TRANSCRIPTS OF THE
CONFERENCE ON HAZARDOUS
SUBSTANCE REGULATIONS
October 21-23, 1974
Quality Inn
Pentagon City, Virginia
Conducted By:
BATTELLE-NORTHWEST
U.S. ENVIRONMENTAL PROTECTION AGENCY
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ANNOTATED TABLE OF CONTENTS
DAY 1, OCTOBER 21, 1974 Page
Morning Session
Dr. Allen L. Jennings, EPA, Hazardous and
Toxic Substance Branch - Lead off Comments. ... 1
Dr. C. Hugh Thompson, EPA Hazardous and
Toxic Substance Branch - Introduction of
Conference Topics 1
Background on Related Efforts 2
Program Issues 3
Objectives of the Conference 4
Mr. William Frick, EPA Office of General
Council for Water - Legal Interpretations
of Section 311 5
Question and Response Pertaining to
History of Term Units of Measurement .... 10
Question and Response Pertaining to
Terms Owner and Operator 11
Question and Response on (aa) and
(bb) Options 11
Mr. Allen Cywin, EPA Effluent Guidelines
Division - Implications of Section 311 11
Question and Response Concerning Time
Difference Between Spill and Continuous
Discharge 14
Question and Response on Discharges
Exempted From NPDES Permits 14
Question and Response Concerning
Application of Section 311 to Sub-
stances Normally Discharged 16
Mr. Brian Malloy, EPA Water Enforcement
Division Enforcement of Section 311 16
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ANNOTATED TABLE OF CONTENTS (CONT'D.)
Question and Response on Present
Status of Firms Issued and Section 311 ... 18
Questions and Responses Related to
Differentiating Spills From Con-
tinuous Discharges 19
Response to Question Relating Spills
to State Standards 20
Question and Response About Dual
Liability Under Section 311 and
Discharge Permits 20
Questions and Responses on Penalties
for Transportation Spills 21
Questions and Responses Pertaining
to Direct Spills and Runoff to
Water After Land Spills 21
Questions and Responses Relating
Section 311 to Materials Listed in
Application but not on a Permit 22
Question and Response About Present
Operability of Maximum Liabilities 23
Question and Response on EPA
Approval Requirements for Spill
Response Actions 24
Questions and Responses Again on
Operability of Maximum Liability 24
Question and Response on Time Frame
for Promulgation 25
Questions and Responses on Penalties
now in Effect 25
Questions and Responses on Philosophy
Related to Unpreventable Spills and
Transportation Accidents 25
Question and Response on whether Trans-
porters Need Permits ..... 25
11
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ANNOTATED TABLE OF CONTENTS (CONT'D.)
Questions and Responses About
Liability of Municipalities for
Spills 26
Questions and Responses About
Differences for Small Penalties 26
Questions and Responses on Relation
of (aa) and (bb) 27
Question and Response on Difference
Between Amount Spills and Amount
Reaching Water 27
Question and Response Relating
General Permit Parameters and
Spills of Specific Materials 28
Question and Response as to
Whether a Spill is Operable
in a Time Frame of Less than
24 Hours 28
Questions and Responses on Defining
Removal and Mitigation Activities 28
Break
LCDR. George Brown, USCG, Pollution
Response Branch - Summary of the Coast
Guard Program 29
Question and Response on Avail-
ability of CHRIS Manuals 33
Questions and Responses on
Compatibility of Manuals with
Designated Substances in Section
311 34
Question and Response on Reconciling
on Differences Between DOT Defined
Hazardous Materials and Those
Designated Under Section 311 34
Question and Response on Toxic
Materials that Meet Criteria but
are not Designated 35
111
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ANNOTATED TABLE OF CONTENTS (CONT'D.)
Questions and Responses on Which
Agency will Supply the On-Scene
Commander .................. 36
Question and Response on Whether
Notification of the Coast Guard
Constitutes Notification as
Required in Section 311 ........... 36
Mr. Russell Diefenbach, EPA Region V, Oil
and Hazardous Material Spill Coordinator -
Regional Experiences in Responding to Spills. . . 37
Mr. George Moein, EPA Region V, Environmental
Emergency Branch - Additional Regional Experi-
ences in Responding to Spills .......... 41
Question and Response on Whether
Field Personnel Will Play a Role
in Regulatory Development .......... 43
Questions and Responses on the
Availability of Revolving Fund
Monies for Damage Mitigation ... ..... 43
Question and Response on Harmful
Quantities and Rates of Penalty
for Oil ................... 44
Questions and Responses on Correlation
of CHRIS Manuals and OHM-TADS ........ 45
Question and Response on Necessity
of Reporting Spills of Less than
a Harmful Quantity ............. 45
Questions and Responses on Whether
311 Notification Covers State
Requirements ................ 45
Question and Response Pertaining
to Intervention by Agency Staff
If Discharges are Handling The
Situation .................. 46
Commendation for Penn Central
Railroad in This Handling of a
Spill Situation ............... 46
IV
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ANOTATED TABLE OF CONTENTS (CONT'D.)
Correction of Response - No
Notification is Required for
Spills of Less Than a Harmful
Quantity 46
Question and Response on Whether
CHRIS Data Sheets Include Oils
and Hazardous Materials 46
Question and Response on Use
of Nearby Industrial Expertise
Regardless of Spill Origin 47
Question and Response on
Definition of Navigability 47
Comment From Floor on Defi-
nitions of Oil, Hazardous
Materials, and Navigability 48
Questions and Responses on
Discretion to not Assess
Penalties 48
Comments on Communication
Between EPA Headquarters and
Field Personnel * 49
Comment on Value of Penalty
Mechanism 49
Afternoon Session
Dr. Allen L. Jennings - Introductory
Comments 50
Mr. Gaynor W. Dawson, Battelle-Northwest -
A Summary of Study Performed to Develop
Alternative Methodologies for Defining
Harmful Quantities and Rates of Penalty 50
The Resource Value Methodology 53
Mr. Michael W. Stradley, Battelle-Northwest -
The IMCO Methodology. 60
v
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ANOTATED TABLE OF CONTENTS (CONT'D.)
Question and Response on Selection
of $10,000 Threshold for Defining
Harmful Quantity 65
Questions and Responses Relating
to Differences From the Oil Sheen
Regulation 66
Question and Response on Presence
of Site Specific Factors in the
IMCO Approach 67
Comments on the Treatment of
Bioaccumulation 67
Question and Response on the
Treatment of Time of Discharge 68
Break
Mr. Michael W. Stradley, The Unit of
Measurement Methodology 69
Question and Response on Spills
of Multiple Small Packages 72
Question and Response Differ-
entiating Quantity in the Drum
and Drum Capacity 73
Question and Response Concerning
Application of Penalties to the
Total Spill or Just That Amount
in Excess of the Harmful Quantity 73
Concern over Practicallity of
Being Able to Quantify How Much
Material was Spilled 74
Question and Response on Spills
of Multiple Materials at the
Same Time ' 74
Question and Response Concerning
Actual Volume in a Container as
Opposed to Capacity 74
VI
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ANNOTATED TABLE OF CONTENTS (CONT'D.)
Questions and Response Pretaining
to Notification Requirements 75
Mr. Gaynor W. Dawson - The DOHM Methodology ... 75
Comments Concerning the Appro-
priateness of the DELPHI Technique
Employed for the IMCO Methodology 82
Question and Response on Comparison
of Penalty Size Between Methodologies. ... 84
Question and Response on Cost of
Containment 84
Questions and Responses on Differ-
entiating in Transit Spills and
Those Occuring Deriving Loading-
Unloading 85
Question and Response on Disparity
Between Barge and Rail Cost of
Prevention Numbers 85
Question and Response Concerning
Whether Penalty Differentials
Reflect Different Spill Rates for
Barge and Rail 85
Question and Response on use of
Impact from Regional Personnel 86
Comments Concerning the Rationale
for Penalties in Addition to Pre-
vention Regulations 86
Question and Response on the Avail-
ability of Lake Models for use in
the DOHM Methodology 86
Questions and Responses on Selection
of 95th Percentile for Stream Flov/ 87
Questions and Responses on the Base
Penalty for the Unit of Measurement
Approach and Subsequent Adjustment
Factors 87
Vll
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ANNOTATED TABLE OF CONTENTS (CONT'D.)
Question and Response on the
use of Fish Kill Data and the
Effects of Municipal Spills 88
Question and Response on Source
of Fish Bioassay Data 89
Questions and Responses on
Minimum Cutoffs for Harmful
Quantities 89
Question and Response on Classi-
fication of the Inter-Coastal
Waterway 90
Question and Response on Handling
of Hazards other than Aquatic
Toxicity 90
Questions and Responses on Pre-
sence of any Minimum Penalties 90
Questions and Responses on
Selection of the $10,000 Threshold
for Selecting Harmful Quantities 91
Response on Presence of Minimum
Value Rates of Penalty 92
Questions and Responses or use of
Specific Harmful Quantities for
Individual Stationary Sources , . 92
Questions and Responses on use of
Different Penalties for Various
Sources in the DOHM Approach 92
Questions and Responses pertaining
to Further Development of Cost of
Prevention Data for Motor Carriers 93
Questions and Responses on Definition
and use of the Harmful Quantity 93
Question and Responses on Coordination
of the Technical Work With Upcoming
Prevention Regulations 94
Vlll
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ANNOTATED TABLE OF CONTENTS (CONT'D.)
DAY 2, OCTOBER 22, 1974
Morning Session
Mr. Harold Snyder, EPA, Prevention and
Control Branch - A Brief Summary of
Spill Response Activities 96
Mr. Al Grella, DOT, Office of Hazardous
Materials - DOT Programs for Hazardous
Materials 99
Question and Response on Coordination
Between EPA and DOT Information and
Identification Programs 106
Question and Response About Placing
Harmful Quantity on the Shipping
Papers 106
Questions and Responses on the use
of a Generic System when EPA is
dealing with Specific Materials 107
Question and Response on New Pla-
carding Categories to Cover
Materials Toxic to Fish but Not
People 108
Remark to the Effect that Industrial
Response to the New System was Aired
Earlier in Comments on HM 103 109
Question and Responses on Interaction
Between EPA and DOT in Developing
Systems 109
Mr. Ray Zintz, AEC, Division of Operational
Safety - The AEC Radiological Emergency
Response Program 110
Mr. Jack Lehman, EPA, Hazardous Waste
Management Division - EPA Hazardous Waste
Programs and this Interface with Section 311. . . 117
Question and Response on Applicability
of Section 311 to Leachate from Land
Disposal of Hazardous Wastes 122
IX
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ANNOTATED TABLE OF CONTENTS (CONT'D.)
Remark on the Existence of Waste
Reuse in U. S. and Response to
Previous Question 123
Questions and Responses on Assistance
to Response Personnel in Locating
Disposal Facilities for Recovered
Spill Materials 124
Break
Dr. Warren Westgarth, Oregon State,
Department of Environmental Quality -
Oregon's Spill Response Program 126
Question and Response on Difficulties
of Conflict of Interest Between Fire
Personnel and Response Personnel 133
Question and Response on Need for
Industrial Co-ops to Aid with
Spills by Small Shippers 133
Questions and Responses on Avail-
ability of Information About the
Oregon Program 134
Questions and Responses on Efforts
to Train Police and Fire Respondents . . . .134
Questions and Responses on Avail-
ability of Personnel 135
Remarks on Perspectives Gained by
Actual Response Experience 136
Question and Response on Adequacy
of Federal Safety Regulations 136
Remarks by Mr. Jack Garrett on
Industries Response Activities
in the Past 137
Response by Dr. Westgarth to
Mr. Garretts Remarks 138
Remarks by Mr. Harold Snyder on
the Nuances of Harmful Quantity and
Rate of Penalty Regulations 139
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ANNOTATED TABLE OF CONTENTS (CONT'D.)
Remarks by Mr. Dick Hall on
Industries Primary Concern:
Safety 140
Remarks by Mr. Harold Snyder on
the On-Scene Commanders Role of
Spills 141
Remarks by Mr. Bill Ward on the
Wisdon of Spill Penalties When
Industry is Already doing its best
to Clean Spills Up 142
Question and Remarks on the
Possible Inclusion of Variable
Penalties Based on Actions Taken
by the Discharger 144
Remarks Concerning the Effects on
Morale of Fining a Company After
Personnel have Volunteered to
Respond to a Spill 145
Remarks to the Effect that with no
Penalty, Incentive to Prevent Spills
is Restricted 146
Remarks by Bob Reese to the Effect
that the Law is Intended to Make
Transport of Some Materials Uneco-
nomical 146
Afternoon Session
Mr. Harold Snyder - Orientation 147
Mr. John Zercher, MCA - The Chemtrec
Program for Emergency Response 147
Mr. Joe Moore, NACA, The National
Agricultural Chemists Association -
Pesticide Safety Network Team 154
Remarks to the Effect that
Further Problems for Response
Personnel will Only Hamper
Effectiveness 159
XI
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ANNOTATED TABLE OF CONTENTS (CONT'D.)
Mr. Jerry O'Driscoll, Southern Railroad -
The Rail Industries Views on Section 311 159
Mr. Mark Hooper, Robertson Distribution -
The Impact of Section 311 on the Motor
Carriers Industry 166
Comment on the Liability of
Trucks Removing Spilled
Materials After Cleanup 177
Comments on Inclusion of
Cleanup Costs in the Impact
Data Presented 177
Break
Mr. Jim Smith, American Waterways
Operators - Impact of 311 on the
Barge Concerns 178
Mr. Dick Wilson, Chotin Transportation -
Preliminary Comments on Proposed Regulatory
Methodologies 181
Mr. George Hanks, Union Carbide - MCA
Response to the Advanced Notice of
Proposed Rulemaking on Designation and
Determination of Removability 184
Mr. Joe Knott, PPG Industries - MCA
Response to Proposed Methodologies for
Determining Rates of Penalty and Harm-
ful Quantities 187
Question and Response on MCA
Support for the Resource Value
Methodology 192
Mr. Eugene Wingerter, National Solid Waste
Management Association - Information Require-
ments for Handling Reduals from Spills 192
Dr. C. Hugh Thompson - Format for Day Three
Discussions 194
xn
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ANNOTATED TABLE OF CONTENTS (CONT'D.)
DAY 3, OCTOBER 23, 1974
Morning Session
Dr. C. Hugh Thompson - Promulgation of
Required Regulations 195
Dr. Allen L. Jennings - Time Table for
the Regulatory Process 197
Technical and Administrative Issues 197
Question and Response on Justi-
fication of Aquatic Toxicity
Limit of 500 mg/1 198
Question and Response on Source
of Data Employed to Designate
Substances 199
Response Pertaining to Avail-
ability of Saltwater Bioassay
Data 199
Question and Response About Use
of Freshwater Data for Saltwater
Environment 200
Questions and Response on Identi-
fication of Criteria for Which a
Specific Material was Found to
Qualify for Designation 200
Remarks Concerning Inability to
Take Mitigating Actions Because
of State and Local Regulations 201
Remarks Concerning the Appro-
priateness of the 500 mg/1
Aquatic Toxicity Criteria 202
Remarks Concerning the Definition
of "Actually be Removed" 203
Remarks on the Size of Flows
Which Sustain Barge Traffic 205
XI11
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ANNOTATED TABLE OF CONTENTS (CONT'D.)
Classification on the Purpose
of Designating a Harmful Quantity 206
Comments on the Lack of Knowledge
of Regulations by Smaller Enterprises . . . 207
EPA Attempts to Better Publicize
New Regulations 208
Remarks About the Problems
Caused by Reporting Virtually
All Spills 209
Remarks on the Potential Benefits
of Instituting the Required
Regulations 211
Refocus of Designation Criteria 212
Remarks on Apparent Disparity of
Mammalian and Aquatic Toxicity
Criteria 213
Concern over Impact of Industry
of Designating a Substance as
Hazardous 214
Call for Quantitative Response on
Criteria Levels and Economic Impact .... 215
Impact with Respect to Maximum
Liability 215
Remarks on use of Actual Flow
for Stationary Source Harmful
Quantities 215
Potential for Grouping Receiving
Waters into Categories Based on
Order of Magnitude of Flow 216
The Desirability of Having Most
Spills Reported 216
Questions and Responses on Time
Period During Which a Discharge
must Occur to Become a Spill 217
xiv
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ANNOTATED TABLE OF CONTENTS (CONT'D.)
Considerations in Defining a
Spill and Reporting it 218
The Disincentive of Certain
Penalties for Reporting Spills
Less than a Harmful Quantity 221
Use of Adjustment Factors for
Determining Harmful Quantities 223
Practical Aspects Noted in Controlling
Oil Spills and the $5000 Harmful
Quantity Penalty Administered by
the Coast Guard 223
Provisions in the Law Forgiving
Penalties for Spills of Less than
Harmful Quantity 224
Possible Disincentives Present in
Proposed Regulations 225
The Tradeoff Between (aa) and (bb)
Options for Penalties 226
Legal Problems in Relation with
NPDES Permits 227
Possible Definitions of Spill
Time Frames 227
The Importance of Initiating
Reporting 228
Discretion Involved in Comples
Spills 230
Difficulties in Making Regulations
Very Specific 230
Presence of Minimum Fines or
no Fine Options 231
Legality of Separating Reporting
and Penalty Mechanisms 232
The Practicality of Who will Report
Motor Carrier Spills 233
xv
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ANNOTATED TABLE OF CONTENTS (CONT'D.)
Impact of Penalties to
Carrier Finances 233
Advantages of Instituting
Reporting Requirements Without
Penalty Implications 235
Method for Developing a
Definition of a Spill 236
Remarks on Relations Between
Section 311 and 402 237
Possibility of Defining
Grades of Hazardous
Materials 238
Need for a Definition
of Mitigation 238
Question on the Relation
of 6 Hour and 96 Hour TLm
Data in the DOHM Approach 233
Need for Defining Spills
With Reference to Time Name 239
Response to Above Remarks 240
Questions and Responses on
Defining Additional Waterbodies,
and the Use of Adjustment Factors 242
Rational for Selection of Proposed
Methodologies 243
Discussion of Different Resource
Values Based on Present use Patterns. . . . 244
Discussion of the Future of Barge
Transportation Under Section 311
Liability Limits 245
The Need for Actual Impact Data 247
Definition of the On-Scene Commanders
Responsibility and Limits of Authority. . . 248
xvi
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ANNOTATED TABLE OF CONTENTS (CONT'D.)
Need for Simple Definitions
and Directions in Regulations 253
Proposal for Developing
Regional Strike Teams 253
The DOT Reporting Mechanism 254
Limitations of the DOT
Data Base 255
Clarification on Use of
Appendix N Tables from the
Battelle Report 256
Clarification on Use of $10,000
Value Threshold 257
The Need for Setting Priorities
on Data Requirements 258
The Need for Economic Impact
Data 258
The Influence of Insurability
on this Impact 260
Problems with Communication Between
Industrial and EPA Management 261
List of Attendees 263
xvi i
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DAY 1, OCTOBER 21, 1974 - MORNING SESSION
DR. ALLEN L. JENNINGS: I am associated with the Hazardous
and Toxic Substances Branch, Office of Water Programs, EPA. I
have the privilege of serving as moderator for today's session.
Just to make sure we are all in the right place, this is the
symposium on hazardous material spill regulations required by
Section 311 of the Federal Water Pollution Control Act of 1972.
This act is, of course, conceded by most people to be one of the
most complex pieces of legislation yet devised, and during the
next three days our purpose here is to learn more about each
others' views on this complex section of the law as the Agency
proceeds to develop these necessary regulations. I have a few
announcements. I think on most of the agendas that were mailed
out before and also the ones in the packages, there are two
social hours scheduled. This is in error. There is only one
and that one is this evening's session; there is none for
tomorrow. This will be held at the Quality Inn, in conference
rooms B and C. At the same time, in conference room A there
is a get-together for Coast Guard and all EPA representatives
here at the conference.
You were given a piece of paper which has HMSR conference
general information on it and I have been instructed to ask you
to please note the general information there on the facility and
the conference. Questions from the floor are encouraged in the
conference and we request that you use one of the two floor mikes
that are located in either aisle. When you do have a question
or comment, please state your name and affiliation first. It
is now my pleasure to introduce our keynote speaker for this
morning. He is the EPA man who has been most closely associated
with the hazardous material spill problem for several years now.
He is Dr. Hugh Thompson, who is chief of the Hazardous and Toxic
Substance Branch in the EPA.
DR. C. HUGH THOMPSON: Good morning. I must apologize
for some of the traffic problems. If you experienced what I
did this morning, you were probably frustrated before you walked
into the room to hear more of the frustrations we are going to
talk about. The forum we have here is rather formal. I hope,
however, as we warm up to each others' points and counterpoints
that we can overcome the formality of a stage and an audience.
This is the second in a series of continuing events to develop
regulations and you are involved; it is hoped that you will
participate to your fullest extent. To bring some of you up to
date with the hazardous substance spill regulations, you should
understand that in 1970 there was a section 12 which dealt with
hazardous substances which subsequently was amended and modified
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into Section 311 in the 1972 amendments. Section 12 contained
the request that the President prepare a report to Congress,
which the Coast Guard did with some of our assistance. This is
referred to as the 12-G study. That scopes out some of the
basic problems which many of you are familiar with in that report
and defines some of the recommendations in terms of the '72
amendments.
What we are left with in Section 311, then, is a series of
regulations which require a designation of hazardous substances,
(what are the materials we are concerned with); a determination
of their actual removability; for those materials determined to
be nonremovable, the determination of rates of penalty to be
ascribed for discharges of those materials; determination of
quantities which are harmful when these materials are discharged;
and other regulations which provide for the determination of
methods of removal and for the determination of procedures and
equipment to prevent hazardous material spills. Other regulations
provide for determination of nonharmful quantities (this is to
make some degree of compatibility with the international arrange-
ments ) .
Statutory authority is provided to limit the liability of
small facilities for clean-up and, or course, the revision to
the national oil and hazardous substances pollution contingency
plan, chemical use schedule and some of the other operational
requirements are to be done. In addition to the statutory
requirements, we have been receiving input and coordinating
with interested parties of various segments of industry and the
public interest sector as well as Canadians and the IMCO activ-
ities (Inter-governmental Maritime Consultative Organization).
This is significant primarily for water-borne transport and you
will see reference to IMCO several times in the discussions we
will have over the next couple of days.
