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                          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:.

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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


























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..INDEX
WITNESSES PAGE NO.
WEND ALL CLARK 245
PHILIP W. MORTON 250
DR. JOHN T. MAKENS 260.






















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                   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,

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 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

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 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.

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 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

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 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
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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

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 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.

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 0   methods, and a hazardous waste list; (2) standards applicable
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                                                                 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

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 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

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 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

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 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

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 *•   decide to do so, please return to the registration  table,

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 *   fill out another card and give it to one of the  staff.

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 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

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     inquire as to whether the speaker is willing to  entertain

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     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

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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.

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           The regulations under discussion a-t this hearing  are

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     the core elements of a major regulatory program  to  manage

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 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



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     cases of the harmful consequences of inadequa-te hazardous

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     waste management.  These cases include incidents of  surface
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     and groundwater contamination, direct contact poisoning,

     various forms of air pollution, and damage from fires and
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     explosions.  Nationwide, half of all drinking water  is
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     supplied from groundwater sources and in some areas  contamination
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     of groundwater resources currently poses a threat to public
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     health.  EPA studies of a number of generating industries in
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     1975 showed that approximately ninety percent of the potentially
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     hazardous waste generated by those industries was managed by
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     practives which were not adequate for protection of  human
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     health and the environment.                 .  ,
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           The Resource Conservation and Recovery A'ct of  1976 was
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     passed to address these problems.  Subtitle C establishes a
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     comprehensive nrogram to protect 'the public health and
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     environment from improper disoosal of hazardous waste.
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     Although the program requirements are to be develooed by the
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     Federal government, the Act orovides that States with adequate
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     programs can assume responsibility-for regulations of hazardous
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     waste.  The basic idea of Subtitle C i-s that the oublic
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     health and the environment will be protected if there is
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     careful monitoring of transportation of hazardous waste, and
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     assurance that such waste is properly treated, stored, or
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     disposed of either at the site where it is generated or
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     after-it is carried from that site to a special facility in      \
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     accordance with certain standards.

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          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.

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          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

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     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.

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 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

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     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

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 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

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                                                                 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

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                                                                 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.

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                                                                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

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                                                                 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

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                                                                 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

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                                                                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

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                                                               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

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                                                                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.

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                                                                 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.

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	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

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                                                                  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

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                                                                  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

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                                                                 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.

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10




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16




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18




19




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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.

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                                                                 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

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                                                                 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

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                                                                 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.

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10




11




12




13




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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

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                                                                  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

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                                                                    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,

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 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

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                                                              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.

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                                                                  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.

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                                                                  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

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                                                              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
<

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                                                                 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

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	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

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                                                                 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

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                                                                 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  ,

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 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

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                                                                 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

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                                                                 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

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 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
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                                                                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?

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                                                               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

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                                                                 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

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                                                                 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'

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                                                                  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

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 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

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                                                                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.

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                                                                  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

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                                                                   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

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                                                                  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

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                                                                  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

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                                                               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

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                                                                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

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                                                                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

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                                                               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

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                                                                 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.

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                                                                  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

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                                                                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?

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                                                                  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

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                                                                 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

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                                                                 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

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                                                                 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

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                                                                  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.

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                                                                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

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                                                                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

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                                                                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,

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                                                               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.

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                                                                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

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                                                                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

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                                                                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

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                                                                 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

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                                                                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

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                                                                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

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                                                                 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

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                                                                 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.

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                                                                 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

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                                                                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

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18



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                                                                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

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                                                                 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

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                                                                 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

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                                                                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

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 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

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                                                                 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

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                                                                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

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                                                                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

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                                                                  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

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                                                                  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

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                                                                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

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                                                                 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

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                                                                 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

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                                                                 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

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                                                                 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

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                                                                 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,

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                                                                 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

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                                                                 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

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                                                             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

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10




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15




16



17



18




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22




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                                                            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

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                                                                 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

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                                                                 . 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

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                                                                 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.

