. Identification criteria and listings to designate hazardous waste should reflect relative degrees of hazard. The regulatory system and any exemptions thereunder should incorporate relative degrees of hazard. 2. Criteria for designation as hazardous waste should be consistent with criteria under DOT hazardous materials regulations. 3. The definition of "other discarded material" should P not include wastes that are reused, reprocessed, M recycled, or recovered, including materials treated prior to reuse. CSMA appreciates this opportunity to share our views and we offer our firm commitment to- work with the Environmental Protection Agency toward development of viable hazardous waste management regulations. ------- 0 RIO BLANCO" OIL SHALE COMPANY DAYTON COMMONS 9725-E.'HAMPDEN AVENUE 7~ *--_ DENVER, COLORADO 8023T ~ -.. J303-.75T-2Q30 .. A3ENEPAL=AHTN£3SH1P :it COPPCPATICN • STANDAflO OIL COMPANv ^QiAf-JA, March 7, 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: In 43 Fed. Reg. 58946 - 59022 (Dec. 18, 1978), the U. S. Environmental Protection Agency (EPA) caused to be published certain proposed regulations under II 3001 [6921], 3002 [6922] and 3004 [6924] of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA),1 which was passed by Congress on October 21, 1976. Submission of written comments on these pro- posed regulations has been invited by EPA and are due on or before March 16, ' 1979. In response to this invitation, Rio Blanco Oil Shale Company, a general partnership comprised of Standard Oil Company (Indiana) and Gulf Oil Corporation (RBOSC), would like to take this opportunity to submit our written comments thereon for EPA's consideration. In addition, by letter under date of February 23, 1979 to Mrs. Geraldine Wyer of EPA, RBOSC has requested^ an opportunity to make an oral presentation on these proposed regulations at the Denver hearing scheduled March 7-9, 1979. A copy of this letter will be submitted as a part of that hearing record. Mr. Kent R. Olson will make RBOSC's oral presentation. Before addressing RBOSC's specific concerns, perhaps some background information on how our written comments are organized would be helpful. We have elected to treat at the outset certain fundamental legal questions which we believe affect all three of these proposed regulations. For this reason, these legal comments do not "identify the regulatory docket or notice number" as requested in EPA's invitation to comment, but they should be understood to apply to II 3001 [6921], 3002 [6922] and 3004 [6924] collectively. Thereafter, we will present our specific comments, whenever practical, in the order in which these proposed regulations appear in the Federal Register and in the chronological order in 1 Throughout these comments, the section number within the brackets following the section number of RCRA refers to the corresponding section reference in Title 42 U.S.C. 2 This request was orally granted on March 1, 1979 by Mr. Kafara of EPA. ------- Mr. John P. Lehman March 7, 1979 Page Two which they appear within each such proposed regulation. Where, for example, a comment on some feature of the proposed regulation under I 3001 [6921] would also pertain to a concern of ours on an aspect of the proposed regulation under § 3002 [6922] and/or § 3004 [6924], we will attempt to coordinate those comments and cross-reference the appropriate subsections in a manner so as to avoid any con- fusion or repetition. FUNDAMENTAL LEGAL COMMENTS 1. It is premature to presently include "mining waste" within the coverage of II 3001 [6921], 3002 [6922] and 3004 [6924] of RCRA and within any regulations promulgated thereunder.3 The definition of "solid waste" in 1 1004(27) [6903(27)] of RCRA could be read as suggesting (erroneously) that, because discarded material from "mining . . . operations" is "solid waste," such waste may be presently regulated under these three sections of RCRA. However, the legislative history of RCRA4 refutes that suggestion and makes it clear that Congress intended that any such regulatory effort must be preceded by the study, reporting and consul- tation procedures in I 8002(f) [6982(f)]. "Further, there are other aspects of the discarded ma- terials problem, namely mining wastes and sludge, that could pose significant threats to human life and the environment. Becaus'e of a lack or [sic] information, the Committee is unable to determine the hazards asso- ciated with the improper management of these wastes. The Committee has therefore directed the Environmental Protection Agency to study the sources and composition of these wastes;'the existing methods of disposal; and the potential dangers to human health and the environ- ment caused by the improper management of these wastes."^ [Emphases supplied. ] 3 Although "mining waste" is undefined in RCRA and in these proposed regulations, the traditional mining industry usage of this term, recognized even in the proposed regulations themselves, reveal that "mining waste" also includes that waste for mining-related activities, such as, for example, the processing of ores and minerals. See "other mining waste" subcategory under the category "special waste standardsT1" § 250.46-5. 4 The atypical procedural history, including the hectic final days, of this legis- lation is vividly described in KOVACS & KLUCSIK, The Mew Federal Role in Solid Waste Management: The Resource Conservation and Recovery Act of 1976, 3 COLDM. J. ENVIR. L. 205, 216-20 (1977): 5 H.R. Rep. No. 94-1491, 94th Cong. 2d Sess., 4 (1976). ------- Mr. John P. Lehman March 7, 1979 Page Three "Three areas in particular are of such a nature as to require either a special study or a special program. These three areas are: mining waste, sludge, and dis- carded automobile tires. "A thorough study of mining waste is essential because mining wastes represent 1.8 billion tons of waste a year. (The second largest waste generator by volume is agriculture at 687 million tons, industrial at 200 million tons, followed by municipal waste at 135 million tons.) The traditional theory regarding mining waste has been that it is generally inert. However, a few recent studies indicate that some mining wastes can be harmful; some particularly so when mixed with water. Other mine tailings, particularly those containing heavy metals may be inert but nonetheless toxic even in their elemental form. Committee information on the potential danger posed by mining waste is not sufficient to form the basis for legislative action at this time.For this reason, the Committee has mandated a study of mining wastes. "EPA will undertake a study of mining waste, its sources, and volumes, present disposal practices and will evaluate the potential danger to human health and environmental vitality. EPA will study surface runoff or leachate from mining wastes and air pollution by dust, as well as alternatives to current disposal methods and the costs of such alternatives . . . ."° [Emphases supplied.] "The intent is for EPA to look at all mining waste disposal practices, past and present, identify the adverse effects of such wastes on the environment, in- cluding people and property located beyond the boundary of the mine, evaluate the adequacy of thosepractices from a technical standpoint, including the adequacy of governmental regulations governing such disposal, and make recommendations for additional R&D, for improve- ment of such practices and, where appropriate, for the development and utilization of alternative means or methods of disposal that are safe and environmentally sound . . . ."/ [Emphases supplied.] 6 Id. at 15. Cf. Cong. Rec., June 30, 1976, S11092, 93. 7 H.R. Rep. No. 94-1491, supra note 5 at 97. ------- Mr. John P. Lehman March 7, 1979 Page Four Until these § 8002(f) [6982(f)] procedures are met, thereby giving to EPA the information Congress found lacking8 to reasonably and non-arbitrarily regulate that "mining waste" which is "hazardous," "mining waste" cannot be so regulated as though it were "hazardous." In considering H.R. 14496, whose pro- visions in this regard were essentially those of RCRA as finally passed, the staff of the Subcommittee on Transportation and Commerce of the House Interstate and Foreign Commerce Committee (which was the subcommittee that reviewed this bill) requested and received from EPA copies of all damage reports, totalling some 400 reports, for the express purpose of ascertaining what kinds of waste from what kinds of activities and facilities should be covered in RCRA's definition of "solid waste." Not one of these reports involved "mining waste," nor could EPA then (as it probably could not now if requested under the Freedom of Infor- mation Act) produce any information on "mining waste" for that exhaustive sub- committee staff effort. It was precisely for this lack-of-information reason that Congress mandated EPA to conduct the § 8002(f) [6982(f)] study on "mining wastes." This is not to say that EPA is precluded from finding now that specific mine wastes from a specific site are "hazardous,"9 but rather that any finding that certain mining wastes generally are "hazardous" can occur only "at some time in the future,"^ after the 3 8002(f) [6982(f)l procedures are met. By this method, Congress sought to give EPA the latitude to formulate the scientific 8 EPA apparently has found this information lacking, too. In the preamble to its proposed Subpart D regulations under § 3004 [6924] of RCRA, EPA admits that it "has very little information on the composition, charac- teristics, and the degree of hazard posed by these wastes, nor does the Agency yet have data on the effectiveness of current or potential waste management technologies or the technical or economic practicability of imposing the Subpart D standards on facilities managing such waste. "The limited information the Agency does have indicates that such waste occurs in very large volumes, that the potential hazards posed by the waste are relatively low, and that the waste generally is not amendable [sic] to •the control techniques developed in Subpart D." 43 Fed. Reg. 58991-92 (Dec. 18, 1978). 9 It is this authority of the EPA Administrator to currently list specific mine wastes, from specific mine sites, based on valid and thorough data, that the following first full sentence on page 3 of H.R. Rep. No. 94-1491 refers: "This however does not preclude any finding by the Administrator that specific mine j [not mining] wastes are hazardous wastes within the scope of this legislation" " [emphases supplied]. 10 H.R. Rep. No. 94-1491, supra note 5 at 3. ------- Mr. John P. Lehman March 7, 1979 Page Five basis and data by which "hazardous" "mining wastes" thereafter could be so regu- lated by EPA without the necessity of EPA1s having to return to Congress to obtain the requisite regulatory authority; once EPA has met these § 8002(f) [6982(f)l procedures, it then can promulgate regulations under II 3001 [6921], 3002 [6922] and 3004 [6924] for such "mining wastes" without any further legislation. With respect to RBOSC's oil shale operations relative to Federal Proto- type Oil Shale Tract C-a in Rio Blanco County, Colorado, these operations, including any generation, transportation, storage, treatment and disposal of "solid waste" and "hazardous waste" are, and have been from their inception, regulated by numerous and stringent lease stipulations^ and permits (federal and state). Moreover, such operations are closely scrutinized by the Area Oil Shale Supervisor in frequent consultation with the Oil Shale Environmental Advisory Panel. To superimpose yet another layer of regulation over these already regulated operations would be an example of the kind of situation Congress did not intend should be subject to regulations like the three proposed, unless, in implementing the § 8002(f) [6982(f)] study procedures, a regulatory "hazardous waste" hiatus in this federal prototype oil shale program was unexpectedly discovered. 2. Assuming, arguendo, that §§ 3001 [6921], 3002 [6922] and 3004 [6924] of RCRA presently are applicable to "mining waste," and that EPA may promulgate regulations thereunder, it is RBOSC's understanding that oil shale mining waste, including processed (retorted) shale, falls under the proposed "other mining waste"^ subcategory in I 250.46-5. If this, however, is not EPA's intent, RBOSC would ™ appreciate prompt notification thereof and would hereby request, without preju- dice to any of the fundamental legal comments herein, that a separate "oil shale mining waste subcategory," which would include processed (retorted) shale be created under the "special waste standards" category in § 250.46. Oil Shale development, like many other kinds of mining, includes extraction, crushing, handling, pro- cessing and transporting steps, and therefore should be treated equitably with other mining. 3. It is unclear if EPA intends to regulate overburden under the "other mining waste" subcategory in § 250.46-5 as it proposes to do for certain enumerated "mining wastes."12 if so, any such regulation would have no basis either in or in the legislative history^ thereof. The term "solid waste" is defined rn RCRA to mean only certain kinds of "discarded material."^ Therefore, unless a material is "discarded," it never is a "solid waste" under RCRA, nor can it ever 11 See Federal Tract C-a Oil Shale Lease No. C-20046, pages A-l through A-38. 12 See 43 Fed. Reg. 58951; § 250.lO(d)(2)(11)j § 250.14(b)(2); I 250.46-3(a)(l); TT50.46-4(a). 13 See_ § 1004(27) [6903(27)]. 14 See_H.R. Rep. No. 94-1491, supra note 5 at 2-3. 15 Supra note 13. Cf. § 8002(f)(l) and (6) [6982(f)(l) and (6)]. ------- Mr. John P. Lehman March 7, 1979 Page Six be a "hazardous waste" under RCRA, because the term "hazardous waste" is defined in RCRA16 to mean only certain kinds of "solid waste;" Nor can EPA's proposal to expansively redefine both the RCRA term "hazardous"waste" (by defining this term to mean not only what RCRA says it means but also "as further defined and identified in [this Subpart by EPA]"17) and the language "other discarded material" in the RCRA term "solid waste" (by incorporating a "reuse" concept18) circumvent this basic statutory definition. Normally, such overburden is stockpiled and protected for eventual return to the mine or other use. It is not "discarded." Moreover, even assuming, arguendo, that mining overburden in certain isolated instances were "discarded,1 such discarded overburden would have to meet the I 1004(5) [6903(5)] "hazardous" test in RCRA before it would come within II 3001 [6921], 3002 [6922] or 3004 [6924] of RCRA or any regulations promulgated there- under. 4. The data collection and reporting procedures proposed to be made ap- plicable to "other mining waste"19 are at variance with the § 3002(f) [6982(f)J study procedures. Those procedures require the EPA Administrator to "conduct" this study, "in consultation with the Secretary of the Interior," and, upon com- pletion thereof, to "publish a report of such study and . . . include appropriate findings and recommendations for Federal and non-Federal actions . . . . " There is no requirement in RCRA that a generator or transporter of "hazardous waste," or the owner/operator of a facility for the treatment, storage or disposal of "hazardous waste," prepare or participate in that study or that report, or collect any raw data therefor, either at the sole cost of EPA or, as EPA proposes, at the generator's, etc. sole cost. In effect, EPA proposes to force a generator, etc. to work for EPA in the preparation of this study free of charge to EPA. The cost of such forced labor to the generator, etc. will inflate the cost of mineral development. 5. EPA has failed to follow the requirement in § 3001(b) [6921(b)] of RCRA that any regulations "listing particular hazardous wastes" and "identifying the characteristics of hazardous waste" be "based on the criteria promulgated- under subsection (a) of this section."20 The legislative history clearly dis- closes that Congress had three specific reasons why this bifurcation, in kind 16 See. § 1004(5) [6903(5)]. 17 See §§ 250.11(b)(3), 250.21(b)(10), and 250.41(b)(39). 18 See 43 Fed. Reg. 58950 (Dec. 18, 1978); § 250.10(b). In this connection, your attention is invited to note 15, supra. 19 See § 250.46-5. 20 See § 250.12. ------- Mr. John P. Lehman March 7, 1979 Page Seven and chronology, of the development of criteria, on the one hand, and the iden- tification and listing of "hazardous wastes," on the other hand, was adopted.21 For example, EPA has identified the characteristics of "hazardous waste" and made them applicable to "mining waste." Yet, no criteria have been promulgated upon which such identification are supposed to be based. It would appear that EPA already has decided on such characteristics and then, after the fact, will prepare first the proposed, and then the final, criteria required by § 3001(b) [6921 (b)l of RCRA. 6. RBOSC is concerned that these proposed regulations, if promulgated as presently written, could inadvertently create a federal cause of action in tort between a "generator," etc. and third-parties, and, if so, that a violation of the standard could be negligence per se and/or the liability therefor could be absolute.'2 Present state case law and statutes adequately cover such a cause of action, and the creation of such a federal cause of action could overwhelm an already overburdened federal judiciary. Nothing in the legislative history of RCRA even suggests this was Congress1 intent. EPA's final regulations should make this crystal-clear. 7. EPA's use of "notes" throughout these proposed regulations is, at worst, legally confusing and, at best, cumbersome. It is RBOSC's understanding that thes "notes" would be a part of the final regulations and therefore on an equal legal footing with the other portions of these regulations. To avoid the potential unintended result that a court might rule otherwise, and to clean up this awkward syntactical approach, EPA should incorporate each "note" into the body of the regulation to which it pertains through the use of "unless" language or something similar, and delete the introductory-language portion of the "note." SPECIFIC COMMENTS Without waiving, abandoning or diluting any of the fundamental lega.1 comments hereinbefore, RBOSC would like to show its desire to be helpful with respect to EPA's invitation to comment by now addressing certain specific aspects of the proposed Subpart A, B and D Regulations. 21 See_H.R. Rep. No. 94-1491, supra note 5 at 25. See_also KOVACS & KLUCSIK, supra note 4 at 224. 22 Cf. 43 Fed. Reg. 58973, col. 2, lines 55-65 (Dec. 18, 1978); 1 250.43-7(1). ------- Mr. John P. Lehman March 7, 1979 Page Eight Proposed Subpart A Regulations ( I 3001 [6921] of RCRA): 1. § 250.14(b) — The "sources/process" distinction for listed "hazardous waste" is confusing. Why 1s such a distinction made? Isn't the bottom line whether a particular "solid waste" is or is not "hazardous," regardless of whether it comes from a "source" or a "process"? Proposed Subpart B Regulations ( I 3002 [6922] of RCRA): In general, RBOSC finds these proposed regulations well-written and balanced, and we would like to compliment EPA on a fine job. Our specific com- ments are as follow: 1. Reference is made on page 58972, column 1, to the obligation of the "generator" to report to EPA if it fails to receive a copy of the manifest "within 30 days." Presumably, this relates to the requirement in § 250.43-5(a)(2), page 59003. But how does a "generator" know what this 30-day period is and when it expires? 2. § 250.20(c)(l) — Similarly, how is a "generator" to know if a "per- 4 mitted hazardous waste management facility" really is permitted? By asking that facility? 3. A "generator's" obligation to principally shoulder the operation of this manifest system should not be expanded into the area of enforcement by EPA's adopting the four options under consideration which are described on page 58973. column 3, especially those in the fourth option, quoted immediately hereinafter: "(4) Requiring, that a generator who has not received the original manifest from the facility designated on the manifest within 35 days after the date of shipment, or who determines that the returned manifest is incon- sistent with the original manifest, must: "(a) Take all actions necessary to determine the cause of non-receipt or inconsistency; "(b) Assure that all steps are being taken to locate and receive the manifest and to assure that the waste is properly disposed of; "(c) If he has been unable to accomplish his require- ments under (a) and (b) above, within 30 days, the gene- rator must prepare and submit a report to the Regional Administrator. This report must be submitted within 65 days after the date of shipment, and must contain the information required in § 250.23(c) except (2). In 4 ------- Mr. John P. Lehman March 7, 1979 Page Nine addition, this report must include: "1. The name, address and identification code of the designated facility; "2. The actions which have been or will be taken by the generator to determine the reason the original mani- fest was not returned; "3. The results of the generator's investigation, including any and all information involving the ship- ment and cause of non-receipt; and "4. The identity of all parties who may be respon- sible for the non-receipt of the manifest." It is one matter for a "generator to be required to reasonably keep records and report to EPA, and quite another matter for a "generator" to be compelled to work for free as a policeman for EPA. In this connection, please see also the last sentence in § 250.43-5(a)(4). 4. § 250.20(c)(2) — Storage of a "hazardous waste" by a "generator" for more than 90 days should not necessarily mean that that "generator" is an "owner/ operator of a facility for the storage of hazardous waste" under §1 3004 [6924] and 3005 [6925] of RCRA and thus subject to all of the Subpart D and E Regulations. In this connection, please see also I 250.41(b)(83). Some flexibility should be injected into this absolute "90-day standard," especially in view of the far- reaching implications of one's being subjected to the sweeping Subpart B, D and E Regulations if this "90-day standard" is absolute, instead of only the Subpart B Regulations. Proposed Subpart D Regulations .( § 3004 [6924] of RCRA): 1. The following four comments pertain to the § 250.41(b) definitions: (a) "contamination" (19) — To define this term solely as a "degradation" is vague, overly broad and simplistic. (b) "fugitive dust" (36) — For consistency, this term should be de- fined identically to the definition thereof in EPA's PSD Regulations and in EPA's "Emission Offset Interpretative Ruling." (c) "hazardous waste facility personnel" (40) — This term is defined, in part, as those persons "whose actions or failure to act may result in damage to human health or the environment" [emphasis supplied]. This "damage" standard is vague, overly broad, and ignores the definition ofhazardous waste" in RCRA, which uses the qualifying language, inter alia, "significantly," "serious" and "substantial." ------- Mr. John P. Lehman March 7, 1979 Page Ten (d) It would be helpful If § 250.41(b) included a definition of "land- fill" (cf. definition of "surface impoundment" (85) ). 2. § 250.43(f) — RBOSC fails to see any reason for determining in detail what the chemical or physical properties of any waste rock might be, because the only change in the waste rock from its natural state is its location. 3. § 250.43-1 — With respect to this "general site selection" requirement,23 it should be recognized that, unlike most sited facilities, a mineral developer does not have much, if any, flexibility in "selecting" a site. It is difficult enough to find a commercial ore body; the "selection" of the site follows the "find," not vice-versa. These standards should reflect this reality. Also, the term "new sources" should be very carefully defined and should exclude all mining activities currently in existence and any expansion of such existing activities. 4. § 250.43-2(a) — The requirement herein for a "2 meter (6 foot) fence completely surrounding the active portion of the facility capable of preventing the unknowing and/or unauthorized entry of persons and domestic livestock" or "a natural or artificial barrier" equivalent thereto24 is unrealistic. Flexibility should be provided for those mining sites which are remote and isolated, which is usually the case. Is it EPA's Intent that this fence be constructed to "float," i_.e_., to move with the "active portion of the facility" as mining progresses? If so, this will greatly inflate mining costs. 5. § 250.43-6(a) — RBOSC fails to see the need for a detailed daily in- spection of materials which EPA lists or requires to be characterized as "mining wastes."25 Most mines are in operation seven days a week, 24 hours per day, so the "facility" is in use. In the semi-arid regions of the West, frequent inspections during the rainier months might prove to be desirable, but daily visual inspections are unnecessary. 6. § 250.43-7(b) — An "operator" is without any legal right to insert such a covenant in an "owner's" deed.2° 23 This requirement is made applicable to "other mining waste" by § 250.46-5. 24 Id. 25 _Id_. 26 Id. ------- Mr. John P. Lehman March 7, 1979 Page Eleven 7. § 250.43-8(a) Note — This proposed regulation properly recognizes that there may be times when the rigorous requirements of I 250.43-8(a) are unnecessary to ensure groundwater is being properly protected. However, the Note provides relief only where there is no potential for a discharge to groundwater. If there is not such potential, no monitoring is necessary. The provision for a lesser degree of monitoring should apply when there is a low potential for contamination. RBOSC suggests the addition of the words "little or" after the word "indicate" at the end of line 7 of the Note. 8. § 25Q.43-8(c) — This requirement would entail much unnecessary work and expense.^ Section 250.43(f) requires a detailed analysis of the waste to be treated, stored or disposed of. It seems unreasonable to require such compre- hensive constituent data on groundwater background when the possible pollutants may be only certain items. It would appear to be more useful to require a background determination only on those constituents that have caused the wastes in question to be classified "hazardous." Certainly the determination of the long laundry-list of interim primary and proposed secondary drinking water stan- dards for dirt and rock that is merely being relocated will generate a lot of data that will be of little or no value. 9. § 250.43-8(c)(4) — RBOSC would recommend that a different identification^ of "a statistically significant amount" be utilized.28 The student's T single- ™ tailed test at the 95% confidence level is too restrictive. Very minute fluc- tuations in baseline levels not attributable to the facility would be encompassed by this level of significance. Orcfconsideration which makes the T-test inappro- priate here is that to use a T-test", it has to be assumed that the mean background level is constant over time so that all of the variation in sampling for the back- ground level comes from special variation, because otherwise there would not be independent sampling. This is-particularly severe because the proposed rules require three monthly samples to establish the background levels. This is much too short a time period to determine sampling error where there are seasonal variations, no matter how the data is analyzed. Another problem with the method here is that the confidence level of 95% is too low. Even assuming there were independent samples and that there was no change from the background levels after the facility went into operation, Type I error would occur 5% of the time. In other words, because there are six measurements to be made quarterly and an ad- ditional six to be made annually, it would be expected that about once or twice a year there would be a significant result and the provisions of this subsection would go into effect, including the requirement in (c)(4)(iii) that the "facility" discontinue operation until the EPA Regional Administrator determines what actions are to be taken. 27 Id. 28 Id. ------- Mr. John P. Lehman March 7, 1979 Page Twelve 10. § 250.43-8(c)(4)(iii) — The "owner/operator" should not be required to indefinitely ("until the Regional Administrator determines what actions are to be taken") shut down the "facility" without due process, e_.£., a hearing, unless an emergency situation exists.29 11. Although the "trust fund" financial security concept for closure and post-closure of a "facility" in § 250.43-9 is not proposed to be made applicable to "other mining waste" by § 250.46-5, RBOSC would respectfully offer the following comments on this "trust fund" concept in case EPA finds them helpful: (a) An "owner/operator" should be given the option of posting a surety bond. EPA's fear that no one would qualify for such a bond30 is unfounded. If an "owner/operator" can qualify therefor, the proof is in the pudding; if not, then the "trust fund" concept should kick in. EPA's further fear that surety bonds are subject to year-to-year renewal and therefore are insecure3* can be overcome by requiring that such a surety bond provide for no cancellation with- out 30 days' prior written notice to EPA. Following receipt of any such cancel- lation notice by EPA, the "owner/operator" would have to comply with the "trust fund" concept. (b) Re post-closure security, no funds should be released to EPA upon notice of a violation, as provided in 3 250.43-9(a)(2)(ii); due process, e_.£., a hearing, first must be afforded the "owner/operator."32 (c) Provision for a 2% annual inflation factor in calculating the amount of both the closure and post-closure "trust funds" is unrealistic. It is note- worthy that EPA, relative to re-evaluating the adequacy of the amount in these "trust funds" would require a bi-annual evaluation.33 The annual inflation fac- tor should be tied to an escalator, realistic at the outset and adjusted bi-annually based on the actual inflation rate. RBOSC appreciates this opportunity to submit these written comments to EPA, and we hope that EPA will give them its most serious consideration. Very truly yours, R. M. Lieber Executive Vice President KROrgr 29 See_ Virginia Surface Mining & Reclamation Ass'n Inc. v. Andrus, Civil Action No. 78-0244-8 (W.D.Va., Feb. 14, 1979). This requirement may be made applicable to "other mining waste" by I 250.46-5. | 30 See 43 Fed. Reg. 58986 (Dec. 18, 1978). 31 Id. 32 In this connection, please see the case cited in note 29, supra. 33 See 43 Fed. Reg. 58988 (Dec. 18, 1978). ------- RITA E. EWING ENVIRONMENTAL SUPERVISOR ENVIRONMENTAL QUALITY DEPARTMENT UTAH INTERNATIONAL INC. 550 CALIFORNIA STREET SAN FRANCISCO, CALIFORNIA 94104 before THE U.S. ENVIRONMENTAL PROTECTION AGENCY In conjunction with HAZARDOUS WASTE PROPOSED GUIDELINES AND REGULATIONS and PROPOSAL ON IDENTIFICATION AND LISTING MARCH 7, 1979 DENVER, COLORADO ------- My name is Rita E. Ewing. I am an Environmental Supervisor at ^ Utah International Inc., whose headquarters are located in San Francisco, California. Thank you for the opportunity to appear before you today. Utah International Inc. is an >ntiagnaticnaL mining company with surface mining operations in the western United States. We shall be submitting written technical contributions addressing the Proposed Hazardous Waste Guidelines and Regulations. Today we would like to offer our general comments, giving a few specific examples relating to the proposed regulations. Before beginning our comments, we would like to express our appreciation to EPA for the tone and format which the Agency has offered in soliciting constructive public comment. We fully support the premise that the disposal of hazardous waste is a crucial environmental and health problem that, if regulated, must be regulated by a sound and balanced program. We hope the following comments will assist in formulating the most desirable strategy for phasing implementation of the Resource Conservation and Recovery Act of 1976. ------- -2- Our comments today address the following issues: Subpart A - Identification and Listing of Hazardous Wastes 1. Extraction Procedure 2. Definition of a Toxic Waste 3. Uranium Mining Waste Rock and Overburden Subpart B - Standards Applicable to Generators of Hazardous Waste 1. Conditional Exclusion Based on Volume of Waste Produced per Month. 2. Alternative Means of Regulating Small Quantities of Wastes Subpart D - Standards Applicable to Treatment. Storage and Disposal Facilities 1. "Notes" Category for Standard Deviation 2. Duplication in the Regulation of Mining Wastes 3. Conflict between Regulations 4. Assurance of Post-Closure Costs t A recurring theme in our comments is the need for standards based on the degree of hazard which depends on the characteristics of specific wastes and the environment in which they are deposited. ------- -3- Subpart A - Identification and Listing of Hazardous Wastes 1. Extraction Procedure The legislative history of the Resource Conservation and Recovery Act of 1976 makes it evident that EPA is responsible for determining and listing all hazardous wastes using cri- teria developed by EPA (see e.g., H. Report 94-1491,pp5,25). While in some cases it may be appropriate to require industry to determine which wastes are hazardous according to EPA cri- teria, we feel that industry should also be afforded the flexibility to use alternative tests, methodologies and tech- niques which, in fact, may be more appropriate for a particu- lar waste and also meet the EPA criteria. We cite the "Extraction Procedure" specified in 250.13 (d)(2) as an example. This Procedure has been designed to "model" improper management by simulating the leaching action of rain and groundwater in the acidic environment present in open dumps and landfills. However, this "model" just does not reflect all possible conditions, circumstances or processes. Mining wastes, for example, are usually disposed of without the mix of non-mining wastes as in the case of public land- fills. In fact some mining operations have alkaline rather than acidic wastes. Therefore, the flexibility of allowing alternative tests should be included in the regulation. 2. Definition of a Toxic Waste The proposed identification criteria define a broad array of materials as hazardous based upon reactivity, ignitability, toxicity and corrosivity. These various "hazardous sub- stances" are all subject to the same performance standards. However, some of the identification, design and operating standards as presently drafted are based on certain assump- tions and specific conditions which are not necessarily uni- versal for all kinds of hazardous wastes and disposal envi- ronments . For example, a waste is defined as toxic and therefore haz- ardous if application of the specified Extraction Procedure to a representative sample of the waste yields an extract having concentrations of contaminants that exceed ten times the National Interim Primary Drinking Water Standards for those particular substances. The attenuation factor of 10 is qualified in the preamble as being based upon the assump- tion that the waste is in a "nonsecure landfill' located over ------- -4- a fresh water aquifer and that a pumping well is located 500 feet down gradient. These assumptions may not, in fact, be correct or appropriate for analysing other disposal circum- stances. Therefore, we recommend that the identification procedures and performance standards be made specific to the waste and the disposal environment. 