The San Francisco workshop was held at a meeting of the
American Institute of Chemical Engineers in the latter part of
August. That was a kick-off to this session, whereby the first
draft of the contractual report was circulated. We have received
some discussion and further comment on that and we will go from
that point today. We have received public comment also on the
designation and determination of removability which was published
as an Advance Notice of Proposal making on August 22 in the
Federal Register. You have copies of that in your packet. So
one must understand where we are going now. The next step in
our priorities is to define harmful quantities of hazardous
substances and to define an equitable rate of penalty which may
be used by the administrator to penalize discharges of nonremovable
hazardous substances.
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This symposium is designed to get your involvement and
comments and to provide kick-off for additional written public
comment. We need your involvement and we need your commitment
so we will end up with an equitable way to proceed. I believe
what we need is, first, technical issue resolution and not judicial
or legislative issue absolution. We need secondly to articulate
and identify these issues so that you and I understand the pros
and cons of any solutions proposed. We need, third, the main-
enance of respect for both the regulator and the regulatee because
these regulations are to be used as a basis for emergency actions,
as you well know. Under those circumstances, only our highest
mutual respect will allow for the protection of the public health
and welfare.
The issues before this symposium may be expressed as the
following five principles:
1) to understand through open discussion that EPA and/or
the United States Coast Guard intent to implement
Section 311. You must make us clarify our position
so you understand it completely;
2) you should recognize the flexibility of Section 311
and the administrative discretion which is provided
for in this statute; most specifically, in Section
311(b)(2)(B)(ii);
3) to understand by challenging the technical back-
ground and the assumptions of the several method-
ologies which we are discussing today and the
following two days;
4) to identify the data gaps which bother you, and then
to help us fill them; and
5) to recognize that what we are doing here today is an
experiment in regulation preparation. We must take
advantage of the process, and you must make your
position known.
Over the next three days we will divide our time, today
looking at an overview of what Section 311 requires and some
of the methodologies that could be used to implement these two
regulations. Tomorrow we will be discussing or hearing further
discussions from other Federal agencies, state government, and
industry. The third day will then be a discussion of the staff
paper (which looks like an Advance Notice of Proposed Rule-
making) which determines tentatively what are the harmful
quantities and rates of penalty. We will discuss that on Wednes-
day to the fullest extent feasible. With those five principles
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in mind, let me suggest a list of issues which are heavy on my
mind and, I assume, are just part of the issues that are heavy
on yours.
One is the length of the list which was published as an
advance notice of Proposed Rulemaking on August 22. Is it too
long or is it too short? Does it cover the right materials or
does it not?
Second is the question of removal vs mitigation. The Congress
provided a definition for removal which says: "materials to be
removed or mitigated." And yet, with the rest of the construction
of the law, after making a determination that a material is
actually nonremovable, it would not appear to be in the best
interest to then ignore any mitigating activities that could
be taken due to some unique circumstance of that spill site.
Therefore the issue comes out clearly: how can we identify
materials as being nonremovable and yet require discharges to
take mitigating action? We would hope to explain that to you
and for you to understand and support that.
The next point is: what is a spill from a fixed facility?
What is its relationship to the permit program (and effluent
guidelines, if you will)? Another issue is, can the nonremovable
penalty be controlled to avoid over-regulation and severe
economic hardship? Another issue is, will the harmful quantities
determination require too much reporting? Is it too stringent?
Or, is it not protective of the public health and welfare?
Another issue is, can mitigation expenditures be used to ame-
liorate the impact of the nonremovability penalty? In other
words, money you spend on mitigating activities cannot be for-
given against the nonremovable penalty which could be levied.
Another issue is, are the adjustment factors (which we will
discuss in much more detail) appropriate, and can you support
the concepts that these adjustment factors provide, both environ-
mentally and economically? And, are these approaches sufficiently
compatible with existing and/or planned business practices, state
and local implementation, and international programs, (such as
with our Canadian counterparts and with the United Nations
activities)? Are we moving fast enough, or are we moving too
fast in reaching these conclusions, and if so, why do you say
so? And, will these regulations cause a transportation modal
shift?
Now, I have answers to most of these issues. The staff and
I have discussed this in considerable detail, but these are our
opinions. We have hired a contractor who has worked quite hard
to develop additional information, and the contractor now has
some information available for you to work with. As we proceed
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over the next few hours to discuss this, I hope that you will
keep these issues in mind and add to these issues. And yet, I
find myself somewhat confused when I try to pay attention to
what Congress is doing now. I call to your attention HR-15-223,
which is a bill before the Congress dealing with transportation
of hazardous materials. And, there are reports going along
with that which suggest that there are two billion tons of these
substances which are shipped back and forth in this country each
year, as many as 250,000 shipments a day. In 1973 there were
6,014 incidents of unintentional releases of hazardous substances.
That number represents an increase which I won't quote because
I can't believe it, but it gives some numbers and identifies that
these incidents occurring during fiscal 1973 caused 20 fatalities,
435 injuries, and property damage that was estimated in another
context to exceed 4 million dollars. And yet this bill which
is before the Congress, as nearly as I can tell under very
cursory examination, makes little or no reference to what we are
talking about here today. I am sure that you are aware of this
legislation and are aware of the impact of that, and we should
understand to the extent that we can how these regulations can
anticipate any actions that Congress may be contemplating and
any actions which would be taken in the immediate future, so that
we do not create regulatory havoc as we do our business.
I would simply then leave you with these points. If you
feel that your points are not getting through to us through
this open discussion, we are available. If I'm not personally
available, there is staff available. We want to have your input,
but do not kid yourself, please, we will make decisions. We
will promulgate these regulations. And, so I would hope that
you will participate at the technical level now, so that we can
reach an equitable solution rather than waiting until we have
the opportunity to discuss the matter further in court. With
that point I would thank you for this opportunity.
DR. ALLEN L. JENITINGF: Thank you, Eugh. Our next speaker
of the morning, Mr. Ziener, is unable to be with us, but he is
represented by Mr. William Frick of EPA's office of General
Council for Water who will provide for us some legal insight
into the complexities of Section 311. Mr. Frick...
MR. WILLIAM FRICK; I know these conferences usually get
off schedule, usually in a delaying manner, so I will try to
help you out. I'm scheduled for a half hour, but I don't
see what I have to say at this stage merits that much time, so
I will hopefully keep the schedule moving along. You are here
primarily for technical considerations. It should not be a
legal meeting, and I don't intend to bring it to that level.
I think the main thing I want to mention is really just some
general discussion of Section 311. Unfortunately, I didn't
-------
get a chance to hear Hugh's talk so I'm not sure what he discussed,
but I want to give some general observations about Section 311,
which is a unique section in the Act, and then some general
observations about the specific problems you are dealing with now.
But, this is a very complex section of the statute and I'm sure
we do not, in our office, understand all of its ramifications.
We can't reconcile all of its problems very easily, nor can we
predict all of the complications that are going to arise.
I think it helps to understand the context of the statute
as it exists in Section 311 by hearing a little history. This
is one of the sections in the 1972 amendments which were quite
radical in amending the FWPCA. They brought this section forward
from the '70 act pretty much intact, with only a few changes.
The main change was that it incorporated Sections 11 and 12 and
made them into one. They took the hazardous section which
previously had existed without liability penalties (it only
addressed removal) and placed it with the oil section which did
have provisions for liability. They also added a few new things,
the primary one being that which we are concerned with today,
the penalties for nonremovable hazardous substances. It is
interesting to note that the reason the old act had no liability
provisions was that at the time Congress didn't feel that it
really knew enough about hazardous substances to get into the
situation of imposing penalties for these spills; they didn't
know the full impact of that decision. They decided they did,
apparently, in '72, although I still think there is a lot of
unknown; they don't really know how far they have gone with
that section. Another aspect is that this section, like a lot
of '72 amendments, were a result of compromise. This was one
of the reasons the penalty provisions were rather strangely
set up at the various levels. The Senate bill had a provision
with a $5,000 per barrel penalty, whereas the House Bill had
a $50,000 maximum. They compromised by setting up this structure,
so that sometimes makes things a little difficult to reconcile
because they just tried to put everybody's views in and left it
up to us to make some sense out of it. Still I think there was
a significant lack of knowledge on the part of Congress when
they merged these two sections. They admitted that, in a sense,
when they talked about these penalties. They recognized they
were forcing technology, trying to get people tc develop removal
and prevention measures. They said that if these penalty pro-
visions are designed to give this incentive and if these
measures are developed they would seriously look at moving them
downward. We don't have any indication right now that they are
ready to do so. So, I might mention one aspect, which is not
particularly appropriate here but which comes up a lot, that is
the difficulty with the way the '72 MFS were put together.
Since they brought Sections 11 and 12 forward, pretty much
intact, there is a problem with merging them with the other
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sections of the act which were not in existence in 1970.
Primarily I am thinking of Sections 301 and 402. Section 301
makes it unlawful to discharge any pollutant into the navigable
waters. 402 provides a permit system whereby you can discharge
pollutants which would otherwise be unlawful. And 402(-K) of
the act says that compliance with the permit shall be compliance
with various sections of the act; however, it significantly
omits one section, Section 311. You face the situation where
you might have a permit, and that permit might be allowing you
to discharge a nonremovable substance which subjects you under
Section 311 to some penalty for this discharge, and yet you may
be complying with your permit. We face this with oil, too. You
may discharge oil, causing a sheen (which under the oil regula-
tions defines a harmful quantity) yet you may have an oil and
grease limitation in your permit. We are wrestling with this,
and I think ultimately it will have to be reconciled by some
sort of statutory amendment, but we are hoping that for the
most part you won't have permits being issued for nonremovable
substances unless you are pretty sure that it isn't going to
be a harmful quantity and there is no other way of eliminating
this thing. Then I think as a practical matter there isn't
going to be anyone raising too much fuss about it, but we
recognize it. Legislative history is extremely confusing on
this issue so it very difficult to get a real handle on it,
but that is the type of problem you are faced with. I might
note one thing that is extremely minor, but as long as you
work with this section, you ought to be aware of it. There was
a bill passed on December 28, 1973 (Public Law 93-207) which
corrected some very minor errors in the statute. If you have
gone through the thing you would see a lot of references to
B(2), which are incorrect; they should be B(3), because when
the act was amended in 1972, it moved the former B(2) section,
which is the prohibition of discharges, and made it B(3).
This bill was the technical amendment which corrected those
errors, and it also changed one reference to "the secretary"
to "the administrator". That kind of bill doesn't get much
press, so I thought you should be apprised of that.
Let me just run through quickly the basic structure of the
section because it is going to be a neat section; it's really
an act within an act, as I view it. It kind of stands alone,
we deal with it alone. First of all, there is a general policy,
of course, of prohibiting all discharges. It is a policy, not
a requirement. They then go on and say that they prohibit the
discharge of all nonremovable or hazardous substances in harmful
quantities. Then you have your civil penalties, regardless of
harmful quantities, for nonremovable hazardous substances. The
Coast Guard, of course, has authority to assess penalties of
up to $5,000 for violations of discharges in harmful quantities.
A lot of this section is, of course, addressed to clean-up costs,
They are discussed in great detail, depending on who should be
-------
liable for it, the various defenses, and so forth. The amount
also varies depending on whether the discharger is a vessel or
a facility onshore or offshore. There are maximum cost assess-
ments in these which are quite high in many instances, but again
these don't apply if it is a willful discharge.
Now, with respect to the designation of nonremovability anr1
the penalties. The first aspect of that is the definition of
"harm": if it is harmful in any quantity, if any quantity
causes a substantial endangerment to the public health and
welfare. It is very broad, obviously. The next aspect is an
actual determination of removability. Here again, there are a
couple of aspects. There is the question of actual removal and
there is the question whether you can take mitigative steps.
The definition of removal includes both, it's an either or
situation. As the preamble to the hazardous substance designa-
tion explains, we interpret this to mean (when we are talking
about determining penalties for nonremovability), it only
applies to the first part of the definition. Is it actually
removable? That's the criterion we use. Otherwise, if you
tried to say it's removable because you can take mitigative
steps, then in almost anything you can take mitigative steps;
you can never designate anything nonremovable. In order for
the thing to make sense, you have to limit the designation of
the first aspect of it. The second part of removal is relevant
in determining the cost of removing the substance — the steps
taken to mitigate the impact of the discharge. I think the
reason that's confusing is because that definition was in the
old act. It was in Section 12 and they just brought it forward
intact; but they added this extra element of the penalties.
I think it wasn't thought out exactly how it was put together.
I think that's a reasonable interpretation and that's the one
we are proceeding with.
The penalty provisions up until October 18 of this year
were a maximum of $50,000 based on toxicity, degradability and
dispersibility. Of course, it's unlimited if it is willful.
Now we are into the next section, the (aa) or (bb) penalty
provisions, which are $500 to $5,000 based on the same criteria
or the one which you are concerned with today, the definition
of units of measurement and penalties with the unit based on
$100 to $1,000, somewhere in there, with a limit of $5 million
for vessels and $500 thousand for a facility. With respect to
the general subject you are concerned with, the penalty pro-
visions (which I am mainly addressing), let me first point out
that we are out of that situation where it was the $50,000.
The two year period is past and we interpret the statute to
apply automatically, so we are out of that phase. Now when
both of these are in effect, (aa) and (bb), the Act says the
administrator has discretion to apply them. We take that to
-------
mean what it is and can determine when he is going to apply
each of the penalties. Even if he has promulgated rights
setting forth the rates and so forth, he still may apply the
lower penalty whenever he deems it appropriate.
Generally, under the APA (Administrator Procedure Act)
something that is committed to agency discretion is not review-
able. However, the case laws are extremely mixed on this and
it is difficult to say whether someone would challenge the
administrator, if someone had significant discharge and was
assessed a $700 fine, and under his other penalty provisions
it might be some huge amount, in the hundreds of thousands of
dollars. Someone might decide that they should challenge it.
I can't say that some court would not say that was abuse of
discretion. EPA conflicts with itself in that you can't review
something that is committed by law to agency discretion, yet
it also says that one of the standards of review is whether
something was an abuse of discretion. So it conflicts, in
itself. But I think generally this will be a discretionary
act by the administrator.
Likewise the determination of the amount under (aa), the
$500 to $5,000, is also pretty much within the administrator's
discretion. For example, he can take into account the actual
harm the discharge may have caused, or whether it was ultimately
removed or not. I can only say again, that type of decision,
while generally discretionary, probably could be reviewed if
somebody were quite concerned about it.
The fines are to be based on the toxicity, degradability,
and dispersibility capabilities of the water. This gets very
complex; it is difficult to predict how those are going to be
applied. It is going to be difficult to do. That is why you
are all here, particularly in respect to the regulations we are
supposed to establish on harmful quantities. You are supposed
to take such factors into consideration. You are also to
consider, if it's relevant, the times, the locations, he
circumstances, the conditions under which a discharge was made.
Again, these are site-specific and that is generally the way
it should be when you are assessing a fine. However, the
results are supposed to be done by regulations, which makes it
extremely difficult to do. I can't predict what a court is
going to say when we establish these limitations and regulations.
I assume at some point they will get reviewed. I know the oil
sheen regulation was ultimately reviewed. It was sustained.
It is difficult to know how a court is going to review these and
come down on the issue of how you established these penalties
by uniform regulations that take into account all of these factors
that Congress has mentioned. It is a very tough task, more of a
technical task than a legal task. And I think if a reasonable
-------
attempt is made to give this some meaning then I think it will
probably be sustained. I think that was the situation with the
oil sheen regulation.
Again, I can't get into all the possible ramifications of
this section or the designation of the hazardous substances or
how these penalties are developed. There are going to be lots
of questions and a lot of work done on this; that is just
starting. Again, I leave it up to you all, from a technical
standpoint, to come up with something that is going to work.
While the law is complex, it can work if some reasonable
regulations are put together. I think that is what you are here
for today. That's basically all I have. I don't think I want
to get into much of the other problems. I tried to highlight
just what I think are a few of the major elements of it that
you should be aware of. Once these things start rolling, once
we get some proposed regulations out and some comments in,
we are going to have a better understanding of what the problems
are. I think at that time we will have a lot more work trying
to decide how this thing is going to be put together. Thank you.
DR. ALLEN L. JENNINGS; Are there any questions for Mr. Frick?
I am amazed that we don't have more floor discussion here. I
am sure he will come back if you have some questions. I have
one, if I can convince Mr. Frick to address it. Could you give
us some idea of the history or origin of the term "units of
measure" common to the trade practice as used in Section 311?
MR. WILLIAM FRICK; I really can't give too much. The
Senate bill referred to the fine in terms of barrels. I think
they just wanted some common ground, they did not want to
dictate what that measurement would be. Why they choose that
approach, I really don't know. In the actual term "units of
measurement," their only attempt was to give flexibility to
both the agency and to the industry, to make things work in
terms of the normal business practices, how these things were
shipped. You must remember that while this statute talks in
terms of discharges, it is still basically a spill-oriented
section. I think that will be one of the changes that will
utlimately be made in the section — to clarify that this is
spills and the rest of the provisions of the act are directed
toward continuous discharges. That is the problem I mentioned
earlier, but I think they wanted to enable people to have some
way of making sense out of it — to put it into terms of how
these things were commonly shipped. So, the term gives you
a great amount of flexibility in defining what that common unit
of measurement is, so you can make some sense out of it.
10
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QUESTION (FLOOR MIKE): What is the meaning of Section 311
(a)(6) "...'owner and operator1 means (A) in the case of a
vessel, any person owning, operating, or chartering by demise,
such a vessel..."?
MR. WILLIAM FRICK: Yea, I got you. Yea, I was looking
at that last night and I meant to look it up. I can't figure
out what it means, either. I really don't know, I haven't
gotten into that issue, so I am not much help.
DR. ALLEN L. JENNINGS: We have another question fron the
floor.
QUESTION (FLOOR MIKE); Do to the fact that the regulations
and the list of materials have not been officially adopted as
yet...we can have something through October 18, whether or not
we will come under (aa) or (bb). What is the rationale for this?
MR. WILLIAM FRICK: Well, as Jack says, during the two year
period that expired two years from the enactment of the act.
So, the provision is in there to make that dependent on the agency
taking or implementing action. (Unintelligible)
DR. ALLEN L. JENNINGS: Our next speaker has been primarily
involved with the continuous effluent limitations and problems
of the water act. He is Mr. Allen Cywin, Director of the
Effluent Guidelines Division, who will address some of the
possible tie-ins between the spill regulations and maybe some
of the conflicts of effluent guidelines.
MR. ALLEN CYWIN: The Public Law 92-500 has been referred
to as bench-mark legislation, and indeed it is. The growth
of our population and the growth of our industrial and agricul-
tural capability can only add further waste discharges to our
environment unless certain mechanisms are brought into play.
Public Law 92-500 sought to engage these mechanisms under one
comprehensive act. The discharges to our streams can be con-
tinuous, they can be intermittent, they can be sporadic. And
there are various sections of the act that address themselves
to each of these features. As I said, they can be from municipal
sources, from industrial sources, from agricultural sources.
Once again, a variety of sections of the act address themselves
to these various problems.
11
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Under Sections 301(b), 304(b), 306, and 307 (b) of the act,
industrial discharges are treated in a variety of ways. First
of all, the act recognizes that the discharges from industry
are larger by far in volume, in complexity, in toxicity, and in
just plain noxiousness, than those from other sources, in general,
There are places in the country where agriculture waste or
municipal waste might be of greater importance. For example,
right here in the Washington area, the urban wastes are more
important than the industrial wastes. However, in general, the
industrial wastes throughout the country are larger by volume
and by strength. Therefore, the act set a standard for con-
tinuous industrial discharges and limitations thereto that are
a little more than urban or municipal wastes and certainly much
more than agricultural wastes. The act provided that by
July 1, 1977, the best available technology (the best practices
that are in use today) should be applied wherever possible
across the board to like-industrial problems. The Act also
provided that by July 1, 1983, the best available technology
should be applied to segments of industry that could relate
thereto. The act also provides that new sources under con-
struction, or which will be put under construction, might indeed
have the best available demonstrated technology put into place.
Now technology takes a lot of forms; technology can be
end of pipe treatment, which one can treat on to distillation,
crystallization, and come out with just fresh water and solid
waste. Or technology can relate to a variety of treatment
systems, most of which are very commonplace in the country,
and/or resource recovery. The latter aspects will become
increasingly important as the years go by, as we try to conserve
energy, as we try to conserve things that we now import, or
which will become in increasingly short supply. In other words,
we can kill two birds with one stone, by resource recovery and
re-use.
The objectives of the act and the definitions that we are
applying under the treatment regulations for continuous industrial
discharges evolve from the history of those sections. I will not
go into those today. We were required by law to put out the '77
and the '83 regulations in proposed form by October 18, 1973,
a year ago, for at least 28 industrial categories. For adminis-
trative purposes these are in 30 different packages. We also
were required under the Administrative Procedures Act to pro-
mulgate those regulations four months thereafter. That would
have been November, December, January, and February. We were
required to put out new source standards in proposed form by
January 18, 1973, and promulgate those four months thereafter,
by last May 18, 1973. We had 29 sets of those regulations out
by June, so we were quite close to the mandated part of the act
and in a very complex area. The industries that we were treating
12
-------
in what we call Group 1 involve some of the most complex and
involve many that relate to companies and organizations which
are represented here today, I am sure. I see familiar faces
in the crowd and I know we have been dealing with you.
Similar to the program today, we in effect have to consult
with (and would have anyway) with other federal agencies,
states, and interested persons, interested persons being both
the industrial dischargers and the environmental organizations
that might be interested in what we are doing. We did this in
several ways. We called in organizations for symposia like
this when we first started and told them what we were going to
do, gave them our time table, and told them who would be working
on the various projects. We then did a very unusual thing in
that we released first-draft reports. Normally none of us
release our first-draft reports to the public for comment; we
like to rework these materials. But because of the time dead-
lines that were upon us and because we earnestly wanted to
solicit information and comments at the earliest possible
moment, we released these first-draft reports. We had to give
people short deadlines (and, by the way, we are still doing
this with the ongoing studies for further industrial regulations)
Those organizations and those companies that did give us
information provided a lot of help, not only for ouselves, but
for them, because it created a lot of understanding. And when
we released the proposed regulations, we were able to give
forth our views with respect to comments that were received
and the answers that we had for those comments. Once again,
we solicited additional comments from those that were involved.