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                                                                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.

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                                                                 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.

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                                                                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

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                                                                 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

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                                                                 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"..

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                                                                 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

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                                                                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

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                                                                 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

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                                                                 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:

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                                                                 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

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                                                                  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

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                                                                 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.

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                                                                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

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                                                                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

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                                                                 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

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                                                                 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

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                                                               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

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                                                                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.

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                                                                  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

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                                                                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.

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                                                                 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.

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    	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

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                                                                 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

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                                                                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

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                                                                 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

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                                                                 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

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                                                                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

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                                                                 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

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25

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                                                                 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

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                                                                 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

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                                                                 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".

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                                                                     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

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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

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	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.

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                                                                 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,

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                                                               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

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                                                               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.

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                                                                 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

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                                                                  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

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                                                                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."

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                                                                 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.

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                                                                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

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                                                                 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

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                                                               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

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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

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                                                                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

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                                                                 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

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                                                                 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

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                                                                  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

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                                                                 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

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                                                                 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

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                                                                 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

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                                                                 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.

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                                                                 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

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                                                                  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—

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                                                                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.

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                                                                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

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                                                                 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

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                                                                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

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                                                                 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




15    $4200 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):

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      "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

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                                                                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

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                                                                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.

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                                                                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

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                                                                 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

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                                                                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.

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                                                                  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

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                                                                 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-

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                                                                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.

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                                                                 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

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                                                                 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

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                                                                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

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                                                                 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

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                                                                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.

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                                                                   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

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                                                                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

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                                                               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,

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                                                                 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,

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                                                                 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"

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                                                                 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.

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            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

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                                                                 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

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                                                                 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.

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                                                                  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
*

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                                                              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,

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                                                                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

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                                                                 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'

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                                                                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):

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 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:

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                                                                      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

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 5




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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,

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                                                               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"

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                                                                  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

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17



18




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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
•

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                                                                 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

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                                                                 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

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                                                                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?

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                                                                 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.

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                                                                 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

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                                                                 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

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                                                                 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.

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                                                                  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

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                                                                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

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                                                                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  •

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                                                                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.

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                                                                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.

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                                                               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.

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                                                                 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,

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                                                                 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

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                                                                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,

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                                                  	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

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                                                                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

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                                                                 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,

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 3




 4




 5




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 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

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                                                                 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,

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                                                                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

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                                                                 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

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                                                                 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,

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                                                                 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.

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                                                                 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.

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                                                                 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.

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   ||                                                            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

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                                                                 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

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                                                                 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

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                                                                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

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                                                                 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

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                                                                 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

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                                                                  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

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                                                                  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

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                                                                 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

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                                                                 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

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                                                                  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

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                                                                  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

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                                                                 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

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                                                                 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

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                                                 	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

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                                                                 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

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                                                                 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.

-------

-------


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                  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

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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.

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     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 —

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     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-

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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-

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     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 —

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     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-

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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 —

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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

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                                      -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

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                                     -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.

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                                      -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.

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                                       -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.

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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

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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.                       -

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     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.

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     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

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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

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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.

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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.

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     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

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    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	

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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.

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     (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.

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     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) ;

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     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
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     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.

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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

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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

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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.

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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)

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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".

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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.

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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

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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.

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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.

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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

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                                                     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."

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     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-

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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-

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                   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."  -

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                               -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


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                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.

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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.

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                             - 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.

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                 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

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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

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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

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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.

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                    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.

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              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,

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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.

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              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.

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              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.

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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

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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.

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                                                                   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

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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.

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      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

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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.

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      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

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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

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 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.

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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.

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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

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                         --"*          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.

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    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

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    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.

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             „_-  , .   ,. .  „     ,     „  .    ,,           ,       '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.

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                                                             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

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    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.

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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.