3. Uranium Mining Overburden The procedure under which uranium mine waste is regulated as a hazardous waste needs clarification. At present, waste rock and overburden from uranium mines are listed as hazard- ous because of inherent radioactivity. A "non-hazardous" classification can only be attained if tests show that a representative sample has an average concentration of less than 5 picoCuries per gram. We believe that a judgement of the allowable measure of radioactivity based on a single radium concentration value is questionable, because overburden characteristics such as density, moisture content, particle size and soil type all effect the amount of radon emanation and the gamma dose generated by uranium mining waste. These factors must be ^ considered in forecasting the degree of radiation hazard. The Nuclear Regulatory Commission recently made this same observation in the issued Branch Position paper entitled, "Interim Land Cleanup Criteria for Decommissioning Uranium Mill Sites." The paper states, and I quote, "The interrela- tionship between radium 226 soil concentrations, radon 222 flux and gamma dose rates is a complex function of many fac- tors ... therefore , since no simple numerical criteria in terms of radium 226 concentrations in soil is applicable, no at- tempt has been made to express criteria directly in terms of radium 226." EPA also makes this same observation in the background docu- ment for radioactive waste. Your agency states that the re- lationship between soil radium concentrations and the result- ing radiation levels observed in Florida phosphate lands (on which the 5 picoCuries per gram criterion was based) "may not", and I quote, "be representative of radium/indoor radon progeny relationships in a more extensive sample obtained from a wide geographic area." I might add that the preamble (p. 58950) states and I quote, "EPA proposes to rely only on consideration of the first four | characteristics because those are the only ones for which the ------- -5- Agency confidently believes test protocols are available." Radioactivity is not one of these; therefore, we would argue that the radiation criterion as proposed is inappropriate. We recommend that radon flux and gamma dose be designated as the limiting factors in setting the radiation standard to circumvent the proven difficulties of relating radium concen- tration to actual radon and gamma levels. Subpart B - Standards Applicable to Generators of Hazardous Waste 1. Conditional Exclusion Based on Volume of Waste Produced We feel that determination of conditional exclusion on the basis of waste volume produced should be replaced by a more scientific determination based on the characteristics of the specific substance, and the conditions under which those sub- stances will be disposed. A broad range of wastes have been identified as hazardous, and within this category, toxic potentials vary widely. We believe that the amount of toxic waste that can be disposed of legally should be determined on the basis of the level of hazard inherent in a specific waste. Further, the site for waste disposal should also be considered in determining ap- propriate levels. For example, one hundred kilograms per month of a specific substance may be -an appropriate limit in an industrial met- ropolis where thousands of industrial facilities may cumula- tively affect the same hydrologic and air quality systems. However, the effect of disposing of that same one hundred kilograms might be minimal and insignificant in a more -re- mote, less industrialized area that does not have to accom- modate large amounts of hazardous wastes. Further, the degrees of danger involved in disposing of 100 kilograms of waste oil per month is very different from the danger inherent in disposing of the same amount of PCB's per month. We recommend that the regulations be altered to reflect both site-specific and waste-specific conditions. Moreover, we feel that the individual states have a better idea of local tolerances and that each state should be given the flexi- bility to administer and enforce a hazardous waste disposal ------- -6- program that not only meets the environmental intent of RCRA but also considers the economic impact on the specific dis- posal site . 2. Alternatives Addressing Regulation of Small Quantities of Hazardous Waste In response to your invitation for comment on the six alter- natives, addressing small quantities of hazardous waste, we propose a combination of alternatives three and four, which would provide for: Unconditional Federal exemption for small quantities of hazardous wastes, Cutoff quantities based on degrees of hazard, . State responsibility for regulation of exempted waste groups under the approved state plan and regulatory pro- gram under Subtitle D o-£ RCRA. Subpart D - Standards Applicable to Treatment, Disposal Facilities Storage and 1. "Notes" Category for Strandard Deviation In the preamble, EPA admits that very specific requirements "might" discourage the development of new technologies or that different design and operating requirements might be necessary for a. particular facility which is disposing of only one kind of waste". * Recognizing this problem, EPA has offered the "Notes" cate- gory to allow for standard deviation. We find this approach unsatisfactory. Although a note may have the same degree of legal significance as the regulation it follows, the practi- cal effect is to subordinate the note to the regulation. A clearer procedure would be to incorporate the body of the note into the standard qualified by the word "unless". A specific example demonstrating this suggestion (as it relates to 250.43-l(g)) will be provided in our written comments. ------- -7- 2. Duplication in the Regulation of Mining Waste The tone and format of the EPA invitation for comment imply that EPA agrees with industry's sense of operating in an en- vironment of over-regulation. EPA appears to be seeking to remedy this situation, but we feel that the guidelines and regulations may actually have the effect of compounding the over-regulation problem. The guidelines and regulations as proposed require mine and mill operators to obtain hazardous waste disposal permits for certain mine wastes, including overburden in the cases of uranium and phosphate mining. The permits would be condi- tioned by compliance with EPA's proposed "Standards for Owner and Operators of Hazardous Waste Treatment, Storage and Dis- posal Facilities." In the case of coal mining activities, some of the require- ments duplicate the Surface Mine Control and Reclamation Act regulations administered by the Department of Interior. Dup- lication of regulations and thus of industry permit applica- tions also exist because several states already have reclama- tion programs that adequately address the disposal of all mining wastes, toxic or otherwise. In fact, some state laws require that open pits be backfilled by returning overburden to the pits and this may not be acceptable under RCRA. We believe that additional regulation in this area by RCRA is a duplication of effort. Additional regulation will cause more work for both the public sector and the private sector, perhaps without substantive benefit to either. Thus, we urge EPA to function as'.a coordinator among the Department of the Interior and the various states to avoid this duplication with other regulations. 3. Inconsistency with Other Regulations In addition to the problem of duplication of regulations, there is also inconsistency and conflict between the proposed regulation and other existing regulations. Sections 250.43 (c), 250.44-1, -2 and 25.45 - 3(d) (2), for example, specify a 24 hour-25 year design storm, which con- flicts with the 24 hour-10 year storm required by the Clean Water Act regulations (40 CFR, Subchapter N, Effluent Guidelines and Standards). As a result, an approved treat- ment pond designed pursuant to an NPDES permit would still be in non-compliance with the hazardous waste regulation. This kind of inconsistency should be avoided. ------- -8- 4. Assurance of Post-Closure Costs We would be remiss without mentioning the necessity for a provision to allow for the assurance of post-closure costs by alternative means such as the use of surety bond guaranties. Although eligibility for surety bonds is often regulated stringently, and is thus limiting to many owners and opera- tors, we believe that owners and operators who can obtain bonding should not be handicapped by a provision that assumes bonding will not be available. In reality, the availability of insurance covering "non-sudden and accidental occur- rences", as required by regulation', is equally difficult to obtain. Although we recognize that the responsibility of developing a viable insurance market does not rest with EPA, inherent in the proposed regulations is the requirement that owners and operators obtain "non-sudden and accidental" insurance poli- cies which are very difficult, if not impossible, for most owners and operators to acquire. It would therefore be ex- tremely helpful as we attempt to comply with the regulation if insurance companies, through government encouragement, were educated on the positive cost/benefit ratio of providing this coverage on a less restricted basis. In summarizing our general comments today, we urge the EPA to be more specific in addressing the hazardous levels of specific wastes and factor into your regulations consideration for the disposal site. We urge you to function as the coordinator among Federal Departments and State agencies to achieve a Hazardous Waste program that does not duplicate other regulations and re- sult in more work for both the private and the public sector. We urge you to create regulations appropriate for the environmental goals you are trying to achieve, and regulations that are appro- priate for the substances addressed and feasible for the com- panies that must work with the regulations to dispose of hazard- ous wastes. We again refer you to our technical written comments, and we thank you for the opportunity to assist you in the formulation of these regulations. ------- WHITE RIVER SHALE PROJECT 1315 WEST HIGHWAY 40 VERNAL, UTAH 84078 {301) 739-0571 March 5, 1979 Mr. John P. Lehman Director Hazardous Waste Management Division Office of Solid Waste (WH-555) U. S. Environmental Protection Agency 401 M Street SW Washington, D. C. 20460 Re: Hazardous Waste Guidelines and Regulations; Proposed Rules Under Sections 3001, 3002 and 3004 of the Solid Waste Disposal Act as Amended by the Resource Conservation and Recovery Act of 1976 Dear Mr. Lehman: The purpose of this letter is to transmit our comments concerning the subject proposed rules as published in the 43 FR-58946 on December 18, 1978. Our review has shown that the proposed rules pose a severe potential impact on our planned shale oil production operations. By way of background, the White River Shale Project (WRSP) is a joint venture of Phillips Petroleum Company, Sohio Natural Resources Company and Sunoco Energy Development Company. WRSP .was formed by these companies in order to develop two Federal oil shale leases located in Utah. No processing opera- tions are currently occurring on the leases. But plans have been prepared for the construction and operation of a 100,000 barrel-per-day commercial shale oil production facility. Such a facility would require the under- ground mining, crushing and processing of 160,000 tons per day of oil shale rock. Processing the rock involves heating the crushed material to over 930°F in some type of equipment. At this temperature most of the organic material in the rock separates from the inorganic matrix and is recovered. The rock, holding much less organic material than before, will then be discharged for ultimate disposal. About 129,000 tons-per-day of processed shale rock will need to be disposed of under WRSP's planned 100,000 barrel- per-day shale oil production rate.- This processed shale will be disposed of above ground on WRSP leases near the shale oil production facility.' The processed shale, in our opinion, constitutes a low risk nonhazardous waste, the disposal of which can be adequately handled under existing and proposed mine waste disposal regulations. ------- Mr. John P. Lehman -2- March 5, 1979 However, the proposed Subpart A regulations under Section 3001 "identification and listing of hazardous wastes" could erroneously show processed shale to exhibit a hazardous waste characteristic. This characteristic is "toxicity" as established by the proposed "extraction procedure" for determining leachate concentrations of several contaminants. The fundamental problem with the extraction procedure is that it assumes an acidic environment in the waste pile. As noted in the preamble: "The EP (extraction procedure) that is included in the proposed rulemaking has been designed to 'model' improper management by simulating the leaching action of rain and groundwater in the acidic environment present in landfills or open dumps." We recognize that some screening mechanism is necessary. But we have a real concern with the acidic assumption, since processed shale, or raw shale for that matter, produces alkaline leachate waters. This is important because the Teachability of the contaminants of interest are generally affected by the pH. A report distributed by Region 8 of the Environmental Protection Agency in May 1977 entitled "Trace Elements Associated with Oil Shale and Its Processing" discussed the Teachability of several trace elements. .The report noted that data showed Selenium, MoTybdenum, Boron and FTuoride are present in processed shaTe in onTy partialTy soTubTe forms. This' is primarily because these materials can form water soTubTe anionic species under alkaline conditions (e.g., SeQ4% Mo4=, 603*3, F~). In contrast, Cadmium, Arsenic, Chromium, Copper, Zinc and Iron are present in essentially insoluble forms. This is so because, except for Arsenic, these elements form insoluble hydroxides, oxides, or sulfides. It is generally understood that as the alkalinity of the Teachate as produced by processed shaTe materials increase, most metals exist in less soTubTe forms. It shouTd aTso be recognized that the oil shale rock is a common material found in Utah and Colorado. Nature is eroding oil shale formations continuously. It is important, in our opinion, to recognize the similarities in quality between the Teachate from a processed shale pile and the leachate or runoff produced from natural dissolution of the extensive parent rock formations around the disposal area. It would be unreasonable, in our opinion, to severely regulate a processed shale disposal site when natural deposition of simiTar materials is occurring on a large scale all around the site. For these reasons we take strong exception to the use of the extraction procedure as proposed in Part 250, Subpart A, 250.13 (d), for determining whether processed shale exhibits a hazardous waste characteristic. Further to this concern of ours, we note that EPA feels a quantitatively stringent extraction procedure "is necessary, because only waste designated as hazardous is subject to transport controls as well as disposal controls." Apparently, EPA desires to be conservative in identifying and regulating ------- Mr. John P. Lehman -3- March 5, 1979 hazardous waste sources so as to prevent serious accidents during transport even though ultimate disposal could be adequately regulated for some "hazardous" wastes under Subtitle D of RCRA, Section 4004. In this regard we would like to point out that processed shale will not be transported far. Handling costs are too great. In the case of WRSP, for example, the material will be disposed of near the oil production facility on WRSP leases. So a stringent extraction procedure is not required in the interest of getting processed shale under the "hazardous" waste umbrella for the purpose of insuring the rock reaches a disposal site safely. It seems advisable for the EPA to build more flexibility into the toxicity hazardous waste characteristic test. We suggest EPA consider providing for alternate tests that can be shown to more closely duplicate the actual disposal conditions expected. At this time we have no specific comments regarding Part 250, Subpart B, regarding proposed regulations pursuant to Section 3002 (Standards Applicable to Generators of Hazardous Wastes). However, our review of Part 250, Subpart D, pursuant to Section 3004 (Standards Applicable to Owners and Operators of Hazardous Waste Treatment, Storage and Disposal Facilities) did result in some comments. First, if processed shale were to be classified as a toeardous waste, we assume it would be handled as some type of special waste, and more specifically some type of an "other mining waste" as described in £250.46-5. It would seem that a unique classification comprised of a modified "special other mining wastes" type would be advisable. We understand that rulemaking concerning treatment, storage and disposal of special wastes will be developed in the future. We very much want to have the chance to participate in this development. We fully expect processed shale to not be considered as a hazardous material. This should occur if the "toxicity characteristic" is evaluated using a realistic procedure that recognizes processed shale's alkaline nature and the continuously occurring natural decomposition of shale rock in the disposal area vicinity. The disposal of processed shale should be adequately con- trolled by applicable regulations for disposal of nonhazardous wastes and State mining waste handling regulations. We appreciate your consideration of our comments. Sincerely, Rees C. Madsen Manager RCM/nh ------- The following is the text of an oral presentation made at the public hearing held March 7-9 in Denver, Colorado, on the Hazardous Waste Guidelines, Proposed Rules, as amended by the Resource Conservation and Recovery Act of 1976, P.L. 94-580, Oct. 21, 1976. The presentation was made by: R. N. Heistand, Vice President Development Engineering, Inc. Box A, Anvil Points Rifle, CO 81650 Development Engineering, Inc. (DEI) is a subsidiary of Paraho Development Corporation. Since 1973, DEI has been engaged in oil shale retorting research at the Anvil Points Oil Shale Research Facility. This research has proved the operability of the Paraho retort and has produced 100,000 barrels of crude shale oil for refining into fuels for further testing and research. The next step in the development of the Paraho technology is the construction and operation of a module which could produce 6,000 barrels of shale oil per day. During the past five years of research and production, many retorted shale studies have been directed towards the evaluation of its chemical and physical properties and the assessment of disposal techniques. DEI has been directly involved in many of these studies and has cooperated with many researchers and investigators working under contract with the EPA and other government agencies (see References). Our comments expressed in this letter are based on our experience and knowledge of Paraho retorted shale properties and the geography of the Colorado-Wyoming-Utah shale country and the data obtained from studies of the Paraho operations at Anvil Points. ------- (A) The proposed extraction procedure (EP) outlined -LU o<=v. w.i_~.. _ (P 250.13) used distilled water maintained to pH = 5.0 +_ 0.2. This criterion is unrealistic for oil shale operations in Western U.S. First, the pH of various ground and surface waters range from 7.5 to 8.1. Second, the leachate from vegetation lysimeters using Paraho retorted shale and Colorado River water and from laboratory studies ranged from pH = 6.5 to 11.6. (B) Retorted shale, as produced by the Paraho operations, is not a hazardous waste. It does not appear in lists presented in P 250.14 of the proposed regulations. Paraho retorted shale does not have the characteristics of a hazardous waste as identified in P 250.13 of the proposed regulations. (P 250.13a) Paraho retorted shale is not an ignitable waste. No autoignition potential was noted. During a one-year monitoring program, temperatures within a compacted shale disposal site ranged from 45°F to 85°F. (P 250.13b) Paraho retorted shale is not a corrosive waste. The pH leachates, obtained under three sets of conditions, ranged from 6.5 - 11.60. These data meet EPA proposed specifications. (P 250.13c) Paraho retorted shale is not a reactive waste. It is not normally unstable jior capable of detonation. Under normal conditions of handling, compaction, and contact with air and water, it is an inert material. As noted previously, it is an inert material under normal temperatures and pressures. (P 250.13d) Paraho retorted shale is not a toxic waste. Available data from lysimeter leachates show that Paraho retorted shale meets the proposed EPA Toxic Waste Standards. Most of these data even meet the more restrictive Primary Drinking Water Standards. Although the natural pH of these leachates was about pH = 11, leachates from succeeding seasons from these lysimeters have pH = 5 and even lower concentrations of the toxic metals than those shown. More evidence that Paraho retorted shale is not a toxic waste is found in its chemical composition. Assuming 100% solubilization under the proposed EPA extraction procedure for hazardous wastes, cadmium, mercury, and silver would meet the proposed EPA Toxic Waste Standards. Since the listed chlorinated hydrocarbons are not naturally- occurring substances and are not used in the Paraho retorting process, they are not present in Paraho retorted shale. ------- The foregoing comments are based on research results and experience gained by DEI during the Paraho oil shale operations conducted at Anvil Points. Because Paraho retorted shale is not classified as a hazardous waste under the proposed regulations, we reserve comments on Subparts B-G of the proposed regulation. Should there be any substantive changes or additions to the proposed regulations, we would like to be informed so that we could make comments at that time. ------- REFERENCES Woodward-Clyde Associates, "Disposal of Retorted Shale from the Paraho Oil Shale Project", USBM J0255004, Dec. 1976. Colorado State University, "Vegetative Stabilisation of Paraho Spent Oil Shales, Lysimeter Studies 1976-1977", EPA R803788-03, April 1978. Battelle Pacific Northwest Laboratory, "Paraho Semi-Works Retort Preliminary Data for Samples Collected August and November 1977", ERDA EY-C-06-1830, July 1978. Commercial Testing & Equipment Analysis, reported in "Environmental Evaluations, Paraho Operations", DoE ET-77-C-03-1767, September 1978. TRW Systems, Inc., "Sampling and Analysis Research Program at the Paraho Shale Oil Demonstration", EPA 600/7-78-065, April 1978 4 ------- TEXACO STATEMENT TO EPA PUBLIC HEARING ON SOLID WASTE ACT REGULATIONS MARCH 7, 1979 BY DR. JOHN E. TESSIERI I am John E. Tessieri, Texaco Inc's Vice President of Research, Environment, and Safety. Texaco appreciates this opportunity to comment on the regulations being proposed by EPA for the Resource Conservation and Recovery Act. Texaco personnel have participated with the American Petroleum Institute in the review of early drafts of these regulations and I would like to commend the EPA staff with whom we have worked for their cooperative attitude and their willingness to listen to our suggestions. Many of our suggestions have already been incorporated into these proposed regulations to make them adaptable to the needs of our industry. This encourages us to believe that you will view our input during this comment period with the same positive attitude you have shown in the past. Texaco is preparing detailed written comments which will be presented,before the March 16 deadline, so I will not cover those details today. Instead, I would like to limit my comments to only one issue. This issue has been raised by many others and we believe it to be of prime importance, and to be fundamental to almost every detailed point about which we are concerned. The issue I want to address here has to do with DEGREE OF HAZARD. That is, we must find a mechanism by which we can apply a control-technology that is appropriate for the particular class of waste being managed and its potential hazard to the environment. Otherwise, there will be a devastating effect on our industry's ability to produce needed energy and on our nationwide inflation problems with- out producing a significant environmental protection benefit, Texaco agrees with and wholeheartedly endorses the philosophy that extremely hazardous wastes should be controlled in a very strict manner. We have little argument with the basic approach presented in these proposed regulations for that type of waste. But we cannot endorse the application of the same degree of control as would be used to manage a dioxin, PCS, or similar highly toxic material to a waste which fails the criteria test simply because of the presence, for example, of a minor amount of one of the drinking-water-standard metallic species. ------- Thus, the proposed acidic extraction classification criteria based upon the philosophy of possible mismanagement in a municipal waste disposal system^ has no place in many in- dustrial waste disposal situations. For instance, for ex- ploration operations in remote areas there is no possibility that drilling wastes will be disposed of in a municipal landfill, thus the criteria which applies an acidic extraction test because municipal landfills are acidic is totally inap- propriate. In a similar manner, on-site disposal at refineries never involves municipal wastes so the acidic extraction is again applying an inappropriate test of potential hazard. As a result of this type of classification criteria we find that a vast range of our operations will, inappropriately, require full compliance with these regulations as though we were handling highly toxic wastes. Our industry is studying the impact of these proposed reg- ulations. The first results of those studies will be pre- sented to these hearings by the American Petroleum Institute spokesman so I will not repeat those details, but I would like to reiterate the basic conclusions. Those studies indicate that the cost for our industry alone to comply with RCRA regulations will be several orders of magnitude higher than EPA's estimate for the total cost of the 17 industries EPA studied. One impact of this cost burden would be against many stripper wells which could not afford the cost of pit lining and cash deposits for closure. (Average stripper well production was 2.9 barrels^ per day in 1977.) This could mean a loss of as much as 1 million barrels per day of crude production, over 12 percent of our 1977 domestic production. Many shallow exploratory and development wells would not be drilled should the costs of pit lining, monitoring, and closure be added to marginal profitability parameters. Yet, these wells contribute significantly to industry's effort to arrest the annual decline in domestic production. Also, the committment of large amounts of capital in cash funds will seriously affect the ability of other segments of the indus- try to meet the country's energy needs. The most significant point here, however, is that these losses of energy resources would be caused by the fact that wastes of extremely low potential hazard have to be handled with the same strict methods as the most hazardous waste, while in fact, the potential damage to health and the en- vironment in these cases is insignificant. We recognize that the "note" mechanism written into the regulations allows for modifications to the requirements on ------- -3- a case-by-case basis, but we feel that the effort required for the demonstrations to convince the administrator that no hazard exists is in itself in many cases a wasteful burden. We disagree with EPA's position that this issue of degree of hazard is too complex to be handled. You have yourself taken a first step in that direction by establishing the "Special Wastes" category in the proposed regulations. There are several other possible approaches available. We direct your attention to the several states which are incorporating degree of hazard in their classification criteria. We endorse the categorization scheme being proposed by the American Petroleum Institute. We also suggest that a type- of-industry categorization similar to that used in the water regulations could be applied to provide appropriate disposal technology for each level of hazardous waste. Consideration of the degree of hazard will provide the ad- ditional benefit of reducing the initial regulatory load with which EPA will be faced as the regulations take effect. This will allow a more adequate coverage of the extremely hazard- ous waste disposal problems and will provide time for EPA to give further consideration to approaches for managing the less serious wastes. I thank you for your attention and trust that you will seriously consider this issue and work to provide a sound approach so that efforts may be applied to the most serious problems without needlessly expending resources on programs which provide little health or environmental benefit. ------- STATEMENT OF PHILIP W. MORTON COORDINATOR, ENVIRONMENTAL AFFAIRS, GULF MINERAL RESOURCES CO., A DIVISION OF GULF OIL CORPORATION CONCERNING REGULATION 40 CFR PART 250, SUBPART A PROPOSED ON DECEMBER 13, 1978, UNDER AUTHORITY SECTION 3001, RESOURCE CONSERVATION & RECOVERY ACT BEFORE THE U.S. ENVIRONMENTAL PROTECTION AGENCY, IN DENVER MARCH 7, 1979 Ladies and Gentlemen of the Panel: My name is Philip W. Morton, of Gulf Mineral Resources Co., (GMRC), a division of Gulf Oil Corporation. GMRC has a great interest in all aspects of the proposed Title 40, Part 250 of the Code of Federal Regulations as pub- lished on December 18, 1978. However, today my testimony will be limited to those aspects of the proposed Subpart A, of Part 250, issued under authority of Section 3001 of the Resource Conservation and Recovery Act of 1976 that appear to impact on GMRC's uranium mining operations presently being conducted in New Mexico. First, perhaps I should make sure everyone here understands exactly what our concern is. In paragraph 250.14(b)(2), the Environmental Protection Agency, which I will hereafter refer to as "the EPA", has chosen, erroneously we believe, to list all "waste rock" and "overburden" from uranium mining as hazardous waste. Since neither Congress, in the legislation, nor the EPA, in their pro- posals, has specifically defined the terms "waste rock" or "overburden", I will use the terms as generally used by the mining industry: Waste rock - that dirt and rock, usually from underground mining, that must be moved to gain access to an ore body. Any mineral content of interest would be of such low concen- tration that it would not be economically feasible, at present, to recover it. ------- -2- Qverburden - almost exclusively used in surface or strip mining, is the soil and rock that covers a mineral deposit that must be moved to gain access to the ore body. The term "waste" is also somewhat of a misnomer. Waste, as used by the mining industry, means simply material that has no economic value for mineral recovery. It may or may not be discarded to then become "waste" or "discarded material" in a sense generally accepted by the public. It is these items that I will be discussing today. I am in no way re- ferring to mill tailings, which are the "waste" (in mining terms) from the processing of the ore. Uranium mill tailings are regulated by the Nuclear Regulatory Commission under the Atomic Energy Act of 1954, as amended by the Uranium Mill Tailings Radiation Control Act of 1978, and are not within the scope of RCRA. GMRC does believe there is some potential for hazard to ™ health associated with tailings and supports a reasonable, workable regula- tory control of these tailings. GMRC contends there is no basis for including any mining overburden intended for return to the mine site in any listing of hazardous waste, as is done in Section 250.14. Congress was very explicit in its intent regarding mining overburden and mining waste. Specifically, Congress has exempted over- burden intended for return to the mine site, and other mine reclamation activi- ties, from regulation under RCRA. It is, therefore, not within the scope of the EPA's statutory authority to even regulate mining overburden. The EPA did recognize its lack of statutory authority in the preamble to the proposed Section 3001 regulations, but then erred in reading the referenced House Report. As stated by the EPA on page * 58951 of the December 18th proposals: ------- -3- "However, the House Committee Report also states certain I mining overburdens may be considered hazardous; thus some are listed in Section 250,14." [43 FR 58951] (Emphasis added) The referenced House Report actually states, on pages 2-3: "Similarly, overburden resulting from mining operations and intended for return to the mine site is not considered to be discarded material within the meaning of this leqis- lation." [HR Rep No. 94-1491, 94th Cong., 2nd Sess. 3(1975)] (Emphasis added) GMRC further contends it is premature to presently include "mining waste" or "waste rock" within the coverage under Sections 3001, 3002, or 3004 of RCRA, or within any regulations promulgated thereunder. Congress, in Section 8002(f) of RCRA, excluded mining wastes from RCRA coverage until the completion of a "detailed and comprehensive study on the adverse effects of solid wastes from active and abandoned surface and underground mines on the environment". Further this study, in "consultation with'the Secretary of the Interior", is to be ' conducted by the Administrator of the EPA, who shall then "publish a report of such study and shall include appropriate findings and recommendations for Federal and non-Federal actions concerning such effects." (Emphasis added) Thus, it is clear that Congress intended that any regulatory effort must be preceded by the mandated study, consultation and reporting procedures. Until these procedures are met, thereby providing to EPA the information Congress found lacking to reasonably and non-arbitrarily regulate that "mining waste" is "hazardous", "mining waste" cannot be regulated as though it were "hazardous". In considering H. R. Sill 14496, the staff of the Subcommittee on Transportation and Commerce of the House Interstate and Foreign Commerce Committee (which was the subcommittee that reviewed this bill) requested and received ------- -4- from EPA copies of all damage reports, totaling some 4QO reports, for the express purpose of ascertaining what kinds of waste from what kinds of activities and facilities should be covered in RCRA's definition of "solid waste". Not one of these reports involved "mining waste", nor could EPA then produce any information on "mining waste" for that exhaustive subcommittee staff effort. It was precisely for this lack-of-information reason that Congress mandated EPA in Section 8002(f) to conduct the study on "mining wastes". The EPA, further, has failed to follow the requirement in Section 3001(b) of RCRA that any regulations "listing particular hazardous wastes" and "identifying the characteristics of hazardous waste" be "based on the criteria promulgated under subsection (a) of this section". The EPA has recognized this proper approach, in its draft proposals of December 22, 1978 for Part 122, Title 40 CFR, the so-called "One-Step Permitting Program", thusly: (I quote from Section 122.27(a)} "Section 3001 of RCRA requires the Administrator to 'develop and promulgate criteria for'identifying the characteristics of hazardous waste and for listing hazardous waste, which should be subject to the provisions of this subtitle...' and to 'promul- gate regulations identifying the characteristics of hazardous waste, and listing particular hazardous wastes...which shall be subject to the provisions of this subtitle...' based upon the criteria." (Emphasis added) However, the EPA then proceeded to list a "hazardous waste", based on 'the criterion of Section 250.12(b)(2) because the waste contains radioactive substances." Also, the EPA has identified the characteristics of "hazardous waste" and made them applicable to "mining waste". Yet, no criteria have been promulgated upon which such listing and identification are supposed to be based. It would appear that EPA already has decided on such lists and character- ------- -5- istics and then, after the fact, will prepare first the proposed and then the final criteria required by Section 3001 (b) of RCRA. More specifically, looking at the category of "Uranium Mining;l in the "Special Waste" table in 43 Fed. Reg. 58992 as illustrative, the EPA has concluded (listed?) that 150 million metric tons per year is "hazardous", and thus proposed to regulate such "special waste" under certain portions of the Subpart D regulations. Yet, in view of the questions raised by the EPA itself, and the complete lack of any data or information referenced in the proposed regulatory package, how was this conclusion derived? In view of the above, and lacking the mining wastes study discussed earlier, GMRC urges that all "processes" listed because of radioactivity in Section 250.14, all references to levels of specific Radium isotopes in Section 250.15, and Appendix VIII be eliminated from the proposed rules. In the preamble to the December 18th proposals on page 58950, the EPA states that only the first four of eight listed hazardous waste characteristics will be relied upon because "those are the only ones for which the Agency confidently believes test protocols are available." Further, "The characteristics that EPA plans to use immediately are relatively straightforward, the tests are well developed, inexpensive, and recognized by the scientific community, and they cover a large proportion of the total amount of hazardous waste the EPA" belives should be controlled. Generators will not be required to test for characteristics of waste outside these characteristics for purposes of determining if the waste is hazardous. However it was also decided to list specific hazardous wastes using all the candidate characteristics." If the test protocol for radioactivity is not reliable enough to be in- cluded, it is unconscionable for the EPA to determine any specific waste is f ------- -6- hazardous on this count, and further use this unreliable protocol as the only means to demonstrate non-inclusion of a waste within the hazardous waste system. GMRC is not aware of any instance where uranium mine wastes have caused or significantly contributed to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or posed a substantial present or potential hazard to human health or the environment. After more than 20 years of large scale uranium mining, none of the above cited conditions have been demonstrated. Uranium mining wastes should there- fore be considered to be outside the ambit of the Section 1004(5) definition. EPA's admission of the low risk and the fact that these wastes have never caused any harm through their radioactivity are conclusive. Thus, these materials should not be listed, as EPA proposes. EPA's use of "notes" throughout these proposed regulations is, at worst, legally confusing and, at best, cumbersome. It is GMRC's understanding that these "notes" would be a part of the final regulations and therefore on an equal legal footing with the other portions of these regulations. To avoid the potential unintended result that a court might rule otherwise, and to clean up this awkward syntactical approach, the EPA should incorporate each "note" into the body of the regulation to which it pertains through the use of "unless" language or something similar, and delete the introductory-language portion of the "note". In summary, GMRC urges serious consideration be given to the following points in the formulation of any final rules: 1. Overburden is not included within coverage of RCRA. 2. Mine waste should not be included within coverage of RCRA until completion of the Section 8002(f) study. ------- -7- 3. No material be listed in 250.14 until criteria for identifying the characteristics of hazardous waste have been developed and promulgated. 