When we went to promulgate our regulations there was another
reiteration and refinement based on the information that was
available to us and/or the comments that were received.
Now, with respect to the kinds of pollutants that we are
trying to control in the regulations that we put out for
continuous discharges, we know that the treatment trains them-
selves will control a large variety of pollutants. However,
we only seek to identify what we call significant pollutants
and in many cases the significant pollutants may not appear
on this hazardous spill list and/or the hazardous spill list
may go beyond that. What we're trying to do is control, through
the permit system, the significant pollutants to meaningful
levels by July 1, 1977 and by July 1, 1983. The permit form
that you get (which is a contract between the government and
the discharger) has a separate clause which in effect says
that the fact that you are allowed to discharge these signif-
icant pollutants does not get you off the hook with respect
to the Section 311 requirements. Section 311 requirements are
superimposed upon any requirements that we put out in our
13
-------
continuous discharge regulations. Now we have through our first
group of regulations probably promulgated more regulations than
all the other agencies in the city put together during the same
period of time and they are very complex. We have sought to
illustrate to the public what our thinking was with respect to
requirements of the act by putting out a manual with each of
these regulations. We are constantly striving to improve our
product and I'll take this opportunity to say that, with respect
to the drafts of the reports that are out now, the proposed
regulations that are out now, and even the promulgated regulations,
if you have further input that can help us with what we have
provided to the public, we'd be delighted to receive this from
you. But once again, the salient fact is that the Section 311
requirements that are the subject of this symposium are super-
imposed upon the standard industrial limitations, effluent
guidelines, and new source standards that the agency is also
proposing with respect to water pollution control. Now with
that, I'd like to just throw myself open to any questions that
might arise.
QUESTION (FLOOR MIKE); What is the time frame that differ-
entiates a spill from a continuous discharge? In other words,
if a permit exceeds a harmful quantity, at what time must that
permitted discharge be reported as a spill?
MR. ALLEN CYWIN; Well, I think this is the kind of question
you want to address to the other speakers here who are wrestling
with the hazardous material discharge regulations. With respect
to the kinds of regulations we put out, we are saying that you
can only discharge X pounds per day or an average of Y pounds
per month of a particular pollutant which we name. Now, it may
very well be that on the hazardous material list you will find
a great variety of other compounds that are not named in the
permit and this is the subject of this additional regulation
and really, this is a question that you might want to discuss
with some of the other speakers who follow me. I am sure that
they will be interested in your own views on this also.
QUESTION (FLOOR MIKE); There is language somewhere, and
I'm not just sure where it is, which refers to discharges
identified in an application for an N.P.D.E.S. permit and which
specifically exempts those in addition to those materials which
are permitted under the permit. Could you comment on that
exemption?
MR. ALLEN CYWIN; Well, I'm not sure I know exactly what
you are talking about but let me try to answer it this way.
The permit applicant should identify those things which he is
14
-------
in what we call Group 1 involve some of the most complex and
involve many that relate to companies and organizations which
are represented here today, I am sure. I see familiar faces
in the crowd and I know we have been dealing with you.
Similar to the program today, we in effect have to consult
with (and would have anyway) with other federal agencies,
states, and interested persons, interested persons being both
the industrial dischargers and the environmental organizations
that.might be interested in what we are doing. We did this in
several ways. We called in organizations for symposia like
this when we first started and told them what we were going to
do, gave them our time table, and told them who would be working
on the various projects. We then did a very unusual thing in
that we released first-draft reports. Normally none of us
release our first-draft reports to the public for comment; we
like to rework these materials. But because of the time dead-
lines that were upon us and because we earnestly wanted to
solicit information and comments at the earliest possible
moment, we released these first-draft reports. We had to give
people short deadlines (and, by the way, we are still doing
this with the ongoing studies for further industrial regulations)
Those organizations and those companies that did give us
information provided a lot of help, not only for ouselves, but
for them, because it created a lot of understanding. And when
we released the proposed regulations, we were able to give
forth our views with respect to comments that were received
and the answers that we had for those comments. Once again,
we solicited additional comments from those that were involved.
When we went to promulgate our regulations there was another
reiteration and refinement based on the information that was
available to us and/or the comments that were received.
Now, with respect to the kinds of pollutants that we are
trying to control in the regulations that we put out for
continuous discharges, we know that the treatment trains them-
selves will control a large variety of pollutants. However,
we only seek to identify what we call significant pollutants
and in many cases the significant pollutants may not appear
on this hazardous spill list and/or the hazardous spill list
may go beyond that. What we're trying to do is control, through
the permit system, the significant pollutants to meaningful
levels by July 1, 1977 and by July 1, 1983. The permit form
that you get (which is a contract between the government and
the discharger) has a separate clause which in effect says
that the fact that you are allowed to discharge these signif-
icant pollutants does not get you off the hook with respect
to the Section 311 requirements. Section 311 requirements are
superimposed upon any requirements that we put out in our
13
-------
continuous discharge regulations. Now we have through our first
group of regulations probably promulgated more regulations than
all the other agencies in the city put together during the same
period of time and they are very complex. We have sought to
illustrate to the public what our thinking was with respect to
requirements of the act by putting out a manual with each of
these regulations. We are constantly striving to improve our
product and I'll take this opportunity to say that, with respect
to the drafts of the reports that are out now, the proposed
regulations that are out now, and even the promulgated regulations,
if you have further input that can help us with what we have
provided to the public, we'd be delighted to receive this from
you. But once again, the salient fact is that the Section 311
requirements that are the subject of this symposium are super-
imposed upon the standard industrial limitations, effluent
guidelines, and new source standards that the agency is also
proposing with respect to water pollution control. Now with
that, I'd like to just throw myself open to any questions that
might arise.
QUESTION (FLOOR MIKE); What is the time frame that differ-
entiates a spill from a continuous discharge? In other words,
if a permit exceeds a harmful quantity, at what time must that
permitted discharge be reported as a spill?
MR. ALLEN CYWIN: Well, I think this is the kind of question
you want to address to the other speakers here who are wrestling
with the hazardous material discharge regulations. With respect
to the kinds of regulations we put out, we are saying that you
can only discharge X pounds per day or an average of Y pounds
per month of a particular pollutant which we name. Now, it may
very well be that on the hazardous material list you will find
a great variety of other compounds that are not named in the
permit and this is the subject of this additional regulation
and really, this is a question that you might want to discuss
with some of the other speakers who follow me. I am sure that
they will be interested in your own views on this also.
QUESTION (FLOOR MIKE); There is language somewhere, and
I'm not just sure where it is, which refers to discharges
identified in an application for an N.P.D.E.S. permit and which
specifically exempts those in addition to those materials which
are permitted under the permit. Could you comment on that
exemption?
MR. ALLEN CYWIN; Well, I'm not sure I know exactly what
you are talking about but let me try to answer it this way.
The permit applicant should identify those things which he is
14
-------
in what we call Group 1 involve some of the most complex and
involve many that relate to companies and organizations which
are represented here today, I am sure. I see familiar faces
in the crowd and I know we have been dealing with you.
Similar to the program today, we in effect have to consult
with (and would have anyway) with other federal agencies,
states, and interested persons, interested persons being both
the industrial dischargers and the environmental organizations
that might be interested in what we are doing. We did this in
several ways. We called in organizations for symposia like
this when we first started and told them what we were going to
do, gave them our time table, and told them who would be working
on the various projects. We then did a very unusual thing in
that we released first-draft reports. Normally none of us
release our first-draft reports to the public for comment; we
like to rework these materials. But because of the time dead-
lines that were upon us and because we earnestly wanted to
solicit information and comments at the earliest possible
moment, we released these first-draft reports. We had to give
people short deadlines (and, by the way, we are still doing
this with the ongoing studies for further industrial regulations)
Those organizations and those companies that did give us
information provided a lot of help, not only for ouselves, but
for them, because it created a lot of understanding. And when
we released the proposed regulations, we were able to give
forth our views with respect to comments that were received
and the answers that we had for those comments. Once again,
we solicited additional comments from those that were involved.
When we went to promulgate our regulations there was another
reiteration and refinement based on the information that was
available to us and/or the comments that were received.
Now, with respect to the kinds of pollutants that we are
trying to control in the regulations that we put out for
continuous discharges, we know that the treatment trains them-
selves will control a large variety of pollutants. However,
we only seek to identify what we call significant pollutants
and in many cases the significant pollutants may not appear
on this hazardous spill list and/or the hazardous spill list
may go beyond that. What we're trying to do is control, through
the permit system, the significant pollutants to meaningful
levels by July 1, 1977 and by July 1, 1983. The permit form
that you get (which is a contract between the government and
the discharger) has a separate clause which in effect says
that the fact that you are allowed to discharge these signif-
icant pollutants does not get you off the hook with respect
to the Section 311 requirements. Section 311 requirements are
superimposed upon any requirements that we put out in our
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continuous discharge regulations. Now we have through our first
group of regulations probably promulgated more regulations than
all the other agencies in the city put together during the same
period of time and they are very complex. We have sought to
illustrate to the public what our thinking was with respect to
requirements of the act by putting out a manual with each of
these regulations. We are constantly striving to improve our
product and I'll take this opportunity to say that, with respect
to the drafts of the reports that are out now, the proposed
regulations that are out now, and even the promulgated regulations,
if you have further input that can help us with what we have
provided to the public, we'd be delighted to receive this from
you. But once again, the salient fact is that the Section 311
requirements that are the subject of this symposium are super-
imposed upon the standard industrial limitations, effluent
guidelines, and new source standards that the agency is also
proposing with respect to water pollution control. Now with
that, I'd like to just throw myself open to any questions that
might arise.
QUESTION (FLOOR MIKE); What is the time frame that differ-
entiates a spill from a continuous discharge? In other words,
if a permit exceeds a harmful quantity, at what time must that
permitted discharge be reported as a spill?
MR. ALLEN CYWIN; Well, I think this is the kind of question
you want to address to the other speakers here who are wrestling
with the hazardous material discharge regulations. With respect
to the kinds of regulations we put out, we are saying that you
can only discharge X pounds per day or an average of Y pounds
per month of a particular pollutant which we name. Now, it may
very well be that on the hazardous material list you will find
a great variety of other compounds that are not named in the
permit and this is the subject of this additional regulation
and really, this is a question that you might want to discuss
with some of the other speakers who follow me. I am sure that
they will be interested in your own views on this also.
QUESTION (FLOOR MIKE): There is language somewhere, and
I'm not just sure where it is, which refers to discharges
identified in an application for an N.P.D.E.S. permit and which
specifically exempts those in addition to those materials which
are permitted under the permit. Could you comment on that
exemption?
MR. ALLEN CYWIN; Well, I'm not sure I know exactly what
you are talking about but let me try to answer it this way.
The permit applicant should identify those things which he is
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discharging. The industrial regulations, as I said, names what
we call "significant pollutants." There may very well be other
pollutants that the industrial permit applicant is discharging
and for a variety of reasons the permit itself may address itself
to those permit parameters. For instance, there may be water
quality requirements that have to be addressed. And so when you
get your permit back, it will tell you what you are allowed to
discharge. The permit is an allowance of what you can discharge,
but once again, it does not give you license to suddenly dump
or spill anything unless Section 301 addresses itself to that
point. Your permit is a contract between you and the federal or
state government which permits you to discharge on a continuous
basis certain kinds of pollutants which you have identified in
your wastewater stream.
RESPONSE (FLOOR MIKE); I understand this, but I am
referring to continuous discharges which were identified in an
application for a permit. Those are exempted to my understanding,
under this provision from the regulations that are under con-
sideration today.
MR. ALLEN CYWIN: Well, let me try to explain a situation
in the field which may relate to yours. We might impose a
regulation on a discharger for BOD in total suspended solids.
We know within that discharge stream there is ammonia. He's
identified that; we know it's there, but we in our regulations
have not imposed a limit on that. We know by the treatment
processes that are available, a certain amount of ammonia will
come out. This is perhaps one of the reasons why we have not
done that, because the monitoring requirements are something
that we also take into account. The industrial discharger is
responsible for self-monitoring. The economic impact of what
it is we are doing is something that is in our minds. The
monitoring requirements are in our minds. And the fact that
one can achieve a certain amount of pollution control on a
continuous basis through these processes without necessarily
naming all pollutants that are coming out is very much on our
minds too, so we try to name what we call the principal or
significant pollutants to be discharged in the permit. Now,
the guy that is writing the permit is faced with the problem
of knowing exactly where that discharger is and what the insult
to the water might be at exactly that point and he may very well,
for water quality limiting reasons, superimpose upon our tech-
nology regulations additional requirements. And in addition to
that you still have the Section 311 requirements.
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QUESTION (FLOOR MIKE): Nevertheless, when you speak
of Section 311 requirements being superimposed on the permit
program, you are thinking of a material being spilled in the
plant, not some material ordinarily discharged that is not
limited otherwise in the permit.
MR. ALLEN CYWIN: I would say normally this is the case.
Well, thank you. Oh, do you have another question?
QUESTION (FLOOR MIKE): I think maybe this is the same
question you were trying to answer earlier. For example, if
you had a provision in your permit...and you had an accidental
discharge,...would this be covered as a violation of your
permit or would this be covered in Section 311?
MR. ALLEN CYWIN; It might be covered in both, I guess.
PR. __ALLEH L. JENNINGS: Yea, I think our next speaker can
probably address that since he does deal with enforcement of
311 and of the permits so do you want to take it now or go
ahead with your presentation?
Our next speaker, Mr. Rich Johnson, was unable to attend
but he has sent Mr. Brian Malloy, who is director of the Water
Enforcement Division and he will get into some of the details
of the ultimate enforcement of regulations promulgated under
311 and, hopefully, clear up this confusion with the permits
and why we put that exclusion in the advance notice.
MR. BRIAN MALLQY; Good morning. This is a little difficult
talking today on what we are going to do on enforcement in Section
311 since we really don't have anything concrete in front of us
yet. It's really a solicitation of advice and assistance to the
agencies from the affected persons in the industry and also other
areas of government and the public at large. But, we do have
some general areas that we are moving in now and we are planning
to go forth in the same or slightly different areas in the future.
Section 311 of the Federal Water Pollution Control Act sets out
this framework for regulating discharges of oil and hazardous
substances. I guess today we are only concerned with the hazard-
ous materials part of 311. This section, 311, requires several
sets of regulations and lists to be published. Essentially
none of them have been published to date in final form.
I am supposed to talk today briefly on enforcement of 311
after the enabling regulations are finally promulgated, but
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before I get into that, I would like to just briefly mention
what we are doing or what we have done in the first nine months
or so of this year. We have come up with a rough tabulation
that EPA has heard about through various methods: these were
about 196 spills of substances other than oil into the waters
of the United States since January of this year (January through
October 1); at least 196 that we thought (because of either the
type of material or the quantity involved) conceivably could
have been hazardous to the public health and welfare. After
some evaluation of this, we felt that 41 of these 196 were
sufficiently hazardous to warrant action on the part of the
agency. We have proceeded to bring either civil cases or criminal
actions against these 41 dischargers. All of the cases, as far
as I know, are either in preparation or still pending before
grand juries or in the process of some sort of negotiation with
the U.S. Attorney on a civil case. We feel that under the
Refuse Act and under Sections 301 and 309 of the Federal Water
Pollution Control Act we have a right of action for discharges
without permits and we are proceeding to bring this small number
of cases, I think, even now before the regulations designating
hazardous substances are out.
Now, once the series of regulations under Section 311 is
published, we will have a slightly different system. We will
also publish a regulation on enforcement of the hazardous sub-
stances provisions in Section 311. This will be published for
comment and then published again for final promulgation. It
will be out to the public at least for thirty days, but I would
anticipate somewhat longer. The statute, at least some portions
of the statute, do not on their face require that a hearing be
given for the imposition of a penalty for nonremovable substances.
However, I cannot imagine a case where there would not be a
hearing. So the regulations will provide that before any penalty
is finally assessed by the administrator, there will be an
opportunity for a hearing by the discharger. The question of
the type of hearing is open and we are actively soliciting your
comments on this; not yet formally, but we are interested in
any comments you have. We have a choice between an informal
hearing and a much more formal hearing. We have formal hearings
in the permit program for the issuance of permits. At the
present time, we are utilizing in those hearings administrative
law judges and we have heavy use of cross examination and there
are prehearing conferences. They tend to be quite formal. We
have informal hearings in some other areas and other agencies
use them quite extensively. For instance, the Coast Guard uses
them for the imposition of civil penalties in their oil spill
program. We also have an informal hearing system in the Oil
Spill and Hazardous Material Spill Prevention Program of Section
311. Those regulations were published as interim regulations
during the summer and very soon we will have a final set of
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regulations. I don't anticipate very much change in that area.
We would anticipate that there would be a separate hearing officer
in any hearings we would hold. The man who reports to the scene
will most likely not be the person who assesses the penalty.
But it will be some sort of an independent hearing officer
designated by either the regional administrator of the region
or the administrator of the Environmental Protection Agency.
There will be an appeal process. At least one appeal will
be included in any procedures that we publish. The appeal will
probably be to the administrator. It will probably be somewhat
discretionary as to whether or not he must accept the appeal,
but there will be an appeal process specified in the regulations.
I understand that earlier speakers have mentioned the
issue of mitigation of the penalty. I would just like to
mention it again. We feel there should be some way of taking
into account the acts of the discharger, or the spiller, to
mitigate or eliminate the effects of a discharge of a nonremovable
hazardous substance. And, we have several thoughts on it, but
we really are interested in how the industry and the public at
large feels of how we should, on one hand, encourage people to
take actions that will mitigate or eliminate the effects of these
spills on the water or on the beaches and fish life and at the
same time, not leave ourselves open to actions that will just
eliminate the purpose of that section of the regulations. So,
in that area also, we really are soliciting comments on that
subject. One area that we are actively considering is the require-
ment that, except in some sort of an emergency situation, any
acts for which the discharger might later claim that he acted
to mitigate or eliminate the effect would have to be done with
the advance concurrence of the Environmental Protection Agency.
That is just one area and one method we are thinking about at
this time.
The last point I have is that it has also been mentioned
and specified in the Advance Notice of Proposed Rulemaking that
the agency is contemplating designating as nonharmful a substance
that is discharged in conformance with a lawfully issued permit
and several other areas. I would like to mention there, that
in the event that doesn't make its way into the final regulation
(I would anticipate that it would), a discharge or a spill that
violates the permit would also violate Section 311 and would
result in action under both sections of the statute, that is,
both 309 and 311, and the penalties for both. So that's all I
had to say this morning. I will take any questions that come
up. Sir:
QUESTION (FLOOR MIKE): Are you saying that until the list
of toxp.c substances or hazardous substances are promulgated as
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regulations and until you have worked out an enforcement pro-
cedure as well as a penalty schedule, there will not be fines
under Section 311; but these will be fines under the
NPDES permit system?
MR. BRIAN MALLOY; Generally, yes.
QUESTION (FLOOR MIKE); Then, until the present 311 regu-
lations are adopted or promulgated, it will all be under the
permit program.
MR. BRIAN MALLOY: It would be either the permanent pro-
gram or the Refuse Act. Yes sir.
QUESTION (FLOOR MIKE): There was a question asked earlier
that was referred till later; and that's the finite period of
time over which you may put discharges before you no longer
have a spill and also which spill amount is of significance.
An operator can have an impound basin to catch an overflow
and bleed it back in as an effluent. This may be what you are
pumping literally for one hour, or two days or two weeks. Now,
were we penalized for the amount of the spills from the tank
or for some various amounts that actually make their way back
into the river?
MR. BRIAN MALLOY: I believe that the amount we are concerned
about is the amount that gets into the river. Now that is just
my opinion, but I believe that is what we are talking about.
And second of all, I believe that depending on what your permit
may say, it might provide for a maximum or minimum time limit
allowable to discharge.
QUESTION (FLOOR MIKE): Now, let's say that you do have a
permit that addresses itself to this particular harmful sub-
stance and you are allowed so much a day. Now, what's there
to be wrong if your allowed discharge, however, over a 24 hour
period is larger than the amount you have spilled?
MR. BRIAN MALLOY; It seems to me that you are home free,
unless there is a provision in the permit that either tells you
how long you must discharge it over or else there's a maximum
concentration in the permit. Both cases are somewhat remote.
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QUESTION (FLOOR MIKE): You're safe if you continue to
discharge in the 24 hour quantity as long as you stay under
that quantity?
MR. BRIAN MALLOY: I'm not saying I like that but that's
whac the permit says, you have a 24 hour number, you can dis-
charge it. Now I'm not saying that all the permits have a 24 hour
number. Some have a 6 hour number, some have an instantaneous
concentration, but assuming that the permit only has a 24 hour
number, then I think you're home free.
QUESTION (FLOOR MIKE): Now let's suppose the permit does
not allow you to exceed the harmful quantity.
MR. BRIAN MALLOY; Then I don't know what the final regu-
lations are going to look like, but if they designate 500 pounds
as the hazardous substance, or as the quantity that makes it
hazardous, and you discharge 600 over a two day period, I would
say that would be actionable by the agency. I guess you can
throw it out at some point where it becomes somewhat
meaningless, this is 20 days or something, I don't know. But
I would think that given the threshold levels the regulation
designating hazardous substances and quantities over a 1 or 2
day period, I don't think it would make much difference, from
our point of viev.'. Yes?
QUESTION (FLOOR MIKE — UNINTELLIGIBLE)
MR. BRIAN MALLOY: Well, I'm just talking about federal
enforcement now. If you have a state water quality standard
or any other statute, that's a different situation entirely.
I'm talking about enforcement by the federal government under
this section of the federal statute. Yes, sir?
QUESTION (FLOOR MIKE) : It is possible to be in violation
of both sections of the law, the permit and 311 and thus can
you be fined twice?
BRIAN MALLOY : I think you're violating the act twice,
too, but conceivably, yes, you might. The reason that it would
appear that way is because the permit is taking you out of the
realm of regulation and then by violating the permit. I see
nothing wrong with going back under the statute. We're trying
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to stop the spills and I think it's a valid way to give you the
incentive not to cause these spills, and to reduce the incidence
of them. I'd like to clear up one point. Most of the permits,
essentially all of the permits, do not superimpose the require-
ments of Section 311 onto the permit requirements. They just
merely state that an enforcement of Section 311 is not tied
to the permit. So that the statement included in most permits is
something like "nothing in this permit will authorize you to
discharge anything in violation of Section 311." They are not
tied together, the statement is that they're separate, that's
all. Sir, in the back?