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RESOURCE CONSERVATION AND'RECOVERY ACT


 PROPOSED HAZARDOUS WASTE REGULATIONS
             COMMENTS BY
       ELECTRO-PHOS CORPORATION
         1155 PEBBLEDALE ROAD
        MULBERRY, FLORIDA 33860
             MARCH 7, 1979

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            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.

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    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

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     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.

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   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.

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   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.

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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.

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   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^/

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                     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"

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                     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

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'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

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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"?

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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."

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     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.

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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.

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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

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                                                     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 .

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                                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

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                                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. "

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                                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.

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                                 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'.

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                                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

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                                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.

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                                                         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

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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".

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     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

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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

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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

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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.

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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).

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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.

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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.

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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)].

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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.

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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).

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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

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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."

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 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.

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 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.

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 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).

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                    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

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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.

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                                -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.

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                                -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

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                               -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

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                                -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

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                               -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.

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                                -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.

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                               -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.

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                 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.

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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

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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

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      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.

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(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.

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     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.

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                                  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

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                      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.

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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

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                              -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.

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                      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.

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                                     -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:

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                                     -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

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                                     -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-

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                                     -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

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                                     -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.

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                                     -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.

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         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

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                                                                                 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

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         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

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         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

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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.

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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.

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                                                                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

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                                                                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

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• 1
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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

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INDEX
|
WITNESSES PAGE NO. ^
JOHN HARRIS 463
RON BISSINGER 467
LYLE A. RATHBUN 471
TIM McCLURE 476
WILLIAM HUTTON 480





4




-





4


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                                                                 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.

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                                                     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.

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                                                                 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

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                                                               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

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                                                                272
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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

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                                                                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.

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                                                                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

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                                                                 275
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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

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,  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

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                                                                 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

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                                                                 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

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                                                                 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

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                                                                260
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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

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                                                                           - ^ 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

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 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

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                                                                 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

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  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

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                                                                 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

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 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

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                                                                           287
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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

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                                                                 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

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                                                                 289
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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

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                                                                 290
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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

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                                                                 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

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                                                                 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

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                                                                            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

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 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

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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,

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                                                                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

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 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

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                   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.
"

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                                                                 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

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                                                                 300
    of the moment.  That was just used as an example.
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    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,

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                                                                 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

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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

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                                                                  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

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                                                                 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

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                                                                            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

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                                                                 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

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                                                                  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.

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                                                                   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

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                                                                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<

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                                                                  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

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                                                                 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

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                                                                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?

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                                                                 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

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 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

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                                                                 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<

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                                                                 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

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                                                                 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

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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!

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                                                                           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

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                                                                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

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	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

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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

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 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

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 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

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  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

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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

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 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

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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

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            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

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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

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                                                                 331
 I   records would be required?   I think my question is, why do
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 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.

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            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?

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            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.

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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.

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                                                                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

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 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.

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 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

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 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

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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.

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      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

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 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

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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.

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      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

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 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?

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                 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

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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

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                                                                 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

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                                                                 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

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 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

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      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

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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

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 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

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 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

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                                                                 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

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 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

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 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

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 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

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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

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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

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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?

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 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.

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 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

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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

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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.

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      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

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                                                                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.

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      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

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 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

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                                                                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

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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,

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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?

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            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?

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                                                                 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




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                                                                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

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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

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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

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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

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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

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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.)

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                                                                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

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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

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                                                                 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

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 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

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                                                                  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

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                                                               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

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                                                                 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

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                                                                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

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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

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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

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                                                                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

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 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

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                                                                 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,

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                                                                 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

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                                                                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
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 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

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                                                                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.

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      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

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                 -'.<.  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.

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                                                                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

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                                                                 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

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 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

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 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

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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

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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.

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                                                                  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

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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.

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                                                                 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

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                                                                 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

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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
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 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

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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

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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

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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

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 1   extraction procedure was established.  It is also difficult




 2   to understand how a test procedure can be established




 3   nationwide to simulate a leaching action, representative of