4. Discontinue the use of "notes" throughout the regulation. I thank you for this opportunity to present Gulf Mineral Resources Co.'s comments on the proposed regulations. Mr. Kent R. Olso:n or I will be happy to answer any questions you may have regarding the issues raised in this testimony. Thank you. ------- COLORADO VETERINARY MEDICAL ASSOCIATION U. S0 Environmental Protection Agency Colorado Department of Health Denver, Colorado March 7» 1979 Dear Sirs, j As President of the Colorado Veterinary Medical Association and representing the Veterinary Profession in the State of Colorado I would like to have the opportunity to speak before the board at your public; meeting this date and present the veterinarians concerns about Sections 3001, 3002, and 3004 under the Hesource Conservation and Recovery Acto Sincerely yours, John T. Makens, DVM Telephone 303-759-1251; Suite 321: 1777 South Bellaire; Denver. Colorado 80222 ------- 4 COLORADO VETERINARY MEDICAL ASSOCIATION U. S, Environmental Protection Agency Colorado Department of Health Denver, Colorado March 7, 1979 Dear Sirs, The Colorado Veterinary Medical Association wishes to express its concern about the implications of Section 3001, 3002, and 3004 under the Resource Conservation and Recovery Act (Public Law 94-330) as these apply to Veterinary hospitals, clinics and associated veterinary premises* It is our opinion that the largest quantities of waste material generated in these facilities does not present a special threat to the environment or its inhabitants and since pathological waste of a dangerous nature is already handled to render it sterile the inclusion of all our waste under this law would present a disposal problem which would prove extremely costly for all veterinary facilities and for many an insurmountable obstacle; to operating their practices* Therefore be it resolved that the Colorado Veterinary Medical Association on behalf of the Veterinary Profession in the State of Colorado expresses our desire to have Veterinary hospitals, clinics and associated premises excluded from this Law* Sincerely yours, ~i ' ,' -'John T* Makens, DVM President, CVMA 4 Telephone 303-759-1251; Suite 321: 1777 South Bellaire: Denver, Colorado 80222 ------- COLORADO VETERINARY MEDICAL ASSOCIATION U* S* Environmental Protection Agency Colorado Department of Health Denver, Colorado March 7, 1979 Dear Sirs, Please consider the following facts which relate to the practice of veterinary medicine which have a strong bearing on the implementation of the Resource Conservation and Becovery Act as it applies to veterinarians* 1, There are no studies which establish the fact that the waste from veterinary hospitalsf clinics and associated premises is a greater threat to the environment or human health than other forms of common waste matter if handled in the presently accepted manner for general waste disposal* 2* The sterilization of all veterinary hospital waste presents the following, possibly insurmountable, problems: A* The equipment necessary to sterilize or incinerate the quantities of waste especially dead animals and many tons of animal bedding generated by many facilities would be cost prohibitive for most veterinarians* Be The quantity of -refuse if incinerated would add considerably to the existing air pollution problems and probably result in a greater known health hazard even with approved equipment* C* Many veterinary facilities are located in areas such as shopping centers and land use zones which do not allow for incineration equipment* D* There is no equipment available for destroying animal bodies a™** a*" mal waste either by sterilization or incineration which doea not generate unacceptably offensive odor* B« Most biological and pharmaceutical materials used in veterinary practice are regulated by present laws which direct their proper disposal< Telephone 303-759-1251: Suite 321: 1777 South Bellaire; Denver. Colorado 80222 ------- COLORADO VETERINARY MEDICAL ASSOCIATION U. S, Environmental Protecion Agency Colorado Department of Health Denver, Colorado March 7» 1979 Page 2 P« The small amounts of truly hazardous biological material such as cultures of bacterial, viral and fungal agents which arise from the practice of veterinary medicine are sterilized before disposal. The modern veterinary practice has the equipment to do this at the present timeo 3* The Veterinary Profession as an integral part of this nations health industry is totally committed to protecting the nations environmental health as well aa human and a"*™01 health and has always attempted to protect the same from wastes created by our endeavors through practical and effective waste disposal* Sincerely yours, John To Malcens, DVM President, CVMA 4 Telephone 303-759-1251: Suite 321: 1777 South Bellaire; Denver. Colorado 80222 ------- MINNESOTA VETERINARY MEDICAL ASSOCIATION (MVMA ) RESOLUTION #8 ADOPTED FEBRUARY 13, 1979 PROPOSED EPA REGULATIONS AFFECTING VETERINARY FACILITIES ( Whereas: The Environmental Protection Agency published in the Federal Register on December 18, 1978, proposed regulations on Hazardous Wastes, Item 1. The proposed regulations cover criteria for identifying and listing hazardous wastes, Item 2. Requirements for record keeping, labeling, containerizing and using a transport manifest, Item 3. Performance standards for hazardous waste management facilities 3 Whereas: These regulations affect the disposal of wastes from the emergency departments, surgery and patient rooms, morgue, pathology department, autopsy department, isolation rooms, laboratories and Intensive Care Units of veterinary hospitals, unless it is autoclaved or specifically handled as a bio-hazardous wastet Whereas: There is no documentation that waste from veterinary hospitals as ^ presently handled by professional people constitutes a public health hazard, Whereas: Wastes are presently autoclaved, disinfected, incinerated, recycled in rendering plants, sanitary sewers or controlled sanitary landfills or handled as agricultural wastes, Whereas: Although infectious diseases cause important public health problems, veterinarians are leaders in developing prevention and control measures for these diseases, Whereas:, These proposed regulations only add more manpower to the already staggering cost of government, Therefore: Be it resolved that the MVMA request that veterinary hospitals be exempted from the proposed EPA regulations that concern veterinary hospitals. This resolution was passed unanimously by the MVMA and by the Administrative Council of the College of Veterinary Medicine and University of Minnesota. ------- MVMA Resolution 38 Adopted feornary j.^~, iy Dr's Stanley Diesch and Ben Pomeroy request that a status report concerning the presentation of this resolution at the EPA hearing in Denver, Colorado, on March 7, 1979 to sent to them. ------- 266 1 BEFORE THE 2 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 3 4 5 6 In The Matter of: ) TRANSCRIPT OF 7 HAZARDOUS WASTE GUIDELINES AND REGULATIONS ) PROCEEDINGS 8 " 9 „ Thursday, March 8, 1979 10 8:30 a.m. Holiday Inn 11 4040 Quebec Street Denver Colorado 12 APPEARANCES: 13 DOROTHY A. DARRAH,Chairperson, Office of General 14 Counsel. Environmental Protection Agency, Washington, D. C. 15 LISA FRIEDMAN, Office of General Counsel, EPA, 16 Washington, D. C. 17 JOHN P. LEHMAN, Director. Hazardous Waste Managemen Division. Office of Solid Waste, 18 • EPA, Washington. D. C. 19 ALFRED LINDSEY, Chief Implementation Branch Hazardous Waste ManagementDivision 20 Office of Solid Waste, EPA, Washing D. C. 21 AMY SCHAFFEP, Office of Enforcement, EPA, Washingto 22 D. C. 23 HARRY TPASK , Program Manager, Hazardous Waste Management Division. Office of Solid 24 Waste. EPA,Washington, D. C. JON P. YFAGLEY Chief, Solid Waste Section, EPA, 25 Region VIII, Denver, Colorado ------- 267 APPEARANCES continued: 2 TIMOTHY FIELDS, Program Manager, Section 3004, Hazardous Waste Management Division 3 Office of Solid V/aste, EPA, Washington, D. C. 4 ALAN ROBERTS, Associate Director for Hazardous 5 Materials Regulation, Department of Transportation, Washington,D.C. 6 7 ALAN CORSON, Chief, Section 3001 Guidelines Branch Hazardous Waste Management Branch 3 Office of Solid Waste EPA, Washington, D. C. 9 " 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ------- • 1 2 3 4 5 6 7 8 9 10 11 • 12 13 14 15 16 17 18 19 20 21 22 • « 24 25 I~N D E X WITNESSES JOHN P. LEHMAN S. NORMAN KESTEN WILEY W. OSBORNE JIM V. ROUSE ORVILLE STODDARD BARRY HUTCHINGS EARL R. WHITE -FRANCINE B. KUSHNER WILLIAM D. ROGERS JOHN G. RE ILLY ELLIS T. HAMMETT JOHN R. BERGER GARY DOUNAY ANNA MARIE SCHMIDT ALFRED LINDSEY JACK WESTNEY . JOHN WINKLEY FRANK R. LEE CONLEY P. SMITH DENNIS BURCHETT WILEY W. OSBORNE F. FARRELL HIGBEE GLENN M. EURICK PAGE NO. 268 280 286 292 297 302 314 322 333 338 344 349 366 374 380 391 410 421 422 438 446 450 455 ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INDEX | WITNESSES PAGE NO. ^ JOHN HARRIS 463 RON BISSINGER 467 LYLE A. RATHBUN 471 TIM McCLURE 476 WILLIAM HUTTON 480 4 - 4 ------- 268 1 PROCEEDINGS 2 3 4 CHAIRPERSON DARRAH• If we can come to order. 5 MR. JOHN P. LEHMAN: Good morning, my name is John 6 P. Lehman. I am Director of the Hazardous Waste Management 7 Division of EPA's Office of Solid Waste, in Washington. On 8 behalf of EPA I would like to welcome you to the public hearing 9 which is being held to discuss the proposed regulations for 10 the management of hazardous waste. We appreciate your taking 11 the time to participate in the development of these 12 regulations which are being issued under the authority of the 13 Resource Conservation and Recovery Act — RCRA 14 For a brief overview of my we are here• 15 The Environmental Protection Agency on December 18, 1978 16 issued proposed rules under Sections 3001. 3002, and 3004 of 17 the Solid Waste Disposal Act as substantially amended by the 18 Resource Conservation and Recovery Act of 1976 (Pub. L. 94-580) 19 These proposals respectively cover: (1) criteria for 20 identifying and listing hazardous waste, identification 21 methods, and a hazardous waste list- (2) standards applicable 22 to generators of such waste for record keeping, labeling, using 23 proper containers, and using a transport manifest: and (3) 24 performance, design, and operating standards for hazardous 25 waste management facilities. ------- 269 These proposals together with those already published I 2 pursuant to Section 3003. (April 28, 1978), Section 3006 3 (February 1, 1978), Section 3008 (August 4, 1978), and Section 4 3010 (July 11. 1978) and that of the Department of Transportati 5 pursuant to the Hazardous Materials Transportation Act (May 6 25, 1978) along with Section 3005 regulations constitute the 7 hazardous waste regulatory program under Subtitle C of the Act. 8 EPA has chosen to integrate its regulations for facility 9 permits pursuant to Section 3005 and for State hazardous waste 10 program authorization pursuant to Section 3006 of the Act with 11 proposals under the National Pollutant Discharge Elimination 12 System required by Section 402 of the Clean Water Act and the 13 Underground Injection Control Program of the Safe Drinking " 14 Water Act. This integration of programs will appear soon as 15 proposed rules under 40 CFR Parts 122, 123, and 124. 16 This hearing is being held as part of our public 17 participation process in the development of this regulatory 18 program. 19 The panels members who share the rostrum with me are 20 Harry Trask, Program Manager, Hazardous Waste Management 21 Division, Office of Solid Waste, EPA. WAshington, D. C. Mr. 22 Trask if the principal staff member responsible for Section 23 3002 and 3003 regulations. 24 Lisa Friedman from the Office of the General Counsel, 25 EPA Headquarters in Washington. ------- 270 1 Dorothy A. Darrah, Office of General Counsel. EPA, 2 Washington, D. C. 3 Fred Lindsey, Chief, Implementation Branch, Hazardous 4 Waste Management Division. Office of Solid Waste, EPA, 5 Washington. D. C. 6 Amy Schaffer, Office of Enforcment, EPA headquarters, 7 Washington,, D. C. 8 Jon P. Yeagley, Chief, Solid Waste Section, EPA. Region 9 VIII, Denver, Colorado. 10 As noted in the Federal Register our planned agenda is to 11 cover comments on Section 3001 today, Sections 3002 and 3003 12 tomorrow and 3004 the next day. Also we have planned an 13 evening session today,. covering: all four sections. That sessior 14 is planned primarily for those who cannot attend during the 15 day. 16 The comments received at this hearing and the other hearir 17 as noted in the Federal Register-/ together with the comment 18 letters we receive, w.ill be a part of the official docket in 19 this rulemaking process. The comment period closes on March 20 16 for Sections 3001-3004, This docket may be seen during 21 normal working hours in Room 2111D, Waterside Mall, 401 M 22 Street, S. W.. Washington. D. C. In Addition we expect to have 23 transcrips of each hearing within about two weeks of the close 24 of the hearing. These transcripts will be available for reading 25 at any of the EPA libraries. A list of these locations is ------- 271 1 available at the registration table outside. 2 With that as background I would like to lay the groundwor 3 and rules for the conduct of this hearing. 4 The focus of a public hearing is on the public's response 5 to a regulatory proposal of an Agency, or in this case, Agencies 6 since both EPA and the Department of Transportation are 7 involved. The purpose of this hearing, as announced in the 8 April 28, May 25, and December 18, 1978 Federal Registers, is 9 to solicit comments on the proposed regulations including any 10 background information used to develop the comment. 11 This public hearing is being held not primarily to 12 inform the public nor to defend a proposed regulation, but 13 rather to obtain the public-?s response to these proposed \ 14 regulations, and thereafter-' revise them as may seem appropriate 15 All major substantive comments made at the hearing will be 16 addressed during preparation of the final regulation. 17 This will not be a formal adjudicatory hearing with the 18 right to cross examine. The members of the public are to 19 present their views on the proposed regulations to the panel, 20 and the panel may ask questions of the people presenting 21 statements to clarify any ambiguities in their presentations. 22 Since we are time limited, some questions by the panel 23 may be forwarded in writing to the speaker. His response 24 if received within a week of the close of this hearing, will 25 be included in the transcript, Otherwise, we will include it ------- 272 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in -the docket. Due to time limitations, the chairman reserves the right to limit lengthy questions, discussions, or statements. We would ask that those of you who have a prepared statement to make orally, to please limit your presentation to a maximum of ten minutes, so we can get all statements in a reasonable time. If you have a copy of your statement, please submit it to the court reporter. Written statements will be accepted at the end of the hearing. If you wish to submit a written rather than an oral statement, please make sure the court reporter has a copy. The written statements will also be included in their entirety in the record. Persons wishing to make an oral statement who have not made an advanced request by telephone or in writing should indicate their interest on the registration card. If you have not indicated your intent to give a statement and your decide to do so, please return to the registration table, fill out another card and give it to one of the staff. As we call upon an individual to make a statement, he or she should come up to the lectern after identifying himself or herself for the court reporter, and deliver his or her statement. At the beginning of the statement, the Chairperson will inquire as to whether the speaker is willing to entertain ------- 273 1 questions from the panel. The speaker is under no obligation 2 to do so. although within the spirit of this information sharing 3 hearing, it would be of great assistance to the Agency, if 4 questions were permitted. 5 Our day's activities, as we currently see them, appear 6 like this: 7 We will break for lunch at about 12:15 and reconvene at 8 1:^5 p.m. Then, depending on our progress, we will either 9 conclude the day's session or break for dinner, at about 5:00 10 Phone calls will be posted on the registration table at the 11 entrance, and restrooms are located outside to the left. 12 If you wish to be added to our mailing list for future 13 regulations, draft regulations, or proposed regulations, ™ 14 please leave your business card or name and address on a three 15 by five card at the registration desk. 16 The regulations under discussion at this hearing are the 17 core elements of a major regulatory program to manage and 18 control the countryTs-hazardous waste from generation to final 19 disposal. The Congress directed this action in the Resource 20 Conservation and Recovery Act of 1976, recognizing that 21 disposal of hazardous waste is a crucial environmental and 22 health problem which must be controlled, 23 In our proposal, we have outlined requirements which set 24 minimum norms of conduct for those who generate, transport, f 25 treat, store, and dispose of hazardous waste. ------- 274 1 These requirements, we believe will close the circle 2 of environmental control begun earlier with the regulatory 3 control of emissions and discharges of contaminants to air, 4 water, and the oceans. 5 We do not underestimate the complexity and difficulty of 6 our proposed regulations. Rather, they reflect the large 7 amounts of hazardous waste generated and the complexity of 8 the movement of hazardous waste in our diverse society. 9 These regulations will affect a large number of industries. 10 Other non-industrial sources of hazardous waste, such as 11 laboratories and commercial pesticide applicators, as well as 12 transporters of hazardous waste, will also be included, 13 Virtually every day, the media carries a story on a 14 dangerous situation resulting from improper disposal of 15 hazardous waste. The tragedy of Love Canal in New York State 16 is but one recent example. EPA has information on over 17 400 cases of the harmful consequences of inadequate hazardous 18 waste management. These cases include incidents of surface 19 and groundwater contamination, direct contact poisoning, 20 various forms of air pollution, and damage from fires and 2i explosions. Nationwide, half of all drinking water is supplied 22 from groundwater sources and in some areas contamination of 23 groundwater resources currently poses a threat to public 24 health. EPA studies of a number of generating industries in 25 1975 showed that approximately 90 percent of the potentially ------- 275 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hazardous waste generated by those industries was managed by practices which were not adequate for protection of human health and the environment. The Resource Conservation and Recovery Act of 1976 was passed to address these problems. Subtitle C establishes a comprehensive program to protect the public health and environment from improper disposal of hazardous waste. Althoug! the program requirements are to be developed by the Federal government the Act provides that States with adequate programs can assume responsibility for regulation of hazardous waste. The basic idea of Subtitle C is that the public health and the environment will be protected if there is careful monitoring of transportation of hazardous waste and assurance that such waste is properly treated stored or disposed of either at the site where it is generated or after it is carried from that site to a special facility in accordance with certain standards Seven guidelines and regulations are being developed and either have been or will be proposed (as noted earlier) under Subtitle C of RCRA to implement the Hazardous Waste Management Program. Subtitle C creates a management control system which, for those wastes defined as hazardous, requires a cradle to grave cognizance, including appropriate monitoring, recordkeeping and reporting throughout the system. It is important to note that the definition of solid M wastes in the Act encompasses garbage refuse, sludges and other discarded materials, including liquids, semisolids and ------- , and with a few exceptions, from both municipal 1 contained gases 2 and industrial sources. 3 Hazardous wastes, which are a sub-set of all solid wastes, 4 and which will be identified by regulations proposed under 5 Section 3001, are those which have'particularly significant 6 impacts on public health and the environment. 7 Section 3001 is the keystone of Subtitle C. Its purpose 8 is to provide a means for determining whether a waste is 9 hazardous for the purposes of the Act and, therefore, whether 10 it must be managed according to the other Subtitle C regulations 11 Section 3001 (b) provides two mechanisms for determining 12 whether a waste is hazardous- a set of characteristics of 13 hazardous waste and a list of particular hazardous wastes. 14 A waste must be managed according to the Subtitle C regulations 15 if it either exhibits any of the characteristics set out in 16 proposed regulation or1 if it is listed. Also, EPA is directed 17 by Section 3001(a) of the Act to develop criteria for 18 identifying the set of characteristics of hazardous waste and 19 for determining which wastes to list. In this proposed rule, 20 EPA sets out those criteria, identifies a set of characteristics 21 of hazardous waste, and establishes a list of particular 22 hazardous wastes. 23 Also the proposed regulation provies for demonstration 24 of non-inclusion in the regulatory program. 25 Section 3002 addresses standards applicable to generators ------- 277 I of hazardous waste. A generator Is defined as any person 2 vrhose act or process produces a hazardous waste. Minimum 3 amounts generated and disposed per month are established to 4 further define a generator. These standards will exclude 5 household hazardous waste. 6 The generator standards will establish requirements for: 7 recordkeeping, labeling and marking of containers used for 8 storage, transport, or disposal of hazardous waste; use of 9 appropriate containers, furnishing information on the general 10 chemical composition of a hazardous waste; use of a manifest 11 system to assure that a hazardous waste is designated to a 12 permitted treatment, storage, or disposal facility;, and 13 submitting reports to the Administrator, or an authorized ™ 14 state agency, setting out the quantity generated and its 15 disposition. lg Section 3003 requires the development of standards 17 applicable to transporters of hazardous wastes. These proposed 18 standards address identification codes, recordkeeping, 19 acceptance and transportation of hazardous wastes, compliance 20 with the manifest system, delivery of the hazardous waste; 2i spills of hazardous waste and placarding and marking of vehicles 22 The Agency has coordinated closely with proposed and current 23 U. S, Department of Transportation regulations. 24 Section 300^ addresses standards affecting owners and 25 operators of hazardous waste treatment, storage, and disposal ------- 278 1 facilities. These standards define the levels of human health 2 and environmental protection to be achieved by these facilities 3 and provide the criteria against which EPA (or state) officials 4 will measure applications for permits. Facilities on a 5 generator's property as well as off-site facilities are covered 6 by these regulations and do require permits- generators and 7 transporters do not otherwise need permits. 8 Section 3005 regulations set out the scope and coverage 9 of the actual permit granting process for facility owners and 10 operators. Requirements for the permit application as well as 11 for the issuance and revocation process are defined by regulatic 12 to be proposed under 40 CPR Parts 122, 123 and 124. Section 13 3005(e) provides for interim status during the time period that 14 the Agency or the states are reviewing the pending permit 15 applications. Special regulations under Section 3004 apply to 16 facilities during this interim status period. 17 Section 3006 requires EPA to issue guidelines under which 18 States may seek both -full and interim authorization to carry 19 out the hazardous waste program in lieu of an EPA administered 20 program. States seeking authorization in accordance with 21 Section 3006 guidelines need to demonstrate that their hazardou 22 waste management regulations are consistent with and equivalent 23 in effect to EPA regulations under Sections 3001-5. 24 Section 3010 reauires any person -generating, transportin 25 or owing or operating a facility for treatment, storage, and ------- 279 1 disposal of hazardous waste to notify EPA of this activity with 2 90 days after promulgation or revision of regulations identi- 3 fying and listing a hazardous waste pursuant to Section 3001. 4 No hazardous waste subject to Subtitle C regulation may be 5 legally transported treated, stored, or disposed after the 6 90 day period unless this timely notification has been given to 7 EPA or an authorized state during the above 90 day period. 8 Owners and operators of inactive facilities are not required 9 to notify. 10 EPA intends to promulgate final regulations under all 11 sections of Subtitle C by December 31, 1979- However, it is 12 important for the regulated communities to understand that the 13 regulations under Section 3001 through 3005 do not take effect" 14 until six months after promulgation. That would be approximate 15 June of 1°80. 16 Thus, there will be a time period after final promulgatio1 17 during which time public understanding of the regulations can b> 18 increased. During this same period, notificati ns fequired 19 under Section 301° are to be submitted and facility permit 20 applications required under Section 3005 will be distributed 21 for completion by applicants. 22 With that as a summary of Subtitle C and the proposed 23 regulations to be considered at this hearing, I return this 24 meeting to the chairperson. Dorothy Darrah. 25 CHAIRPERSON DARRAH: ' "" Our first speaker is ------- 260 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 S. Norman Kesten from the American Mining Congress. MR. S. NORMAN KESTEN: My name is S. Norman Kesten and I am employed by ASARCO, Inc., and I represent here the American Mining Congress. In case anybody has forgotten from yesterday, I would remind you that the American Mining Congress is a national association embracing virtually all companies that supply the mineral commodities to the American economy, and some of the products of processing mineral commodities. While producing these essential materials the member companies necessarily generate large quantities of mine waste rock, waste materials from milling and other forms of beneficiation often called tailings, plus furnace slags and other similar processing waste from later stages of total processing toward useable products as well as other wastes in relatively minor quantities, The American Mining Congress is thus very interested and concerned about the economic impact upon the minerals industry of any regulations promulgated for the purpose of implementing provisions of this amendment to the Solid Waste Disposal Act, In addition we want to try to ensure that during the formulation of such regulations the Agency is fully aware of the technological limitations that the very nature of its wastes places upon the industry and takes into account the large number of physical and chemical variables that tend to make each operation unique-. In general, the industry has a series of special problems in ------- - ^ J. 15 1 complying with proposed regulations because of the sheer volume 2 of the wastes that are generated and the large areas of land 3 that those wastes must occupy. 4 Using copper and copper ores as examples, new mine 5 production, including beneficiation, smelting and refining, 6 in this country is of a magnitude that there is also produced 7 annually about 600 million tons of mine waste rock, 250 8 million dry tons of mill tailings and perhaps five million tons 9 of furnace slag. The smelting of iron ore produces some 24 10 million tons of furnace slag annually. 11 It is not likely that waste products from mining and 12 from beneficiation of mine products in the long run will be 13 found to fit the criteria for hazardous waste. Indeed, we ™ 14 contend on the record that mining wastes are exempt from the 15 RCRA regulations from a legal standpoint. However, if it 15 finally is determined that they are not exempt, to the extent 17 that mining and milling wastes are found to be hazardous they 18 will come under the classification of Special Wastes in Section 19 250.46. In that case, we as the owners and operators of 20 facilities for Special Wastes, shall not have to comply with 2i this Subpart B with respect to any Special Waste. This 22 exception is stated in Section 250.46 of Subpart D which is 23 rather remote from Subpart B. The exception should be stated 24 in close proximity to the regulations from which exception is 25 made; to wit, at the end of the first paragraph of Section ------- 1 250.20Cc) on pages 58975, 2 It is hoped that furnace slags will be added to Special 3 Wastes in Section 250.46, for the same reasons that those 4 wastes now listed have been included. However if these 5 slags are not so categorized, then to the extent that they are 6 hazardous the operators of smelters are ^'generators" for 7 purposes of this Subpart and others. Plants belonging to 8 member companies of the American Mining Congress may be "gene- 9 rators" in another sense, Bothmine-s and smelters are often 10 located in remote areas and therefore must have either septic 11 tanks or package treatment plants for sewage. Those facilities 12 generate solid waste which may be hazardous. However, in 13 Section 1004 of the Act solid waste is defined to exclude, 14 for purposes of the Act, "solid or dissolved material in 15 domestic sewage.'" As long, as domestic type sewage generated 16 at a location where it cannot be discharged to a municipal 17 treatment plant is kept separate from any other type of waste 18 generated, sludge and pumpings should be exempted from the 19 requirements of this and other Subparts. The confusion arises 20 when the Agency substitutes the word ''household'' for the 21 broader term "domestic" that appears in the Act. 22 We have trouble with the definition of ron-siter (250.21' 23 (18) page 58976 in one of the other Subparts as well as here. 24 We believe that the term should be defined as broadly as 25 possible. For several or many years we and other generators ------- 283 are going to be able to find approved commercial disposal ™ 2 sites for hazardous wastes within reasonable transporting 3 distances of the plants at which they are generated. We will 4 be forced, therefore, to provide our own disposal or storage 5 sites on nearby property that we control. Approval of even 6 these sites will be. difficult to obtain because of the many 7 prohibitions listed in Subpart D. We shall need the encourage- 8 ment of EPA and in part that encouragement might be provided 9 in a fairly liberal definition of 'on-site,r For example, when 10 the disposal facility is separated from the point of generation 11 only by private property to which the public does not have acce 12 disposal should be considered to be on site. It separation is 13 only by a natural barrier, disposal also should be considered ^ 14 to be on-site. If the waste is transported to the disposal 15 site by a closed pipeline private railroad, company-owned 16 and operated trucks or similar means, this should be considered 17 to be on-site disposal. 18 A "spill5' Is proposed to mean any unplanned release or 19 discharge. (250.21(26). page 58976. However, for the 20 purposeof these regulations the paperwork resulting from a spil 21 should only be required if the spill results In lowering the 22 auality of land, air or water beyond the allowable levels set 23 forth. Otherwise reporting would be required only for the 24 sake of reporting. 25 There are five separate requirements in this Subpart for ------- 284 1 certification by an authorized representative of the generator. 