QUESTION (FLOOR MIKE); What will be your enforcement stand
after October 18 relative to spills that are not tied to dis-
charge permits? In other words, transportation spills?
MR. BRIAN MALLOY; Well, there wouldn't be any tie at all.
I'm not really sure if I understand the question.
QUESTION (FLOOR MIKE): Well, I'm thinking of the $50,000
maximum for the two years vs the $5 million or $500,000 maximum
fine? What I'm getting at is, will there be fines imposed before
these lists and regulations are complete?
MR. BRIAN MALLOY: No, once these regulations are out, we
will then proceed under Section 311. The $50,000 maximum since
the regulations are not out has no applicability at all and
never has.
QUESTION (FLOOR MIKE); Would you not differentiate between
say 100 pounds of material spilled on land and then present in
runoff for several days and a 100 pound spill directly into
water that takes only a few minutes to occur?
MR. BRIAN MALLOY; I might take that into account when I
proposed a penalty or something like that but the regulations,
as presently contemplated, talk about a threshold level and
once you get above that threshold level, you've got a spill.
And what you do about the penalty for that spill, I think is a
separate issue. Once you get the threshold level, that's the
question we're talking about right now — the spill.
QUESTION (FLOOR MIKE); The threshold level defines a spill,
but it certainly makes a difference on the receiving water whether
it got in there in 3 minutes or over a 3 day period.
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MR. BRIAN MALLOY; I'm sure it does and I think that it
would have effect, that should be taken into account in the
subsequent penalty. I'm saying as far as permits are concerned,
most permits don't take that into account. I'm sure that if we
tried to change all the permits that are out now, to put in a
maximum concentration, we would have a lot of crying and screaming,
not to mention the impossibility of the task. So I'm saying
that right now, assuming that the scheme goes along the way it
is -- that is, a discharge made in conformance with a validly
issued permit would not be harmful or hazardous and a discharge
in violation of that permit would be hazardous under both —
as far as the permit is concerned, there is no differentiation
in most permits. You can make it in a minute or a day.
QUESTION (FLOOR MIKE): The point is, the period of the
discharge will greatly affect the severity of hazards and natures
of a spill.
MR. BRIAN MALLOY: The regulations are still open. I'm
sure these people will take it into consideration. We seem to
be getting more and more questions. Do you want to cut me off?
JR. ALLEN L. JENNINGS; No, you're doing fine. You're very
popular.
MR. BRIAN MALLOY: Yeah.
DR. ALLEiNl L. JENNINGS: You've still got - you still have
five minutes before break time.
MR. BRIAN MALLOY; Oh, okay. I've got some slides. Okay,
how about in the back there? Yeah.
QUESTION (FLOOR MIKE): There is a difference between
allowances on the permit and substances not mentioned on the
permit but submitted in the application. For instance, the
application may list 100 pounds of a compound but no mention
is made in the permit. If you do discharge that, and 100
pounds exceeds the harmful quantity, are you in violation of
Section 311?
MR. BRIAN MALLOY: Okay, I think that's what that somewhat
garbled language in the Advance Notice of Proposed Rulemaking
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was trying to get at. I'm not really sure myself but I think
that's what it was trying to get at, something like this. You
normally discharge 100 pounds of compound A a day and you note
that on your permit application. The designation of hazardous
substances comes out and designates 60 pounds of compound A as
hazardous and harmful. When you get your permit back, there is
no mention of compound A in your permit. I think that somewhat
garbled language was trying to get at that situation and that
you could discharge 100 pounds of compound A because you
specified it in your application form and the EPA at least
theoretically took that into consideration and therefore although
your permit does not specifically say 100 pounds of compound A,
for whatever reason, you could therefore discharge 100 pounds
of compound A. Now, if you don't put it in your permit application,
then I would think that you have discharged a harmful quantity
if you go over 60.
QUESTION (FLOOR MIKE); But, you're not in violation of
the permit?
MR. BRIAN MALLOY; You are not in violation of the permit,
no, you're not in violation of the permit. Yes sir?
QUESTION (FLOOR MIKE): There have been several questions
asked about the $50,000 limitation and $5 million liability.
I remain thoroughly confused on the subject. I thought that
Mr. Kirk said that the $5 million liability was operable now,
since October is past, but I thought I understood you to say
that that was not the case because the regulations were not
in force. Could you clarify that, please?
MR. BRIAN MALLQY: Yeah, I'm going to have to. Allen Kirk
is my boss and I agree with everything he said. I think Allen
meant that, assuming that regulations were out, we would be in
the $50,000 arena right now — I mean the $5 million dollar
arena right now. I think the $50,000 maximum penalty period
has run and that has no applicability anymore.
QUESTION (FLOOR MIKE): Is your boss in the room?
MR. BRIAN MALLOY; I don't see him anywhere, but Allen,
if you're here, you can say anything you want.
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DR. ALLEN L. JENNINGS: That was Mr. ?rick who was speaking
earlier from General Counsel's Office/ and I think he is gone.
Yeah, in the back, right behind the other gentleman.
QUESTION (FLOOR MIKE): Did I understand you to say that in
a spill incident the EPA must approve any act that the spiller
takes?
MR. BRIAN MALLOY; No, that's wrong. That's not what I
said. What I said was that we are trying to wrestle with some
sort of a way of allowing, encouraging mitigating actions by the
discharger and that was one way we were considering of taking
that into account. That is, a discharger has a spill of a
nonremovable hazardous substance, he wants to take some action
to mitigate the effects of that, he informs us what actions
they are. We would then approve it and then, in the event
he would have to be penalized for this under 311, we would
subtract the cost of that accident from the cost of the penalty.
DR. ALLEN L. JENNINGS: There is another regulation to be
developed on down the line known as the removal regulation, which
is a specification to the discharger on things he must do in the
case of oil, it is what kind of equipment is appropriate for the
removal of oil. With hazardous substances, we haven't proceeded
that far yet, but it will probably be methods of damage mitigation
rather than a strict physical removal. But it's another regu-
lation to come sometime in the future. Say a year or two ^ears.
QUESTION (FLOOR MIKE); I need to know specifically, are
you telling us the $5 million penalty is now in effect?
MR. BRIAN MALLOY: I'm saying the $5 million penalty would
be in effect if the regulations were out. The regulations are
not out and the $5 million penalty is not in effect.
QUESTION (FLOOR MIKE): That is what we had thought. The
$5 million penalty will not come until final issue of the list
of materials and rates of penalty?
MR. BRIAN MALLOY: That's the way I read the statute, yes.
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QUESTION (FLOOR MIKE); What is the time frame you antici-
pate for the final promulgation of the rates of penalties?
DR. ALLEN L. JENNINGS; I can address that. ^ight now, our
commitment schedule is shooting for sometime next summer for
the final promulgation on rates of penalty.
QUESTION (FLOOR MIKE); Well then, one final clarifying
point. What is the penalty which is now in effect?
MR. BRIAN MALLQY: You could be penalized for discharging
a substance without a permit and that would be under Section 309
of the Statute of 301.
QUESTION (FLOOR MIKE): That refers to effluents. What
about spills of hazardous substances?
DR. ALLEN L. JENNINGS: We have yet to finalize the hazardous
substance listing and until that is finally promulgated, there
are no hazardous substances, so no penalty options are available
under 311.
QUESTION (FLOOR MIKE); A basic point on the philosophy
of the regulation. The whole emphasis is on trying to provide
incentive to prevent spills. What about non-preventable spills?
MR. BRIAN MALLOY; I think there are certain outs in the
statute - Act of God, Act of Third Party, Act of War, Act of
Negligence on the part of the government — that would preclude
having an action brought against you. Yes, in the back?
QUESTION (FLOOR MIKE): How does this relate to accidents
such as transportation spills occurring from trucks involved in
highway mishaps?
MR. BRIAN MALLOY: I'm not sure I understood the question.
I think that you cannot discharge any substance into the waters
of the United States without a permit.
QUESTION (FLOOR MIKE); Are you saying that all transporters
or potential spillers should have a permit?
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MR. BRIAN MALLOY: No, no. I'm saying that that is a
theory upon which we will prosecute any action in the event
that we thought there was a spill that was sufficiently hazard-
ous to be harmful to the public health and welfare. I think
you have to judge us by our actions, not by the potential actions
that could be taken under the statute. We have taken very few
actions under the statute and only in the most grievous cases.
The potential is possible. We could come up with the most
absurd program in the world, but we haven't. We have specifically
excluded whole areas of potential regulated industries from the
requirement to get permits and we will continue to do so. Is
that - yes sir?
QUESTION (FLOOR MIKE): This may be somewhat off the track,
but is a municipality liable for spills into the sewer which are
subsequently passed on to receiving waters?
MR. BRIAN MALLOY: I would generally say, no. But, I don't
want to be held to that. I think that is an awfully tough
answer; that if you could show that it was caused by an action
of a third party, that the municipal discharger would not be
covered, just like an industry would not be responsible if it
was the act of a third party. Your hypothetical tends to fall
into that, if it is caused in the sewer system it is an act. Yes,
QUESTION (FLOOR MIKE): Will you act against municipalities?
MR. BRIAN MALLOY: Oh, yeah, there have been actions against
municipal systems for oil spills.
QUESTION (FLOOR MIKE): I was under the impression that
the part on spill liability for small facilities far less.
(The rest of tape was unclear.)
MR. BRIAN MALLOY: Ummm, I think that is probably right.
I think also that for a spill of the same size a smaller penalty
might be appropriate for a smaller facility.
QUESTION (FLOOR MIKE): Would this hold true in other areas?
For cleanup?
MR. BRIAN MALLOY: For cleanup? No, I'm not so sure it will
hold in cleanup. Congress has taken provisions in cleanup to
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limit the liability of people and I don't know whether it will
hold in cleanup. I think the theory there is that if you cause
a spill that is removable, you should clean it up. Yes?
QUESTION (FLOOR MIKE); I have a question for you. Is the
penalty provision outlined in the administration document as
(aa) or (bb)? Is that a tier and also the first part has a tier?
Is this a double penalty system?
MR. BRIAN MALLOY: I think it is a double penalty system;
I do not think they are tiers with no appeal.
Yes? One is for the spill and ...
QUESTION (FLOOR MIKE): The reason I say tiers is that you
always know which one you are going to pay the Coast Guard. You
are going to pay them $5000 and no more. But on the EPA you
can pay them up to $500,000.
MR. BRIAN MALLOY; Well, you could theoretically say that
could be the same thing.
QUESTION (FLOOR MIKE): When you define a spill, are you
defining the material that gets into the water or are you
defining what has spilled out on the pavement? How are you
defining a spill quantity?
MR. BRIAN MALLOY; I think that you have to get into the
water. Now, I am admittedly a little fuzzy on the question of
whether the spill is the quantity that leaks from your property
or the quantity that actually gets into the water, but I think
you have to get into the water before you have a spill. Yes?
boss?
QUESTION (FLOOR MIKE); A little while ago, is Mr. Prick your
MR. BRIAN MALLQY; No, Mr. Frick is not my boss. I can
disagree with him. (Laughter)
QUESTION (FLOOR MIKE); He started off by saying in the
first place, the EPA really doesn't understand very well. He
further stated that Congress has a general lack of knowledge in
the semantics.
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MR. BRIAN MALLQY: He's got a lot of guts.
QUESTION (FLOOR MIKE): Was this act drafted in conjunction
with the EPA?
MR. BRIAN MALLOY; No, I don't believe it was at all. I
don't believe so, but I wasn't there. Wheeoo. But I don't
believe it was. Ok, I guess that's — One more? Ok, go ahead.
QUESTION (FLOOR MIKE): Who is responsible if you violate
Section 311 while still under the NPDES permit program for dis-
charge, or are you deeply into that problem?
MR. BRIAN MALLOY: Uh, oh.
QUESTION (FLOOR MIKE): For instance, can you violate 311
if you are allowed to spill 1000 pounds of BOD a day but that
BOD is phenol?
MR. BRIAN MALLOY: Yes, you can discharge. You can violate
311 under that hypothetical case.
QUESTION (FLOOR MIKE): Is the spill considered as a short
time frame of less than a day?
MR. BRIAN MALLOY: I think that the general answer to your
question is yes, the spill is generally a short-time frame. I
don't think 311 is specifically limited to short-time frames
like that. Especially when they talk about designated quantities
and stuff. Although I will admit that at some point I would
say cut it off.
QUESTION (FLOOR MIKE): Section 311 seems to define removal
very clearly.
MR. BRIAN MALLOY: It's not clear to me.
QUESTION (FLOOR MIKE): Well, there are two options here.
Physical removal, and mitigating actions which remove some of
the hazard. I was wondering if we were talking of both parts.
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MR. BRIAN MALLOY; I believe we are dealing only with
actual removability and the second part of the definition was
not taken into account. I thought that was spelled out in the
preamble to the advance notice but I'm not sure.
QUESTION (FLOOR MIKE): Could you give me a reason why the
second part was not taken into consideration?
MR. BRIAN MALLOY: I could take a stab at it, but I didn't
do it and I don't think I want to.
QUESTION (FLOOR MIKE): I beg your pardon?
MR. BRIAN MALLOY: I could take a stab at it, but I didn't
do it and I really don't want to. I mean that was done by
another group and I think the use of the phrase "actually
removable" in the statutes kind of lends itself to that inter-
pretation.
QUESTION (FLOOR MIKE): Is this an EPA interpretation?
MR. BRIAN MALLOY: Oh yes, I would say so. Possibly other
agencies too, but it's not in the statute itself.
DR. ALLEN L. JENNINGS; We're running behind in our schedule.
Mr. Malloy can entertain one more question before break or he
will be here at break. Why don't we take a 15 minute break.
(Break)
DR. ALLEN L. JENNINGS; Could we bring it to order please?
As most of you who are familiar with Section 311 are aware,
the Environmental Protection Agency shares responsibilities for
many aspects of the regulation, development and ultimate enforce-
ment and response with the United States Coast Guard. Our next
speaker is a representative of the Coast Guard. He is Lieutenant
Commander George Brown, who is Chief of the Pollution Response
Branch.
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LIEUTENANT COMMANDER GEORGE BROWN: Good morning, ladies
and gentlemen. Since we are already a half hour behind schedule
it's probably a little enjoyable for me to quickly get us back.
I'm going to keep my remarks brief, explain to you some of the
things the Coast Guard is now doing, explain the impact that the
Hazardous Substance Designation and Harmful Quantity Regulations
will have on what we are doing and some of the things WE'RE
going to have to do.
First, most of you are probably intimately familiar with
our field organization that's now involved in discharges of oil
from the prevention regulations standpoint, our enforcement civil
penalty assessment activities and response activities. I won't
belabor the point but simply say that we do in fact have a group
of folks out there involved in all three of those areas, in
many instances the same folks. The organization perhaps isn't
the best. It isn't as many people and as many resources as we
would like to have and we are constantly involved in the budget
process to in prove on that. You are probably aware that we
administer the pollution fund for all discharges. The fund is
applicable to oil and hazardous substance removal. We administer
the funds for discharges in both the coastal and inland areas.
I have heard some concern registered this morning on the
two parts of the definition of removability and perhaps we can
have a little discussion on that and its application to the
pollution fund. I might back up a moment and say, I feel my
role here has two parts: to listen to your comments and perhaps
provide you substance to think about in some of the impact that
your ideas will have on us. Perhpas that two-part definition of
removability is one that you can give me some discussion on.
You are probably also aware, those of you that have been
involved in discharges and perhaps the larger ones of oil, that
the Coast Guard has a national strike force consisting of three
teams of people, one each on the Atlantic, Gulf and Pacific Coasts,
These teams are comprised of 18 people, three officers and 15 of
our enlisted personnel. They are primarily for responding to
discharges, again for oil and hazardous substances. Obviously
without a designation of hazardous substances, their work has
been confined principally to oil and they have been involved
in virtually all of the major discharges that have occurred
since their inception about a year and a half ago.
Additionally, the Coast Guard is charged, in accordance
with the provisions of the national contingency plan, to establish
and operate a National Response Center. We have done so and have
personnel on duty 24 hours a day to receive information on a
national basis to coordinate and participate in these incidents
whenever possible.
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And finally, the Coast Guard has developed a chemical
hazard response information system which is probably the: one
part of our activities that has a direct bearing on hazardous
substances. This system, as we have developed it and are now
implementing it, consists of four books (I hesitate to use the
term "manuals" because it tends to be one of those bureaucratic
words, so I say "books"). The first book is an emergency book,
principally for the man at the scene — the individual who is
there on the dock, standing beside the truck or whatever and
he has to do something that handles that immediate situation.
This first book provides that. The second book is one of
chemical data on all of the chemicals we are including in the
system. Our initial publications will include 400 chemicals
and we have work ongoing to expand the number of chemicals to
a total of 900. The total 900 will include all of those
substances in the EPA Hazardous Substance Advance Notice of Pro-
posed Rulemaking designation. The third book involves itself
with hazard assessment. After the initial response — take
care of the fire and the safety and the people problems, the
pollution problems, the immediate problems — we have to cal-
culate how big a problem we are going to have and over what
period of time. Our third manual does that. The last manual
is involved with response methods. I have to say that it is
principally involved right now with oil cleanup methods, oil
removal methods, because that's the largest bulk of technology.
We, together with EPA, have continuing R&D projects to
expand the area of hazardous substance removal (or amelioration
is the term we use, since as we have already struggled with
this morning, hazardous substances are not all "removable" or
"actually removable". There are things you can do that are not
removable. So we use the term amelioration; that covers such
things as aeration, precipitation, dilution and all those other
good things). The CHRIS, as we call it, Chemical Hazards
Response Information System, also has a computerized hazard
assessment portion which we have here in our Coast Guard head-
quarters and which we have made available to the National
Response Center. During the interim period of publishing all
of the manuals — we're trying to get the first manual out on
the street right now, the second manual is at the printers,
the third manual is also available for distribution and we will
be doing that. I caution the distribution is to our field
personnel. In the interim, the computerized system is avail-
able. We also have a printout of the data file which is
necessary to enter the Hazard Assessment Manual in the field
and that information can be gotten from the National Response
Center as well.
Our information system is aiming at the removal problem,
the discharge problem, coordinating it with the National Response
Center as well as the National Strike Force personnel. If I
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might back up a moment to the National Strike Force, while they
are not participating in discharges their time and activities
are geared towards training. It is our intent they train Coast
Guard as well as other agency personnel involved in pollution
response. We have already started training programs within
the Coast Guard and are anxious to expand that wherever else
it has to go.
That, in a very brief time, is pretty much what is going
on. I can expand that in response to your questions in any
direction you'd like to go.
What is the impact of hazardous substance regulations on
the Coast Guard? How do we feel about things, perhaps? I
spoke to Dr. Thompson briefly before the session opened and he
gave me a long list of things I might speak to. Perhaps if I
were the speaker for the rest of the day I might get it all out.
Very briefly, let me say the first thing that we see as paramount
is the actual designation of hazardous substances. This is key
to us for two reasons; one, in the notification provisions of
Section 311, the Coast Guard is designated the appropriate
agency. We presently have our notification regulations under
revision to include oil and hazardous substances. Notification
is required for the discharge and that's all. So once the hazard-
ous substances are, in fact, designated, then we should receive
notification. Our revised regulations have a provision with an
800 number. That 800 number terminates in the National Response
Center. It is our hope and intent that with that 800 number we
can provide a more efficient notification scheme. You will be
able to call on that number, talk to the NRC, and they will then
take care of disseminating that information. We're also up-
grading other communications facilities to help us do that.
The other is the use of the pollution fund with the designation
of hazardous substances. We will be able to apply the pollution
fund or use it, or whatever the proper term of art is; when
someone spills a hazardous substance, we can clean it up using
the fund. We cannot at the present time. Substances that may
be, could be or even morally appear to be hazardous don't make
any difference. The use of the fund is precluded until that
designation so we would like to see that designation.
The determination of harmful quantity applies under Section
311 (b) (6) and the enforcement of that penalty of up to $5000 for
discharge in harmful quantities. So we are interested to see
that definition in order that we can implement that provision of
the act. We are also the agency that assesses that penalty.
With respect to the harmful quantity designation, recognizing
that there is need to compromise environmental, economic and
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legal considerations (I think I can speak for our agency, but
let me say I'm going to speak for myself, at least) it would
appear that whatever that compromise maybe, that it should be
practical, that there should be some way to apply it, particularly
for our folks who are out there having to gather the evidence.
I point out for your consideration one of the possible impacts
here, if it becomes an inordinately technical determination,
there is an implicit economic impact on our part. It will
require additional people, additional technical people, technical
training, technical capability in order for us to carry out
our mandate from the Congress; so you should give that some
consideration too.
On the other aspects, the other penalty aspects relating
to nonremovability, those are EPA's considerations and we're
not particularly involved in that so there is no need for me
to comment, except as I did earlier on the definition. While
their Advance Notice of Proposed Rulemaking indicates any
action taken to minimize or mitigate still falls in the area
of removal as defined and the discharger would be liable for
those costs incurred by the government. I guess the legal
beagles figured that all out and said that's so, so we'll
stand beside that. For us, the notification regulations, the
pollution fund regulations, are presently being revised and hope-
fully will be on the street before the end of the year, to
include hazardous substances. They will come, in effect, with
the designation of hazardous substances and we won't have to
do anything else with that. Removal regulations, which will
also be published as part of that package, will speak only to
oil, will not have any reference to hazardous substances, will
need to be expanded, revised, added to in some way to cover
hazardous substances after the designation, after the harmful
quantity and after further determinations as to just what you
can do. Prevention regulations we have published for trans-
portation related facilities speak only to oil. They, too,
will have to be expanded, revised, or in some way changed to
reflect the hazardous substance considerations. Basically that
ends my remarks — some of the things that we will have to do
and are doing, with respect to hazardous substances. I'll
answer any questions that I can.
QUESTION (FLOOR MIKE): Did you tell us these manuals will
be available to the public?
LCDR. GEORGE BROWN: Yes sir, they will. It is our
intent that at least the first two manuals will be available
through the National Technical Information Service and the
government printing office. There are some questions we are
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still having to work out with the second two concerning
liabilities and things of this nature. During our initial
evaluation period we're going to keep those in-house until
we get it smoothed out. Then after that period is over we'll
do what we can there. We suspect we'll make those available
as well. But, at least the first two, the emergency manual
and the chemical data will be made available as soon as we can
get them into those two systems. Yes sir.
QUESTION (FLOOR MIKE): In book number two that lists the
400 or 900 chemicals, will that book be brought into agreement
with the materials designated as hazardous under 311?
LCDR. GEORGE BROWN: Yes sir, the 900 chemicals will
include all of those chemicals that are designated hazardous
substances.
QUESTION (FLOOR MIKE): There are some others besides?
LCDR. GEORGE BROWN: Oh, yes sir. Well the present
list (correct me, Hugh, if I'm close) is somewhere around 300.
I don't know the exact number. All of those that appear in that
Advance Notice of Proposed Rulemaking are now in our system
as it's being prepared, plus there are another 600 besides.
QUESTION (FLOOR MIKE): What is the rationale for including
additional materials?
LCDR. GEORGE BROWN: Well, our system was developed
for several reasons, partly for the FWPCA, partly for other
safety reasons that we administer (our port safety and security
and our marine safety rules) so some of the other parts of the
rationale are "shipped in bulk" and these types of things. We
look at all other chemicals being carried as well and a potential
for discharge and having to take care of them. Their inclusion
in our manual does not imply they are hazardous substances
defined by the EPA order. We just view them as things in all
of our areas of responsibility that we should be concerned with.
Yes sir?
QUESTION (FLOOR MIKE): The Coast Guard, being a member of
DOT, has publishing hazardous materials regulations which are
pretty well defined. The EPA has now published a list containing
quite a few hazardous materials and some of those materials are
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not known as hazardous according to DOT regulations. How do you
propose to reconcile those differences so transportation agencies
who have to transport those materials will know whether they have
a hazardous material under DOT or under the EPA?
LCDR. GEORGE BROWN: I would feel pretty far afield to
speak for the Department of Transportation office of hazardous
materials on that part of their business. But, in general, I
think we can say that there are, not just in this area but in
many others in the government, areas of overlap. They have to
be resolved by very close coordination. There are independent
statutory responsibilities that apply in each set; under one
statute you determine a hazardous material and under another one
you determine a hazardous substance. I don't know exactly what
the department intends to do to assure that the shipper has
knowledge that the material he has could be one or the other
or both. You know, it's all part of an education process to make
people aware of this. I don't know exactly all of the overlap
but I do know there are subchapter O&D chemicals, for example,
that are a part of hazardous substances; but I don't think all
are. There are some that are left out. There's some respon-
sibility, too, on the shipper to know the regulations.
QUESTION (FLOOR MIKE); What will be the chances of a
chemical that meets the toxicity requirements (that is to say,
is toxic below 500 ppm in water) but is not designated as
hazardous?
LCDR. GEORGE BROWN: If it is not designated a hazardous sub-
stance and it in fact is discharged into the water, for response
purposes it will have to be handled by whatever other statutory
authorities exist. There are some others. Forest and Water Ways
Safety might be another one that could apply, perhaps. There
are other generic statutes the Coast Guard operates under-protection
of life and property at sea. That's the type of thing we're
using now when we fund it out of our own operating expenses when
we get involved in it. The only thing that is really germaine
in designating it a hazardous substance is whether or not the
pollution fund is available to fund cleanup. That's germaine to
us government agencies that are being sliced apart by the budget
process daily because it allows us to do it and not use our
operating expenses. But there are instances that have occurred;
there is one going on now on the Duwamish Creek the EPA's quite
involved in. There was a chlorine barge problem in Louisville
a couple of years ago where the government agencies participated
and paid for it out of their regular operating funds. So that
would be what you'd do, or what we would do. Yes sir?
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QUESTION (FLOOR MIKE): In the end, like an oil spill
incidence, in the past, the Coast Guard has been appointed the
on-scene commander. In these cases of hazardous substances
spill, will the Coast Guard be the Commander? Or, is there
any agreement with EPA?
LCDR. GEORGE BROWN: The provisions of the; National Oil
and Hazardous Substance Contingency Plan will apply to oil and
hazardous substances, upon the designation of hazardous substances
The recent revision to that plan was written purposefully so
that hazardous substances would be encompassed by the plan as
soon as they were designated. The provisions of that plan are
the.t the Coast Guard will provide for or furnish on-scene
coordinators in the coastal area as defined within the plan.
Therefore, the answer to your question is yes, the Coast Guard
will provide for on-scene coordinators.
QUESTION (FLOOR MIKE): You said the coastal areas. What
about the rivers?
LCDR. GEORGE BROWN: The inland area, as defined in the plan,
and that's not to be confused by inland rules of the road and
this type of thing, is a very specific definition in the plan.
It's a geographic split agreed to by EPA and the Coast Guard.
In the inland area, the EPA provides for or furnishes the on-
scene coordinator.
I might inject one other thought here. The concept of the
contingency plan is a multi-agency plan, it is not a single
agency activity; so when the; Coast Guard provides for or
furnishes the OSC, EPA clearly has a role in the environmental
activities and, in fact, does participate. Likewise when the
EPA provides for or furnishes the on-scene coordinator, the
Coast Guard has responsibilities and we do, in fact, supply
that kind of support to EPA. It doesn't nicely split single
agency activity. DOD has an involvement, NOA, as well as other
agenices. So I emphasize that multi-agency part of it.
QUESTION (FLOOR MIKE): You were referring to the 800 number
for reporting to the Coast Guard. And you indicated the Coast
Guard is designated as the agency to report to. Does this mean
that in the event of a spill, does use of this number constitute
notification as required by 311?
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LCDR. GEORGE BROWN: With respect to the provisions of
Section 311, yes. Now, there may be provisions under permit
regulations and those types of things, for which the answer
would be no, but 311 notification, yes.
DR. ALLEN L. JENNINGS; I wonder if we could defer additional
questions until after the other speakers for the morning session,
in the interest of time, since we are running late right now.
But Commander Brown will be here to entertain questions.
LCDR. GEORGE BROWN; Thank you.
DR. ALLEN L. JENNINGS: The development of regulations is
primarily a headquarters duty here at EPA but EPA is diversified
out into the regions and the people responsible for enforcement,
investigations, spill incidents are our regional people. We
have two of them with us today. These people have often accused
us Washington types of living in an ivory tower here, so this is
their chance to give us their views of the regulations and
development process and how we're doing. The first of these is
our Oil and Hazardous Material Spill Coordinator from Region V,
Chicago, Mr. Russell Diefenbach.
MR. RUSSELL DIEFENBACH: I see that in running behind in the
schedule, I only have five minutes. I think that I can maybe
pick up a little time because I was asked to comment on what
the impact would be of these regulations in the regional pro-
gram. When we had the conference in San Francisco, I picked up
a copy of the proposed substances that are designated as being
nonremovable and so forth. I handed it to several people on my
staff that were chemical engineers and from the divergence of
opinions that I got from three chemical engineers within our
staff on this list, I must conclude that it's impossible. I
presume that should end the conversation but I would like to
enter just a little bit further, indulge just a little bit more.
Within Region V (and we cover six states and I think we have a
pretty high industrial concentration)our people respond to
approximately 850 spills a year. These are spills that they
physically respond to. Approximately 15 percent of these
spills are hazardous materials spills. We average about 125
a year. Response time required of the OSC's for hazardous
materials spills are considerably higher than those for oil
spills. It will run an average of eight days per incident on
a hazardous material spill. Now I am saying that this is
time spent out there seeing if the spiller is cleaning it up
or not, this is incidental monitoring of the situation afterwards
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to see what the environmental impact is, the total overall
requirement on a hazardous materials spill is much greater
than that on an oil spill. Actually on an individual basis,
it can run from a partial day's response to the longest we've
had — six weeks of having people out there. A hazardous
materials spill is usually of such a nature that one man can-
not handle it. You have to call in other people for assistance.
You need support personnel. Many times you need additional
OHM personnel on the scene, you need air surveillance personnel
on the scene, you need biologists, you need people from pesti-
cides, radiological people, so the effort that is required in
manpower for a hazardous materials spill is going to greatly
increase, according to the way I see these regulations being
developed, the number of people that are going to be required for
spill response within the region. We have five district offices.
We have eight people in these district offices responding to
spills and we have four professionals within the regional office,
a total of twelve professional people responding to spills.
Many of the hazardous materials spills that are reported to us
now are a backhand or secondhand report from Chemtrac, from a
state agency, from someone else, not a direct report. When the
regulations come into effect and the list is adopted and becomes
law, I suspect that the: number of hazardous materials incidents
reported by industry is going to go up tremendously. Either
EPA is going to have to reorient their priorities to dedicate
people to this cr they are going to have to increase their man-
power (and we are presently under a freeze).
So if we're going to go forward with this type of regulation,
we've got to have additional manpower, we're going to have to
decide what we are going to emphasize on a hazardous materials
spill. Are we going to emphasize cleanup response or are we
going to emphasize enforcement action and a penalty? Personnel
are going to be called on by the agency to determine the chemical
characteristics according to the charges in 311. They're going
to have to be familiar with stream conditions. They're going
to have to determine the stream conditions at the time of the
spill according to the way we are going to assess the penalties.
They're going to have to consider the weather, the weather
conditions that contribute to the stream at that time. They're
going to have to consider quantities. This sounds real easy.
What is the quantity? Ok, what was the quantity spilled, what
was the quantity that reached the stream? How much was absorbed
by the soil if it transversed over the soil before it got to
the stream? How much was retained in a diking area? Is the
diking area completely impervious or was some of it absorbed
into the soil? It's going to be a complex job to fairly equate
and get the factors that are needed for the penalty the way
it's now proposed. We've got the questions of amount and
chemical purity. It's going to be a big factor. It's nice to
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come out with just a list of chemicals, but what is the purity
of the product? This is going to be an important factor. Then
we've got all the parameters that are listed in 311. What's
its toxicity? Its solubility? Its dispersibility? All of
these things must be determined.
Our biggest incidence of hazardous materials spills comes
from modes of transportation and it may not always be right on
the water. The accidental spill occurs on a highway, on a rail-
road roadbed, by some other means and it eventually gets into
a stream. So it's going to be a complex determination. It is
going to require a lot of people if it's going to be determined
effectively. And all of this is not going to stop spills.
I'd just like to go down a list of spills that have occurred
in Region V and I'd like to make a point because I think many
times we can overregulate and we can become too complex. I've
heard a lot of people with government agencies talk about a
chlorine barge that was hung up at Louisville and it took a lot
of time and it took a lot of effort from government people. And
these remarks I make on these spill incidents I do not make to
detract from the government involvement in any of these incidents,
but I want to point out one single thing. On each of these
incidents there was a vital input other than from the government.
On the chlorine barge at Louisville, I have very seldom heard
people say so, but the method of transferring the cargo from the
stricken barge and the means of disposing of that which could
not be transferred through a scrubber (making bleach and dumping
it into the Ohio River at a controlled rate) was all from the
Chlorine Institute's effort. I do not think that the incident
would have been carried out to completion without the efforts
of this industrial group. The reason for this incident, however,
the regulations that we are talking about will not avoid a
recurrence. It was due to an underpowered tug in a fast moving
stream and the man could not control his tow. Regardless of what
penalty we assess, regardless of how hard we try to crack the
whip or slap someone's wrist, we are not approaching the means
of stopping the environmental insults. We're not reducing the
effect upon the public health and welfare. We've got to do this
by making people want to stop the incidents from happening.
Another example, just a few months later during flood stage
on the Ohio River, a group of barges went right over a lock and
dam at Cannalton with hazardous materials, oil and gasoline. Two
men lost their lives, one was hospitalized. Again it was a case
of not being able to control the tow.
I have an example in Ohio of a burning chemical in a railroad
derailment. Only 3-1/2 miles from the derailment site, there was
a hot-box indicator, yet the cause of the accident was attributed
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to a journal-bearing failure. Again, the most vital input, the
most necessary man on the job was the Monsanto representative.
We had a spill incident in Chicago just recently. I can-
not go into the details of the incident. It was a chemical
that may possibly have gotten loose because stainless
steel rods were not used in welding. A penalty will not correct
this. It was a large quantity. A lot of people were involved.
It did get people concerned. Up in a small community called
Mundeline a very similar product on a truck was punctured by a
shifting load. The truck driver realized he was getting sick.
He goes to a fire station and they hose it down. They get
sick. When the firemen were sent to a hospital they decided
to bury it. It was buried by a shopping center and a school,
because there was some vacant property there. The insurance
company, realizing the; liability, the publicity from the inci-
dent in Chicago, decided that it should be gotten out. They
asked EPA for assistance in getting it out. This was for seven
drums of chemical, but it took five man-days of EPA effort. We
have similar incidents at Markham Dam. A barge was going down
the river, he was losing his cargo of a hazardous material and
didn't know it until it was practically all gone. We had a
pesticide fire in town. One of the first recommendations to
come out of EPA headquarters said "let it burn." That is the
best thing to do with a pesticide fire. But you can't tell
that to the mayor of Lhe communiry, you can't regulate that for
the fire chief, and in no way can you face the people whose
homes and automobiles were in the area, and there were cans of
petroleum products with pesticide flying around and aerosol
cans spreading fire. You had to pour water on it. You had to
have a pollution incident, both air and water, because you had
to protect peoples' property in addition to their lives. This
was an incident that sent better than 180 people to the hospital,
cost one life, and a month later, one fireman and one ambulance
driver were still in the hospital. So these incidents aren't
easily handled. We've got to realize somewhere, some place, that
we have got to try to prevent these incidents from ever occurring
Once you have the incident, the best you can do is hold the
damage to a minimum, mitigate the environmental impact. Do
the best you can for the health and welfare of the people in the
area.
If we overregulate, if regulations get so stringent that
you say if you have Chemical A, you take steps 1, 2 and 3 to
handle this, then we won't have technical progress on handling
spills. The technical progress on handling spills has to come
from industry. It has to come from the man who manufactures
the products and uses it. He's more familiar with it. On my
staff I have three chemical engineers and two petroleum engineers
The field of chemistry is so complex, they can't be experts
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on everything, so they can't come out on scene and take over.
It's industry's responsibility to be this expert, so there has
to be a lot of latitude, as I see it, in the regulations.
If we want to say that chemicals are not removable, that
it's so much penalty per unit with a maximum fine, than all we
need is a strong enforcement program, a lot of investigators
to get a lot of the right kind of evidence for the civil hearing;
or, if it eventually goes to a court case, people trained to
get evidence for enforcement. All we're going to need to imple-
ment the program is a strong technical investigative staff for
enforcement. If you're going to consider which industry, what
companies are responsible in their actions, then there is going
to have to be a lot of dependence on the OSC. I heard this
morning the statement that the hearing officer should not be
the OSC. If I were a responsible company which had a spill and
tried to do the best I could to reduce the insult to the environ-
ment to protect the health and welfare of the people, I would
want that OSC to be my God or my judge-advocate as to what
penalty I'm going to have to pay. Even for a chemical that is
not removable, it's an adage, it's an old joke, "dilution is
the solution." But dilution many times helps. Many times
people can aerate the product. It can't be recovered, it can't
be cleaned up, but there is a lot of action they can take. The
taking of such other action as may be necessary to mitigate or
minimize damage to the public health or welfare as in the regu-
lations, I see as the most important part of the entire thing.
And I think strong emphasis should be on this. If we're going
to be fair to industry, if we're going to be fair to the public,
I think that has to be the key point. And if a company is
responsible and if they try to do the right thing, in the view-
point of the man that is out there looking it over, be it OSC
from the Coast Guard or EPA, if they try to do what is right
to clean it up, if they try to mitigate the damage, that should
be the biggest, most important bearing factor upon the penalty
that is assessed. And be it right or wrong, the key person
in determining the penalty is going to be the OSC. If you are
not going to go that route, if you are going to make a formula
for your penalties and just grind it out through enforcement,
then all we need is a bunch of technical investigators to gather
the facts. Thank you.
DR. ALLEN L. JENNINGS; Again, Mr. Diefenbach will be prepared
for questions after the next speaker. Our next speaker is here
representing Region IV, Mr. Al Smith from the Environmental
Emergency Branch there. He is Mr. George Moein.
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MR. GEORGE MOEIN: If I didn't know any better, it would
appear to you that I have copied my presentation entirely from
my colleague, Russ Diefenbach. But perhaps there is a message
in the similarity. I, too, would like to start with a bit of
statistics. In EPA nationwide, for the past two years, we have
received reports on approximately 765 hazardous materials spills.
In Region IV, which is headquartered in Atlanta, we have records
of 140 hazardous materials spills out of the 765. I think this
is significant; that eight southeastern states have experienced
roughly 25 percent of the total hazardous materials spills in
the country.
Now to give you a little breakdown on our oil spills vs
hazardous materials spills, in January of this year we had 53
oil spills, 6 hazardous materials. In February we had 47 oil
spills, 6 hazardous materials. In March 45 oil spills, 6
hazardous materials. In April we had 40 oil spills, 6 hazardous
materials. In May 47 oil spills, 9 hazardous materials. In
June we had 30 oil spills, 9 hazardous materials. In July 31
oil spills, 11 hazardous materials. And in August 37 oil spills,
9 hazardous material spills. So the percentage of hazardous
material spills is between 13 to 15 percent of oil spills. In
Region IV we have had spills of sodium hydroxide, sodium hydro-
sulfide, sulfuric acid, nitric acid, hydrochloric acid, anhydrous
ammonia, acrilonitrile, polyvinyl chloride, vinyl chloride,
molasses, PCB's, perchloryl ethylene, and many more.
Now in Region IV we have a very active response program.
We have responded to many of the hazardous materials spills that
I have listed and tried to mitigate the environmental damages
by various techniques. The fact that we have not had any regu-
lations for hazardous materials frankly has not been the deterrent
factor in our response activities. But we have been and are very
anxious to have these regulations published so we can do away
with this piecemeal approach of backslapping and threatening
the polluters and get on with the job that Congress intended for
us to do.
The question facing us today is what type of regulations in
the area of determination of harmful quantities and rates of
penalties should we have so, as the operating arm of this agency,
we can promulgate. Our plea from the outset is simplicity. We
cannot at the present time live with a set of regulations that
will look like a long dissertation of complex formulas and
equations that require many hours of interpretation.
My personal experience has taught me that responding to
hazardous material spills is totally different from responding
to an oil spill. A typical oil spill is confined to one medium -•
water. The responding individual is responsible for containment
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and removal of the nonsoluble product from the media, a task
that is often accomplished with a high percentage of success.
The typical hazardous material spill is a total environmental
crisis. The calamity affects not only the aquatic environment
but also the air and often the health and welfare of the entire
community under very confusing and deteriorating conditions.
Under the National Contingency Plan, EPA's on-scene
coordinator carries an awesome amount of responsibility. He
is singularly responsible for management of environmental crises
which range from coordination of evacuation of an entire community
to the expenditure of thousands of dollars of federal funds. The
forthcoming regulations should be designed as operating tools for
the field personnel, rather than as a set of documents which would
require many days of field investigation and sophisticated
insight or analysis to determine the harmful quantity of a
particular product and therefore the assessment of penalties.
Again as an on-scene coordinator, I envision our primary role
as providing advice and expertise for mitigation of environmental
damages caused by the spills of hazardous materials. Long
legalistic field investigations are outside our area of training
and expertise. We ask you to provide us with a set of regulations
that we can implement in a practical way in the real world.
Thank you.
DR. ALLEN L. JENNINGS; I'll throw it open to questions now
from any of the three speakers in the last session.
QUESTION (FLOOR MIKE): It would appear that there is some
difference of opinion between field and headquarters personnel.
Will field personnel play a role in development of regulations?
DR. ALLEN L. JENNINGS; In the development of regulations,
we certainly will have to do it. That took us by surprise, too,
or at least me.
I would like to ask Mr. Brown to comment on the availability
of the revolving fund for damage mitigation activities.
LCDR. GEORGE BROWN: Damage and mitigation?
DR. ALLEN L. JENNINGS; Yeah, the availability ot the
revolving fund for damage mitigation of hazardous material; not
removal, per se, but mitigating actions.
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LCDR. GEORGE BROWN: Well, if you'll read the Section 311-K
and the subsequent 311-C, you'll find the term is only removal,
then you have to harken back to the total definition, removal is
the actual removal as well as minimize or mitigate. The fund is
available for all of that activity, not just the actual removal.
At least that is our interpretation. Now there is an area
where you can stray from that and you start talking about resto-
ration. When we want to use that term, we don't put that term
as part of removal.
QUESTION (FLOOR MIKE): In 311, the consideration of harmful
quantity applies to oil and harmful quantities. How would harm-
ful quantities be determined for oil?
LCDR. GEORGE BROWN: Determination of harmful quantity for
oil has also been delegated to the Administrator of EPA, and that
has been done. It's a definition that is in essence a visible
sheen. It has a lot of other qualifying words but basically it
is a visible sheen. That is a practical definition. It is an
observation of oil on the water; it's prima facie evidence that
in fact a discharge has occurred. One need only then prove that
your observation is in fact oil and has in fact emanated from the
source you suspect. It is very practical and very easy to apply.
You don't have to come up with quantity, per se, it is just a
visible sheen.
QUESTION (FLOOR MIKE): What about the penalty?
LCDR. GEORGE BROWN: The penalty under Section 311 (b) (6)
applies to a discharge, and there are three provisions that would
affect the size of the penalty, the size of the business, the
ability of the business to remain in business and the gravity of
the offense. We have promulgated an internal directive, or at
least it's being considered, that amplifies those three points
and how the hearing officer should develop that information and
then use it in assessing a penalty. The size of the discharge
is not listed by the Congress as one of those things to be con-
sidered, although it is perhaps implicit or inherent in gravity
of the offense. This is one of the things we handle. Enforce-
ment isn't my bag. I don't deal in it every day and I'm not
exactly clear as to how that fits into the gravity of the
offense.
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QUESTION (FLOOR MIKE): Commander Brown, you have said the
CHRIS manual contains 900 compounds, many of which are designated
hazardous materials. How well does it, the designated list,
correlate with the OHM-TAD System?
DR. ALLEN L. JENNINGS; I'm not sure how the two systems
cor relate^ exactly. We did supply the OHM-TAD System to the
Coast Guards contractor in the early days of assembling the
CHRIS system. Do you have any idea about that, George?