2 A corporation is not likely to authorize a workman, a shift bos; 3 or even a foreman to sign for it, particularly when penalties 4 are involved. On the other hand, a more senior person is not 5 going to personally supervise all the operations having to'do 6 with hazardous waste but is going to rely upon the good faith 7 of trusted employees to some extent. He should not be criminal 8 liable for inadvertent errors made by such employees. Thus, 9 there should be added to the end of the first sentence of the 10 certification statement the words ''to the best of my knowledge 11 and belief." Incidentally. EPA agreed to add these words to 12 certification on reporting forms for the preliminary inventory 13 under TSCA, 14 In Section 250.27(a) on page 25879 the Agency makes a 15 statement which means, I feel sure, that information provided 16 to EPA as required by these regulations cannot be kept 17 confidential. However that is not what it says. Let me auote 18 "All information provided in connection with the manifest and 19 reporting sections established by this Subpart shall be availab 20 to any person...'' This should read "All information provided 21 to the Administrator in connection...1' After all, EPA has no 22 control under this Act or the Freedom of Information Act over 23 information provided to anyone other than EPA. 24 The member companies of the American Mining Congress ha\ 25 no idea how much these and other regulations that are going to ------- 285 1 be promulgated under the Act will cost, The major determining 2 factors are whether or not our many and very large disposal 3 sites will be characterized- as open dumps and whether or not 4 appropriate criteria will be substituted for those proposed 5 for for determining if any of our wastes are hazardous. Looki 6 at worst case scenarios in relation to those two factors alone. 7 all I can say is "May God help us,' 8 I am reminded by this morning's Denver contribution to 9 journalistic excellence of an old pre-Columbian map, or 1° pre-Columbian maps that we have seen from time to time. There 11 is shown in the Eastern Atlantic, the words ''Beyond this 12 point there are monsters," That is where we are now. 13 CHAIRPERSON DARRAH• I guess I thank you for 14 those comments. 15 MR. LEHMAN: Mr. Kesten, I want to get some 16 clarification on your suggestions concerning the broadening 17 of the definition of on-site. As I understood your remarks, 18 one of the suggestions you made was that as long as the 19 management system was wholly owned, in other words, if you 20 used the company-owned trucks and so on, even though the 21 property wasn't contiguous., that all of that should be on-site. 22 Now. just to put that in some sort of context, we are aware 23 of certain industries, which have a disposal site in one 24 state and with their own transportation systems, transport ™ 25 materials from their various facilities into 20 or 30 other ------- 286 1 states, are you suggesting that ought to be considered on-site 2 or were you not? 3 MR. KESTEN: In .that kind of complicated situation, 4 I am suggesting nothing, You work it out. 5 ' CHAIRPERSON DARRAH: Any further questions? Thank 6 you. I will next call Mr Wiley W. Osborne, Texas Department 7 of Health 8 MR. WILEY W, OSBORNE: I found out yesterday you 9 can't read these statements up here as fast as you can back in 10 your office. 11 I am Wiley W. Osborne, Chief, Plans and Programs Branch. 12 Division of Solid Waste Management, Texas Department of Health. 13 First, I wish to have the record reflect that this is a 14 continuation of my statement given yesterday on Subpart A. 15 Again. I would express Mr. Carmichael's regrets that he 16 is unable to be here to give this statement. 17 Our comments relating to Subpart B is an extension of our 18 recommendations to identify hazardous waste into two sub-sets. 19 Yesterday, I recommended these be defined as ''primary hazardous 20 waste' and ''special wastes,r 21 Today, I would like to bring forth the idea that Subpart 22 B. as presently written or slightly modified, would remain 23 as standards applicable to generators of primary hazardous 24 wastes, The exception to this proposal is that Section 250.29 25 would not be applicable to those producing and disposing of ------- 287 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hazardous waste characterized as primary hazardous waste. Under Section 250.20, we recommend the addition of a Subsection (c)(6) authorizing generators of special wastes to send special wastes to a treatment, storage or disposal facility ''authorized" by the regulating agency. Under this concept. the regulating agency could either require the site to be a permitted site under Subtitle C or a Subtitle D site, meeting standards proposed for such special wastes under Subpart D. when written authorization is issued by a state agency authorized in accordance with Subpart F of this part. Generators of special waste should be required to comply with the manifest and reporting requirements of Section 250.22^ and Section 250.23 The requirements of Section 250.24 Identification Codes, Section 250,25 Containers Section 250.26 Labeling Practices, and Section 250.27 Confidential Information and Presumption, shall also pertain to generators of special waste. As mentioned earlier, Section 250,29 would not pertain to persons producing or disposing of primary hazardous waste. This section should be rewritten to apply only to special waste, In this way. the risk of having highly toxic waste enter the Subtitle D waste stream uncontrolled is reduced considerably, while at the same time, a goodly portion of special waste can be handled through the relaxed standards ------- 288 1 under Section 250.29 without a great risk. 2 This is essentially our recommended changes to Subpart 3 B, changes based on identifying hazardous as primary hazardous . 4 and special wastes. By requiring different standards for 5 generators of each subset'of hazardous waste, adequate controls 6 are exercised to protect the health and the environment. While 7 recognizing the need to exercise more stringent control over 8 primary hazardous waste, we also see the cost effectiveness 9 in having less stringent controls over special waste. 10 The next few comments relate to recommendations on 11 Subpart B, outside the comments given above. 12 Section 250.21 (a)(25) Retailer - the definition should 13 be explicit that a retailer is a person engaged solely in the 14 business of selling to the general public. Wholesale/retail 15 and sale to contractors should be excluded from the definition. 16 Section 250.29 (a)(l) relating to the disposal of waste 17 in an off-site waste disposal facility - should require only 18 that the facility has been permitted by the state. That 19 portion of the requirement relating to an ''approved state plan" 20 is inconsistent when it is recognized that a state plan may 21 not be approved for several months after the effective date of 22 these regulations. 23 (a) Any person who produces and disposes of no more 24 than 100 kilograms (approximately 220 pounds) of hazardous 25 waste in any one month period is not a generator provided that ------- 289 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 " the hazardous waste: 1. Is disposed of in an on-site or off-site solid waste disposal facility, which facility has been permitted. , . (b) Delete Comment- We disagree with the reasoning behind special generator requirement for automobile waste oil retailers established by Section 250.29(a), The preamble states, "Waste automobile oil presents a special environmental problem because of its ubiquitiousness and its potential as a carrier for other hazardous wastes. For example, it is sometimes mixed with transformer oil containing PCB's. Regulation of used automobile oil under this Section will tend to direct such oil^ to permitted recovery or treatment facilities which will promot< resource conservation and reuse, a major goal of the Act.1' The reasoning is not consistent with the intent of the Act. This is an indirect means of forcing the waste automotive oil to be recycled and reused rather than promoting recycling and reuse. The reference to waste automobile oil being "sometimes mixed with transformer oil containing PCB's is a weak argument to this approach of controlling and recycling it. If such oil is in fact contaminated with PCB's, it would not be allowed to be recycled, but would have to be disposed of in accordance with requirements of the Toxic Substances Control Act. The disposal of waste automotive oil should not be a subject of ------- 290 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 these regulations unless a more direct approach is taken and a stronger indication that these oils are hazardous is proven. Regulations should not be us.ed solely to make disposal an unattractive option and thus indirectly force recycling. Thank you. I will respond to any questions. MR. TRASK: Mr, Osborne, you mentioned a number of conditions that would apply to the two different categories of waste that you have discussed yesterday. Unless I am mistak you left out record keeping on the Special Waste. Was that your intent to do that? A Mo. that would be required-only on the-part of the generator. MR, TRASK: Yes. A That would require record keeping. MR. TRASK: So record keeping would be required in every case? A Yes, that is correct. MR. TRASK: I am not sure I know what the real difference there is between these two classes in terms of the generators responsibilities. A Well, I think the primary difference here would be allowing an exclusion or an exemption by a certain quantity. We would not want to allow an exemption of quantities of primarily hazardous waste as we would define it. MR. TRASK: Then you would favor the alternative ------- 291 1 that we discussed in our preamble? 2 A I think it falls in- there. 3 MR. TRASK; The degrees of handling some conditions: 4 A Actually there is none.of those that would exactly • 5 fit our recommendations, but I believe three comes pretty 6 close. 7 MR. TRASK: Thank you. 8 MR. LINDSEY: Mr. Osborne, the last part of your 9 comment had to do with the waste oil regulation, which you 10 apparently are against. Your statement says: "...should not 11 be a subject of these regulations unless a mo-re direct approach 12 is taken..." What do you mean by a "more direct approach?" 13 DO you have suggestions on how we should handle the' waste . 14 oil issue? 15 A Well, I think the only indication here that is to 16 show that waste oil is hazardous, "is the fact that it might 17 be contaminated with some other hazardous waste. 18 MR. LI NDSEY: I think this has to do with lead 19 and other -heavy metals being concentrated, there, and are freque 20 blended and burned in school boilers and things of that 21 nature, and thus spreading the materials around. That is part 22 of the concern. 23 A If the waste oil meets the criteria of the 24 hazardous waste, then I would agree with these regulations. 25 However, if it is just on the possibility that it may be ------- 292 1 come contaminated from some other source, 2 MR. LINDSEY Would it still have to meet the 3 characteristics, whatever it was? in order to be covered here? 4 A Yes. But it looks like the way these are written, 5 that waste oil just by category is placed in the hazardous 6 waste without really requiring any identification that it is 7 hazardous. As a matter of fact we have proposed regulations 8 that follows the EPA model law along that recycling of used oil 9 CHAIRPERSON DARRAH: Thank you. sir. Next is 10 Jim V, Rouse of Envirologic Systems. Inc. 11 MR. JIM V. ROUSE: Thank you. I will try to keep 12 my remarks quite brief this morning, 13 We recognize the requireemnts of Section 3002 are not 14 to be imposed on mining waste as stated in the material on 15 Special Waste. However, we also note in the preamble to the 16 Section. 3004 regulations, that at a later date, material is 17 coming into Special Waste, and for the timebeing, these are 18 all that apply to Section 3002. So part of our remarks are in 19 the way of trying to lay some groundwork now. 20 Also, we recognize, as Mr. Kesten does, that these are 21 auite remote and we find, for example, in Section 250.24, 22 250.25 and 250.26 wording about every generator shall do this 23 and every generator shall do that, and not being a lawyer, I 24 am somewhat questionable whether you can have these kinds of 25 very strong words in the early part of the regulation followed ------- 29 27 1 later by exemptions, and I will leave that up to the lawyers. 2 However, anyway, the comments I would like to make this 3 morning are more in the way.of a preventitive situation. 4 I note that every generator must determine whether the 5 waste meets these rather arbitrary criteria for hazard which we 6 discussed yesterday. I note that provisions exist for contest- 7 ing whether or not the waste meets the criteria, whether the 8 pH is or is not less than three, but no provisions exist for 9 contesting whether pH of three is truly a hazard. This becomes 10 crucial when we note in the following section, 250.20(c) 11 that even the fact that a waste passes the test is no guarantee 12 it will not be subsequently regulated, because the note states 13 failure to properly designate a waste as a hazardous waste • 14 may constitute a violation of the Act and may subject the perse 15 , or federal agency to the compliance requirements and penalty 16 I prescribed in Section 3008 of the Act. 17 I would submit to you that when you consider a material 18 heterogeneous as most mining waste is, and when you consider 19 the rather stringent criteria which are listed in Section 20 3001, it would appear to me that with a desire to do so, you 21 could identify any mining waste in the world as a hazardous 22 waste, even though the operator may have in all good 23 conscience sampled and found that such was not the case. 24 It seems in reading this note, basically there is no 25 right of appeal to the generator if he collects samples and ------- 1 and thinks he has got a non-hazardous waste, which I cannot 2 visualiz-e, but if he got lucky and took a sample that came out 3 non-hazardous and then EPA came out and took a sample and 4 said it was hazardous, he would then, according to this note, 5 as I read it, be subject to the violation of the Act with no 6 right of appeals, and no way of negotiating subsequent sampling 7 or anything. You might want to consider that possibility. 8 The only other point I want to discuss briefly in this 9 regulation this morning is. that Section 250.20(c)(l) where it 10 discusses reauirements for on-site versus off-site, Mr. Kesten 11 pointed out here, and I see some others that we also ought to 12 consider. Many mining operators actually do not own the site 13 of their waste disposal, but rather they are disposing 14 of the material on lands owned by the Federal government, and 15 operated through a special user permit, which would make the 15 federal government the operator of the off-site disposal 17 facility and I rather question whether the BLM or the Forest 13 Service is going to assign someone to stay out there around 19 the clock to sign and receive the manifest for every truck 20 load, for example, of uranium mine overburden, which would be 21 delivered and placed in one of these disposal sites not owned 22 by the operator. This could be overcome by some wording to 23 the effect that on-site disposal is land owned or controlled 24 under special permits or lessees. 25 For example, some of the uranium mining operations that ------- 29 295 1 that I am familiar with are operated under leases where the 2 owner or the operator does not own the property at all, but 3 rather is operating through.leases with the property owner, and 4 again, I think the property owner, who many times is a 5 rancher that has leased out his land, is not going to want 6 to be saddled with the responsibility of being a hazardous 7 waste disposal operator. 8 One final point. I wonder if you might give some 9 consideration to whether a mine operator is responsible for 10 sampling analysis and reporting of each truck load of mine 11 overburden, again, going back to uranium mine operations, 12 uranium mine waste that is placed in the waste storage pile. 13 i notice 250.23(b)(6) requires reporting of each ship- ^ 14 ment of uranium. Each shipment can occur on 30 second 15 to one minute intervals, which would get pretty horrendous, 16 i especially if one had to get into the problem of sampling of 17 each of these truckloads, because each truckoad will be differ* 18 as you go up and down in the overburden. 19 Thank you very much. Are there any questions? 20 CHAIRPERSON DARRAH: Thank you. 21 MR. TRASK: First a point - o'f clarification on that 22 last point that you made. The term shipment, as it is used 23 here, takes the meaning that is used in transportation circles 24 which means that it is not every truckload, ™ 25 MR. ROUSE- Okay, that might want to be clarified, ------- 296 1 because much of this transportation is, of course, off-road anc 2 not subject to Department of Transportation requirements. 3 - MR. TRASK: Well, DOT may choose to clarify that 4 in their regulations. I am not sure, but we see so much is 5 under DOT. 6 In this business of off-site versus on-site, I am not 7 suere that I understood who would be responsible for that 8 material that was disposed of in the case that you described. 9 MR. ROUSE: Well, that is what I am not sure about 10 myself. That is why I request some clarification. As I read 11 the on-site versus off-site, the way it is now worded, that 12 on-site has to consist of property owned by the operator. Most 13 of these operations I am familiar with would consist of 14 off-site disposal and the operator would have the disposal 15 facility — well, either the Forest Service or BLM, who own 16 the property or originally the rancher who owned the property, 17 and who leased the mineral rights to the mining company. Many 18 of these people do not own the surface facility. Some own 19 the mineral rights and some just lease the mineral rights. 20 ' MR. TRASK: Wouldn't that be the owner of the 21 property and not the operator? Wouldn't the operator be 22 whoever dumped the waste there? 23 MR. ROUSE: The owner of the property is not the 24 mining company doing the dumping, yes. I don't think the 25 ranchers are going to want to find themselves into the ------- 1 hazardous waste disposal site business. They lease it out. 2 MR. TRASK: YOu are probably right about that. 3 MR. ROUSE: They lease it out for a royalty, and 4 I don't think it is their responsibility. I think it is 5 more the mine operator. 6 CHAIRPERSON DARRAH: Thank you. 7 The next speaker is Mr. Orville Stoddard from the Colorado 8 Department of Health. 9 MR. ORVILLE STODDARD: I am Orville Stoddard, 10 engineer for the Hazardous Waste Department, speaking for the 11 Department of Health and Mr. Al Hazle, Division Director. 12 These comments are pertinent to the Section 3002. 13 My" first comment is on page 5896, Comumn 2. paragraph 2. 14 '"The Agency has proposed that persons who produce and dispose 15 of less than 100 kilograms (Approximately 220 pounds) of 15 hazardous waste in any one month are exempt from the requirement 17 of this Subpart if they comply with paragraph 250.29 lg Categorizing a hazardous waste by weight, making no 19 allowance for toxicity, physical form, dilution and so forth 20 is a questionable approach. Some hazardous waste cannot be 2i adeauately measured by weight (for example, pathological 22 organisms and radioactive materials.) 23 We recommend provisions be made to establish rextremely 24 hazardous waste" and ''hazardous waste1' categories to enable the™ 25 establishment of higher priorities to control extremely hazardou ------- 298 waste, 2 Section 250.20(c). page 58975 reads: 3 (c) "Any person or Federal Agency who generates 4 a solid waste must determine, pursuant to Subpart 5 A if the waste is hazardous. If it is and if 6 that person meets the definition of a generator 7 contained • in 250. 2Kb) (9) herein, he must comply 8 with this regulation to the degree and in the manne 9 specified below." 10 it may be almost impossible for some generators of 11 potentially hazardous waste to perform the required tests if 12 they have complex or variable wastes from many processes 13 even though some of these wastes are not hazardous. Therefore, 14 many wastes which are not hazardous would be classified as 15 such just for expedience. The result of this would be to 16 overwhelm hazardous waste disposal for small businesses without 17 laboratory testing capabilities. 18 We recommend there should be provisions for exemptions 19 from requirement subject to the approval of the State Agency 20 and Regional Administrator. 21 Section 250.20(c)(4) page 58976. 22 (4) "Any person or Federal Agency who generates 23 only household refuse or household septic tank 24 pumpings is not required to comply with the 25 requirements of this Subpart. " ------- 33 299 1 Septic tank pumpings from household sewage systems 2 contain pathogenic organisms prevalent in raw sewage. Septic 3 tank pumpers may also collect liquids and sludes from industria 4 operations. These wastes discharged at landfills, if tested, 5 would most likely be categorized as hazardous waste. 6 We recommend septeic tanks pumping discharged into sanita 7 sewer systems should be exempt from these regulations. Septic 8 tank pumpings should be considered a hazardous waste if dispose 9 of in landfills. 10 Page 58976, column 1, paragraph 250.20(2): 11 "Every generator must comply with Subpart D and Subpart 12 E of this part if the waste remains on site for 90 days or 13 more.'" 14 Obtaining compliance by generators that store 15 hazardous waste for more than 90 days with the requirements of 16 Subparts D and E appears difficult to regulate. 17 Thank you. 18 CHAIRPERSON DARRAH: Thank you. Are there question 19 MR. TRASK: Mr. Stoddard, you indicated there 20 ought to be an extremely hazardous waste category and I think 21 you said some waste, such as pathogens or pathological waste 22 would be candidates for that. Do you have any other thoughts 23 on what other wastes should be in that category? 24 MR. STODDARD: No, sir. I am sure with some ™ 25 thought, I could come up with something, but not on the spur ------- 300 of the moment. That was just used as an example. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 later? on this. MR. TRASK: Are you submitting some written comment MR. STODDARD: YEs, there will be an enlargement MR. TRASK: Would you think about that and do what you can on that. MR. STODDARD: Yes, I will. MR. TRASK: We would appreciate it if you would. MR. STODDARD: Okay. MR, LEHMAN: Mr. Stoddard, you mentioned that in your belief there should be a distinction between the final disposition on how you classify septic tank pumpings if" they go in a sewer system, then if they_go into a sewer system and to the sanitary landfill, and then should be classified differently: is that what you are saying? MR. STODDARD: That is correct. They go to the waste water treatment.plant, then it gets additional treatment there, and the residue from the waste water treatment plant is, of course, regulated by the Water Quality Control Act. The material ending up at the landfill site does not receive this treatment, and usually there is reasons for this. MR. LEHMAN: I wonder if you could share with us your thoughts about how you would do this. In other words, it is very difficult to bring something into a system or outside, ------- 301 1 and keep it out of the system based, you know, sort of after 2 the fact, in that the driver and the pumper delivery has a 3 choice in a sense of whether he takes it to the landfill or 4 whether he takes it to a sewer system, and I am just wondering 5 if you thought through how you would practically carry out this 6 recommendation about how you would construct a program that 7 would do that. 8 MR. STODDARD: No. I don't know how to do that, but 9 I think there should be some mechanism there becasue it does 10 present problems at disposal sites and facilities; this is for 11 sure. 12 MR. TRASK: To follow up on that point a bit. 13 Who would be the generator in that case? ™ 14 MR. STODDARD: I think that is the question. It 15 wouldn't be the home owner if he is just having it collected 16 by the transporter. Maybe the transporter would be considered 17 the generator. I don't know. That is one of those areas that 18 is a problem, but it.is difficult to solve. 19 MR. YEAGLEY: For those septic tank pumpings that 20 are being disposed of in landfills, I really have two questions 21 Are those landfills permitted landfills based on your 22 state regulations and what kind of impacts are you seeing from 23 that type of disposal? 24 MR. STODDARD: Let's see. The Solid Waste Act 25 really pertains to solid waste at landfills. We do have a ------- 302 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 certifying authority through the county commissioners for the landfill sites. Now, the liquid waste received at the landfill sites are considered in their certification process, but they do present problems in terms of potential water pollution problems, and in terms of potential methane gas generating problems and in terms of odors and so forth. MR. YEAGLEY: Based on your understanding of the Subtitle D Section 4004 regulations for classification of landfills, if those landfills were up to speed as far as that Subtitle D regulation, do you feel then that this problem would still exist? MR. STODDARD: I don't know. That would do a lot to solve the problem. CHAIRPERSON DARRAH- Thank you. Mr. Barry Hutching MR. BARRY HUTCHINGS: I am Barry Hutchings, and on behalf of the American Petroleum Institute, I would like to express my appreciation for this opportunity to appear at the hearing today to discuss the proposed regulations implementing Section 3002 of the Resource Conservation and Recovery Act. particularly as the pertain to the control of the disposition of used, or waste, motor oils. While I plan to direct the majority of my remarks to specific recommendations, I would first like to center att<§ntic on the distinction made in paragraph 250.29 between retailers whodispo-se of waste oil and all others who are not disposers of ------- 303 1 waste oil. Section 250.29(a) states, with two conditions, tha 2 any retailer disposing of hazardous waste other than waste oil 3 is not a generator. This extraordinary exception appears to be 4 unnecessarily discriminatory against retailers of motor oil — 5 specifically gasoline service stations who drain used motor 6 oil and/or accept used oil from individuals who drain and chang< 7 their own oil. 8 The apparent justification for including only this class 9 of retailer is that waste oil is ubiquitous and is a potential 10 carrier for other hazardous waste and substances. I would like 11 to comment briefly on both of these premises. 12 First of all, we see no problem with the service station 13 contribution to this ubiquity. In fact, there is a positive 14 aspect. The most important source of improperly disposed 15 waste oil today is the individual who changes hts/ own oil. As 16 touched on before, thousands of service stations now accept 17 this material from the do-it-yourselfer and efforts are under 18 way to further encourage such activity. They provide a ubiquitt 19 means of containing this potential pollutant. Placing 20 administrative burdens on these small businesses will be 21 counterproductive to this effort. Waste oil accumulated at 22 service stations does not represent a significant environmental 23 problem today becuase it is a valuable commodity that is 24 eagerly sought by transporters, for example, collectors or 25 scavengers, who have a strong financial interest in providing 4 ------- 304 removal or pick up service and who presumably will be controll 2 adequately under other Subparts. 3 With regard to the hazardous carrier aspect, there apparently are documented cases wherein waste oil has been mixed with transformer oil containing PCB's. However, to our knowledge, this practice has never occurred, nor would it be expected to occur, with waste motor oil at service stations I would now like to address the subject of specific recommendations. 10 It is the contention of API that paragraph 250.29(a) is 11 sufficient to control waste at all retail outlets and, therefo 12 we ask that service stations be similarly excluded from the 13 generator definition. Nevertheless, to support the "cradle 14 to grave" control concept, we recommend that all retail outlet 15 that accumulate waste oil bex^equired: 16 (1) To be identified by code. 17 (2) To allow removal of waste oil only by transporters 18 who are permitted or otherwise controlled under 19 Section 3003, 20 (3) To maintain a record of the identity of transporter 21 utilized and the approximate volume of waste oil 22 transferred, and 23 (4) To prepare and submit, within 30 days after the 24 closing date of the year, an annual report to the 25 appropriate authority, for example, the EPA Regiona ------- 305 39 1 Administrator or the administrator of an approved 2 state plan. Such report should include all of the ^ 3 information set forth in paragraph 250. 23 (b) 4 except item (.3) which pertains to identification of 5 the permitted' treatment, storage, or disposal 6 facility to which the waste oil was sent. With 7 regard to item (9), the certification we recommend 8 for obvious reasons that the sentence rl am aware 9 that there are significant penalties for submitting 10 false information, including the possibility of 11 fine or imprisonment,' be changed so as to include 12 the word vknowingly" before the word ''submitting." 13 RCRA clearly provides for this concept. ™ 14 Another means of reducing what API feels would be 15 unnecessary burdens on service stations would be to modify 16 their requirements, if any, under Subparts D and E, pertaining 17 to storage. By way of background, the changing of motor oil 18 tends to be seasonal . — that is, most of the activity takes 19 place in spring and summer, both at stations and by do-it-yourse 20 Thus, there are times during the year in which the accumulation 21 rate is very low. Couple this with the fact that collectors or 22 scavengers are not very interested in picking up small quantitie 23 for economic reasons. The result is that many stations, 24 especially those in rural areas, are forced to hold the 25 accumulated oil on-site for longer than 90 days. Thus, under ------- 306 1 the proposed rules for Section 3002, service stations might 2 face requirements under Subparts D and E, as well as B. In all 3 likelihood, many service station operators would decide in 4 this case to discontinue changing oil and accepting oil from 5 individuals in order to avoid the regulatory burdens. In line 6 with an earlier comment, such action would be counterproductive 7 to the industry's effort to maximize the return of do-it-your- 8 selfer oil and would lead to increased pollution. 9 A further extension of this situation could be that a 10 transporter would not be willing to enter into an assumption 11 of duties contract if he" had to pick up from service station 12 clients every 90 days or less — regardless of the amount of 13 oil involved. Of course, this point is immaterial if the EPA 14 acts favorably on the API request to exclude service stations 15 from the generator category. 16 In view of the considerations just discussed, we 17 recommend that paragraph 250.20(c)(2) be revised so as to chang lg the phrase ''90 days or longer1' to read "'twelve months or 19 longer." In addition, a change may be necessary in the 20 definition of "Storape Facility'' in paragraph 250 . 4l(b ) ( 83) . 2i Last, but not least, API continues to have a grave concer 22 about the issue of burning waste oil. particularly waste motor 23 oil. We have previously discussed this matter on numerous 24 occasions with EPA representatives. Briefly stated, however, 25 our position is that with minimal controls, the use of waste ------- 30' 1 oil as a fuel supplement is a constructive means of resource 2 conservation and recovery. More to the point, it is the 3 belief of API that unnecessary restriction of this means of 4 recycling will lead to an increase in undesirable disposal of 5 waste oil within the meaning of disposal as clearly defined by 6 RCRA. That is, the dumping, and so forth, into or'on land 7 or water. We further believe that the minimal controls needed 8 to guard against significant air pollution fall within the 9 purview of the Clean Air Act, not RCRA. 10 API will be addressing other aspects of the Section 3002 11 proposed regulations in detail in its written comments. Howeve 12 our central concern is that EPA use its authority over hazardou 13 waste management to adopt a flexible approach which first ™ 14 identifies the substantial hazards to human health and the 15 environment, and then uses this information to adopt regulatory 16 measures which achieve a substantial reduction in these hazards 17 Having reviewed the proposed regulations under Section 3002, AP lg Remains concerned that EPA's desire for administrative simplici 19 will result on the one hand in the continuation of significant 20 hazards, and on the other, lead to inefficient compliance 21 requirements which attempt to eliminate a minimal or non-existe 22 hazard. Thank you. 23 CHAIRPERSON DARRAH: Thank you. Will you answer 24 questions from the panel? m 25 FR. HUTCKIMGS: Yes. ------- 3( 1 MR. LINDSEY: Mr. Hutchings, I have two questions. 2 You mentioned that you thought the 90 day exclusion was too 3 short and that would put a burden on the gas station who 4 maybe would stop changing oil, or stop receiving home owner 5 oil. Assuming that the 90 day exclusion is not a problem, 6 would the rest of the regulation, which we have, as written, 7 in your opinion, cause service stations to perhaps not stop 8 receiving waste oil from home owners? 9 MR, HUTCHINGS: Particularly the reporting and 10 record keeping requirements, yes. 11 MR. LINDSEY- In other words, just the simple fact 12 of having to sign off on a manifest and maintain a report would 13 be enough? They would have to do it anyway, wouldn't they? 14 MR. HUTCHINGS- I think it is a very good possibilii 15 it would. 16 MR. LINDSEY: You would? 17 MR. HUTCHINGS: The reason for this is, they make 18 some profit on changi'ng oil, but the average service station 19 makes perhaps a hundred changes a month, that is about all. It 20 is a fair contribution to their profit, but they are so burden 21 now with controls that we put on them, and the government puts 22 on them, and the accountant of an average service station is 23 usually the operator's wife, and it is not a big business. 24 This is a small business we are talking about. With regards to 25 the value of this waste oil, it is almost zero to the service ------- 309 1 station operator. He makes five cents or perhaps ten cents 2 a gallon for it, but collecting it at a hundred gallons a montfl 3 MR. LINDSEY: He. gets paid for changing it? 4 MR. HUTCHINGS: That istrue, he does. 5 MR. LINDSEY: Well, wouldn't the assumption of & duties provision, wouldn't that relieve him? That was the 7 intent was to relieve him of all that record keeping. 8 MR. HUTCHINGS: API is considering looking very 9 closely at that particular aspect, which obviously has been 10 added to try to relieve the burden. 11 MR. LINDSEY: I think.it will work. 12 MR, HUTCHINGS: The assumption of duties contract? 13 MR. LINDSEY: Do you think it will happen? 4 14 MR, HUTCHINGS: I think in some cases it will, but 15 in other cases, it will not, particulary if the consumer has-to 16 come and pick up the oil more frequently then he has to. More 17 to the point, if you are going to transfer a duty by this 18 contract, let's just .directly explicitly tranfer the duty 19 right in the regulation. We believe the responsibility 20 primarily lies with the transporter. He is the one that has 21 the primary financial interest, and he is the one that has the 22 major control over the flow of this material, not the service 23 station operator. 