LCDR. GEORGE BROWN; I think his question was to you. Does
your long list of hazardous substances in your TAD System
include all of the hazardous substances?
DR. ALLEN L. JENNINGS: Yes, it will. Yes.
LCDR. GEORGE BROWN; It was not how well the two systems
correlate.
DR. ALLEN L. JENNINGS: Ok.
QUESTION (FLOOR MIKE): Once the hazardous materials
regulations are promulgated requiring notification, would you
expect to be notified of spills of less than harmful quantities?
LCDR. GEORGE BROWN: Yes, the provisions of notification
do not tie to harmful quantity. It only ties to discharge.
DR. ALLEN L. JENNINGS: Yeah, Jack.
QUESTION (FLOOR MIKE); If you receive a report, does this
cover state? For example, if you received a report from
Chemtrec or from some company that has had a spill, will noti-
fying you be sufficient? What I'm trying to say is does noti-
fication cover all bases? There's a lot of bases to cover.
The point is, do you cover the states involved? Or how do you
do it?
MR. RUSSELL DIEFENBACH: To answer your question, many of
the states have requirements that the spills have to be reported
to them, but with the states that do have a response capability,
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we do report it to the state. We report to Illinois EPA, Ohio
EPA and Michigan DNR. In Indiana we do not all of the time
because of their response capability. So it depends upon what
the capabilities of the state are.
QUESTION (FLOOR MIKE): What I really asked is, do you
automatically tell the state? Or would you expect the reporter
to you to tell it?
MR. RUSSELL DIEFENBACH: Basically we feel that it is the
responsibility of the spilTer to report it to the state. It's
his responsibility. Now as a matter of courtesy to the state,
an interchange of information between the EPA and the state
agencies, we do interchange information. We assuredly always
send a teletype to the Coast Guard informing them of it. That's
a standard procedure. But we feel the responsibility of
reporting it to the state lies with the spiller. When we report
it to the state, it's a matter of courtesy between us and the
state in our interrelationship.
QUESTION (FLOOR MIKE): When your people arrive at the scene to
determine what's going on, if the scene's being handled by some-
body else, do you ordinarily intervene or do you leave them
alone?
MR. RUSSELL DIEFENBACH: If we feel that the incident is
being handled well, we leave it alone. If it is company people
out there, and they have control of the situation, our only
impact then is to monitor the situation. There's no sense in
our butting in and adding to confusion.
QUESTION (FLOOR MIKE): I would like to add a statement
to compliment the Penn Central Railroad who were effective in
handling the situation you mentioned earlier.
LCDR. GEORGE BROWN Can I direct a statement I just made
awhile ago, concerning notification? I have a bureaucratic
term, "mispoke". The provisions of notification apply to harm-
ful quantities. The acts reads in (bK), it references back to
Section (b)(3), which is harmful quantities. So I mispoke;
notification is only for harmful quantities. Thank you.
QUESTION (FLOOR MIKE): Commander Brown, these data sheets,
will they include oil as well as hazardous substances, in other
words, say all the substances in subcategory 0 and subcategory D?
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LCDR. GEORGE BROWN:
Yes, there are data sheets in both
We don't made the distinction in the
manuals 1 and 2 on oils.
system as to oil or hazardous substances, we just use the general
generic term, chemicals. It's not adequate either but I'll
probably dig a deeper hole the more I talk. The answer to your
question was a simple yes.
DR. ALLEN L. JENNINGS; Yes, the gentleman there.
QUESTION (FLOOR MIKE): Will proceedings from this conference
be available?
DR. ALLEN L. JENNINGS: Yes, they will.
QUESTION (FLOOR MIKE): Will industrial expertise be called
in even if it comes from a nearby source not responsible for the
spill?
MR. RUSSEL DIEFENBACH: I would view what you have proposed
as being the ideal situation that we could get. If Dow Chemical
has the spill and Monsanto has a man who is familiar with that
same chemical closer in the area and they have a working agree-
ment through a Trade Association or an industrial group, an
expert gets out there and it is handled well and expeditiously,
that is the most important thing and I think that this ought
to have a lot of bearing on whether or not a penalty is assessed
or just how severe the penalty is.
QUESTION (FLOOR MIKE): Mr. Brown, in Section 311 the term
"navigability" is used. How would you define this?
LCDR.^GEORGE BROWN: I'm going to assume you are referring
to the definition of navigable waters. For the purposes of
Section 311 we would jump over to Section 502 where one of the
definitions states what navigable waters are. It says "the
waters of the United States" and that's a broad term. We've
had great debate on exactly how far we are going to extend that
and we chose not to go all the way to the wet bar in your base-
ment. While it might be enjoyable, it perhaps is not practical.
So, in that light, we have looked at all the river systems.
Obviously all the traditional navigable waters fall within
that term. And then, other waters, rivers, entire river systems
all the way back to the source. We've even made determinations
on dry washes when there is water in them or the imminent threat
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of water in them. We've gone a long way to define that term
"navigable waters" but Congress made it clear in their report
on the legislation that they wanted the broadest possible
Constitutional interpretation given to that term and that's
just horf we're applying it. There are still instances that
require case-by-case analysis. We've tried to make a generalized
definition and promulgate that and we have, in an instruction
within the Coast Guard. We had our Chief Counsel write a rather
long legalistic interpretation and we made that known, to give
people as close a general guideline as we could. Now, there
still are some cases. What do you do about the pond on one big
farm that a guy has, and it's his pond and he spilled some oil
on it and it doesn't go anywhere? What are you going to do then?
Is that a navigable water? It's clearly a water of the United
States. So there are still some legal questions, but it is a
pretty broad definition.
QUESTION (FLOOR MIKE): I just want to make a statement
real quickly pertaining to the definition of navigable waters.
This appears in the Environmental Reporter, September 20, 1974.
...It gets into a discussion of removability, what is oil, and
who determines what is a harmful quantity, also what is a
navigable water in a second base. In my opinion, these are
power-packed definitions.
QUESTION (FLOOR MIKE); There has been mention of hazardous
materials that have spilled about how much a penalty, if a penalty
is to be imposed. I have heard the statement that if any oil
is spilled there will be a fine imposed irrespective of whether
it is cleaned up or removed, or whether it is shown above a sheen
to have caused environmental damage. Does this mean that there
will be a different policy 311? In other words, given a spill
of a harmful quantity, will there be discretion that no fines
might be imposed depending upon neutralization, etc.?
LCDR. GEORGE BROWN: There are two penalties involved of
which you are speaking. One is the penalty under 311(b)(6),
which is the $5000 penalty administered by the Coast Guard.
And then there is the penalty for nonremovability which is
administered by the EPA. The provisions that you spoke to
concerning the $5000 penalty for oil, and that there is in fact
a penalty assessed, will remain in Section 311 (b) (6) . It will
be extended to include substances designated as hazardous.
I'll let the EPA people speak about the penalty for nonremovability,
but that is a distinctly different penalty. Maybe you want to
comment on whether it will or will not be assessed.
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DR. ALLEN L. JENNINGS; Well, I might address that. With
an oil spill you have the liability for cleanup, but the Congress,
recognizing that things other than oil may not be removable, has
established this penalty for nonremovability and that's part of
the regulations that we will talk about for the rest of the day
and next two days. But, it is our aim, anyhow, to try to promote
damage mitigation or removal that is not directly physical and
possibly forgive some of the penalty that we establish on a rate
per unit volume before the fact. This is why we need our field
response people. Does that answer the question?
QUESTION (FLOOR MIKE): So, in other words, if you spill a
quantity, you can expect at least some fine.
DR. ALLEN L. JENNINGS: You are susceptible to the Coast
Guard penalty for the harmful quantity and then there is the EPA
penalty for nonremovability.
QUESTION (FLOOR MIKE): Your field personnel have made some
comments on the practical aspects of responding to spills. Would
either of you like to make a comment on how you view these
regulations?
MR. RUSSELL DIEFENBACH: We decided there was no comment
from either one of us.
DR. ALLEN L. JENNINGS: We do talk to them, though.
MR. RUSSELL DIEFENBACH: We're going to get them to listen
one of these days. (Applause)
D_R_. ALLEN L. JENNINGS: Actually, they are too busy running
around chasing spills all over the country. But they do act in
a review and comment capacity on almost everything we do.
QUESTION (FLOOR MIKE): I think we are a little bit unfair
here. The real problem, as I see it, is an attempt for the law
to try to force dischargers to quit spilling through a penalty
mechanism. But it is very difficult to come up with regulations
that can help the people out in the field in this task. They
need better cooperation to minimize hazards. The penalties do
not help them.
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DAY 1, OCTOBER 21, 1974 - AFTERNOON SESSION
DR. ALLEN L. JENIJIETGS; I would like to start oft the atter-
noon session with a reannouncement that I made this morning con-
cerning the social hours. Now it's one hour. There will be a
social hour tonight and it's going to be in the Quality Inn,
Conference Rooms B and C, for all attendees. EPA and Coast
Guard representatives and attendants are going to have a
separate social hour and get-together in Conference Room A,
just to keep it in the family. That's where we get down to
the real details.
Last winter, I guess it was about last December when we
had time to seriously consider the regulations of determining
harmful quantities and penalty rates under Section 311, we
drafted a request for proposal to develop technical documentation
and methodology for deriving the regulations. The successful
bidder was Battelle-Northwest Laboratories and they have been
at work since that time creating four independent methodologies
and the technical documentation for them. To date the culmination
is in this report that is in your registration package with the
beautiful cover in three volumes and this afternoon's session is
dedicated to the Battelle representatives presenting the detailed
methodologies. The first speaker is Mr. Gaynor Dawson, a Senior
Research Engineer from Battelle-Northwest and the Project Officer.
So I will turn it over to Gaynor.
MR. GAYNOR DAWSQN: Thank you. If I could get the slides
turned on here, we'll jump right into this. First of all, I
would like to reemphasize that the work we are talking about
this afternoon deals with two facets of Section 311, the first
being determination of harmful quantities and the second being
establishment of an approach for setting rates of penalties.
The second thing I would like to mention is that we are
doing just that; we are talking about developing technical
approaches. We are not attempting to write regulations or
anything along the line of policy decisions and so forth. Our
function is solely to develop alternative technical approaches
which are available for review by the EPA and could be considered
as various ways of determining these harmful quantities and rates
of penalties.
So, in the work we developed at Battelle, we actually
ended up deriving four alternative approaches. Briefly, I'll
give you a description of the four and we'll talk about some of
the underlying concepts in the development of these four and
then we will proceed to detailed discussion of each methodology,
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which will be followed by a question and answer period on that
methodology. And finally, when we have completed the presentation
of the four, we'll throw it open to comments pursuant to com-
parison of the four and general comments and so forth.
The first methodology, the Resource Value Methodology,
focuses on an attempt to look at the value of the resource
potentially damaged and in some way try to recover that value
in the penalty system. The second approach, the IMCO Method-
ology, is similar in rationale, but it attempts to be compatible
with the system of grouping chemicals presently proposed by the
IMCO group. In this way it would offer some type of consistency
with what hopefully will be an international convention in the
near future here, which at least is subject presently to incor-
poration by the various nations. The third methodology, the
Unit of Measurement Methodology, is somewhat different from the
others in that it attempts to define the unit of measurement as
an independent variable and work from there. And in this respect,
we could say it is a very literal interpretation of the word of
the law as opposed to the intent. Finally, the fourth methodology,
the DOHM Methodology, utilizes a plug flow model to try and
focus on the dispersive characteristics of a water body and how
much one could spill until a plume reaches sufficient size to
cause substantial harm. It sets a rate of penalty based on the
cost of prevention. This focuses on the intent of the law, the
avowed policy of which is to prevent oil spills. It does so by
trying to set an economic incentive to accomplish that.
In developing the methodologies we'll be talking about this
afternoon, we had four basic underlying concepts or assumptions,
if you will, that we worked under. The first involved a kind of
a trade-off between the ease of implementing and enforcing the
regulation vs the degree of resolution for that regulation and
I think it is important to understand that it is very simple to
come up with a very simplistic general regulation -- a single
harmful quantity for 400 substances for all water bodies and
a single rate of penalty. It is very easy to enforce this type
of regulation; it is very easy to implement it. There's not
much work required either by the regulating agency or the dis-
charger himself. He knows automatically what the threshold
levels are regardless of the substance he's dealing with. On
the other hand, if we were to gain a great degree of resolution,
we might look toward some type of regulation that would be very
site-specific. That is, an independently derived rate of penalty
for every spill, for every substance, taking into account all
circumstances surrounding that spill, all mitigating influences,
all of the factors that were in play at the time the spill
occurred. Of course, I'm sure many of you realize that whereas
the other was very simplistic, this is very complex and in its
complexity it involves a great degree of cost on the part of
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the discharger himself in knowing when he is liable to report,
for him to plan his own prevention programs and so forth, in
terms of the economics involved with potential spills.
The second concept we are dealing with is very simple and
straightforward and that is the fact that the law talks to pure
compounds and elements and consequently the work we'll be
talking about this afternoon and the work that you see in the
three volumes you received in the registration packet deals
totally with pure compounds and elements. It does not deal
with industrial waste mixtures and so forth.
The third involves the unit of measurement. I mentioned
earlier that one of the approaches that will be presented here
is based on an independently derived unit of measurement. Now
if we read the law literally and look at the wording there,
taken solely as it stands, one would derive the unit of measure-
ment first, and then assume a rate of penalty from that. However,
in the work we performed, we made a little broader interpretation
and we said it's possible the unit of measurement could be a
dependent variable. That is, if one were to establish an economic
rationale for the total level of penalty, once one had set what
the fine should be for a spill, one could go back and redefine
the unit of measurement such that it fell within the Congressional
guidelines of $100 to $1000 per unit of measurement.
Finally, an issue that is at the heart of everything we'll
be talking about here is selection of what we call "the critical
concentration." By the critical concentration I mean the
threshold concentration in the receiving water at which we
define that harm has become substantial. The discussion of
these concentrations appears in Chapter 3 of Volume 2 under
The Underlying Concepts. This is a subsection of that chapter.
I suggest you all review this because essentially what we have
done here is, we have gone through the available data, we've
looked at the rationale for usina the various tvpes of data
(direct effects, indirect effects, induced effects, 24-hour TLm's,
48, 96, on median receptors, food fish organisms, etc.) and we've
determined, for the purpose of the present regulation, the
strongest basis for action would be the use of 96-hour TL5Q
data for median receptors. And we defined median receptors
in that chapter. Briefly, for freshwater, we're talking about
bluegill or fathead minnow when the data exists, for saltwater
we're talking about commercially important shellfish, oysters,
clams, and shrimp when the data is available. And I think that's
the key issue here, that aside from the philosophical point
that could be made for and against the selection criteria and
so forth, perhaps the overriding issue involved here is the avail-
ability of data on the substances we're talking about. It's fine
to say you're going to base regulations on the 280-hr, TL25 for
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Daphnia-Pulex and then find you have that data on a single
substance. So, the point to be made here is that we have to
use what is available and what is reasonable as a guideline
in developing the work.
Given these underlying concepts, we've established the four
alternative approaches. Each approach or methodology can be
characterized by three principal factors. The first is each uses
an independent or unique method of defining substantial harm.
This is necessary if we're going to in turn define a harmful
quantity. A harmful quantity is that mass or volume of a
compound capable of producing substantial harm when released
into the environment. Second is that each contains its own
rationale for setting the base rate of penalty. We attempted
to say that the rate of penalty itself, the absolute value of
the fine, should in some way have some economic meaning. It
should provide incentive for the purposes of the act or in some
way be other than an arbitrary and capricious dollar value.
Finally, the third distinguishing characteristic: each method-
ology has a means for differentiating between substances the
rate of penalty. This addresses itself to the portion of the
law that requires consideration of the dispersal characteristics,
degradability, and toxicity of a substance in setting the final
rate of penalty.
Given this background and the boundary conditions under
which we tried to operate, we'll begin with a discussion of the
Resource Value Methodology. This appears in Chapter 4 of Volume
2 of the volumes you received. If we put it within the context
of the outline we just discussed, the definition of "substantial
harm" here is "harm which produces damage to the environment,"
the environment or the resource damaged being worth at least
$10,000 in present value. We'll describe how that was derived
in a moment. The rationale for the base rate of penalty is
that the fine should be such that it recovers the environmental
loss caused by the spill. Therefore the penalty is equated to
the value of the damages that occur from such a spill. Finally,
the means of differentiation is the use of what we call extrinsic
and intrinsic adjustment factors. That's a fancy way of saying
we've got some factors in there to adjust for the physical-chemical
characteristics of the substance. We'll discuss these in a moment.
And we also have some factors in there that can be used on a site-
specific basis so that you can indeed focus your penalty down,
fine-tune it, so to speak, to a point where it takes into con-
sideration the location of the spill and the dispersal character-
istics of the receiving water.
How did we define substantial harm as $10,000? Well, there's
a diagram that appears on page 35 of the second volume and there's
a discussion from page 35 through page 38. The diagram shows you
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a small decision tree. We're looking at the basic tenets of the
law here. That is, let's assume a spill occurs and this spill
is at the margin. It is a harmful quantity or just over a harm-
ful quantity. The discharger has the option of either reporting
or not reporting. If he does not report, he faces the possibil-
ities of the spill going undetected or the spill being detected
by a third party. If we look at the consequences of each of these
branches on the tree, we find that there is one case where he
does not report and the spill goes undetected where essentially
the cost to him is zero. He's not obligated himself to any
penalties. He's not undertaken any costs. He's won the proba-
bility game, so to speak.
On the other hand, if the spill is detected, not only is
he liable for the civil penalties involved with spillage of a
harmful quantity and spillage of a nonremovable hazardous material,
he's also subject to criminal penalties of up to $10,000 for
failure to report. If on the other hand he has reported the
spill, he may be subject to the very same civil penalties as
discussed above except that he no longer is liable for the
criminal penalty. So what we find here is the differentiation
between these two branches of the decision tree is indeed the
$10,000 criminal penalty imposed for failure to comply with the
reporting aspects of the regulation.
If we look at it in this light and we say, "What civil
penalty should we set such that in most cases he will have
economic incentive to report a spill in excess of a harmful
quantity?" (because that's what the law is attempting to do --
the regulating agency needs to know when quantities potentially
harmful to the environment are spilled); and through our analysis
we determined that $10,000 was the appropriate level. That if
indeed he knew he was obligating himself to a fine of up to
$10,000 by reporting a spill, he's still likely to report it
because of the criminal penalty involved and the potential
imprisonment with not reporting it. Well, this is obviously
a rather cursory discussion, but if you look at what is given
in pages 35 through 38 and review the decision tree there, you'll
see the rationale we used for selecting $10,000. It may well be
in your mind, because the probability of being detected or
undetected you feel is slightly different than the 50 percent we
used, that you feel the level should be $5000 or whatever. The
point to be made here is the approach itself. That is, that
one can set a dollar level and say that when the environment or
when environmental values in excess of this dollar level are
threatened because of a spill, we do indeed want this spill to
be reported. It is of sufficient value to warrant action on the
part of the responding agency and attempts at mitigation, removal,
etc. If we assume this $10,000 level as the substantial harm
threshold, what we are saying, then, is that there is a critical
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volume of water (and that's being defined by taking the $10,000
threshold level and dividing it by the present worth value of
the water body into which the spill has occurred) and that volume
defined by that equation is the volume of water that has to be
threatened before we will consider the quantity a harmful quantity.
This obligates a second exercise; we have to value the various
receiving waters in order to derive what the critical volume is
and therefore define a harmful quantity for each of the designated
hazardous substances. So to do this we undertook an evaluation study
This appears in Figure IV-5 on page 43 of Volume 2. This refers
to the values of lakes. Essentially, in this exercise we gathered
data throughout the United States on how people have valued
various water bodies, in particular lakes, and the method which
they used to value the water body. We found a family of curves
much as you would expect, with the marginal value of an acre foot
of water declining as one goes to larger and larger lakes. In
the Great Lakes one would expect an additional acre foot of water
to be of much less value to society or to the people using the
lake itself than an extra acre foot of water would be in the
Southwest in a lake that was only two or three acre feet in size
originally. Consequently, we had to select from the family of
curves that valuation methodology which represented uses typically
threatened by a spill of hazardous materials. We ended up
selecting the recreational water contact type of use on a non-
withdrawal basis. That is, the values that we selected were
those relating to swimming, recreational beach use, water contact
sports, boating and fishing. These types of recreational activ-
ities are most likely to be impacted by a spill; these are the
activities that probably would be suspended or would be trans-
ferred to another water body were the water body contaminated
by a spill.
Using this data, we derived the graph you see up here.
Essentially the vertical axis is looking at the total size of
the lake and the horizontal axis is looking at the total value,
using the valuation methodology. Using a correlation analysis
here, what we essentially determined is that on a present worth
basis the $10,000 substantial harm level is met when one reaches
50 acre feet in size; that corresponds to a unit value of some-
where around $200 per acre foot. That would be on a present
worth value if one were to change that into, say annual income.
On an annuity basis, you would be talking about approximately
$12 per year per acre foot.
We also attempted to make a similar correlation with rivers
but no correlation was readily apparent. It's very difficult
to deal with rivers in this matter because volume is not the
only consideration. You're concerned with shoreline, or length,
you're also concerned with flow rate, the volume of water and so
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forth and very little work, if any, has been done in this country
to value rivers on this basis. Consequently, we assumed for
the purposes of this work that because there is a great deal of
interaction between the lake and a river and because often, in
terms of hazardous materials spills, the lakes that are threatened
may well be reservoirs on otherwise flowing streams, that we
would equate the critical volume for lakes and rivers. Conse-
quently, all freshwater systems, lakes and rivers, have been
given the value for the purpose of this methodology of $200 per
acre foot, present worth, a critical volume of 50 acre feet.
A similar analysis was done for estuarine systems. Obviously,
the value for estuarine systems is best derived on an acre basis
because the value, at least in terms of major income, is a
function of the surface area upon which the shellfish could grow.