24 MR, LINDSEY: Changing the topic just a bit. You 25 also commented on the use of waste oiir.as a fuel. Our regulati< ------- 3K 1 don't preclude that. It .fust says you-would-have to have a 2 permit to use it as a fuel. You felt that certain controls 3 may be necessary, but I gather that you feel that the 4 permitting approach is too burdensome. What controls would 5 you have? 6 MR. HUTCHINGS: Already as pointed out by Mr. 7 Trask, there are metals in used motor oil, predominantly lead, 8 which is probably running now something like about .06 percent 9 of the total material. About half of this does get emitted to 10 the atmosphere when you burn the material, but as you also are 11 well aware, that lead is being phased down very rapidly in 12 gasoline, which, of course, is the source of lead in used 13 motor oil, so now we are down to barium and perhaps some 14 zinc and so forth, which is a lesser problem as far as we can 15 see compared to lead. We think based on work we have done in 16 the past, that you people are well aware of, that controlling 17 the use of motor oil as a fuel, say below five to ten percent 18 is adequate as a viable and constructive resource recovery 19 procedure. We are short on fuels, and this is a good fuel. 20 MR. LINDSEY: So you think just a rules perhaps 21 that says you can't have lead concentration in waste oil used 22 for fuel above a certain concentration, five percent or 23 something like that? 24 MR. HUTCHINGS: I think something along that line. 25 It might be a little bit of an administrative problem, but if ------- 311 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 put a high enough penalty on it if somebody violates, yes, I ^ think that could be the approach. MR. LEHMAN: Mr. Hutchings, in your remarks, you made a distinction between service station retailers as collectors of waste oil and I am wondering if you would care to comment on other collectors of waste oil that are not necessarily retailers. Our information has it that large amounts of waste automotive oil are collected by truck terminals and other types of automotive operations besides retailer service stations. Now, your remarks apply to all of those, or are you saying we really ought to do this only for retailer service stations? MR. HUTCHINGS: I am deliberately singling out the" service station because I think they are the ones we are primarily interested in our industry, but I think the same kind of reasoning applies to them also. We think there is minimal hazard, and we think it is such a viable commodity now that irresponsible dumping into the atmosphere or into land or water is a thing of the past, because it is just worth too much. If the transporter is properly controlled, we think the same line of argument applies to truck stops, maintenance centers and that sort of thing. MR.LEHMAN: .Well, moving on to that other point you just made, if I understand your recommendations correctly,^ you were recommending that a permit system be set up for ------- 312 1 for collectors of waste oil- Is that correct? 2 MR. HUTCHINGS- I didn't mean to do that. I think 3 some type of control. I rather not actually stand here and 4 be the one that actually recommends that they have to be 5 permitted. I think that is within your judgment of how to 6 control them. 7 MR. LEHMAN: Your comments mentioned only transport 8 whereas the regulation provides for collection by owners and 9 operators of disposal facilities directly. Mow, you want to 10 make a distinction there, or is that intentional-on your part? 11 ' MR. HUTCHINGS: No," it really wasn't intentional. 12 I think a rerefiner may be hard pressed to operate a system foi 13 all of the people who are the original source of material, 14 because on an average, a rerefiner will produce let's say 15 three million gallons a year. He is picking up from ^/ 16 individual point sources at the rate of maybe one thousand 17 gallons a year. So you can see he is going to have an awful 18 lot of these manifests flooding him. I am not sure they are 19 going to be willing to pick up this responsibility. I don't 20 think I would. 21 MR. LEHMAN: Well, my point was, that your 22 recommendation just applied to transporters and I was 23 wondering if that was intentional or whether you would have no 24 objection in your recommendation then if the same recommendati< 25 would apply to owners and operators of facilities? ------- 313 1 MR. HUTCHINGS: As far as stringent controls over ^ 2 what happens to the material? 3 MR. LEHMAN: Yes'. 4 MR. HUTCHINGS: Absolutely none. 5 MR.LEHMAN: You don't really care if it is strictly 6 transporter or owner/operator? 7 MR. HUTCHINGS: I think it is going to have to be 8 both. 9 MR. LEHMAN- That is what I am driving at. 10 MR. HUTCHINGS: Yes. 11 MR. TRASK: Mr.- Hutchings, in dealing with the 12 assumption of duties between the transporter and the service 13 station, di I understand your point to be that all of the duties 14 ought to be transferred to the transporter or rerefiner as 15 Jack mentioned? 16 MR. HUTCHINGS: Not by an assumption of duties 17 contract, but explicitly in the regulations. In other words, 18 unburden the generato'r as you have suggested at this point. 19 . MR. TRASK: In other words, the service station 20 would have no responsibility whatsoever? 21 MR. HUTCHINGS: Other than what I have mentioned, 22 that is, only allowing a properly controlled — to use that 23 word rather than permitted transporter in turning in a yearly 24 report, which gives you some means of control, not as good as ^ 25 you would like, I admit, but you will have some material ------- 1 balancing available to you by that year end report. 2 MR, TRASK: What abour record keeping? 3 MR, HUTCHINGS: That would be the only record 4 keeping that we would suggest that would be placed upon them, 5 that is, sufficient data to be accumulated by the service 6 station operator so he can generate his year-end report. 7 MR. TRASK: So he would keep records and turn in 8 an annual report, and that would be his responsibility? 9 MR. HUTCHINGS- That is correct, yes. 10 MR. TRASK: Thank you. 11 CHAIRPERSON DARRAH: Thank you very much. Our next 12 speaker is Earl R. White of Arapahoe Chemicals, Inc. 13 MR. EARL R. WHITE- Good morning. My name is 14 Earl R, White, I am the Health and Regulatory Affairs Chemist 15 for Arapahoe Chemicals. Inc. located in Boulder, Colorado. 16 Arapahoe Chemicals' principal concerns with the proposed 17 regulations contained in Section 3002 are discussed first and 18 our detailed comments-follow in a section-by-section format. 19 In the opinion of Arapahoe Chemicals, there are four basic 20 problems with the proposed Section 3002 hazardous waste 21 regulations. These include: 22 (1) The option under consideration for requiring routine 23 reporting on a regular schedule more frequently 24 than annually. 25 (2) The lack of an appropriate disclaimer statement in ------- 315 1 EPA's proposed certification statements. 2 (3) EPA's effort to integrate proposed rules with DOT 3 rules applying to transportation of hazardous wastes 4 and 5 (4) Lack of confidentiality provisions in the manifest 6 and reporting forms. 7 Our first concern centers around EPA's proposed option 8 found on page 58973, column 3, line 1 in the preamble to the 9 proposed Section 3002 regulations. 10 Subpart B, Section 3002 Standards Applicable to Generator 11 of Hazardous Waste EPA's proposal — Preamble (Columb 3, 12 Line 1, page 58972): 13 "Options under consideration include: (1) 14 Requiring quarterly rather than annual reports 15 on each manifested shipment of hazardous waste. 16 [and] (2) Requiring that a copy of each manifest 17 be sent to the Regional Administrator on a 18 quarterly basis." 19 Quarterly reporting would unnecessarily increase our 20 administrative reporting costs for this section by threefold 21 (.300!?) over annual reporting. Because of the sufficient 22 number of examples calling for immediate supplemental reporting 23 routine reporting on a regular schedule more frequently than 24 annually would be unnecessary and burdensome for both ™ 25 industry and EPA. Equally important, the overall intent of th< ------- 316 1 reporting function would not be jeopardized by annual reporting 2 Our second concern centers around EPA's proposed certifi- 3 cation statements in Section 250.22(h)(12) and Section 250.23 4 (b)(9),(c)(9), (d)(9), (g)(9) and (h)(9). 5 EPA's proposal, Section 250.22(h)(12): 6 ''The following certification: This is to certify 7 that the above-named materials are properly 8 classified, described, packaged, marked ...Agency." 9 We recommend a certification statement following the 10 example found on the EPA/TSCA Chemical Substance Inventory 11 Report forms: for example, "I hereby certify that, to the best 12 of my knowledge and belief, the above-named materials are prope 13 classified, described, packaged, marked ....Agency" to replace 14 the proposed certification." 15 Section 250,23(b)(9 ), (c)(9),(d)(9),(g)(9) , and (h)(9). 16 "The following certification: TI have ..., and I 17 hereby certify under penalty of law that this 18 information is true accurate, and complete.'1' 19 We recommend a certification statement following the 20 example found on the EPA/TSCA Chemical Substance Inventory 21 Report forms, for example, ''The following certification 'I 22 have..., and I hereby certify that, to the best of my 23 knowledge and belief, that this information is true, accurate, 24 and comDlete.'1' 25 Our third concern centers around EPA's proposal in ------- 317 1 Section 250.25(a)(l): 2 ''Every generator shall place the hazardous waste 3 to be shipped: .(1) In packages in accordance 4 with the Department of Transportation regulations 5 on packaging under ^9 CFR 173, 178 and 179." 6 It is uneconomical, inflationary and inefficient to 7 require the use of a new or reconditioned drum to transport 8 a waste ^5 miles, only to have the drum punctured when it 9 arrives at the disposal site, as is the actual case with our 10 present Colorado facility. A better use of resources would 11 be achieved if wastes designated to be landfilled within a 12 short period of time (30 days) were allowed to be disposed of ii 13 used drums in this limited time. ™ 14 The cost for reconditioned and new drums is $10.00 and 15$35.00 respectively. Since we anticipate using 6300 drums per 16 year *our 1978 usage), this regulation could mean an 17 additional cost of $63,000 -•-$220,000 annually. The costs 18 incurred by this regulation would be punitive and burdensome. 19 A valuable resource would be wasted without any resulting 20 benefit to human safety or the environment. This additional 21 unnecessary cost which must be absorbed by our customers 22 through higher cost of goods will definitely be inflationary 23 and put a burden on our ability to be competitive. 24 Our fourth major concern centers around the lack of 25 confidentiality provisions in EPA's proposal in Section ------- 250.27(a): 318 1 2 ''All information provided in connection with the 3 manifest and reporting sections established by this 4 Subpart shall be available to any person to the 5 extent and in" the manner authorized by Section 6 3007(b) of the Act, the Freedom of Information 7 Act (FOIA)(5 U.S.C. Section 552). and the EPA 8 Regulations adopted in compliance with the FOIA 9 (Jio CFR Part 2).' 10 We are very concerned that satisfactory confidentiality 11 provisions are not yet in place. Our products are typically 12 complex chemicals and their manufacture can be complicated 13 and expensive. Furthermore, the manufacturing process 14 represents the culmination of years of very expensive research 15 and development. Much' of this R & D work may not be protected 16 by patent coverage and it is common for the process chemistry 17 and yield data to be very closely protected. At Arapahoe 18 Chemicals this confidentiality protection of our technology 19 constitutes the very essence of our competitive position. 20 Without it, the viability of our business may well be in 21 jeopardy. In some cases the very appearance of a specific 22 chemical waste on the manifest or generator report could give 23 proprietary information. If quantified disposal data were 24 released, even inadvertently, then a competitor could 25 conceivably estimate yields and processes, extremely confident! ------- 319 53 I subjects. 2 Another concern about the confidentiality of reporting is 3 that many companies such as . Arapahoe Chemicals doing custom 4 chemical manufacture for other firms typically have signed 5 contractual secrecy agreements. Thus both the manufacturer 6 and the customer have real needs to protect their business 7 interests. 8 The announced intention of EPA to share information with 9 other Federal agencies and with the public according to the 10 provisions of the Freedom of Information Act is obviously in 11 serious conflict with the very important confidentiality needs 12 of the chemical industry. We ask that EPA respond to these 13 confidentiality concerns in a manner similar to the actions ™ 14 provided for under TSCA: for example, providing for 15 confidentiality claims on the forms. 16 If the confidentiality of industry is protected in the 17 way herein requested, the intent of the Act would not be 18 impeded. Thank you.. I will be open to questions from the 19 panel. 20 CHAIRPERSON DARRAK: Thank you. 21 MR. TRASK: Mr. White, I would like to make a 22 comment to your comment, if I may. On the reuse of containers, 23 I think you ought to read the DOT proposal dated May 25, 1978, 24 in which they propose to allow the reuse of NRG and STC 25 containers for a one time trip to the disposal facility. That ------- 320 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 IS 19 20 21 22 23 24 25 is why our regulation is written the way it is, to follow the DOT rules. However the DOT rules are changing, so you may not need a new container. MR, WHITE; Thank you. MR. TRASK: You mentioned a problem on confidentiality regarding contractual-secrecy agreements. I assume that is why you are doing toll processing? MR. WHITE: Yes. MR. TRASK- What kind of secrecy arrangement do you have? Does that lay all of the burden towards holding information on you? MR. WHITE: I am afraid toxic substances does that for us. The contractual agreement that are drawn in a toll conversion are typically that our customer provides the raw materials and we provide the synthesis, the R&D and the follow up with how to get rid of our waste materials, classifying whether they are hazardous or not. The burden of the entire batch process from fhe time we receive the raw materials until we dispose of the waste in our hands. MR, TRASK: What specifically is it that should be kept confidential. Is it the quantity of waste, the kind of hazard? What exactly? MR. WHITE- We have a number of customers who have maybe just a hedge on a competitor by making a different intermediate in the process or coming out with a different ------- 321 1 waste stream. If our competitor has a process to make say, 2 aspirin in a different way and comes out with a waste stream 3 that takes 90 percent less effort to dispose, and 90 percent 4 less costs, that is very interesting to him to keep that in a 5 confidential matter. So he has a competitive edge on his 6 counterpart wherever they may be. This is all hypothetical, 7 but another case might be making an ester, if we could make 8 an ethyl ester rather than say a butyl ester, we could make 9 this product cheaper for our customers. The waste stream will 10 Show that up in the form of ethyl alcohol. It doesn't take 11 much enginuity to get back to square one. 12 MR. LINDSEY; Not only composition but I think you 13 referenced assuming that composition could be kept confidential 14 you also mentioned that volume would be. VJhy would volume be 15 something that should be held confidential, so many tons or 16 so many million gallons, whatever it is. 17 MR. WHITE- We have a number of companies that 18 are competitive in the United States in batch operation. If 19 they knew how much we could produce with our limited facility, 20 they may be able to scale up and say we can be more competitive 21 with you, by buying a bigger kettle, and locating this in 22 South Texas rather than in expensive Boulder, Colorado. There 23 are numerous reasons. That is, without getting into some 24 confidential areas, I can only talk around the generalities. ™ 25 Quantification and identification are very closely guarded in ------- 32; 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the chemical industry, especially in batch operations, MR. TRASK- Well, as you know, the manifest nomenclature which we require is what DOT requires on shipping papers already, and does not form the basis for your report. ] it your contention then that release of the DOT name of that material would be harmful to your confidential problem? MR. WHITE- It could be. We are both looking down the road. If we have to do this extensive testing evaluation and identification of our waste streams, this could eventually end up on the manifest form, or in the reporting forms. It depends on the degree of specificity, I guess, you want on those forms. MR. TRASK: What we have said, using the DOT names if it applies, if not, then use the EPA name. If that is not sufficient to guard the confidentiality, then we would be open to more specific suggestions then that. MR. WHITE: I have these in written form which I will send to the Agency before March 16th. MR. TRASK: Thank you. We appreciate that. CHAIRPERSON DARRAH: Thank you very much. Ms. Francine Bellet Kusher of Chemical Specialties Manufacturers Association is our next speaker, MS. PRANCINE BELLET KUSHNER: Good morning. My name is Francine Bellet Kushner. Associate Director for Legislative and Regulatory Affairs, Chemical Specialties ------- 323 1 Manufacturers Association, CSMA is a voluntary non-profit 2 organization consisting of more than 400 members companies 3 engaged in the manufacture, processing and distribution of 4 chemical specialty products. Production processes in the 5 manufacture and formulation of members' products generate . 6 substances that are directly affected by the proposed 7 regulations for identification and listing of hazardous wastes 8 as well as the proposed standards for generators and 9 owner/operators of treatment, storage, and disposal facilities. 10 Accordingly, CSMA offers the following comments regarding the 11 hazardous waste regulations proposed under 3002 of the 12 Resource Conservation and Recovery Act. These points and 13 others will be further developed in our subsequent written I 14 submission. 15 We welcome this opportunity to present our views to the 16 Environmental Protection Agency on issues raised by these 17 hazardous waste regulations which will have significant impact 18 on our industry. The vitality of the chemical specialties 19 industry is dependent upon the opportunities for constant 20 innovation. We are concerned that the proposed hazardous 21 waste regulations will have a negative impact on essential 22 process and product innovation and will impact disproportionate^; 23 on small companies. 24 Section 3002, Standards for Generators of Hazardous 25 Waste. Generator Exemption Levels should be based on Relative ------- 324 1 Degree of Hazard. 2 Section 250.29 provides for an exemption from this 3 manifest, reporting, container and labeling provisions for 4 generators who produce and dispose of no more than 100 Kg of 5 hazardous waste in any one month period. Any exemptions grantee 6 from the hazardous waste regulations should be based on 7 relative degree of hazard. The exemption contained within 8 250.29 fails to recognize relative degrees of hazard and, 9 instead, provides a blanket exemption. 10 As CSMA stated in its earlier testimony on the 3001 11 regulations, the criteria for designation of hazardous waste 12 fail to recognize relative degrees of hazard. CSMA has 13 recommended that both the identification criteria for 14 hazardous waste and the exemption mechanism be based on degree 15 of hazard rather than an exemption applied across the board. 16 Designation of hazardous waste should take into account such 17 factors as persistence, degradation, bioaccumulation, exposure, 18 toxicity and concentration. Both the statute and the legis- 19 lative history indicate that designation or identification of a 20 hazardous waste should consider the degree of hazard. For 21 example, paragraph 1004(5) of RCRA states that the term, 22 ''hazardous waste means a solid waste or combination of solid 23 wastes, which because of its quantity Concentration, or 24 physical, chemical or infectious characteristics may../'. 25 Section 300U of RCRA further recognizes the concept of ------- 325 1 relative degree of hazard in requiring facilities to provide 2 assurances of financial responsibility and continuity of 3 operation "consistent with the degree and duration of risks 4 associated with the treatment, storage, or disposal of 5 specified hazardous waste': and the' legislative history indicates 6 that any exemption should be based on toxicity elements. 7 While CSMA recognizes that any exemption system based on 8 relative degree of hazard could complicate the regulatory 9 program, administrative convenience is not sufficient to 10 support a regulatory program which ignores the requirements of 11 RCRA. unnecessarily increases the burden of the program and 12 fails to concentrate agency resources on the regulation of 13 truly hazardous wastes. 14 Shipping Manifest Should Better Coordinate with the DOT 15 Shipping Paper System. 16 Section 250.22 creates a manifest system for tracking 17 hazardous waste shipments. This system should be modified to 18 track consistently with the DOT hazardous materials shipping 19 paper system. Any manifest or shipping paper system should be 20 uniform for all Federal regulatory purposes. Only one form of 21 shipping paper should be required for both DOT and EPA. CSMA 22 recommends that to accomodate both DOT and EPA requirements 23 only one lengthened DOT form be utilized. The economic 24 impact analysis prepared in conjunction with this proposed ' 25 regulation, in its 'Option C'". calls for simplified manifest ------- 326 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reauirements limited to existing shipping paper — bill of laden documentation fulfilling DOT requirements. 49 CFR, paragraph 172.202(a)(4) of the DOT Hazardous Materials Regulations provides that ra shipping paper may contain additional information concerning the material provided the information is not inconsistent with the required description". This is consistent with the CSMA recommendations that the DOT paper be lengthened to accomodate the information desired by EPA. Both 250.22 of these proposed regulations and 49 CPR 172.200-204 require the following information to be included on the manifest or shipping paper: description of the hazardous materials, name of the shipper, proper shipping name, hazard class, total quantity of each hazardous material and certification and signature, (the certification is identica with the exception that EPA adds EPA regulations to the list of those regulations'1, that must- be> complied'with) . Accordingly, it would be very easy to adopt the mechanism whereby a DOT shipping paper would"form the basis for the manifest system with the RCRA-required information added. This RCRA informatio would include the balance of the requirements under the manifes system of 250.22. This information would include the manifest document number, the genrator's identification code, name, address and date of shipment, the transporter's identification code, name and address, the facility's identification code, name and address, spill handling direction ------- 327 1 or 24-hour telephone number for emergency response, directions 2 and number -for contact with the National Response Center of ~ the U. S. Coast Guard, special handling instructions when available, and any additional comments. It is also essential that the modified DOT/EPA shipping paper/manifest be established as the form for use under all state hazardous waste programs. If states are forced to alter the form, the consistency and ease of compliance obtained by integrating the DOT and EPA form will be lost as soon as the 10 states assume RCRA authority. 11 Presumption that a Generator Produces More Than 100 kg 12 of Hazardous waste. 13 Section 250.27 provides that in all civil enforcement 14 proceedings a presumption will arise that a generator of 15 hazardous waste produced and disposed of more than 100 kg 16 of hazardous waste during the time period specified in the 17 enforcement proceeding. This presumption defeats the whole 18 purpose of any exemption in that it requires generators of 19 less than 100 kg to maintain extensive records in order to 20 be able to rebut the presumption. The result of the presumptio 21 is that a person who is not a generator under 250.29 must devel 22 elaborate waste tracking and waste monitoring programs. Such 23 records would involve extensive sampling, monitoring, and 24 record keeping of all production and waste streams. These 25 requirements impose unnecessary burdens upon a person who ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would otherwise not be a generator, would mandate action on the part of such persons that is clearly not contemplated by the proposed regulations, and would not reduce the administrate burden imposed by the regulation. In summary, the proposed regulations under 3002 of RCRA should be amended to reflect CDMA's major concerns, which are: (1) Exemption levels for generators of hazardous waste should be based on relative degree of hazard. (2) The RCRA manifest system should track the DOT hazardous materials shipping paper system, and only one DOT form, modified to accomodate RCRA requirements, should be mandated. (3) The presumption that a generator produces more than 100 kg of hazardous waste within the time period specified in an enforcement proceeding defeats the purpose of any exemption by requiring maintenance or extensive records to rebut the presumption. CSMA appreciates this opportunity to share our views and we offer our firm commitment to work with the Environmental Protection Agency toward development of viable hazardous waste management regulations. Thank you. CHAIRPERSON DARRAH: Thank you. Will you answer Questions? MS. KUSHNER- Yes ------- 329 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. TRASK: Do I understand from the discussion that you have in here about the DOT/EPA generator manifest of shipping papers, that CSMA is recommending that a national uniform form be mandated? MS. KUSHNER: We are suggesting that under RCRA a separate form should not be required, whether that form-takes the idea of just stapling an additional paper containing RCRA required information to the DOT for, I think is one alternative Another alternative would be just expanded DOT form. What we are suggesting is, that it would be confusing for generators acting as shippers to have to worry about several different forms. MR. TRASK: Well, you talked about the DOT/EPA shipping paper manifest being established as the form? MS. KUSFNEP: Yes. MR. TRASK: I am sure you know that neither DOT or the EPA requires a form at the moment. MS. KUSHNER: That is true. There is no one specified form, all that is designated is certain information that must appear on any shipping paper. MR, TRASK: Right, and we worked long and hard to get the DOT and EPA requirements together, so that one piece of paper can be used. But are you now suggesting that we go to a form? MS. KUSHNER: I am not suggesting you mandate a ------- 330 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 specific form. What I am suggesting is, that any form that is recommended or considered suitable for compliance purposes' should recognize that separate papers should not be required. MR. TRASK: Okay, to turn to another subject, you talked about a category of truly hazardous waste and then you earlier mentioned a number of factors that ought to be singled out, some of those like persistence, degradability and so forth. The ones you did not mention were ignitable, corrosive and reactivity. Is it a reasonable assumption that you would put that in the other hazardous waste category? MS. KUSHNER: No. We are just suggesting additional consideration should be made and any designation of hazardous waste and any exemption mechanism should include these other considerations as well. MR. TRASK: Do you have specific suggestions on which hazardous material should be in the truly hazardous waste category? MS. KUSHNEP: We anticipate that several of our members in their separate written submissions will address that issue. MR. TRASK- We will look forward to that. MS. SCHAPPER: I am curious as to why you think in your comments about our enforcement statement about the rebuttable presumption that if one produces more than a hundred kilograms, why do you assume that such extensive ------- 331 I records would be required? I think my question is, why do I 2 you think extensive sampling and monitoring records would be 3 required? Don't you think that just general business records 4 of how much waste is produced or gotten rid of per month would 5 be sufficient to prove that the hundred kilograms has not been 6 achieved? 7 MS. KUSHNERr I would suggest that any firm that 8 would be subject to enforcement proceedings would like to have 9 full resources behind their position, and that as a practical 10 matter, to protect themselves, would engage in extensive 11 monitoring and sampling programs. 12 MS. SCHAFPER: Thank you. 13 MS. KUSHER: Our main concern there is the burden 14 of proof would be shifted. 15 MS. SCHAPPER: Righ^. 16 MR. LEHMAN: Ms. Kushner, your commentary states 17 at one point that you believe that the current exemption 18 system on--the basis of quantity '"unnecessarily increases the 19 .burden of the program.'1' And yet, just before that, you say 20 that CMSA recognizes that any exemption system based on 21 relative degree of hazard could complicate the regulatory 22 program. Now, I am confused about that, because you appear to 23 be saying that the existing proposal is burdensome and yet, 24 you are also saying that a degree of hazard system would also ^ 25 complicate. ------- 332 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. KUSHNER: What I suggested, it would complicate the regulatory program. I was suggesting that EPA would have to go through the additional step of setting forth an exceptior program for a classification system that would recognize a degree of hazard. MR, LEHMAN; That would also make a more complicate program? MS. KUSHNER: I don't think it would add to the burden by having a relative degree of risk incorporated into the mechanism. What we are suggesting is substance such as spent solvents, isopropyl alcohol should not be subject to the same requirements as say, a waste resulting from pesticide manufacture. MR. LEHMAN: Okay. MR. LINDSEY: YOu made the charge earlier, I guess. in your statement yesterday and today, that you felt the regulatory scheme would have negative impact on the innovation. It has been our thinking that just the opposite would probably happen, that the increased cost and burden which is associated with these regulations for disposal and control of these waste would probably lead to increased innovation with regard to modifying products so as to eliminate the toxic or otherwise hazardous nature of the product, and/or modify the process so as to do the same thing. Why is it that you feel that there would be a negative impact in innovation as a result of this? ------- 333 67 4 5 6 ^ 8 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. KUSHNER- If a formulator or manufacturer develops a new process that would create an additional hazardou waste for which he cannot find any facility to accept for treatment, disposal or storage, that would certainly be a disincentive for him to produce the product if he could not find somebody to handle the hazardous waste generated by the process generating that product. CHAIRPERSON DARRAH : Thank you. We will take a 15 minute recess and reconvene at 10:30 (Recess taken) CHAIRPERSON DARRAH: Next speaker is Mr. William D. Rogers from Rogers' Sales. Inc. MR. WILLIAM D. ROGERS: Good morning. I am Will Ian Rogers of Rogers' Sales, Inc, Monument, Colorado. Rogers' Sales Company is the marketing contractor to market Commanche Flyash generated at the Comanche Power Plant in Pueblo, Colorado. I have been actively marketing Comanche Flyash for over three years. I would like to briefly tell you our story. Starting in January 1976 after exhaustive tests of the quality of Comanche Flyash. we began to sell first the concrete masonry producers and following immediately most of the ready mix concrete producers. We were able to mar ket a considerable amount of flyash tonnage right from the beginning because of the excellent quality of comanche flyash. ------- 33^ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It can be said that we have developed the use of the Class C type flayash and are the leaders in the technology of its use. Comanche flyash is used for.making: 1. Ready mix concrete. 2. Packaged Dri-Mixes. 3- Concrete Masonry units. 4. Stucco and plaster wall systems. 5- Pre-cast concrete. 6. Mud Jacking. 7. Asphalt mineral filler. 8. Water pipe relining. Andthe list of products that can use flyash in them continues to grow each year. . In the year 1977 according to statistics from the National Ash Association, 6.3 million tons of flyash were used A very large percentage of that figure represents flyash produced in the east and midwest states. The states in the ar< starting approximately at the Mississippi River and coming west, are seeing escalation of coal burning power plants that are burning the so called western coals. These western coals produce a flyash that is far superior to any flyash we have seen previously consequently after many years of testing and research, ASTM C-618-77 includes the type C flyash. We fully expect to market 85 to 95 percent of the total flyash generated by the Comanche power plant. ------- 335 1 Our future certainly looked to be the brighest star in 2 the heavesn until December IB, 1978.''The proposed regulations 3 by the EPA could put us and -every flyash marketer in the United 4 States out of business. I have researched all of the 5 available literature for reports of adverse efforts on humans 6 or the environment, and cannot "'find one incident where flyash, 7 when used in the list of products previously mentioned has 8 caused any problems. 9 Plyash does not deserve to be in the all encompasing 10 EPA Subtitle C Regulations. I am in complete disagreement 11 that flyash is a waste material. Plyash is a byproduct from 12 the power plants. It should not be placed in the waste 13 category until it has actually been wasted. Waste is something 14 that is a useless or worthless material, as described by the 15 World Book Encyclopedia. Flyash is a very valuable material 15 and has been declared a natural resource recovery material by 17 the Energy Department. The Concrete Industry in the State of 18 Colorado, Kansas and"New Mexico used 65 thousand tons of 19 Comanche flyash in 1978. Had it not been for the flyash 20 available to supplement the cement shortage, the whole 21 construction industry would have suffered. To terminate the 22 many uses of flyash is contrary to the RCRA's legislative 23 history, which indicates that congress specifically viewed 24 utility byproduct reuses as non-hazardous and beneficial. ^ 25 We are concerned that the time frame in which this act ------- 336 1 has been required to be implemented, does not allow an orderly 2 process of technological development. The potential dangers 3 of any waste are always real, if you include the possibility 4 of being buried alive in it. Therefore, we request the Agency 5 to use maximum efforts in extending the time required for 6 compliance that we may develop the necessary technology and 7 information. 8 We do not need another TVA fiasco or another Snail Darte 9 fiasco. I am speaking to you today about the jobs of thousand 10 of persons in the United States who are related to the flyash, 11 coal byproducts industry. Our nation cannot afford to waste 12 an ounce of energy. Consequently we urgently request you to 13 reflect on the damage that could be caused by a hasty 14 implement of the proposed regulations. By declaring flyash 15 and coal byproducts hazardous waste, the advantages of energy 16 conservation through recycling of coal byproducts is destroyed 17 In summary, our ultimate goal is to sell and use every 18 pound of coal byproducts material available. We firmly 19 believe that the final solution is utilization. Regulations 20 that would hamper or terminate reaching that goal would deny 21 the total concept of Congress's RCRA bill. Let us then procee 22 together, to develop the necessary guidelines needed to ensure 23 a safe environment and enjoy the fruits of a recycled byproduc 24 It is our solid belief, that all of these things can happen 25 without first destroying a valuable industry. ------- 337 1 May I thank you for the opportunity to present our 2 comments. 3 CHAIRPERSON DARRAH: Thank you. 4 MR. TRASK: Mr. Rogers, what is it about these 5 regulations that is going to cause you a problem? I didn't 6 understand what your recommendations were. 7 MR. ROGERS: The recommendation is, that the flyash 8 per se should not be called a waste and should not even be 9 considered to be in the hazardous waste management program. 10 CHAIRPERSON DARRAH: Assuming that it was waste, 11 do you have any information as to whether the flyash that you 12 are talking about, which you called Excellent quality flyash" 13 would meet any of the four characteristics listed in Section ™ 14 3001? 15 MR. ROGERS: We do not have any information at 16 this time. The National Ash Association in conjunction with 17 all of us private contractors are trying at this time to 18 develop the information that we need. I might add that it is 19 presenting a tremendous burden as far as finances go to 20 work in this area. You must hire people of excellent quality. 21 For instance, our consultant is Dr. Diamond from Purdue 22 University, and it costs us \$350 dollars a day. 23 CHAIRPERSON DARRAH: I guess what you are saying 24 is, that the label hazardous.again is the comment we have 25 been hearing, that you are objecting to ------- 338 1 MR. ROGERS: Yes. Yesterday there were two 2 speakers that alluded to the fact that being just guilty by 3 association being labeled a. hazardous material. I can give yoi 4 a firsthand account that I personally went through with operat ' 5 of two mines in the State of Colorado where an article appeare< 6 in a magazine, a trade journal about two years ago. A person 7 in California said that flyash caused cancer, and that set me 8 back tremendously with this mining company, and it also 9 jangled my phone right off the hook from everybody that I was 10 selling it to. So the association is a very severe situation 11 for us to deal with. 12 CHAIRPERSON DARRAH: Thank you. The next speaker 13 is J. G. Reilly from St. Joe Minerals Corporation. 14 MR. JOHN G. REILLY: My name is John G. Reilly 15 with St. Joe Minerals Corporation. 16 We are operators of mines, mills and smelters in the 17 lead and zinc industry, and operators of coal mines and 18 processing facilities in the coal industry. 19 I didn't get a chance to speak yesterday, although we 20 wer going to give all of our comments yesterday, one or two 21 of them I didn't get a chance to finish. 22 First, I would like to say that Ms. Dorothy Darrah asked 23 for any positive comments that we might have, were acceptable, 24 and I think the ones that appears to me the most positive 25 is, that is a great improvement in the panel, in that they ------- 339 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 raised you up to where we can see you today. poi» various ^ reasons3 that is a great improvement. We have one comment on the generator portion of this hearing, and I would like to state it for the panel's benefit so they would know the problems. It has to do with Section 250.20(c) where the time limit for a generator expires after 90 days and after which he is no longer a generator, and yet, he becomes a storer and subject to Subpart D. In our zinc smelting operation, we produce various oddball materials that are hard to categorize. They are in relatively small quantities, perhaps one section might be 20 tons a year, and another 40 tons a year, or 100 tons a year^ and these are intermediaries that are hard to categorize, and what to do with them. They may be waste. They may be something that can be recycled to some-mother company to extract the metal values from them. Each so called lot has to be negotiated on its own metal contents and what the market will absorb at that time." If we can't get rid of them in that way, they have to go to a waste facility which would be off-sit< and not on our property. The problem that our smelter people tell us they have is, that when they decide they have to dispose of a waste, because they can't sell it. it is very hard to arrange to have this waste disposed of in the propermanner by a commercial ^ waste facility. ------- 3^0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I think this problem will somewhat disappear after the effects of this series of regulations go into effect. There will be more hazardous waste facilities that will accept these types of products, but right now, they have a very difficult time in trying to dispose of them, because they can't find anybody that will take it. They have to negotiate with th person and that person and so what we are asking for is for the next, let's say three years, to allow people to have more than 90 days to dispose of a waste if they can prove this or show that they can't reasonably get rid of it. We are suggesting six months, and again, it is an arbitrary figure, but it is to help alleviate this problem. These particular waste I am speaking of from the zinc smelting operation should not be confused with tailings, slag piles or some of the other mining wastes. These are relatively small volume, high metal content and indeterminate type of waste in that they have no consistency. One year, you will accumulate so much of this, and another year, it is this kind of material. They are not consistent, and they are hard to categorize. The other thing I would like to say is not directly related to generators, but it has to do with somewhat with a very important question that was asked by the members of the panel yesterday to people in the mining industry. I don't know if it was Mr. Lindsey or Mr. Lehman that asked thes ------- 341 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 questions, but I think they are very important. The question was,, why are you in the mining field so concerned of whether your waste is called hazardous waste or not. We have provided this nice category of special waste, and deal with them separately according to the characteristics of the special waste, and it appears that the panel was almost shocked that the mining industry was trying to avoid being categorized as hazardous waste, and I done some thinking on that over the night. I would like to answer those questions, although they weren't asked of me. One of them is, that the requirements for the special waste as spelled out in the proposed regulation, they are not all as innocuous as you might think. First of all, the six foot fence, I quickly in my head looked at our various mining operations in lead and zinc, and I calculated that we ha-e approximately 30 to 40 mile of perimeter in our various locations. We would have to put a fence up, and at eight dollars a foot, that is forty thousand .dollars a mile. What are we talking about, one or two hundred thousand dollars for a six foot fence around areas we don't believe to be a need for fencing, because in many cases, the remoteness of the mining facility in the countryside around the mining areas are as hazardous, you might say, as the mining tailing piles themselves. So this six foot fence ™ is not an innocuous thing. It is a big expense. It is a ------- 342 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 big expense and a security requirement to monitor to keep people in and out, and it becomes an unnecessary operating burden, burden. The maze of reports that have to be filled out, even though they may not be as much as common storage facility or treatment facility, ahs to do, you read that over with the idea in mind you are operating a tailings dam operation here and one there, and you got that whole page in the Federal Register of all those reports he has to make, teh quarterly, the daily and the annual, and keeping track of the lots and it is not an insignificant administrative function to comply with all of those reports and we think it is completely unnecessary. We are submitting in our comments how we think they could be improved by making it much similar and simpler to use. The other thing is the leach testing for monitoring wells. It doesn't look like much, but if you have a waste that you don't believe should be hazardous, and you have allowe yourself to get in the hazardous waste category, you are monitoring wells, and if the background, if you exceed the background quality of the water by significant amounts accordir to the test, you can be told to close down your facility. So, of course, we are concerned. We don't want to become hazardous waste if we are not, and we are going to stay away from that. This is why you are hearing so much about it. ------- 3^3 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The other thing is more innocuous. You read through Federal Register where — what do you call the part where you are explaining things — CHAIRPERSON DARRAH: The preamble. MR. REILLY: Often you see the words for now or for the time being, or until something else has happened. Well we are looking down the pike five years, ten years or twenty years from now, and a whole bunch more regulations are going to come out, because you said so (laughter), and I know they will. Alright, why shouldn't we break our backs to get out fro underneath the term hazardous waste. There is a lot of things coming down the pike that we don't know about yet. A The other point has been brought out real well, is the branding, the painting, as you may, of an operation as hazardous waste. Most of us in the mining industry out in the hinterlands, and we got a small population of people around, and it isn't long before those people say, oh yes, stay away from there, that is hazardous waste. Well, it is branding by these words, is enough to raise a hair up on the back of your head from a public relations standpoint. The state agencies that come around and look at you and they look a lot different when they know you are a hazardous waste, or that if you are not a hazardous waste. The other thing, and this is what was" brought out very well by Mr. Rogers and two people that answer your questions ------- 1 yesterday, the future use of the so called hazardous waste? 2 our tailings operation and our slag piles, are the mines of 3 the future. Someday people will find uses for these. 4 In our Missouri operation, this dolomitic tailings is 5 excellent for top dressing and agricultural uses. It has got a 6 calcium carbonate content of more than one hundred. If it 7 is called a hazardous waste, how many people do you think we 8 can give it to. 9 So, again, this comes under the branding. Once we get 10 painted as hazardous waste, we got another ballgame. I just 11 wanted to point this out, and I will be glad to answer any 12 questions if there are any. 13 CHAIRPERSON DARRAH: Thank you. You are so clear, 14 we understand it. Next speaker is Mr, Ellis T. Hammett. 15 MR. ELLIS T, HAMMETT: I am Ellis Hammett, 16 petroleum engineer with the U. S. G. S. Geothermal group, 17 Menlo Park, California, 18 I was at tne IDC Convention yesterday, or the day before 19 -and I heard about this meeting, and about the three that are 20 coming up in San Francisco, and I hadn't had really an occasion 21 to go over your proposals, but what was reported to me was the 22 drilling waste from drilling — active drilling operations woul< 23 be considered more or less if there was any toxic materials in 24 them at all, or any amounts would be considered in this 25 hazardous waste. Is this true? ------- CHAIRPERSON DARRAH: If you need clarification, you should speak to us during the break. MR. HAMMETT: Alright. Let me make my statement, and it is based on forty some years as a petroleum engineer and four as a geothermal drilling engineer. I think it is essentially this, no one wants to unnecessarily impact on the environment, but I think they 8 should be handle on a material by material or individual 9 material basis, and I happen to know that drilling fluid 1° material, safety sheets are available from almost all the 11 manufacturers. They use to call it proprietary material. 12 Most of them no longer do that. Part of it is because we require it for the geothermal drilling, and as a result, I i4 have most of them and will be happy to provide the panel with them when you get to San Francisco. 16 Quite often in the past, during my experience back in the Fifties in drilling in Oklahoma and Texas, I settled claims for damage from drilling waste on the farmers fields, and in most cases where the farmer said the wastes were, was 20 not right. And when we checked it out on the maps, we found 21 the most lush crops were right over the old waste reserve 22 pits. This is understandable, because quite a lot of chemical 23 used in the drilling industry are actually used as commercial fertilizers. 25 Now, as far as restoration of drill sites, every since ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the beginning of drilling industry, they have spread drilling cuttings and waste drilling materials right on the drill sites, and as I say, this is usually enhancing the agricultural crops right over the top where the drilling had occurred. This is, as I say, true of the oil and gas and geo- thermal drilling during the past four years and as a drilling engineer, I have bene responsible for writing the regulations and for enforcement of all the federal geothermal lease operations. I have reviewed essentially all federal geo- thermal lease operations and most of these were furnished with proprietary data, deleted to the appropriate EPA personnel for review and comment. All geothermal lease drilling mud proposals are checked to insure that they include no hazardous or toxic materials. The only exception to that is that we do permit caustic soda to be used as a neutralizer and pH control. We have required they either furnish us these materials safety sheets on any new products they propose to use. or we ask the supplier directly and then almost in most cases, they have been very cooperative with us. Since no hazardous materials are usually used, it has been common practice to spread the wet drilling fluid waste and drill cuttings providing we don't get a toxic effluent within which the geothermal process we sometimes do. But providing you don't get a toxic effluent, we spread the drilling flud waste to a depth of about six inches right over ------- 3^7 1 the drill site, and allow it to dry and then work it into the ^ 2 topsoil, or cover it with stockpiled topsoil. The results of 3 the geysers in the last four years of federal operation, native 4 plants have been reestablished right over the old drill sites, 5 and using seed mixtures and mulches approved by the Surface 6 Management Agency, Ukiah District. When you get to San 7 Francisco, I will provide you pictures for the before and 8 after operations, and if any of you could take a trip to the 9 geysers, why, we would be more than happy to take some of you 10 up there and show you around. 11 As I said, I haven't read 'these over, and I think I was 12 misinformed, and I apologise for that, but since I was here, I 13 thought this was a good time to give you the benefit of my 14 experience and to recommend that no industry or not everybody 15 be branded that way. 16 Now, there are occasions in the drilling industry when 17 they will be using chemicals and materials that are toxic and 18 hazardous, and at that time, we should consider they have put 19 themselves in a position where they do have to control it. 20 I should make one more comment, and that comment is from 21 talking to Larry Trask before the meeting. When he found out 22 who I was and wehre I came from, why, he asked me this comment. 23 He wanted to know about this. He says, what about monitoring 24 these restored sites. I have to plead a little ignornace, 25 but not entirely, so in the geothermal regulations, before we ------- 348 1 can produce geothermal or start up a gecthermal power plant 2 with federal resources, it is required that the operator 3 provide us with the nearest environmental baseline data, and 4 this includes the monitoring of the surface streams, the ground 5 water, just about every environmental aspect. If you are 6 familiar with our regulations, it is under 36 CFR 270.34, and 7 I will be happy to provide all of you with a copy of those 8 when we get to San Francisco. 9 Also, since my base is Menlo Park, I will probably not 10 burden you with another statement there, but I will provide 11 you with all the help and I do offer all our help that we can 12 give you. 13 i think with this environmental baseline data and 14 monitoring, which is already a requirement, plus the fact the 15 area geothermal supervisor, who I work for, will be requiring 16 further environmental monitoring during all the production 17 operation that the geothermal industry will probably generate, 18 very little, if any, "hazardous waste. Thank you very much. 19 CHAIRPERSON DARRAH: Thank you very much. Will 20 you answer questions? 21 MR. HAMMETT: I will answer any questions you have. 22 MR. LINDSEY: I just have a request. Mr. Hammett, 23 you said you din't have a chance to read these specifically. 24 i would like to call your attention to 250.13 in the regulations 25 I don't want you to read it now. but if you would, go through ------- 3^9 83 1 that and let us know if you think that any of the waste, or 2 what kinds of waste or what percentage or whatever of the kind 3 of waste we are talking about, either geothermal or from your 4 prior experience, would in fact fail these criteria? 5 MR. HAMMETT: Well, when I went through them 6 hurriedly here, and that is why I apologise for maybe being 7 misinformed as to whether these are in fact being included 8 as an industry waste and giving us a problem. After reading it 9 over, I was about of the opinion that what I had said would 10 not be necessary to protect the industry. I only wanted to 11 pull out that there are safety sheets available, and to also 12 offer my cooperation in the area of the geothermal supervisor's 13 cooperation. So, I really am not questioning what you 14 have already. I just want to put a little more on the line and 15 kind of come out in the open and say I really don't think that 16 it is, as far as the drilling industry is concerned, that we 17 are generating what I consider to be hazardous waste, and what 18 little we have generated or are generating, can be very readily 19 controlled, and we are doing so, at least, in the federal 20 geothermal program. Thank you very much for your time. 21 CHAIRPERSON DARRAH: Thank you. The next speaker 22 is John R. Berger. 23 MS. JOHN R. BERGER: Thank you for affording me the 24 opportunity to address this group, and to enter our testimony 25 in this proceedings. I am John Berger, Vice President for ------- 350 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Inland Chemical Corporation is a resource recovery company, which operates three plants, two in the states and one in Puerto Rico, Our only business is the recovery of useful organic chemicals from industrial wastes. I want to address five points in the proposed regulations I would like to start by saying that last night at the end of the session, the Chairperson proposed that with one final reading of the names of the people who hadn't testified, or entered testimony, the meeting be adjourned. I want to go on record as saying, that is the first time I have seen an EPA proposal accepted without objection, (laughter) The five points I want to discuss are these. The provisions which are provided for generators holding hazardous waste for 90 days or for less than 90 days, be exempted from regulation of storage facilities. The lack of the requirement for characterization and quantification of waste on the manifest. The failure to provide for degree of hazard in the classification of waste. The non-uniformity of the manifest form and the manner in which it is to be handled, and the unreasonable identification burden placed on the generators. Now, with respect to the first point. It is quite obvious in these public hearings, the individual commenting is concerned about the impact of the regulation on his own industry, and, of course, I am thinking about the regulations as it affects our business. We pick up waste from generators ------- 351 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for transport to our recover plants, and many of our generators have their waste in storage tanks that are quite large. Large in our type industry, small in the mining industry. The procedure for handling waste streams into these storage tanks on the generators plant sites is to continually introduce waste in the tank and continually draw waste from the tanks for transportation. In reality, there will be wastes contained in these tanks which will be held for more than 90 days, even though the flow of materials through these tanks is continuous, because of mixing and separation within the tank. So technical even though the entire contents of volumetric content of a storage tank will turn over, say within 30 days or 60 days, at the end of the 90 days, some of the original material is still in the tank. We suggest that some consideration be given to this because we found that in the administration of regulations, when we get down to the detailed workings, these questions crop up, and at that time, there is difficulty to resolve it. V/ith respect to the lack of requirement for characterization and quantification of waste and the waste on the manifest. The guiding principle in the entire program is that the material not cause detriment to public health or welfare, or ™ pose a hazard to the environment. It is difficult for me, a ------- 352 1 chemist working with organic chemicals to accept the fact or 2 the concept that a wide spectrum of organic chemicals,over a 3 million of them have been characterized, and there are thousands 4 of them in commercial use, that all organic chemicals are 5 assigned the same degree of hazard. I would like to give you 6 just a couple of quick examples. 7 Two organic chemicals, both chlorinated chemicals, 8 carbon tetrachloride is one and trichloroethylene, and one is 9 classified as tocic and hazardous waste. Carbon tetrachloride 10 is accumulative toxic poison. Repeated exposure results in 11 increased damage to the human system. 12 Trichloroethylene has been used as a general anesthetic. 13 The most noteworthy example of this is vihen Queen Elizabeth 14 gave birth to Prince Charles, she was anesthesized with 15 trichloroethylene. It is hard for me to see two chemicals 16 of the same general chemical classification, but with such 17 widely differing effects on the human system, both classified 18 under the same category, 19 The purpose of the program is to prevent damage to 20 the environment and adverse effect on human health and welfare. 21 We believe that some consideration should be given to classi- 22 fication of hazardous waste and to subclassification that gives 23 some real meaning to the hazards that have to be faced and 24 dealt with by the people who deal with them. 25 The third point is a failure to provide for a lack of ------- 353 87 4 1 requirement for characterization of and quantification, A 2 because as a processer of organic substances that we take into 3 our plants, and handle and recover,and incidentally, 4 generate residuals, and therefore, we are generators in that 5 respect, it is important to us to know what is in the material 6 coming into our plants. 7 There isn't any provision on the manifest forms that I ha 8 seen generated by the various states that are using them 9 now, or proposed by the states, that are developing manifest 10 forms in their handling system. 11 The State of California has been operating a manifest 12 system for over four years. We function under that manifest 13 system and we operate a plant in California. They require 14 more detailed information on the manifest forms, so they are 15 in a better position to determine the proper location for 15 the residual waste after they have been processed by the 17 processing plant. 18 Many of the wastes that are handled, are handled by 19 unknowing or unknowledgeable people, and people that can't 20 be expected to understand the degree of hazard to which they 2i are exposed. There are many cases on record of improper 22 disposal under improper conditions. By that, I mean improper 23 disposal of hazardous waste under conditions that were deemed 24 proper at the time that a disposal was made, 25 The most noteworth examnle of this, of course, is the ------- 354 Love Canal situation, but that is noteworth because it is such 2 a tremendous problem, and there are so many similar problems 3 in that area, and other area's of the country, but there are man, 4 cases where waste were disposed of improperly, simply because 5 the people involved in it didn't know what they were handling and didn't know in sufficient detail what they were handling. The fourth point, the non-uniformity of manifest forms and manifest handling procedures. Now, the regulations provide 9 for manifest forms. The form is printed in the proposed 10 regulations, but it is up to .the individual states to develop their enabling legislation, their regulations and their 12 handling procedures, 13 I am currently following the developing situations in 14 thirty states in this country, and believe me, if you think 15 that following the federal government is tough, you should get 16 out into the boondocks where the real things are happening. 17 Serious effort is being made in EPA regions to come up 18 with regionally uniform manifest systems. Right now, in 19 Region IV, it looks like there is a pretty good chance this 20 may happen. 21 In Region V, which is out of Chicago, the five states 22 there are trying to come up with uniform manifest systems. 23 They agree it is necessary, but of the five states, they all 24 want their special input into this system. 25 I think it was a serious mistake for the federal EPA not ------- 355 89 1 to include a manifest form, a uniform manifest form and handlio| 2 procedure to be used uniformly by all administering agencies. 3 There are situations developing here in this country where one 4 state will have a manifest system that says, the generator will 5 or the recover plant or the treatment disposal or detoxificatioi 6 plant will provide the form to the generator. 7 Another it will follow a certain procedure and all the 8 forms will go back to either the generator or the treatment 9 plant, and then forwarded to the state. 10 Another state will say no. we will use a state form. 11 You will follow this procedire, and the next state says you 12 will use state for, but their forms are different. . 13 I asked the question in a conversation with one of the 14 agency's people, and in one of the states, are we going to 15 have to reduce our payloads by five thousand pounds per 16 transport vehicle in order to provide carrying capacity for 17 the filing cabinet, typewriter, secretary and desk to handle 18 this — you follow what I am saying. (laughter) 19 I posed the question in several state agencies, how about 20 the toxic waste that are picked up in one state and transported 21 through your state to a third state. Are you going to require 22 that these hazardous wastes be reported in your staterand 23 responses in many cases were yes, we are. Responses in other 24 cases, yes, we hadn't thought about that, but we better do it. 25 We are not against this program. There'is ample.evidence ------- 356 1 of the need for a regulatory system in this country to control 2 the handling and disposal of toxic wastes. We are willing to 3 spend the time and effort necessary to make the system work. 4 I am speaking for my company and as an individual. We don't 5 want to see a system that is so cumbersome, so unmaneagable, 6 such voluminous paperwork that it becomes economically 7 unfeasible to continue the process. Right now, the program is 8 going to make it difficult, if not impossible, for many smaller 9 generators to get to dispose of their waste. 10 That is the five points I wanted to address this morning. 11 There are two kinds of generators. There is the big 12 generator who is well facilitated with technical staff and 13 laboratories to determine the composition of the waste. He 14 knows what he is putting out of his plant. There are small 15 users, or many cases, big users, big companies in terms of the 16 size of the corporation, but small in terms of the quantity 17 of toxic and hazardous materials handled, who are not 18 facilitated to determine the nature of the waste that is handle 19 . A specific type of example. A manufacturing firm in the 20 metal working industry that purchases a proprietary cleaning 21 solvent for cleaning metal prior to finishing or subsequent 22 operation. Those proprietary substances contain mixtures of 23 organic solvents, some of which, are classified as hazardous 24 under the regulations and some of which are considered non- 25 hazardous, or different class of hazardous. The composition ------- 357 1 of the material Is withheld from the person purchasing it. 4 2 Often he only has a material safety data sheet provided by 3 the manufacturer to tell him what he has got in this container 4 when he receives it into his plant. Many of these material 5 safety data sheets such as the one used by the coating industry 6 doesn't reveal the chemical composition of the substance. It 7 only identifies the solvent portion as solvent. Now, it is 8 entirely possible that solvent could be carbon tetrachloride 9 if it was coming from an unscrupulous manufacturer who had an 10 opportunity to make a fast buck, and there are those people 11 in the industry out there in the real world also. So the 12 possibility exists that the generator will generate a waste. * 13 Remember a hundred kilograms is 220 pounds, about twenty 14 gallons of many of these substances, and that is not very much. 15 Twenty-one gallons a month and he is a generator who must 16 generate the information for the manifest to identify the waste 17 So, there are some unreasonable burdens placed on industry on 18 the generators which are going to have really adverse impacts 19 on the materials used in the way they are handled and disposed 20 of. 2i Thank you. I will answer questions. 22 CHAIRPERSON DARRAH: Thank you. 23 MR. LEHMAN: Mr. Berger, I am a little confused 24 by your last remark in view of a previous remark. At one 25 point, I believe you indicated strong desire that you need ------- 358 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 more detailed information on chemical composition on the manifest? And yet, you say that it is unreasonable burden to require that the generators comply. So. could you help us out on that? MR. BERGER: Well, as a chemist, I am suppose to have an answer for the questions that I pose, right? Since 1970, I hve been following regulations that you have developed and I find myself freely in the position where I can't meet that requirement (laughter). MR. LEHMAN: You say you get certain information from the people that send you their waste. Do you accept waste from these, what we will characterize, as small generators? MR. BERGEP: Let me tell you what is happening in our industry and in our business. I think that is the best way to handle that question, because this is based on actual experience. This is the track record now. At one time, we accepted only one type of organic chemical chlorinated-hydrocarbons, and since then, branched into many different types of organic chemicals, and have become auite sophisticated in our business. We are well facilitated. We have IR and GC and the rest of the laboratory tools necessary to make tests and characterize wastes. We are not facilitated, however, to characterize waste in the areas of heavy metals and so on. which we are probably going to have to get into. We are going to have to follow California ------- 359 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 regulations and get chromatography or something to let us find these things out. We told our customers from whom we were accepting quantities of materials in drums, we would no longer accept drum shipments. One of the reasons for this was the DOT regulations requiring the use of a tested drum, tested unde: DOT regulations for the use of transportation of materials and public comments and so forth. Someone earlier testified as to the cost of reconditioned drums. This is a real burden on the person who is generating the waste, particularly if he is not in the drum filling business. A company that buys twenty drums of something and can't put the waste back in those same drums, but must purchase reconditioned, retested or new drums, says, no, wait a minute, I am just going to dump it out in the backyard, that is an additional cost I can't stand. So, we stopped taking drums from customers. We got quite a bit of static from the customers but it was necessary to do this in order to protect our own business. We cannot violate. We are out in the open. Think of it this way. If I went home Saturday after leaving this place and walked in the house and said to my wife, Ruth, why don't you sweep the kitchen floor. She would say, John, the kitchen floor is pretty clean. I said sweep it. She would sweep it and there in the middle of the floor would be a little pile of dirt. If you don't believe me, go " home and tell your wife, if she lets you get away with it, you ------- 360 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 will find a little pile of dirty. We take the waste from a large- area, which is kind of hidden in the bushes, bring'it all into one place, and we become very visible. I remember a meeting at Region II in New York of EPA, whi< had to do with some problems in our plant in Newark, New Jersey. Yes, we have permit problems too. One of the gentlemen who was responsible for air pollution control in Puerto Rico, which is administered out of Region II in New York heard I was in the building and came in the room in which the meeting was held, and asked me, John, are you dealing with any — he named a bunch of pharmaceutical firms in Puerto Rico. I said, yes, we are taking the spent chemicals from all of those people. He says, that explains it, you are the only company we are having trouble with in Puerto Rico. That is the situation we find outselves in, because- we are highly visible. As aresult. we" have to take the necessary steps to protect our business in order to keep from being put out of business by violations. That is one of the results of this kind of thing. CHAIRPERSON DARRAH: Our specific question was and is, what information do you require from the people who send you waste, if you do the characterization, and what is the cost of that characterization? ------- 1 MR. BERGER: We are to the point now where we are 2 handling only quantities — tank truck quantities, which we 3 transport incur own vehicles,. Before we will take a waste 4 from a supplier, we require that they give us the composition 5 of the waste if they are facilitated to do so. 6 CHAIRPERSON DARRAH: In what detail? 7 MR. BERGER: Within a percent or two of what the 8 components are, and within a percent or two. We also analyze 9 the waste in our own laboratory samples and we find sometimes 10 that the samples don't match up with the shipments, so we have 11 a continuing monitoring program on incoming program materials. 12 One of the things that concerns us incidentally is a provision 13 in your regulation for — I am sorry, this is in New Jersey's 14 regulation. 15 CHAIRPERSON DARRAH: Tell us what the cost is of 16 running a sample. How many samples would you run on a ten 17 truck shipment? 18 MR. BERGER: I can't tell you the cost, because I 19 don't have those figures with me. The incoming material, if 20 it is analyzed, like under different circumstances, if it is 21 a large stream from a large supplier, and is established that 22 it is uniform in nature, such as pharmaceutical strength, and 23 we have seen over a period of time there is very little 24 variation in many compositions. It is just quantities, not 25 materials, we analyze periodically. ------- 362 1 CHAIRPERSON DARRAH: Would you be able to submit 2 to us in written form the cost data that it cost you to perform 3 these characterizations? 