And, in fact, the major input to valuation of estuaries has been
on a basis of the sport and commercial harvest of shellfish
species. Utilizing this valuation technique, we got the curve
you see here. This time the vertical axis deals with acreage,
the horizontal axis deals with total value. We ascribe to
estuarine systems of the United States an average depth of
approximately 10 feet and one derives a unit value of $400 per
acre foot. This is equivalent to a critical volume of approx-
imately 25 acre feet. That is, when you spill a substance in a
quantity sufficient to contaminate to the 96-hour TL.5Q 25 feet
of estuary, you are potentially damaging $10,000 worth of
environment and therefore, using the definitions developed here,
have produced substantial harm.
The final water body type that we have dealt with in these
methodologies is the coastal waters. Of course, they are rather
difficult to deal with, somewhat like the rivers. However, the
approach we took here was that we could value coastal waters
on the basis of two essential factors, the first being the
intrinsic value of the water itself. By this I mean the annual
income from recreational swimming and beach use on coastal
beaches and the-, fisheries harvest in nonestuarine waters. These
values derived came out at about $1.20 an acre foot. This is on
a present worth basis. The second factor involved is the influence
of the coastal waters on estuaries. There is obviously a con-
stant interchange between coastal waters and estuarine systems.
Therefore, spills in the coastal waters often pose an imminent
and substantial danger to estuarine systems. Consequently, we
took an idealized estuarine model with a 50 percent interchange
with the coastal waters and we ratioed the volume of coastal
waters and tiie volume of estuarine waters in the United States.
This came out essentially that coastal waters were 1/200 the
value of estuary. This gives us an additional $2 per acre
foot, the sum total being $3.20 per acre foot for coastal waters.
Now obviously that differs by several orders of magnitude from
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the values derived for freshwater systems and the estuary
systems themselves. If we summarize these results we're talking
about four water bodies with intrinsic present worth values of
$200 per acre foot for the freshwater systems, $400 for the
estuaries, and $3.20 for coastal waters, and that results in the
critical volumes you see over on the right there.
Having derived a critical volume, it is quite easy to deter-
mine a harmful quantity. One takes the critical concentration,
which we have defined here as the 96 hour TL5Q for the median
receptors, multiplied by the critical volume for the water body
type of interest and, using the appropriate conversion factor,
one comes up with a harmful quantity.
From here we can move right into the rate of penalty because
we have equated the rate of penalty to the value of the damages
potentially imposed upon the environment. Consequently, the base
rate of penalty is the $10,000 per harmful quantity, because
we've defined the harmful quantity as that quantity which could
potentially damage $10,000 worth of environment. That's fairly
straightforward. However, at the same time, we have to recognize
that there are factors which influence the ability of these
chemicals to exert their hazard potential on the various water
body types. We defined these variable as intrinsic and extrinsic
factors. If we look at the intrinsic factors, we're looking
essentially at two items. The first is what we call the annuity
factor and this takes into account the duration of the impact.
I realize that this begins to become a rather technical discussion
of economics. But, what we're really saying here is that the
$200 per acre foot, the $400 per acre foot, etc. are based on
the total present worth of the income from that water body over
essentially an infinite life. Obviously, for most substances,
the spill of the hazardous material will not destroy that water
body for an infinite period of time. Consequently, we need to
readjust the factors and in this case the adjustment is downward,
to account for the fact that in most cases the impact will endure
for, say, one, two or three year periods, perhaps. The general
guidelines we used here were that all spills would have an impact
of one year, because regardless of the fact that it may well
degrade in a five day period, ten day period and so forth, if it
indeed was able to destroy aquatic life, it would take a year at
the minimum to restore that water body to the same levels of
life that it enjoyed prior to the spill. Consequently, we use
a minimum here of a one year impact. We go to a maximum of
an infinite impact when we talk about something such as a bio-
concentrative material where biochemical cycling has the ability
to resuspend and keep the material in constant interaction with
the environment until some outside action is taken to actually
remove this substance from the water body. Then, we are no
longer looking at the total present worth of the water body.
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We're looking at the present worth of the annual income from
that water body over the number of years for which the impact
is likely to endure. To give you an example of what this does:
whereas before we would speak of a substance at a harmful quantity,
which therefore would be a $10,000 fine, now, it is ascertained
that the impact of this material (say a biodegradable substance,
something like acid aldehyde) would only be for one year max.
In that case, the fine is essentially 1/16 of the value you see
there; that is, $10,000 over 16. So the fine is substantially
reduced in the: case of a substance that is highly degradable.
And then, it works its way back up to the full $10,000 for the
bioconcentrative substance, the persistant organic, persistant
inorganic and so forth, and you can find the exact values that
were used on page 50 of Volume 2. You can get an idea of how
we attempted to categorize substances in terms of the duration
of their impact and so forth.
The second intrinsic factor, the DISP factor, if you will,
dispersion factor, attempts to relate the ability of a substance
to spread in the environment. What we are talking about here is
the fact that if we use a straight model, if we use the critical
concentration to derive a critical volume and so forth, essentially
what we are assuming under that type of an approach, is instant
mixing to the critical concentration, which obviously is not the
case for most substances. Consequently, if we use the instant
mix, we would be going with the worst case basis. So the dis-
persion factors have been derived to reflect the sinking, floating,
solubility, and potential volatility characteristics of a sub-
stance which will mitigate its ability to disperse in the environ-
ment. This will limit the volume of water to that which it
actually affects, rather than how much it potentially affects
if one uses the instant mix criteria. Once again, those values
are available on a table there in Volume 2, somewhere around
page 52, I believe, and you can see the values that we used at
that time, how we would compare a soluble substance to an
insoluble substance, a sinker to a floater, etc.
The base rate of penalty that would be defined for each
substance would include these intrinsic factors. We have also
developed what we call extrinsic factors, that is site-specific
factors, which we feel can, if the agency so desires, be utilized
in any specific spill situation to reflect actual conditions
which prevail at the actual time of the spill and would have
mitigated effects of the spill or had some effect on its ability
to actually impact the environment in the most possible manner,
as opposed to the most probable. There are two things of
importance here. The first of course is that the environment
into which the spill occurred may well have had a much different
value than the average value used in deriving the harmful quantity
and rate of penalty. That is, obviously when you are dealing
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with the United States as a whole and you are dividing all waters
into four categories, a great deal of averaging occurs. There
are many water bodies which simply do not have aquatic life,
which simply do not support recreational activities. And these
water bodies are suffering much less damage than the average
water body would have under the same spill conditions. On the
other hand there are some very valuable water bodies which
receive very high recreational use which would have values in
excess of those used. Consequently this variable allows the
regulating agency to attempt to adjust the fine with respect
to the actual water body value. The second extrinsic factor
here, the locational factor, is a rather complicated one. It's
defined in Appendix D of the third volume. Essentially what
we've done here, we've taken a computer model for various water
body types and determined what volume of the water in a spill
situation is actually exposed to the critical concentration, vs
the maximum potential exposed if one uses the instant mix to
an isoconcentration level assumption. And so what we've derived
here is a fraction that we call the probable volume vs the maximum
potential volume. And once again this reduces the rate of
penalty because it reflects the fact that some waters receive
overkill, so to speak; that is, they maintain concentrations in
excess of the critical concentration and we actually are seeing
a bell curve type of concentration as opposed to an isoconcen-
tration. Once again I would mention that these factors are site-
specific ones that are placed on the penalty after-the-fact and
are totally optional. We offer them only as a possible means of
trying to add a little greater degree of resolution to the
process of setting the penalty.
Now I'd like to run through an example quickly here. Say
we have a spill situation, we're talking about acetaldehyde,
we're talking about a spill of 2,000 gallons into a river. How
would we derive the rate of penalty? First of all we have to
derive the harmful quantity which by the simple formulation before
would be the critical concentration times the critical volume.
In a river the critical volume would be 50 acre feet. For
acetaldehyde the critical concentration has been set at 53
parts per million. Consequently we get a harmful quantity of
7200 pounds. That means if we are to evaluate the fine here,
we are talking about a base rate of penalty of $10,000 for 7200
pounds. We now apply the annuity factor, that is, that which
reflects the duration of effects. Since acetaldehyde is very
biodegradable, quite volatile, the effects are not likely to
endure for greater than a year, we have the lowest annuity factor
available, the .06. The dispersion factor is given as one
because the substance is essentially miscible, will spread rapidly
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and so forth. By computing these values, then, we find that
the spill of 2,000 gallons of acetaldehyde would generate a rate
of penalty of $1087. Now this value does not include any
extrinsic values which could be placed by the regulating agency
depending on the specifics of the spill location. So at this
point, I'll open it up for any questions on this specific
methodology or any of the preliminary remarks and once we've
gotten through those, we'll go right on to the second alternative
approach. Could you turn the slides off there?
QUESTION (FLOOR MIKE): Where did the 0.5 come from?
MR. GAYNOR DAWSON: Could you turn the last slide back on?
Let me see here.
QUESTION (FLOOR MIKE): Is that 0.5 or .06?
MR. GAYNOR DAWSON: I should have been .06. Excuse me.
That's a mistake in the slide. I believe the calculations are
still correct, it's just the wrong number was placed in the
equation. Sorry about that. Any other questions? Ok. I'd
like to introduce Mr. Mike Stradley, also from tsattelle-Nortnwest.
He'll go through a discussion of the second approach.
MR. MIKE STRADLEY; Ladies and Gentlemen, today I would
like to discuss the second methodology, the IMCO/GESAMP Method-
ology. This methodology is based on an international hazardous
material rating and classification system which has evolved out
of the deliberations of the Inter-Governmental Maritime Con-
sultative Organization, or IMCO and GESAMP, Joint Group of
Experts on the Scientific Aspects of Marine Pollution. This
system can be found in Annex 2 of the Proposed Regulations for
the Control of Pollution by Noxious Liquid Substances from
Ships which is a convention that came out of the 1973 Inter-
national Conference on Marine Pollution. Now this convention
has been submitted to maritime nations for adoption. Presently
it has not been adopted by this country. When it is adopted,
it will be used to regulate the operational discharges of ships
engaged in the transport of noxious liquid substances. However,
in its present form it is not possible to obtain harmful quantities
and rates of penalties from these regulations and hence some
modifications to these regulations are required. Our task then
was to make these modifications to the point where we could use
this system as a basis for computing harmful quantities and rates
of penalty. Can I have the first slide please?
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Now if we look at the three basic elements comprising the
IMCO Methodology we immediately notice that the first two
elements are identical to the Resource Value Methodology. The
definition of substantial harm is still $10,000 worth of damage
to the environment and the rationale for the base rate of penalty
is the value of the resources damaged. However, in the third
element, we note that there is a very different approach taken.
Under the IMCO Methodology we are dealing with groups, as
opposed to individual materials. Operations for computing the
harmful quantity and rate of penalty are done with groups as
opposed to individual materials. In order to be able to do this
we have to group the materials in two ways. The first grouping
is on the basis of the hazard potential. This is in accordance
with the IMCO rating and classification system and it allows us
to compute the harmful quantity and the base rate of penalty.
This system gives us four hazard categories, Categories A
through D. The second grouping procedure is on the basis of
physical-chemical characteristics. This results in 14 physical-
chemical groups which give us a general description of the way
various hazardous materials will behave in a spill situation.
From this we are able to estimate the dispersibility and
degradability characteristics of the material. Now today I'd
like to confine my remarks to the third element. Specifically,
I'd like to show you how we go about grouping the materials
and how we use these groups to obtain harmful quantities and
rates of penalty.
Let us first consider the hazardous potential profile. In
this slide we see the five hazard potentials which were considered
by the IMCO group. They are: bioaccumulation, damage to living
resources (and here we're concerned primarily with aquatic
organisms), the hazard that can result to human health through
oral ingestion of hazardous materials, the external exposure
hazard to humans, and the reduction of amenities. Consideration
under each of these five hazard categories is in the form of
a rating or score which is assigned to each material. This
rating system is fully described in Appendix E. When we consider
these ratings together we are able to develop a hazard profile,
as seen in the next slide.
Here we have two example materials, acetaldehyde and mercuric
nitrate. Across the top we see the five hazard potentials that I
discussed in the last slide. And in the center of the table are
the profiles for these materials. Now if we just take a look at
acetaldehyde (this coding system as I said is in Appendix E of
the report), we will interpret acetaldehyde. Zero under bio-
accumulation means that acetaldehyde is not known to be significantly
bioaccumulative. The 2 (and don't pay any attention to the circle
just yet) but the 2 indicates that it has an LC5Q between 10 and 100
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parts per million. The 1 score under Oral Health is indicative
of the fact that the LC5Q for acetaldehyde lies between 500 and
5000 milligrams per kilogram body weight with test animals in a
laboratory, typically rats and1 such. We don't have much oral
toxicity data on people. Under the external health hazards, the
zero rating indicates that there is no hazard associated with
acetaldehyde in a water solution. And the single "x" under
Amenities indicates that acetaldehyde is slightly objectionable,
but it doesn't persist very long.
Now, using the IMCO guidelines for categorizing hazardous
materials (and these are found in Appendix F of the report) we
are able to use this profile to categorize all the materials
into one of four categories. Here we see that acetaldehyde is
placed in Category C, which is the third highest category, and
mercuric nitrate is placed in Category A, which is the highest
rating or highest hazard category that a material can be placed
in. Acetaldehyde was placed in Category C because the guidelines
say that a material that has a rating of 2, as indicated by the
circle under Damage to Living Resources, is placed in Category
C. That is one of the placement criteria for this category. For
mercuric nitrate, there are two things in its profile that can
cause it to be placed in Category A: one is the fact that it is
bioaccumulative and hazardous to aquatic life and human health
(that is indicated by the plus under bioaccumulation) and also
by the fact that it has received a 4 rating under Damage to
Living Resources, which means that its LC5Q is less than one
part per million. So, in summary, what we^ve done here then
is start off with over 300 materials and by using these IMCO
guidelines, we have relegated all these materials to one of
4 hazard potential categories or groups.
However, in order to perform calculations with these groups,
we have to quantitate the groups, or specifically we have to get
a critical concentration that we can use for each one of these
categories. This slide shows how we went about doing that. Here
we see listed once again the 4 IMCO categories and the second
column we have entitled Representative Aquatic Toxicity Range.
Now this is really the range of LC5o's for that category. As
you'll recall, one of the hazard potentials in the profile was
Damage to Living Resources and the parameter of measure there
was the LC5Q. Now as it turns out, when you inspect the IMCO
guidelines for categorizing hazardous materials, you will see
that LC5Q or Damage to Living Resources is the only hazard
potential that appears in all 4 categories. Based on this fact
and also on the fact that historically most significant hazardous
materials spills have resulted in damage to living resources, we
use the representative aquatic toxicity range for each catetegory
as a basis for deriving a critical concentration for that category
So for Category A, the range is 0 to 1 and the mean is .5. For B,
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it is 1 to 10 and the mean is 5.5. So now we have 4 hazard
categories and a critical concentration representative of all
materials in that category. With this information we can com-
pute harmful quantities.
This slide summarizes what I have said to date and shows how
we arrive at a harmful quantity. We start off with a hazard
potential profile. We subject this profile to the IMCO guide-
lines for categorizing hazardous materials. These guidelines
relegate materials to one of 4 hazard potential categories. We
then assign a critical concentration to each of these categories.
From the resource value methodology, as you'll recall, we con-
sidered four water body types and for each of these water body
types a critical volume was computed. So we now have a concen-
tration and a volume, and when we multiply these two together
we obtain mass or harmful quantity. If we have 4 IMCO categories
and 4 water body types, we get 16 possible harmful quantities,
one for each category and each water body type. Now that we
have harmful quantities we can compute what is known in this
methodology as a base rate of penalty, which is the $10,000 over
the harmful quantity. But this rate of penalty is really a
worst case rate of penalty because it was computed on the basis
of a hazard potential, and I emphasize the word potential,
because that is what the profile does, it just gives us an
indication of the potential to cause damage, but not a real
indication of the actual damage that will be caused.
In order to obtain a final rate of penalty then, we must
also consider dispersibility and degradability. As a first
step we should consider the physical-chemical properties of the
material. This slide shows the four physical-chemical properties
considered under the IMCO Methodology. They were: persistence
(which is just a measure of how long the material will last in
the environment), the general behavior of the material in the
environment (whether when it is spilled it will tend to float,
will mix rapidly with the water column, or whether it will
sink to the bottom), and then the volatility and the solubility
of the material. Now these physical-chemical properties are
described more fully in Appendix I, Volume 3 of the report.
Once again, using these 4 physical-chemical properties, we
can develop a profile on each material. Here we see two materials
and their profiles. I won't go through and read this. But note
in the left column of this slide we see a physical-chemical group.
What happens is that all materials with these properties (non-
persistence, floats, volatile and soluble), are placed in physical-
chemical group 8 and all materials with the same physical-chemical
properties of mercuric nitrate are placed in group 7. So we
end up with 14 physical-chemical groups and these groups are
described by a general behavior pattern of the material in a spill
situation. And the description is really what is contained in this
table.
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Now, the next step, once we have these 14 physical-chemical
groups, is to quantitate the physical-chemical groups in the same
way that we quantitated the hazard potential groups (groups A
through D). We do this through the use of an adjustment factor
we have derived from a delphi. Very briefly, a delphi is a
procedure which involves a repeated questioning of persons who
are knowledgeable in the area of interest in order to obtain a
concensus of opinion. It is an iterative process which seeks
to control the interaction between participants in order to
minimize direct confrontation, personality conflicts, and the
biases that can result from these. The interaction in the delphi
is controlled by channeling the feedback between the participants
through the investigator. Once again I refer you to Appendix I
for a fuller description of a delphi.
The next slide will show you how we used the; delphi to obtain
adjustment factors. From the staff of Battelle Pacific Northwest
Laboratories we selected a panel of 10 scientists and engineers from
a diversity of backgrounds. We wanted to get a diverse background
even though we knew that by doing this we would probably get some
fairly good scatter in our delphi but we felt that the question
that we were going to pose was one that no particular discipline
was eminently qualified to answer. These people were asked to
assign an adjustment factor between 0 and 1 to each physical-chemical
group based on their assessment of the ability of a material with
these physical-chemical properties to exert a given hazard potential
in a given water body type. A score of 1 indicated that in their
estimation a material with these properties was capable of exerting
its full hazard potential. On the other hand, a score of 0 would
indicate that the physical-chemical properties were such that they
would completely inhibit the ability of the material to exert a
specified hazard potential. Thus, from the delphi we get a set
of adjustment factors which, in essence, quantitate the influence
of each physical-chemical property on the hazard potential of
a given material. These adjustment factors are found in the fold-
out table in Appendix I. There is one adjustment factor for each
physical-chemical characteristic, each hazard potential and each
water body type.
With this information it is now possible to compute the rate
of penalty. The rate of penalty is computed very simply. We
start off with the base rate of penalty, which is $10,000 over
the harmful quantity. To convert this to a final rate of penalty,
we multiply by the adjustment factor. Thus, we are considering
the $10,000 over the harmful quantity (where the harmful quantity
is a function of the toxicological properties of the material) and
when we bring in the adjustment factor we also are considering
the dispersibility and degradability characteristics of the
material.
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Now let's run through another example calculation here for
purposes of comparison. The material is acetaldehyde; we are
spilling 2,000 gallons in a river. The first thing that we have
to know in order to compute a rate of penalty is, what is the IMCO
category for the material acetaldehyde? If we go to Appendix G
and look up acetaldehyde, we see that it is in Category C and
that it was placed in Category C because of its ability to damage
living resources. This was the actual hazard potential that
caused this material to be put in that category. From the table
in Chapter 5, we see the harmful quantity for a Category C
material in a river is 7,600 pounds. Also, from Appendix G we
can look up the physical-chemical characteristics of acetaldehyde
and see that it is in physical-chemical group 8. With this infor-
mation, namely, the physical-chemical group, the water body type
and the hazard potential which caused it to be placed in the
specified category, we can enter the adjustment factor table in
Appendix I and determine the adjustment factor. There are three
pieces of information required to get this adjustment factor.
You must know what the prime hazard potential is. You must
know the water body type and you must know what the physical-chemical
characteristics are. Well, we see that the adjustment factor
for this material is .35. With this information we then compute
the fine as 2000 gallons which was the quantity spilled times the
conversion factor times the base rate of penalty, $10,000 over
the harmful quantity 7600 pounds times .35, which is the adjust-
ment factor. The fine is seen to be $6005 for this 2000 gallons
of acetaldehyde.
You can turn the slides off.
In summary, then, I would just like to say that the IMCO
Methodology does provide a system which is compatible with the
existing proposed international regulations and, as an alter-
native, it provides a low level-of-resolution system which is
capable of dealing with groups as opposed to individual materials.
Thank you.
QUESTION (FLOOR MIKE): I have a general question. The
rationale for the $10,000 threshold level is based on economic
incentives and not the factors tested in the law for determination
of harmful quantity, i.e., such times, places and circumstances...
How do you justify this?
MR. GAYNOR DAWSON: I really think it's important at this point
to suggest that you read the pages referred to earlier. We can
find evidence in the law saying that substantial harm probably
falls within the range of 1 to $50,000. By the various definitions
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of what a maximum penalty should be -- and if we assume that
Congress, in setting the maximum penalty, was saying that to
be a maximum penalty that indeed was a substantial sum —
we find that actually it is somewhere around the range of
$500 to $50,000. Now using the economic criteria, we can
show that if we go any higher than $10,000, even though it
may be a very valid definition of substantial harm, we get
into the realm where we are actually providing economic incentive
against reporting and therefore, we are going against the avowed
policy of the act itself. So we want to deal with the lower
range of the $500 to $50,000 Congress has laid out for us as
potentially substantial. Now, how do we define the lower end?
Well, an analysis from some of the data received frcm the
regions indicated that indeed often the cost of actually going
in and looking at a spill and implementing the response activity
of the EPA is probably in excess of $2000 per spill. So if we
use an economic rationale here and say why should we ask for a
report when the damage itself is likely to be less than the
amount it costs us to go in to find out about it, we've suddenly
focused ourselves into the range of $2000 to $10,000. From
there, there are obviously some subjective decisions involved
but we've focused in on the $10,000 level. The point is, however,
one can define substantial in an economic sense. You are correct
that the selection of $10,000 itself involves some economic con-
siderations, some very important ones, but those considerations
were imposed only after we were able to define the range of
interest where harm would be substantial, so it's kind of a
secondary consideration after we've initially laid out. the
boundarv conditions.
QUESTION (FLOOR MIKE): This seems to be quite a bit differ-
ent from the oil sheen regulations.
MR. GAYNOR DAWSQN: I think that would be fair to say.