4 MR. BERGER: I will have go go back to our people, 5 but I will do that. 6 CHAIRPERSON DARRAH: Thank you. 7 MR. TRASK: You indicated earlier on that you 8 needed some more level of detail on the manifest, and I think 9 you indicated such, and I gather from that that the DOT 10 nomenclature is not specific enough to suit your needs. 11 MR. BERGER: The DOT system is quite detailed. 12 Many chemicals are named specifically and I would have to 13 go back and check the materials that we are processing to see 14 if all of them are on that list. If that system is followed, 15 if they are identified that way on the load, that will be 16 helpful. But how is a load identified is it contains a 17 mixture of two or more of those DOT classified chemicals, and 18 varying in composition. 19 MR. TPASK: To avoid getting into specific 20 situations, you know there are provisions for mixtures in the 21 DOT system and you classify the hazard as one of the greatest 22 under their ranking of hazard. What I am looking for, is there 23 a finer level of detail thatyou need-to somehow mark the tank 24 or tank truck or whatever, is there some marking or labeling 25 provision thatyou need to alert the people who are working in ------- 363 97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your plant about the handling danger or specific identity of the material? MR. BERGER: No -identification of material by content, by composition and by quantitfication is also helpful to our people so they know what they are handling when it hits the plant. You see, we don't really have any control over this. For example, the State of New Jersey says you must use our manifest system if you transport waste into New Jersey, but New Jersey cannot tell the generator for the State of New York, you have to fill out our manifest form, because that is a state trying to dictate to another state. So we say to the' generator, look we won't pick up your waste unless you fill out the New Jersey form, and we supply them the form. Now, we don't mind doing this, because it does accomplish the purpos of tracking the waste. We can't dictate to the customer what is to go on the form, only New Jersey can do that. That is where we need some help on more detailed requirements on the form. Again, thatis out of the hand of the Federal EPA, because the state is going to administer the program MR. LIMDSEY: I have one more question here on a matter you touched on, but I would like to get your feeling on this. As a recycler of waste, in that you bring waste in and produce a product, unless you dispose of this material, t ------- 364 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your own generated waste, bury it or whatever, they maybe on site, you don't need a permit under the federal system, nor do the people who send waste to' you need to manifest in order to do that. MR, BERGER: Under the federal system? MR,LINDSEY: Do you think that is a good idea from the standpoint of encouraging recycling of waste, and do you think it is a bad idea from the standpoint of losing control of hazardous waste movement? MR. BERGER: I think it is a good idea from this standpoint. If I am picking up a tanktruck of trichloroethylene from a major producer, or if I am picking up a tanktruck that contains 90 percent trichloroethylene and 10 percent lubricating oil from an industrial plant that is using it in vapor degreasing operation, that is. the hazaroud substance is trichloroethylene. The substance is just as hazardous coming out of chlorinated hydrocarbon manufacturing plant as it is coming out of a users plant, so from that standpoint, the program does not address the whole hazardous materials problem. It doesn't address the problem of the people who use most of the trichloroethylene, the primary user, so there is a fault in the program right there. The glaring hole in the program right there. If you are going to regulate a chemical because of its toxic nature, then by George, regulate the chemical. ------- 365 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Now, the second problem in the treatment and disposal of toxic waste, and I am quoting something that I read and was said by Mr, Costle, where he- said, and I forget the number, I am not quoting a number, because I will quote the wrong number, but there was a very small number of secure landfills in the United States. It was less than fifty. I know it was less than fifty, which means there is not one in every state. So, therefore, based on that observation, it is logical to assume that there is, at least one state without a secure landfill, and on that basis, it is logical to assume that material is going to have to be transported out of that state to another state in interstate commerce. Therefore, you got a situation that clearly is one that should be regulated under federal regulation that is uniformly applied to all states, because otherwise, if it is left up to the states, the state can refuse to accept the waste from another state, although it has been tried, it is going to be tried again. there is a federal program to regulate the handling and disposal of toxic waste, then the key factors in that program should be uniformly applied, state-by-state. Now, there are states that don't have certain kinds of toxic materials in their state: They just don't have to deal with those. MR. LINDSEY: I don't think we understand your comment about trichloroethylene. Are you saying that we should be listing thatnaterial and that any waste containing ------- 366 1 that material should be a hazardous waste? 2 MR. BEPGER: No, I am saying if the material is 3 hazardous, then the material is hazardous. 4 CHAIRPERSON DARRAH: Do you understand under RCRA, 5 we only have authority over waste. 6 MR. BERGER: Yes, under RCRA, you only have 7 authority over waste, but EPA has authority over air, water 8 and land pollution. Okay. The authority of EPA transcends 9 well beyond the authority given to EPA under RCRA. This thing 10 is fragmented into many parts, that some of the major 11 considerations aren't being considered. 12 CHAIRPERSON DARRAH: Okay. I understand your 13 comment then. 14 is there anyone who wants to speak on 3002? Okay, come 15 forward and give your name for the court reporter. 16 MR. GARY DOUNAY: My name is Gary Dounay and I am 17 employed by S. W. Shattuck Chemical Company, Inc as a 18 chemist and also coordinator of environmental affairs. We 19 are located here in Denver, Colorado. 20 I would like to make as a matter of record and for your 21 review, comments on behalf of the S. W. Shattuck Chemical 22 Company, Inc., regarding the proposed guidelines and regulation 23 and proposal on identification and listing of hazardous wastes 24 as published in the December 18, 1978, issue of the Federal 25 Register. My comments pertain to Sections 3001, 3002 and 3004. ------- 367 101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 My first comment regards the concentration of the contaminant from the procedure specified in toxic waste definition, article 250.13 Cd) page 58956, column 2, paragraph 2. I object to the concentrations of arsenic, lead, mercury and selenium to be considered as the limit for declaring a . solid waste hazardous because, as an analytical chemist with considerable experience, I am certain these levels cannot always be determined in all matrices by atomic absorption procedures with absolute certainty. I would suggest that this portion of this act be amended to allow the concentration of arsenic, lead, mercury and selenium to be 10 milligrams per liter in the extract before being considered hazardous waste. The EPA should also permit the use of colorimetric or other instrumental methods in the determination of the specified hazardous materials in waste- this would allow a small business to comply with the law without undergoing financial hardship. My second comment regards the method of adjusting pH in the extraction procedure as specified in article 250.13(d), page 58957, column 1. paragraph (E). The procedure specifies using 0.5 N acetic acid to adjust the pH to 5.0 +_ 0.2. My objection to the use of acetic acid is this is not an acid found in nature. There are many compounds which are essential- insoluble as found in nature which form quite soluble acetates For example, hydrocerussite, 2 PbC03.Pb(OH)2, would react with acetic acid to form lead acetate. Hydrocerussite is ------- .o; 368 1 insoluble in water but lead acetate has a solubility of 44.3 2 grams per 100 ml of water at room temperature. I suggest that 3 the pH be adjusted with an acid found in nature such as carbonic 4 acid: this would cause the extract contaminant concentrations 5 to be more nearly representative to what one would expect to 6 happen naturally. 7 My third comment concerns the tests for mutagenic 8 activity as listed in article 250.15, page 58960, column 1, 9 paragraph (i). The tests listed in this paragraph are too 10 vague to be of any use. This test should be removed until a 11 universally accepted procedure for mutagenic activity is devisee 12 My fourth comment regards ground water and leachate 13 monitoring as described in article 250.43-8, page 59005, 14 column 3, paragraph 5, This paragraph specifies the 15 determination of the total dissolved solids, the concentration 16 of the chloride ion, and the concentration of the principal 17 hazardous constituents found at each installation. Therefore. 18 it is superfluous to'recmire at all installations the 19 determination of conductivity, dissolved organic carbon, and 20 the concentrations of beryllium, nickel, cyanide, phenolic 21 compounds and organic constituents as determined by a scanning 22 by a gas chromatograph. 23 My fifth comment regards the standards for storage 24 as described in 40 CFR Part 250 Subpart D, page 58988, column 25 2, paragraph 2. Ninety days is not a reasonable period of ------- 369 1 time for a generator to reprocess hazardous wastes before 2 being considered a storage facility. A processor, such as 3 Shattuck Chemical, accumulates residues which are later 4 reprocessed to reduce metals not previously removed. It 5 requires a period of time to accumulate enough residues or 6 to change process parameters to make the reprocessing step 7 economically feasible. With the emphasis of this Act on 8 conservation of resources it would seem that the EPA would 9 encourage a reprocessing step. I suggest that the ninety day 10 limit on storage be changed to one year. We would like to 11 arrange a separate and discreet meeting with the EPA to review 12 these possibilities. 13 My last and final comment regards the confidentiality 14 of the information as referenced in article 250.27, page 58979, 15 column 2, paragraph (a). Much data as to processing 16 capabilities, efficiencies and production volumes could be 17 gathered by competitive chemical processing companies. It 18 is absolutely essential for business reasons that some types 19 • of data supplied to the EPA remain strictly confidential. I 20 would suggest that a form similar to "Form A" of the Toxic 21 Substances Control Act Initial Inventory be used: this would 22 allow the reporting company the option to check off areas 23 of desired confidentiality. | 24 All of the comments made in this statement are made in 25 the posture of working with the EPA. but concomitantly, in the ------- 370 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 interest of S. W. Shattuck Chemical Company remaining a small business. Thank you. CHAIRPERSON DARRAH• Thank you. MR. LINDSEY: The first thing you took issue with was the concentrations for a couple of heavy metals, and I thin one was cadmium. MR. DOUNAY: That is on the list. That is one I mentioned. MR. LINDSEY: What were'.the three? MR. DOUNAY: Arsenic, lead and selenium. MR. LINDSEY- I think you said we ought to make those 10 parts per million? MR. LINDSEY- Ten milligrams per liter in the abstract. MR. LINDSEY: As you know, the note underneath says these things are based on a factor of 10 dilutions to ground water, and then based on the drinking water standards. Given that, do you think we would be able to provide enough protectioi . since we are facing this on the drinking water standard, if we were to go to something like a hundredfold or whatever it would be above that, we would be allowing quite a degradation as to ground water beyond what I think would be hazardous. MR. DOUNAY- First of all, you are assuming you can absolutely determine this, and that somebody is going to certify that this is true, and I am saying in all matrices, ------- 371 105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you cannot absolutely determine these concentrations. Secondly you are saying that you have groundwater standards or some such thing, and multiplying b'y a _ factor of ten, that is arbitrary, it isn't anymore arbitrary then ten milligrams per liter until you establish what is healthy and unhealthy. It depends on the region you are working in, how much water is going to be leached through the ground as groundwater. MR. TRASK: You indicated that the 90 day storage provision ought to be extended to one year in your situation. MR. DOUNAY: Yes. MR. TRASK: I am not entirely sure it would apply, but let me try to find that out. You said that you used tanks, I think thatis what you said, to store the waste ^ until you get time to run it back through your plant to do something with it; is that correct? MR. DOUNAY: We store it in containers and it coulc be tanks or drums, whatever. MR.TRASK.: But you always do that;, is that correct? You always run the waste back through and then it goes to the disposal after you run it back through the plant? MR. DOUNAY: About 99 times out a 100 we reprocess yes. There may be occasions where we don't, but in most of the solid waste we do. MR. TRASK: Most of the time it would not be a waste until that one time it comes out, then it is a waste? ------- 372 105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. DOUNAY- Okay, but your definition of waste is really vague in some cases. MR. TRASK: Your concern is definition of waste then? MR. DOUNAY: Yes. MR, TRASK: Well, you didn't mention that. . MR. DOUNAY: Okay. MR. LEHMAN: Both you and Mr, White of Arapahoe Chemicals indicated concern about the confidentiality provision of the regulations, indicating thatyou feel that a substantial degree of protection of trade secrets and so on is required in a particular business you are in, and yet- we just heard from Mr. Berger that a great deal more information should be put on manifest lists for shipment. Would you like to comment on that as to the difference. There seems to be two competing aspects here. One is need for processors to know the type of material that i s being handled and others to protect trade secrets. Would you care to comment on that? MR. DOUNAY: If you want to arrange a private meeting, we will discuss that. MR. LEHMAN: I don't want to arrange a private meeting. CHAIRPERSON DARRAH- Do I understand you don't want to make another statement this afternoon? You were on our list for this afternoon? ------- 373 1 MR, DOUNAY: No. 2 MR. HAMMETT: Since you have questioned the 3 proprietary information thing — I mean, under the Freedom 4 of INformation Act. 5 CHAIRPERSON DARRAH- I would appreciate it if you 6 would submit written comments. We haven't been really having 7 answers to that. 8 MR. HAMMETT- I will be glad to do that. 9 CHAIRPERSON DARRAH: We don't have very many 10 people for this afternoon, and if we don't get a lot more 11 people signed up, we will be able to close the hearing early 12 and accept your written questions. If you have sort of a 13 complicated or a series of questins on the way you expect the 14 December 18, 1978 proposal to work, you may want to see us 15 during a break, but we will probably have time to take written 16 questions solely to clarify the proposal. We cannot comment 17' now on someone else's suggestions. All those things have to 18 be analyzed as part of the rule making, but if you do need 19 . clarification of the proposal, we will probably have time to 20 do that this afternoon. So, we will recess for lunch and 21 reconvene at 2:00 p.m. 22 (Noon recess taken.) 23 24 4 25 ------- 374 I AFTERNOON SESSION 2 • (Mr. Alan Roberts, Associate Director of Hazardous 3 Materials Regulation. Department of Transportation is now 4 present on the panel.) 5 6 CHAIRPERSON FRIEDMAN: Our next scheduled speaker 7 is a representative from the Adams County Planning Department g MS. ANNA MARIE SCHMIDT: I am Anna Marie Schmidt 9 from the Adams' County Planning Department. IQ As you may be aware, Adams County is located north and H adjacent to the City and County of Denver in one of the most 12 industrialized areas of the State of Colorado. Situated in 13 the County are a regional sanitation facility (Denver Metro- 14 politan Sewage District), the Rocky Mountain Arsenal, a 15 chemical manufacturing plants, and a proposed sludge drying ,g and distribution center. For these reasons, Adams County ,j is particularly concerned with EPA's proposed guidelines for jo hazardous waste and is in accordance with their efforts to 19 mandate crade-to-grave management of such waste. 20 Upon promulgation of the regulations, the County is 2i somewhat wary of the schedule as proposed for the interim 22 status period. Since the County does not currently provide 23 specific regulations for the operation nor the generation 24 of or transportation of hazardous waste, and considering the 25 number of wastes to be defined as "hazardous1' would increase ------- 109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 substantially as proposed in the guidelines, and the fact that in the State of Colorado, no such facility for disposal of hazardous waste exists,, working within the proposed time frame is extremely doubtful. Serious consequences will result if a multitude of waste is defined as "hazardous" without providing effective means for qualifying intern disposal sites The generators will be held accountable for the enormous transportation costs that would be incurred at final disposal. Undoubtedly, improper disposal methods and abuse of temporary storage authority will occur thereby creating excessive enforcement problems and eventual environmental damage. Difficulties will be certain to occur with the industrial and local government sectors of this community. Presently, industry has little capacity to recover resources from hazardous waste. Educational and planning efforts are mandatory in the business and public sectors in the County. Available land for a site is at a premium, difficulty in locati a sanitary landfill has met substantial opposition let alone a hazardous waste disposal site. The proposed standards for facility operators require significant capital investment for site preparation and multiple financial assurances providing for the result of operating accidents and for post-closure site management, which relatively few agencies or individuals could provide. Ij Therefore, the state and federal governments must accept ------- 37< 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the responsibility and provide authorized disposal sites that are available in reasonable proximity to waste generators specifically during the interim status period. Financial assistance for any site modifications and operating cost incurred in order to meet minimum standards for waste disposal is critical to the successful adherence to the proposed regulations. Thank you. CHAIRPERSON FRIEDMAN: Thank you very much. Will you take questions from the panel? MS. SCHMIDT: I will try to answer them as best I can. MR. LINDSEY: Your problems seems to be a concern for the lack of facilities which we have heard other speakers talk on. Do you have any suggestions on how we might do this? Should we. for example, phase in the regulations in suc] a way as to allow for capacity problems or what? MS. SCHMIDT: I think presently more time is and more educational efforts are needed for the sake of our county as well as the metropolitan area. MR, LINDSEY: Education of whom? MS. SCHMIDT: Industry. MR. LINDSEY : Of industry? MS. SCHMIDT Communities, local governments. The are not ready for such. MR, LINDSEY- Is the problem going to be one of ------- 377 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 citizen opposition to the siting of facilities you suspect? MS. SCHMIDT: That will be part of it. I foresee, especially in Adams County's case, that we have a reputation of being everyone's disposal area, and certainly that will be a major problem where we are concerned. MR. LINDSEY: Do you think education will help solve that probelm? MS. SCHMIDT:. Hopefully, yes. MR. TRASK: Did I understand from your comments that perhaps time would help this? Is that what you are saying? MS. SCHMIDT: I am not qualified to actually make recommendations for the county. I am sure time would aid us. My recommendation from what I spoke of is financial assistance in the conversion and establishing interim sites, is mainly what we would be looking for in the State of Colorado. MR. LEHMAN: Ms. Schmidt, regarding your last comment about financial assistance, I just wanted to make a comment. I presume you realize that the Resource Conservation Recovery Act does not provide for federal financial assistance for facility development. MS. SCHMIDT: In this instance, I was speaking of facility conversion to a site, since we don't have a hazardous disposal site in the State of Colorado. ™ MR LEHMAN: Nonethless, any type of federal ------- 378 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 financial assitance along those lines is expressly prohibited by the statutes as it now stands. I would just comment if you feel that this type of financial assitance is necessary, that you ought to address those kinds of remarks to the U. S. Congress and not to the U. S. Environmental Protection Agency. MS. SCHMIDT: Okay. Thank you. MR. YEAGLEY: There is obviously a considerable amount of hazardous waste, regardless of the definitional problems, that is generated in Adams County. To your knowledge where is that material being disposed of now? MS, SCHMIDT- Most of the industrial waste will be going to Lowry. We do have a flyash landfill currently, and we also have two, essentially one large private landfill in the county now, so it is going to our landfill or Lowry. MR. YEAGLEY: Just for/ the record, the Lowry Landfill is operated by the City and County of Denver? MS. SCHMIDT: Right. MR. YEAGLEY: So any administrative burden of thes regulations would be on that community? MS. SCHMIDT: Yes. CHAIRPERSON FRIEDMAN: Thank you very much. That isthe last speaker we have to speak on Section 3002. Is there anyone in the audience that would like to speak on our propose Section 3002 regulations? Okay, if not, as we announced earli we will take written questions from the audience concerning ------- 379 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the operation of the regulations. I will close the hearing officially and we will adjourn until this evening at seven o'clock. (Hearing recessed until 7:00 p.m. this date.) ------- 30L 1 EVENING SESSION 2 7:00 P.M. 3 MB. ALFRED LINDSEY• Good evening, I am Alfred 4 Lindsey, Chief, Implementation Branch, Hazardous Waste 5 Management Division, Office of Solid Waste, Environmental 6 Protection Agency. I would like to welcome you to the public 7 hearing which is being held to discuss the proposed regulations 8 for the management of hazardous waste. We appreciate your taki 9 the time to participate in the development of these regulations 10 which are being issued under the authority of the Resource 11 Conservation and Recovery Act — RCRA. 12 For a brief overview of why we are here. Those of you 13 who have been to the other sessions will recognize this little 14 presentation has been given every morning for each of these, but 15 I am going to repeat it tonight for those who are here for the 16 first time this evening will be able to have an appreciation of 17 what it is we are trying to do here. 18 The Environmental Protection Agency on December 18, 19 1978 issued proposed rules under Sections 3001, 3002, and 300U 20 of the Solid Waste Disposal Act as substantially amended by 21 the Resource Conservation and Recovery Act of 1976, Public 22 Law 9^-580. These proposals respectively cover: (1) criteria 23 for identifying and listing hazardous waste, identification 24 methods, and a hazardous waste list- (2) standards applicable 25 to generators of such waste for record keeping, labeling, using ------- 381 115 1 proper containers, and using a transport manifest: and (3) 2 performance, design, and operating standards for hazardous was 3 management facilities. 4 These proposals together with those already published 5 pursuant to Section 3003, (April 28, 1978). Section 3006 6 (February 1, 1978), Section 3008 (August 4. 1978), and 7 Section 3010 (July 11, 1978) and that of the Department of 8 Transportation pursuant to the Hazardous Materials 9 Transportation Act (May 25, 1978) along with Section 3005 10 regulations constitute the hazardous waste regulatory program 11 under Subtitle C of the Act. 12 EPA has chosen to integrate its regulations for facility 13 permits pursuant to Section 3005 and for state hazardous waste 14 program authorization pursuant to Section 3006 of the Act with 15 proposals under the National Pollutant Discharge Elimination 16 System required by Section 402 of the Clean Vlater Act and the 17 Underground Injection Control Program of the Safe Drinking 18 Water Act. This integration of programs will appear soon as 19 proposed rules under ^0 CFR Parts 122. 123, 124. 20 This hearing is being held as part of our public 21 participation process in the development of this regulatory 22 program. 23 The panel members who share the rostrum with me are: 24 Jon P. Yeagley, Chief,. Solid Waste Section, EPA, Region VIII 25 Amy Schaffer. Office of Enforcement. EPA, Washington. D. C. i ------- 38 1 Dorothy A. Darrah, Office General Counsel, EPA, Washington, 2 D. C. and Lisa Friedman, Office of General Counsel. EPA, 3 Washington, D. C. 4 The responsible staff person for each section will join 5 us on the panel. As noted in the Federal Register our planned 6 agenda is to cover comments on Section 3001, 3002 and 3003- 7 Also we have planned this evening session covering all four 8 sections. That session is planned primarily for those who 9 cannot attend during the day. 10 The comments received at this hearing, and the other 11 hearings as noted in the Federal Register, together with the 12 comment letters we receive, will be a part of the official 13 docket in this rulemaking process. The comment period closes 14 on March l6th for Sections 3001-3004. This docket may be 15 seen during normal working hours in Room 2111D, Waterside Mall, 16 401 M. Street, S.W., Washington, D. C. In addition we expect 17 to have transcripts of each hearing within about two weeks 18 of the close of the hearing. These transcripts will be 19 available for reading at any of the EPA libraries. A list of 20 these locations is available 'at the registration table outside. 21 With that as background, I would like to lay the ground- 22 work and rules for the conduct of this hearing. 23 The focus of a public hearing is on the public's response 24 to a regulatory proposal of an Agency, or in this case, Agencies 25 since both EPA and the Department of Transportation are involved ------- 383 117 1 The purpose of this hearing, as announced in the April 28, 2 25 and December 18, 1978 Federal Registers, is to solicit 3 comments on the proposed regulations including any background 4 information used to develop the comment. 5 This public hearing is being held not primarily to 6 inform the public nor to defend a proposed regulation, but 7 rather to obtain the public's response to these proposed 8 regulations, and thereafter revise them as may seem appropriate. 9 All major substantive comments made at the hearing will be 10 addressed during preparation of the final regulation. 11 This will not be a formal adjudicatory hearing with the 12 right to cross examine. The members of the public are to ^ 13 present their views on the proposed regulation to the panel, 14 and the panel may ask questions of the people presenting 15 statements to clarify any ambiguities in their presentations. 16 Since we are time limited, some questions by the panel maj/ 17 be forwarded in writing to the speaker. His response, if 18 received within a week of the close of this hearing, will be 19 included in the transcript. Otherwise, we will include it in 20 the docket. 21 Due to time limitations the chairman reserves the right 22 to limit lengthy Questions, discussions, or statements. We 23 would ask that those of you who have a prepared statement to 24 make orally, please limit your presentation to a maximum 10 25 minutes, so we can get all statements in a reasonable time. If ------- 38 1 you have a copy of your statement, please submit it to the cour 2 reporter. 3 V/ritten statements will be accepted at the end of the 4 hearing. If you wish to submit a written rather than an oral 5 statement, please make sure the court reporter has a copy. 6 The written statements will also be included in their entirety 7 in the record. 8 Persons wishing to make an oral statement who have not 9 made an advanced request by telephone or in writing should 10 indicate their interest on the registration card. If you 11 have not indicated your intent to give a statement and you 12 decide to do so, please return to the registration table, fill 13 out another card and give it to one of the staff. 14 As we call upon an individual to make a statement, he 15 or she should come up to the lectern after identifying himself 16 or herself for the court reporter, and deliver his or her 17 statement. 18 At the beginnin'g of the statement, the Chairperson will 19 inquire as to whether the speaker is willing to entertain 20 questions from the panel. The speaker is under no obligation 21 to do so, although within the spirit of this information 22 sharing hearing, it would be of great assistance to the Agency 23 if Questions were permitted. 24 If you wish to be"added to our mailing'list for future 25 regulations, draft regulations, or proposed regulations, please ------- 335 1 leave your business card or name and address on a three by five 2 card at the registration desk. 3 The regulations under discussion at this hearing are the 4 core elements of a major regulatory program to manage and 5 control the country's hazardous waste from generation to final 6 disposal. The Congress directed this action in the Resource 7 Conservation and Recovery Act of 1976, recognizing that disposa 8 of hazardous waste is a crucial environmental and health 9 problem which must be controlled. 10 In our proposal, we have outlined requirements which set 11 minimum norms of conduct for those who generate, transport, 12 treat, store, and dispose of hazardous waste. 13 These requirements, we believe, will close the circle of 14 environmental control begun earlier with regulatory control 15 of emissions and discharges of contaminants to air, water,and 16 the oceans. 17 We do not underestimate the complexity and difficulty of 18 our proposed regulations. Rather, they reflect the large 19 amounts of hazardous waste generated and the complexity of 20 the movement of hazardous waste in our diverse society. These 21 regulations will affect a large number of industries. Other 22 non-industrial sources of hazardous waste, such as laboratories 23 and commercial pesticide applicators, as well as transporters 24 of hazardous waste, will also be included. ™ 25 Virtually every day. the media carries a story of a ------- 386 1 dangerous situation resulting from improper disposal of 2 hazardous waste. The tragedy at Love Canal in New York State 3 is but one recent example. 'EPA has information on over 400 4 cases of the harmful consequences of inadequate hazardous waste 5 management. These cases include incidents of surface and 6 groundwater contamination, direct contact poisoning, various 7 forms of air pollution, and damage from fires and explosions. 8 Nationwide, half of all drinking water is supplied from 9 groundwater sources and in some areas contamination of ground- 10 water resources currently poses a threat to public health. 11 EPA studies of a number of generating industries in 1975 12 showed that approximately 90 percent of the potentially hazardo 13 waste generated by those industries was managed by practices 14 which were not adequate for protection of human health and the 15 environment, 16 The Resource Conservation and Recovery Act of 1976 was 17 passed to address these problems. Subtitle C establishes a 18 comprehensive program to protect the public health and enviro- 19 ment from improper disposal of hazardous waste. Although the 20 program requirements are to be developed by the Federal 21 government, the ACt provides that States with adequate program 22 can assume responsibility for regulation of hazardous waste. 23 The basic idea of Subtitle C is that the public healt and the 24 environment will be protected it there is .careful monitoring c 25 transportation of hazardous waste, and assurance that such ------- 387 1 waste is properly treated, stored or disposed of either at 2 the site where it is genrated or after it is carried from that 3 site to a special facility in accordance with certain standards 4 Seven guidlines and regulations are being developed and 5 either have been or will be proposed (as noted earlier) 6 under Subtitle C of RCRA to implement the Hazardous Waste 7 Management Program. Subtitle C creates a management control 8 system which, for those wastes defined as hazardous, requires 9 a cradie-to-grave cognizance, including appropriate monitoring, 10 record keeping and reporting throughout the system. 11 It is important to note that the definition of solid 12 wastes in the Act encompasses garbage, refuse, sludges and M 13 other discarded materials, including liquids, semisolids and 14 contained gases, with a few exceptions, from both municipal 15 and industrial sources. 16 Hazardous wastes, which are a sub-set of all solid 17 wastes, and which will be identified by regulations proposed 18 under Section 3001, are those which have particularly 19 significant impacts on public health and the environment. 20 Section 3001 is the keystone of Subtitle C. Its purpose 21 is to provide a means for determining whether a waste is 22 hazardous for the purposes of the Act and, therefore, whether 23 it must be managed according to the other Subtitle C regulatio 24 Section 3001(b) provides two mechanisms for determining 25 whether a waste is hazardous: a set of characteristics of 1 ------- 388 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hazardous waste and a list of particular hazardous wastes. A waste must be managed according to the Subtitle C regulations if it either exhibits any of .the characteristics set out in proposed regulations or if it is listed. Also, EPA is directed by Section 3001(a) .of the Act to develop ciriteria for identifying the set of characteristics of hazardous waste and for determining which wastes to list. In this prposed Rule, EPA sets out those criteria, identifies a set of characteristic: of hazardous waste, and establishes a list of particular hazardous wastes. Also the proposed regulation provides for demonstration of non-inclusion in: the -regulatory, program. Section 3002 addresses standards applicable to generators of hazardous waste. A generator is defined as any person whose act or process produces a hazardous waste. Minimum amounts generated and disposed per month are established to further define a generator. These standards will exclude household hazardous waste. The generator standards will establish requirements for: record keeping, labeling and marking of containers used for storage, transport, or disposal of hazardous waste: use of appropriate containers, furnishing information on the general chemical composition of a hazardous waste: use of a manifest system to assure that a hazardous waste is designated to a permitted treatment, storage, or disposal facility; and ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 submitting reports to the Administrator, or an authorized stata* agency, setting out the quantity generated and its disposition. Section 3003 requires the development of standards applica to transporters of hazardous wastes, These proposed standards address identification codes, record keeping, acceptance and transportation of hazardous wastes, compliance with the manifest system, delivery of the hazardous waste; spills of hazardous waste and placarding and marking of vehicles. The Agency has coordinated closely with proposed and current U. S. Department of Transportation regulations. Section 3004 addresses standards affecting owners and operators of hazardous waste treatment, storage, and disposal ^ facilities. These standards define the levels of human health and environmental protection to be achieved by these facilities and provide the criteria against which EPA (or state) officials will measure applications for permits. Facilities on a generate property as well as off-site facilities are covered by these regulations and do require permits;, generators and transporters do not otherwise need permits. Section 3005 regulations set out the scope and coverage of the actual permit-granting process for facility owners and operators. Requirements for the permit application as well as for the issuance and revocation process are defined by regulations to be proposed under 40 CFR Parts 122, 123, 124. ^ Section 3005(e) provides for interim status during the time ------- 390 1 period that the Agency or the States are reviewing the pending 2 permit applications. Special regulations under Section 3004 3 apply to facilities during this interim status period. 4 Section 3006 requires EPA to issue guidelines under 5 which states may seek both full and interim authorization to 6 carry out the hazardous waste program in lieu of an EPA 7 administered program. States seeking authorization in 8 accordance with Section 3006 guidelines need to demonstrate 9 that their hazardous waste management regulations are consistent 10 with and equivalent in effect to EPA regulations under Section 11 3001-5.- 12 Section 3010 requires any person generating, transporting 13 or owning o-r operating a facility for treatment, storage, and 14 disposal of hazardous waste to notify EPA of this activity 15 within 90 days after a promulgation or revision of regulations 16 identifying and listing a hazardous waste pursuant to Section 17 3001. No hazardous waste subject to Subtitle C regulation 18 may be legally transported, treated, stored, or disposed after 19 the 90 day period unless this timely notification has been given 20 to EPA or an authorized state during the above 90 day period. 21 Owners and operators of inactive facilities are not required to 22 notify. 23 EPA intends to promulgate final regulations under all 24 sections of Subtitle C by December 31, 1979- However, it is 25 important for the regulated communities to understand that the ------- 391 I regulations under Section 3001 through 3005 do not take 2 effect until six months after promulgation. That would be 3 approximately June of 1980. 4 Thus, there will be a time period after final promulgatic 5 during which time public understanding of the regulations can 6 be increased. During this same period, notifications required 7 under Section 3010 are to be submitted, and facility permit 8 applications required under Section 3005 will be distributed 9 for completion by applicants. 10 With that as a summary of Subtitle C and the proposed 11 regulations to be considered at this hearing, I return this 12 meeting to the chairperson. M 13 CHAIRPERSON DARRAH' We have all through this 14 hearing limited people to ten minutes, and I will enforce 15 that rule this evening also, so that each person has ten minute 16 and then after your statement, I will inquire as to whether you 17 will accept questions from the panel. 18 The first person is Mr. Jack Westney of the Houston 19 Chamber of Commerce, 20 MR. JACK WESTNEY: Madam Chairwoman and members 21 of the panel, I am Jack Westney of the Houston Chamber of 22 Commerce, and I appreciate the opportunity to make this 23 presentation on behalf of the Board of Directors and the 24 membership of the Houston Chamber of Commerce. My function 25 is not technical. I cannot perhaps answer the questions you ------- 392 1 might ask, but I am sure that within the audience, we hav 2 technical people who could. So. I would suggest you go ahead 3 and ask the questions and se-e if we can't get an answer from 4 the audience. 5 The Houston Chamber of Commerce is a voluntary organizati< 6 of approximately 6,300 business and professional establishments 7 working together for the betterment of our Houston area. One 8 of the Chamber's goals is to enhance the quality of the 9 environment without unduly hindering the continued conomic 10 development that provides benefits and opportunities to all the 11 residents of this area. 12 We appreciate the fact that defining what is a "hazardous 13 waste'' and a non-hazardous waste, is extremely difficult. 14 Similarly, the creation of a laboratory procedure for 15 distinguishing between the nature of the wastes is equally 16 difficult. Under Section 3001 of the proposed rules, there are 17 two major areas of concern about the definition of hazardous 18 wastes: 19 (1) We feel that the definition of hazardous 20 waste is too broad, and 21 (2) The type of testing is inappropriate. 22 The broad definition, as propored in the rules, will caus 23 large Quantities of relatively low hazard, industrial waste to 24 regulated and handled in a manner similar to truly dangerous 25 materials. For example, under the hazardous waste definition, ------- 393 1 Coca Cola waste would be treated in the same fashion as waste 2 Polychlorinated Biphenyls. Each of these wastes will require 3 special hazardous waste disposal sites, increased disposal 4 costs, specialized record keeping, and numerous other 5 procedures, completely justifiable in the case of the truly 6 hazardous materials, such as PCB?s. On the other hand, the 7 encompassing nature of the hazardous waste definition will not 8 only cause Polychlorinated Biphenyls (PCB) and other truly 9 hazardous materials to be handled in this manner, but will also 10 include most industrial waste which is relatively innocuous. 11 This will create: 12 (1) An unprecedented demand on the regulatory 13 agencies. 14 (2) An overloading of safe disposal sites. 15 (3) An insatiable demand for additional and 16 safe disposal sites. 17 (4) Special handling methods, and other procedures. 18 The only solution we see to reducing this problem, which 19 is provided for by Section 1004 of the Act, is to change the 20 definition of hazardous waste to encompass the various degrees 21 of hazard. We would propose that a three classification system 22 be utilized, similar to that employed by the Texas Department 23 of Water Pesources, in their Hazardous Waste Guidelines. In 24 the development of the RCRA regulations, many of 'the guidelines, 25 provided by the Texas Department of Water Resources, were used ------- 394 1 as a model for the RCRA regulations. We suggest that the 2 Texas Department of Water Resources three class system of solid 3 waste be studied in developing an alternative definition of 4 hazardous waste. 5 Testing plays an important role in the establishment of 6 whether or not a waste material is hazardous. The extraction 7 procedure for determining if a material is hazardous is not 8 inappropriate for industrial waste. This procedure calls for 9 the extraction of materials using an organic acid solution, 10 and analysis of those materials dissolved in the solution. Thi 11 procedure has been severely criticized by the American Society 12 of Testing Materials and other technical groups. We feel that 13 an appropriate alternative to the extraction procedure would be 14 a procedure suggested by the ASTM, using water in lieu of the 15 organic acid solution. Water is the medium by which most 16 industrial waste possibly could be transported from a site into 17 the groundwater or aquifers of a region. Organic acid, on the 18 other hand, can be generated from municipal wastes, so it may 19 be appropriate to apply such a proposed extraction procedure to 20 municipal waste. We do not feel Qualified to comment on its 21 suitability to industrial applications. 22 In addition, we feel that the definition of other 23 discarded materials which has been used by the EPA, to mean any 24 material which is reused even if the reuse constitutes 25 destruction or disposal, such as the burning of a material i n ------- 395 129 1 an incinerator, is inappropriate. The classification of used 2 lube oil 3 and other oils as hazardous wastes exceeds the 3 intent of the law, when these materials are applied to utility 4 boilers or incinerators. Such use fulfills the intent of 5 Congress for resource conservation and should be promoted and 6 not hindered by the proposed rules. 7 In addition to the above comments, we are concerned that 8 the corrosivity section on page 58951 of the regulations calls 9 for a pH of 12.0. This maximum limit would cause lime sludes 10 from water treating operations to be included under the 11 hazardous waste definition. The pH should be raised to 12.5 12 since materials 12.5 pH; are not harmful to the skin. 13 Finally, Section 3001 of the proposed rules indicates 14 the EPA retains an independent authority to enforce the 15 standards of Section 3001. The law implies that the regulation 16 under the RCRA Act, should be administered through the states. 17 Consequently, we trust that the states will be given complete 18 authority to administer the Federally approved, state programs, 19 without intervention of the EPA. unless the State fails to do 20 so. Direct enforcement by the EPA of an industry generator 21 or disposer would not be in keeping with the RCRA law. 22 The purpose of Section 3002 is to provide a means of 23 tracking hazardous waste from the generator to the disposal 24 facility to insure proper disposal. Basically, this section ™ 25 provides that any person who produces , disposes of or accumulat thf ------- 396 1 in excess of 100 kg/month of a hazardous waste, is covered by 2 this section of the proposed rules. It calls for_a manifest 3 system, which will keep track of the waste material from the 4 time it is generated, to the time "It is disposed of in an 5 approved disposal site. It also provides for proper containeri- 6 zation and labeling of the waste materials, however, some 7 improvements should be made to the proposed rules, un'der 8 Section 3002. There should be provisions for making the record 9 keeping requirements more reasonable. Allowances should be mad< 10 for reporting summaries, through the use of computer systems. 11 Acceptable alternative forms and data processing procedures 12 should be allowed.-' In addition, the certification statement 13 on the manifest and reports, which are submitted to the EPA, 14 should include a phrase showing that the forms are filled out 15 to the best of the knowledge of the reporter. The notification 16 and reporting on foreign shipments appears to be needless, 17 since Environmental Protection Agency has no jurisdiction, once 18 a shipment of waste material reaches a foreign country. The 19 tracking of waste material, while in the Continental United 20 States, is appropriate, but once it reaches international 21 boundaries, their jurisdiction should cease. We support the 22 establishment of a cut off point of those affected by the 23 quantities of waste material. However, we feel that the cut 24 off level should be on an annual average basis rather than a 25 monthly basis. ------- 397 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Subpart C, Transportation of Hazardous Waste (Section 3003) " This section of the proposed rules requires trasnsporters to maintain records of hazardous waste carried from the sources to the delivery point. It stipulates that the transporter can only accept wastes for transportation, which are properly labeled and accompanied by the signed manifest, and requires that the transporters deliver those wastes only to a designated,, hazardous waste treatment storage and disposal facility, indicated on the manifest. This may sound like a very straightforward and easy task to accomplish. However, let us take a look at the real world situation, through the eyes of the transporter. The manifest required by the EPA, is on one of the several documents required by such regulatory agencies as the Department of Transportation, the Interstate Commerce Commission, the Texas Railroad Commission, to name a few. These forms and record keeping requirements must be consistent. In Texas and California, the three part trip ticket, or manifest system has been adopted. We recommend that the existing paperwork, either state or federal, be used as fulfilling the requirements of the manifest regulations in the proposed rules. The incorporation of the EPA procedures into the existing network, would provide for an effective and smooth transition into the handling of these waste materials. The impact of these regulations on the generators of ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -'.<. will be tremendous. The classification waste in a community system required under Section 3001. will define many wastes as being hazardous. Consequently, these facilities will resist the classification and resent the additional financial burdens imposed on them. Finally, and most importantly, they will be reluctant to acknowledge that these wastes exceed the current 100 kg/month breakpoint in the regulations. All 6'f these factors leave the transporter in the precarious position of no- having the expertise or the manpower to inspect every containe before it is placed in his equipment, to be hauled to a dispos, site. The question here is, what recourse does the transporte have, if the mixed load ever contains hazardous waste? What will happen to the load: and who is financially responsible? The concensus of the trucking community, serving this ar is sufficient attention to practical application and enforceme of these proposed regulations has not been addressed. Only through a massive education program, followed by vigorous enforcement, will these regulations truly become effective. Subpart D. Standards Applicable to Owners and Operators of Hazardous Waste Treatment Storage and Disposal Facilities Section 3004. There are four major concerns, which highlight the issue that the Houston Chamber of Commerce wishes to be considered in this part of the proposed rules. These are: (1) General Site selection criteria. ------- 399 1 (2) Surface impoundment requirements. 2 (3) Groundwater and leachate monitoring criteria. 3 (4) Financial requirements. 4 The criteria for the general site selection of solid 5 waste disposal facilities, could virtually eliminate the siting 6 of any hazardous waste treatment storage and disposal facilitie 7 in the greater Houston area, and along much of the Gulf Coast 8 of the United States. The 500 year flood plain requirement 9 alone, could preclude the use of many acceptable and safe sites 10 from being used to dispose of hazardous wastes. It is our 11 understanding that maps will not be available for three to five 12 years, which will establish where the 500 year flood plain 13 is located. While the Agency assures us that the notes ~ 14 in the proposed rules have the weight of law, we are concerned 15 that these assurances may not be adequate to allow alternative 16 engineering specifications for some of these facilities. 17 The criteria for landfills and surface impoundments deals 18 with barrier requirements to protect the environment from 19 these facilities. In Texas, one requirement for a Class I 20 hazardous waste disposal site is a three foot, compacted clay 21 barrier, with a permeability of 1 x 10-' cm/second. This 22 barrier thickness is the same as the EPA requirement for 23 Polychlorinated Biphenyls disposal sites, as published in the 24 Federal Register. The EPA, during the preliminary drafting 25 of this regulatin. proposed a fifty foot barrier, then'changes ------- 400 1 it to 100 foot, and now proposes a five foot barrier. The ,2 reasoning behind these changes is hard to follow. For all 3 practical purposes, a barrier is primarily designed to insure 4 the integrity between the bottom of the landfill or a surface 5 impoundment and the top of the surrounding and possibly the 6 surrounding groundwater. It seems reasonable that if the 7 barrier is made thick enough, the probability of causing 8 breaks by mechanical means, during construction and operation, 9 will be minimal. On the basis of this premise, Texas has 10 adopted a three foot barrier because that thickness was 11 believed to" be ample to insure the integrity of the facility. 12 Further, it is believed that a Class I site, constructed in j3 good faith, under the Texas regulations for the disposal of 14 hazardous wastes, should be formally acknowledged by the EPA as 15 satisfactory through some form of regulatory recognition. In a 16 more practical vane, there is no need for a thickness of a 17 barrier greater than that required for the disposal of PCB's — 18 deemed to be one of the very worst environmental offenders. 19 We must insist that the performance standards required I 20 under the rules, go well beyond what is necessary for the 21 protection of groundwater and the Human Health and Environments 22 Standard. The Human Health and Environmental Standard states 23 that all facilities shall be located, designed, constructed and 24 operated in such a manner as to prevent endangerment of an 25 underground drinking water source beyond the facility property ------- 1 boundary. 2 We submit that each situation must be assessed on its 3 individual merits. For example a unique situation exists, in 4 the Gulf Coast Area, which is documented in the Texas Department 5 of Water Resources Technical Guidelines for Hazardous Waste 6 Disposal. The situation is one of low permeability, high water 7 table typified by the Beaumont clay formation. Pill placed 8 below the water table causes local contamination, but extremely 9 slow movement of the groundwater precludes wide spread 10 distribution of the contaminants. Typical groundwater flow 11 rates through the clay sediments, under small hydraulic 12 gradients are one-tenth to five-tenths of a foot per year. Thus 13 in fifty years, the leachate would move only five to twenty-fivw 14 feet from the fill. Since a hazardous waste landfill must be 15 sited at 500 feet from any functioning public or private water 16 supply, we are now talking about 100 to 500 years to reach 17 this point, not taking into account the bicdegradation and the 18 mixing zone dilution.. 19 Furthermore, we do not believe that it is the intent of 20 the EPA to cause the landfill to be built in an area of low 21 permeability and high groundwater table. The hydraulic head, 22 which would build up. would cause a much higher rate of 23 permeation into the liner. Therefore, we must maintain that 24 direct contact of the landfill with groundwater be allowed in ^ 25 certain situations, where because of unique soil characteristics ------- 1 there is minimal chance that contamination of a usable aquifer 2 could occur, and where the contamination will not cause a 3 violation of water quality standards. 4 The most practical approach to this entire matter would b 5 that of the delegation of the authority to the state regulatory 6 agency, to determine each case situation, and take corrective 7 action where imminent hazards exist. 8 A somewhat similar concern to the site selection criteria 9 just discussed is about the typically slow flow rates through 10 clay sediments in the Gulf Coast coupled with the low hydraulic 11 gradients necessitates the handling on a case-by-case basis. 12 Groundwater and leachate monitoring as required by the proposed 13 rules' will not be as effective as in the Gulf Coast as other 14 areas. 15 Under the proposed rules it is stated that after backgro 16 levels are established, and analysis show that the quality of 17 groundwater or the water in the zone of aeration, significantly 18 differs from background quality, that the facility must 19 discontinue its operation until the Regional Administrator 20 determines what actions are to be taken. It is totally 21 unreasonable to expect that a facility could shut down within 22 seven days of analysis, if an apparent deterioration in water 23 quality should appear. As an example, if this were done in the 24 case of an NPDES permitted, bio-oxidation facility, it would 25 necessitate shutdown of the entire complex. This sort of haste ------- 403 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is entirely unnecessary, particulary in cases where a surface impoundment or landfill is located in an impervious clay formation, and there is not even a remote chance that human health or the environment are being endangered. Once again, we maintain that, by disallowing any contamination of the groundwater, the EPA has gone beyond the conclusions reached in its own published background documents, for the protection of human health and the environment. We maintain that at the time a perimt is issued, the consequences of excessive groundwater contamination should be determined and written into the permit. Only in circumstances where a groundwater source, which must be protected, due to potential use for drinking water, should the Regional ™ Administrator have the authority to close the facility. We furthermore, support the position that once the state assumes the responsibility for the program, there is no reason to continue reporting to the Regional Administrator. Finally, the financial requirements stipulated in the proposed rules are significant. This section provides for financial responsibility of owners/operators of the hazardous waste treatment, storage and disposal facilities. However, as drafted, there is no provision whereby small businesses, engaged in waste disposal, which, although they are technically considered hazardous waste disposal facility operators, do not create the degree of danger addressed by the overall Subtitle C program. It is ------- 404 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 even more interesting to note that according to the Act, Section 3004 (6), IJno private entity shall be precluded by reason of criteria established under Paragraph (6), from the ownership or operation of facilities providing hazardous waste treatment, storage or disposal services, wehre such entity can provide assurance of financial responsibility, and continuity of operation consistent with the degree and duration of risk associated with the treatment storage or disposal of specified hazardous wastes." It is our interpretation that Congress intended for the EPA'to provide for a mechanism, in a case-by-case evaluation of particular hazardous waste facility operators, and which allows for relief from the financial responsibility requirement if the hazardous waste facility operator can establish, by other means (or in some lesser amount) that he is financially capable. We suggest, as an alternative to the federal proposed financial responsibility requirements, that the states which provide an alternative to these requirements be exempted from these provisions. The State of Texas is currently working on a program, where a fund would be established from revenues generated by amounts of wastes disposed of in Texas. We submit that if this program is a viable alternative, it should be allowed as a substitute, for the proposed financial requirement under Section 3004 of the rules. ------- 40' 1 The authority from RCRA to regulate NPDES- permitted M 2 facilities is questioned. Inclusion of waste treatment ponds 3 already permitted, adds another layer of regulation to an area 4 already fully controlled. 5 Waste treatment facilities were built within the last few 6 years, using the best engineering practice available at the 7 time, and should not now have to be retrofitted, leachate 8 collection and monitoring system Installed and so forth. 9 Advances in engineering technology are going to provide yearly 10 innovations in pond design. However, the cost and fact that 11 industry would have to bypass their NPDES treatment facility 12 while retrofitting, make this proposal totally impractical. ^ 13 Existing sites should be ''grandfathered" as long as 14 there is no imminent hazard which would violate a principle 15 source aquifer according to Section 1424 of the Safe Drinking 16 Water Act of 1974. 17 A similar concern exists where RCRA attempts to control 18 emission points, which were regulated under the Clean Air 19 . Act. Likewise, controls directed toward incineration design an 20 construction, along with the control of fugitive emissions, 21 is inappropriate, under the RCRA regulations. The Clean Air 22 Act adequately takes care of air emissions, and there is no 23 ne£d for further regulations by RCRA, 24 In order to be effective in the implementation of 25 hazardous waste controls, we feel that it is essential that ------- 406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there be a spirit of cooperation between the EPA and the state agencies. Presently, the State of Texas has an NPDES permittin system, as does the EPA. The implementation of a dual permitti enforcement program in the area of solid waste, is not acceptab ra3 should, at virtually all cost, be eliminated. Finally, and most significantly, the broad definition of hazardous waste, as explained in our comments under Section 3001, and the specific requirements, irrespective of location, regarding the operation of disposal sites, and the details, labeling, handling procedures for transporters of the waste, make the present program unworkable. We submit that the pro- posed rules be revised in a manner which is practical and will allow the coordination among federal agencies and consistent regulation by federal agencies of these hazardous waste materials. The definition of hazardous waste should be narrowed to include only those compounds which indeed present a hazard to the environment and existing regulation should be used to cover areas imrleated to solid waste, and only new regulations developed in areas where they are essential. Only through an effective and realistic program of managing hazardous wastes, can this program be reconciled.". There is is no need to attempt to cover all bases in the initial promulgation of these regulations. It would be more practical to amend the rules in areas where amendment is needed. Thank you. ------- 407 1 CHAIRPERSON DARRAH• Thank you very much. I would 2 remind you and everyone that your entire statement certainly 3 will be included in the transcript of the hearing. One 4 question, do you want these attachemnts that you submitted up 5 here for the chairperson be included in the transcript or as 6 part of the public docket or both? 7 MR. WESTNEY- Certainly with the public docket. 8 CHAIRPERSON DARRAH: Would you attempt to answer 9 questions if there are any? 10 MR. WESTNEY: Let's ask them, and if we can find 11 some experts on the floor, because if they are technical, I 12 can't. 13 MR. CORSON: In your testimony, you indicated that^ 14 somewhere in Section 3001, the EPA retain independent authority 15 to enforce the standards. I am curious precisely what it is 16 that you are referring to in that. 17 MR. WESTNEY: Anybody on the floor answer that 13 question, or are you .familiar with it? 19 MR. CORSON: 3001 defines hazardous waste. I am 20 curious about some areas of ambiguity of what we have written. 21 MR. WESTNEY: Let me say this. I will have an 22 answer for you. 23 MR.TRASK: There is a single statement without 24 amplification in your comments that says we ought to make ™ 25 provisions for record keeping requirements that would be more ------- 408 1 reasonable. Could you expand on that? 2 MR. WESTMEY: No, sir, I can't. 3 MR. TRASK: Will you ask your people to do that? 4 MR,WESTNEY: Now, you are dealing with people 5 that are actually in the business. I am talking about the 6 generators and transporters, so I have nothing to do with these 7 record keepings. I am a staff member of the Chamber. This is 8 somewhat foreign to me, but yes, I will be glad to. 9 MR. TRASK: If you would, we would appreciate it. 10 MR. WESTNEY: I think they are indicating here 11 that perhaps the system now in use in California and Texas 12 might be reviewed. 13 MR. TRASK: In your comment you were discussing 14 transporting and record keeping requirements, and they keep 15 a copy of the manifest for three years, and that is all. 16 MR. ALAN ROBERTS: At the bottom of page five of 17 your statement you make the comment: ''Let us take a look at 18 the real world situation through the eyes of the transporter." 19 We would like to have you introduce, not tonight, but when you 20 go back into the real world down there, and kindly tell us. 21 MR. WESTNEY: I will be going into the make 22 believe world at that point. 23 MR. ROBERTS- I understand. I am from Pennsylvania 24 MR. WESTNEY: So am I. How about that. (laughter 25 If it helps or means anything, I also went to the University ------- 143 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 409 of Pennsylvania, MR. ROBERTS: I went to Penn State. MR. WESTNEY: Nothing wrong with Penn State. MR, ROBERTS: If you would please, it is a rather important statement you are making about documentation. You are alleging there is some kind of conflict between EPA's proposal and DOT's proposal and DOT ' s existing regulations and the INterstate Commerce Commission weighting requirements which are not bills of laden requirements. But since EPA has proposed a sample manifest, not as a mandatory document, just a suggested layout, we would like to have some specific illustration what the conflicts are in laying out a manifest document to accomplish all three items. We see no conflict at that point . MR. WESTNEY: Right. MR. FIELDS: You indicated in your comments that 500 year flood plain map is not available for three to five years in your comments, and I would like to know who told you that . MR. WESTNEY: The Corp of Engineers indicated this to us. MR. FIELDS: The Corp of Engineers stated this to you? MR. WESTNEY: Yes. MR. FIELDS: You are talking to the wrong people. M 1 9 th< f ^w ------- 1 MR, WESTNEY: That may well be.' May I ask you, 2 when adn where would they be available? 3 MR. FIELDS- The. Federal Insurance Administration, 4 regional office. 5 MR. WESTNEY: Mo, because I requested them about 6 14 months ago. and I have yet to get them. 7 MR. FIELDS: Alright. 8 MR.WESTNEY: As indicated in this document, I will 9 try again. 10 MR. FIELDS- Since that time, some have been 11 developed for every region of the country. 12 MR. WESTNEY: I will also check the Dallas Corp 13 again. 14 MR. FIELDS: If you contact me in Washington, 15 Timothy Fields, I will be glad to send you some maps. 16 MR. WESTNEY- We do have calls for them, as you 17 might recognize, development is going on. 18 MR. FIELDS: Some are available and are being done. 19 MR. WESTNEY- We have flood plain maps, not the 20 500 flood plain. 21 CHAIRPERSON DARRAH: Thank you very much. 22 I will next call Mr. John Winkley from CF&I Steel 23 Corporation. 24 MR. JOHN C. WINKLEY: Good evening. My name is 25 John C. Winkley and I am Manager of Air and V/ater Quality ------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 13 19 20 21 22 23 24 25 Control for CF&I Steel Corporation located in Pueblo, Colorado.^ I am appearing here this evening to present to you some of the concerns we have regarding the proposed hazardous waste regulations as published in the Federal Register on December 18, 1978. In addition to these verbal comments, written comments in more detail are being provided. CF&I Steel Corporation is relatively small as measured by steel industry standards, and we represent about 1- percent of the productive capacity of the American Steel Industry. CF&I's corporate offices and integrated steel plants are located in Pueblo, Colorado. We also operate iron ore mines in Wyoming and Utah, together with limestone and dolomite quarries and coal mines in Colorado. We produce approximately 1-1/2 million tons of steel per year and in the production of this amount of steel, handle significantly larger quantities of raw materials. Needless to say, waste disposal is a continuing part of steel plant operations, The steel industry historically has used the principle of recycling and reuse of materials. Examples of this are the large amounts of scrap metals which are utilized in the steel making processes to produce steel. Another commonly practiced recovery is the collection of the roll scale which results from the mechanical working of the steel at the various rolling mills and recycling this material through a sinter plant to form an agglomerated iron bearing constituent ------- 41; 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 ia. 19 20 21 22 23 24 25 as a used blast furnace feed material for the production of iron. In spite of the amount of recycling which is employed, waste materials are generated, many of which have come about through the installation of air and water pollution control facilities which can range in quantity from approximately 12 tons per year to 60,000 tons per year of material. Some of these materials are stockpiled in the anticipation that as technology is developed, a recovery of the iron units or other uses may be possible in the steelmaking process. The Pueblo Plant has been in operation for over 100 years and the waste materials from the steelmaking operations of this plant have been historically placed in various landfills on CF&I property. To my knowledge this has not created a significant health or environmental problem as of this date. In our review of earlier drafts of the proposed regulations, we believed that the steelmaking wastes handled did not fall within the Resource Conservation and Recovery Acts definitions of a hazardous waste. The December proposed regulations appear much broader. It is this past history which makes one ask what the agency is actually trying to control, and what is the degree o control necessary to achieve the objectives contained in the Act's definition of hazardous wastes. It is recognized that there have been several incidents in some locations within the United States which have received widespread publicity ------- 413 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 associated with certain chemical constitutents for which claims have been made that they do cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness But the matter is one of degree. Is the objective at this • point in time to achieve a total zero risk situation with regard to all materials handled no matter what the degree of risk? I am not aware of any situation that can be developed that results in zero risk. I would reference you to a paper published by Merril Eisenbud entitled, "Environmental Causes of Cancer" which was published in Environment Volume 20, No. 8, of October 1978. In that article on page 15 under ''What about the Future?", the author cautions, '...many questions remain to be answered. Is there a safe dose? How safe is safe? How does one translate laboratory findings into sensible regulation; These questions will require both scientific wisdom and a sense of social perspective.1 It is hoped that both scientific wisdom and a sense of social perspective are applied before these proposed regulations become finalized. Our preliminary screening using the toxic extraction procedure forces us to questio whether this procedure recognizes the geographic differences throughout the country. In the Pueblo area, for example, one would be hard pressed to find soils which are acidic or rainfall which is acidic, ™ both of which are basic premises upon which this toxic ------- 1 extraction procedure was established. It is also difficult 2 to understand how a test pro