QUESTION (FLOOR MIKE): An oil sheen is not going to create
$10,000 worth of damages. Congress has declared that both of
these, hazardous materials and oil, are in the same category.
How do you explain that to me?
MR. GAYNOR DAWSON: Well, I don't feel I have to because I
didn't write the approach to the oil regulation. They felt that.
a sheen was substantial damage, apparently, which is their con-
sideration. What we're saying here is that substantial harm
can be determined in a different manner and you're talking about
two completely different approaches by two completely different
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organizations. All we're offering here is technical documentation.
You'll have to talk to the administrative types on the policy
considerations.
MR. MIKE STRADLEY: Yes sir.
QUESTION (FLOOR MIKE): Does IMCO have a site-specific factor?
MR. MIKE STRADLEY: No, IMCO does not have a site-specific
factor. I should point out one thing that we should have mentioned
initially. When we did this whole study/ one of our objectives
was to keep the methodologies flexible enough so that we could
mix and match. In other words, when we handed our final work over
to the agency, we wanted to give them enough flexibility so they
could take components our of one methodology and use them in another
The IMCO Methodology as presented here does not have a locational
variable in it. However, it's very easy to tack that locational
variable onto just about any methodology because of the way it was
derived in the Resource Value Methodology.
In the back.
QUESTION (FLOOR MIKE): The designation listing does not
use bioaccumulation as a criterion for selection of materials. I
am supposed to find it here in this approach. There are many
factors involved with bioaccumulation which make its use very
difficult. There are relationships with persistence and toxicity.
Both of these are considered elsewhere and it borders on double
consideration here.
MR. MIKE STRADLEY; Now, is there a question there? I'm
not trying to be facetious at all. I mean I think there are
some good points in your comments. Let me say this, that the
bioaccumulation, or consideration of bioaccumulation, is some-
thing that went along with the; IMCO system. In other words,
as we received the IMCO Methodology, that was one of the criteria
that were already specified.
QUESTION (FLOOR MIKE): It is still necessary to develop a
definition of bioaccumulation.
MR. MIKE STRADLEY; All right, perhaps if I explain to you
how we treated the "bioaccumulative materials" this will clarify
things a little bit. I don't want to take too much time on this
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but there are a number of materials which have been reported as
being bioconcentrative; in other words, higher concentrations have
been found in the aquatic organisms than in the water surrounding
them. Now, the term bioaccumulative, at least to my understanding,
refers to the ability of materials that tend to do this to be
passed up through the food web to higher organisms. Under the
IMCO system, along with this criterion that the material is
capable of doing this, also is the fact that it must be hazard-
ous to aquatic life or human health. A number of materials can
be considered bioaccumulative. Iron, for example, is one; copper
is another. However, at least in our judgment, when we profiled
these materials, we did not give them a plus rating under bio-
accumulation because we didn't feel that a significant enough
hazard was presented to the higher trophic levels from these
materials as opposed to something like mercury or cadmium or
some pesticide materials. And I think if you will inspect the
table you will see that there are some notes there that recognize
this.
Sir?
QUESTION (FLOOR MIKE): How does the methodology deal with
time of discharge?
MR. MIKE STRADLEY: Ok, the question was: We are dealing
with a spill regulation and how would our methodologies deal
with the time sequence? We really, in our work, were not con-
cerned with that issue. Because the agency said don't worry
about that, quite frankly. We'll decide, heh, heh, (I see
Dr. Thompson down there), heh, heh, but that's the way it went.
That's a very difficult question especially when we are talking
about stationary sources and such where the spill is not always
of a catastrophic nature. And naturally, if you have a cata-
strophic spill, this question is easy to answer but I think
probably this question should be raised later on in the symposium.
I think Dr. Thompson probably will have some comments on that.
DR. ALLEN L. JENNINGS; Yes, yes, speaking of time sequences,
it's, — I try to keep us on schedule and let's take a break and
resume at 3:30 promptly.
(Break)
DR. ALAN L. JENNINGS: As usual, I'm going to start off with
another announcement. And that is, it appears that some people
are confusing the pieces of paper that were handed out. For the
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purpose of the Battelle presentation, concentrate on these
purplish, magenta reports. In that packet that we distributed
to you there's this blue report entitled "Hazardous Substances."
Forget about that for now. That's the subject of discussion on
Wednesday. Don't get the two confused. But in reconvening the
session this afternoon, Battelle is going to continue their pre-
sentation with alternatives 3 and 4, after which there is some
period of time for discussion and we can carry this on as long
as you desire, but it will run into the social hour.
I'm going to reintroduce Mr. Stradley to present the third
methodology.
QUESTION (FLOOR MIKE): Is it too late to comment on the
second?
DR. ALLEN L. JENNINGS: How about during the discussion period,
Jerry? We'll give you first.
MR. MIKE STRADLEY; Ladies and gentlemen, the next method-
ology ~wli~~wmIIcrTTke~~to~ discuss is the Unit of Measurement Method-
ology. This methodology was devised to illustrate an alternative
interpretation of the law, specifically, Paragraph (b)(2)(B)(IV),
which states in part that the administrator shall establish by
regulation, for each hazardous substance designated, a unit of
measurement based upon the usual trade practice; and, for the
purposes of determining the penalty, shall establish for each
such unit a fixed monetary amount which shall not be less than
$100 nor more than $1000 per unit. Now, this paragraph implies
that the rate of penalty be derived as the ratio of the fixed
monetary amount set by Congress to an independently derived
unit of measurement. Furthermore, there are really two inter-
pretations to the term "usual trade practices." One interpre-
tation would have these units in the usual trade practices as
standard units such as pounds, gallons, and tons, which are used
by the trade as well as by everyone else. However, there is a
second possible interpretation of this phrase, in that one could
construe them to mean commercial units (such as the tank truck,
rail tank car, carboy, or drum) which are specific to the trade.
Now, in the Unit of Measurement Methodology, our aim was
first to derive a rate of penalty as the ratio of the fixed
monetary amount to an independently derived unit of measurement,
and secondly we wanted to recognize, at least to the extent
possible, the existence of these commercial trade units. Our
general procedure then was to first select a base unit of measure-
ment. Two requirements were placed on this base unit of measure-
ment; first that it be a commercial trade unit and secondly, that
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it be large enough so that the spillage of this unit of measure-
ment would, in most instances, produce substantial harm and
therefore we could directly equate the unit of measurement to
a harmful quantity.
Now, could I have the first slide, please. If we look at
the three basic elements of the Unit of Measurement Methodology,
we see that the definition of substantial harm is 400 gallons of
IMCO Category D material. As we shall see in the next slide,
this is also the base unit of measurement and represents a
quantity that in most instances is greater than the harmful
quantity computed from the threshold approach in the other method-
ology. The rationale for the base rate of penalty is, as I
stated, the fixed monetary amount divided by the Unit of Measure-
ment. Here you see that it is $1000, which is the upper bound
of the fixed monetary amount, and we will see later on why we
took the upper bound. And the means for differentiating is the
IMCO grouping system, which I discussed before the break.
The next slide shows how we arrived at the base harmful
quantity and unit of measurement. Here we see an illustration
of typical containers that are used to ship and transport
hazardous materials. In the center of the slide there is a
logarithmic scale. The units along the bottom are in pounds
and along the top are in gallons so that containers above the
line are volume containers and containers below the line are mass
containers. Some of the things we see here are metal cans,
glass carboys, and metal drums. On the other side we have our
bulk containers, the tank truck, tank car and the barge. The
most significant thing, at least in our eyes, about this diagram
is the break that occurs between what we call the individually
packaged containers (on the left side of the diagram) and the
bulk containers (on the right side). Please recall, this is a
logarithmic scale, so if we had this on a linear scale it would
be even more dramatic than this illustration.
If we consider an IMCO Category D material, which is the
lowest category in terms of hazard, we would probably be hard
pressed to show that the spillage of one of these individually
packaged containers would result in substantial harm. However,
if we go across the scale up to the bulk containers, we see a
situation where, I think most people would agree, the spillage
of one of these bulk containers of the Category D material would,
in most instances, produce substantial harm. And so, it's rather
difficult to read the scale there but the arrow pointing to
the tank truck (and the smallest size tank truck we used was a
4000 gallon tank truck) is where we set the base harmful quantity
and the base unit of measurement.
And so, we have as a base harmful quantity an amount that
is no less than and is probably greater than the amount required
to produce substantial harm in most instances. Now, what we
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have so far then are a harmful quantity and a unit of measurement
for Category D material. However, there are three other categories
that we must consider when we are using the IMCO grouping system.
The next slide will show how we went about getting harmful quantities
and units of measurements for the other three.
This is a slide that I showed in the last methodology. It
shows you once again that each IMCO category is assigned a
critical concentration which represents that category. We can
use these critical concentrations to compute units of measure-
ment and harmful quantities for the other three categories,
Categories A through C, as shown in the next slide.
Here we start off with a unit of measurement for Category D
material of 4000 gallons. Now we can compute the unit of measure-
ment for Category A by simply multiplying this 4000 gallons times
the critical concentration for Category A material divided by
the critical concentration for Category D. So we just ratio the
other three critical concentrations to the Category D critical
concentration, multiply by the base unit of measurement for
Category A, and we derive units of measurement for the other
three IMCO categories.
The next slide summarizes the results of these calculations.
Here we see the four IMCO categories. For Category D we see we
still have the 4000 gallons as the base unit of measurement and
the other values in that column are the ones computed from the
formulas on the last slide. Note also that we give the units
in pounds as well as gallons and we did this by assuming an
average specific gravity of 1.0 for the hazardous materials.
Notice also under the heading of "Harmful Quantities," we have
performed some rounding. We did this primarily to illustrate
another concept which we felt might be of some value in formulating
the regulations. That is the fact that the harmful quantities
might want to be placed in units that are more easily ascertained
in a spill situation. If you look through the tables in our
report, you see that the ones that we compute directly in the
other three methodologies are not in very round numbers. And
so, at least for the transportation spills, we thought that
perhaps by rounding off these units of measurement to get the
rounded harmful quantities, this might be of some value. So
here we see another concept.
With this information, we could compute the rate of penalty.
We start off by defining the base rate of penalty as $1000 divided
by the independently derived unit of measurement. The $1000 is
the upper range of the fixed monetary amount set by Congress.
But you'll see, as we move down to the second line, that the
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final rate of penalty is equal to this base rate times an adjust-
ment factor. These are the same adjustment factors that I dis-
cussed under IMCO and they specifically range between .1 and 1.0.
And thus, when multiplied by $1000 we find that the range of
penalty under this methodology will vary between $100 and $1000.
Let's take an example here. We will take the same spill situation
with acetaldehyde in a river in the quantity of 2000 gallons.
Once again, since we are using the IMCO system for differ-
entiation, we must first determine what the category is. It is
Category C material, and it was placed in this category because
of the damage to living resources. The unit of measurement from
the table in Chapter VI, and this is the unit of measurement for
all Category C materials and all water bodies, is 732 gallons.
The physical chemical characteristics for acetaldehyde are listed
in Appendix G and we see that it is a Group 8 material. With
this information we enter the adjustment factor table in Appendix
I with the physical-chemical group, the water body and the hazard
potential damage to living resources. We find the adjustment
factor is .35. With this information we can now compute the
fine by multiplying the quantity spilled times the base rate
of penalty, which is $1000 over the unit of measurement (732
gallons), times the adjustment factor. And, as you can see,
the fine is $956 under this methodology. So, in summary, we
can say that the Unit of Measurement Methodology represents a
fairly radical conceptual departure from the other methodology
in two important respects. First, the harmful quantity is not
computed on a threshold bases, but rather as a quantity which in
most instances is no less than, and probably greater than, the
amount required to produce substantial harm. And secondly, the
rate of penalty is derived as the ratio of two independent
numbers instead of as a harmful quantity of 550 gallons. Now,
we did not round off the units of measurement. We did round the
harmful quantities. The reason we rounded the harmful quantities
was because we felt that there might be some value for reporting
purposes, and that really is what the harmful quantities are for,
for reporting purposes, to have these in units that could be
ascertained. Now, why 550? Well, that's ten 55-gallon drums or
five 110-gallon drums. That's why we rounded the 550. But,
for purposes of computing the fine, we did not round off the units
of measurement. We simply went with the value that was computed
from the 4000 gallon base unit of measurement.
Sir?
QUESTION (FLOOR MIKE): What would happen if instead of one
55-gallon barrel you had, say, ten 44-gallon barrels on one truck
that spilled? What would be the penalty?
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MR. MIKE STRADLEY: If it were a Category C material, with
a harmful quantity of 550 gallons, and you spilled all ten of
those drums in the water, you would be right at the harmful
quantity, and you would be required to report that spill. If
it were a Category D material, which has a higher harmful quantity,
you wouldn't be required. All right, that's one part o± your
question. The second part of the question is, what would the
rate of penalty be? The rate of penalty would be 550 gallons,
which is the quantity spilled (I am assuming this is a Category
C material) times $1000 divided by 732 gallons, which is the
unit of measurement for all Category C materials.
Yes sir.
QUESTION (FLOOR MIKE): In your calculation, are you assuming
the quantity in the drum or are you assuming the volume of the
drum?
MR. MIKE STRADLEY; We are assuming that a 55-gallon drum
contains 55 gallons. Now, maybe I misunderstood your question.
Yes sir.
QUESTION (FLOOR MIKE): Are you penalized for the full
amount, or just that amount over the harmful quantity?
MR. MIKE STRADLEY: If it were 549 gallons, now, I'm getting
to the point here where I am beginning to interpret the law, but
let me say in the context of our methodology, if you spilled
549 gallons of Category C material, under the law you would not
be required to report that. However, if somebody else reported
that, and it could be shown that you did spill a hazardous
material, my understanding of the law is that you would be fined
for spilling 549 gallons. But you wouldn't be required to report,
because if you were using this harmful quantity you would not
have exceeded it.
Sir.
QUESTION (FLOOR MIKE); As I understand it, before you would
report a spill you would have to confirm that a harmful quantity
had indeed been spilled. The harmful quantity is going to be
800 carloads of this, or 400, or whatever it is. The people on
the scene are highly unlikely to have any handle on that. It
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seems to me this is an utterly impractical approach as far as
the requirement to report it is concerned — to try to determine
that a harmful quantity had been spilled. How are you going to
do this? Frequently in the oil spill situation we haven't the
slightest idea how much oil has been spilled, like 732 gallons.
Really, that's pretty far out.
MR. MIKE STRADLEY I'll let Dr. Thompson answer that question.
QUESTION (FLOOR MIKE): I notice that you are dealing here
with individual compounds. Many times, however, different compounds
are spilled at the same time. How would you account for possible
synergistic or antagonistic effects?
MR. MIKE STRADLEY: In our work, as Mr. Dawson mentioned
in the beginning, we took a pure compound approach, and harmful
quantities and rates of penalties were computed on the basis of
pure compounds. In some instances, it is possible to adapt these
methodologies to the point where they are capable of considering
mixtures on a constituent basis only. In other words, unless you
have specific data on a particular waste or combination of
materials as to the actual toxicity of that material where you
treat that material as an entity in itself, you would just have
to go on the basis of the constituents. Now, for example (and
this is just an example) if we are using, say, the IMCO Method-
ology and we had two materials, say two acids, that were both
in the same category, the problem would be quite simple because
they would be strictly additive; because all materials in the
same category have the same harmful quantities. When we go to
the other methodology it becomes a little more difficult,
although you could adopt, for example, a partial harmful quantity
concept in some. But there again you would only be considering
the constituents and you would not really be considering antagonistic
or synergistic relationships.
QUESTION (FLOOR MIKE): Let's consider for one moment the
55-gallon drum. You have stated that if ten 55-gallon drums are
leaking, they will have to report that because 550 gallons is
a harmful quantity. In fact, they would not have that quantity
spilled. The hazardous materials regulations put out by DOT
require expansion room, etc. such that the drums really only
carry, say, 50 gallons. (Laughter from floor and applause.)
MR. MIKE STRADLEY: In that case you would have to lose 11
drums. (Laughter from floor and applause.) Yes sir.
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QUESTION (FLOOR MIKE): I have a question concerning the
law. If you have a spill of less than a harmful quantity, then
you would not have to report it. But if it is reported by a
third party, you may have to pay a penalty. Is that right?
MR. MIKE STRADLEY: That's my understanding of the law.
DR. ALLEN L. JENNIES: I might address that if I could. It
was in the law as we read it, and as our general council reads it,
the harmful quantities achieve only the reporting of the spill;
the determination of nonremovability activates the penalty system
for any quantity. It can be less than the harmful quantity, the
harmful quantity, or greater than the harmful quantity. The two
don't cross over within Section 311. The Coast Guard penalty
now, the up-to-$5000 penalty, is assessed only when there is a
discharge of a harmful quantity. The EPA's penalties are again
on any quantity.
QUESTION (FLOOR MIKE): Does that mean you're liable for
criminal penalties if you don't report a spill less than the
hazardous amount?
DR. ALLEN L. JENNINGS: dot being a lawyer, as I understand
it, criminal penalty applies only to failure to notify the appro-
priate agency of the discharge of greater-than-harmful quantities,
Civil penalties are assessed for the nonremovable materials,
in any quantity.
QUESTION (FLOOR MIKE): It requires that we report any spill
of a material which cannot be cleaned up. Is that correct?
DR. ALLEN L. JENNINGS: No, you only have to report the dis-
charge of a harmful quantity. I think if, for example, it would
be less than a harmful quantity, but in a very sensitive environ-
mental situation, where you have created obvious damage where it
was an obvious environmental insult, we would still have the
option open to assess penalties for nonremovable materials. I
think we should move on with the; program. (Laughter) Some of
these discussions are really more appropriate I think to the
third day when we discuss the regulations and where we look like
we are going with them.
MR. MIKE STRADLEY; Mr. Dawson is now going to talk on the
fourth methodology, which is the DOHM Methodology.
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MR. GAYNQR DAWSON: Could I get those slides turned on again?
The fourth methodology has been given the acronym "the DOHM
approach or DOHM Methodology" and it appears in Chapter VII of
Volume 2. If we look back at the basic structure of the three
major elements of this approach, the definition of "substantial
harm" is achieved through the use of a plug-flow model. The
rationale for the base rate of penalty is to equate or make
slightly greater the penalties than the cost of prevention. And
finally the means of differentiating between substances is achieved
through factors which reflect toxicity, dispersion, and degradability,
Now, the plug-flow model that was employed is illustrated here
in the slide. Briefly what we are saying is that if one is to
consider a contaminant plume traveling down a stream, we are
concerned with the time it takes for the plume to pass a point
(say a point receptor), the concentration of the plume, the
stream flow rate, constants required for making all the units
come out correctly, and also an application factor (which we will
go into in just a moment). And finally by putting these in an
appropriate manner, one achieves a harmful quantity. What we're
really worried about is producing a plug (contaminant plume) at
the 96-hour period to a level which is sufficient to kill half
of the receptor population.
If we use this base model, then we have several assumptions
or determinations that have to be made before we can plug values
in. Obviously, the critical concentration has been given. In
fact, you'll find in Appendix A of Volume 3 a discussion on each
of the designated hazardous substances as to what critical con-
centrations have been selected, what the references are and why
it was selected, based on what data, etc. So this is considered
a "given". Now, we are concerned with this time of passage. Is
96 hours indeed the time we have to worry about? We also, of
course, have to derive a stream flow rate Q and in determining
T, the time of passager we get into this issue of the application
factor.
Now the problem is this. If we consider the time zone over
which we are concerned, we find that obviously all spills don't
produce a plume that takes 96 hours to pass. All spills are not
96-hour events. So the first thing we did was to analyze fish
kill data available from the past 10-12 years of reporting on
those events and from a statistical analysis determined that
approximately 95 percent of all fish kills occur over a duration
period of from 6 to 96 hours. The first issue here, of course,
is why are we talking fish kills? Well, there is not a good data
base on spills and duration of spills. Consequently, we had to
fall back to the next position, so to speak, and this was fish
kill data. Fish kills often are the results of spills. We had
to assume that the subgroup of data (fish kills derived from
spills) was represented by the whole universe of data on fish
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kills. Assuming that both are truly represented by the data, we
decided to take the fish kill duration and assume that is equivalent
to the duration of the spill itself. If you do the statistical
analysis, it does come out to this 6 to 96-hour period.
One point to be made here is we are not saying it takes 96
hours for a tank truck or a tank car to empty itself, or for a
55-gallon barrel to empty itself. What we're saying is that
from fish kill data, one can determine that contaminant plumes
for the most part (95 percentile) take 6 to 96 hours to pass a
point. Given this, we have to determine where in that range,
6 to 96 hours, we will find the minimum quantity of material
required to cause the same damage as the 96-hour LC5Q over a
96-hour exposure period. Well, if you analyze the relations
involved, and this gets a little complex, and if you are really
into mathematics and everything else, I would refer you to
Appendix L, which ought to just do you fine for a month or two.
But briefly, looking at the relations involved, if one were to
plot, now we're dealing in logs here because we're talking about
a multiplicative relation and of course, dealing with logs, we
can make it additive, and it's real easy to illustrate on a graph.
But if we look at the log of exposure time vs the log of time of
passage, we get the straight line you see over there rising to
the upper right hand corner of the graph. It's a direct relation.
Because however long it takes the plume to pass a point receptor,
that's how long the receptor is exposed to the plume. That's
pretty straightforward.
The second relation of concern here is the time-dose relation.
Now this is something that is not developed to a great extent in
this country, but has been developed to a large extent by the
Canadians and Europeans in their bioassay analyses. If one
reviews the data that they have obtained with this work, one
finds the curve you see on the left swinging down into the lower
right hand corner, the typical ragtime-dose relation. That
curve is a plot of the concentration required to destroy 50 per-
cent of the receptor population over the exposure period, time
being the horizontal axis; therefore the acronym, time-dose
mortality relation. How much, for how long, to result in the
effect we're after; in this case, the LC5Q. We are concerned
about the product of these two relations and as you can see by
the upper curve on the slide, the product of these relations
forms a classic minimum curve. That product, because it is the
product of the two relations, is representative of the harmful
quantity. In other words, the harmful quantity is proportional
to the time of passage times the concentration, and you see that
from the former relation we were talking about. If we assume
that K is a constant, and if we assume that we are just talking
about a specific stream, then Q becomes a constant, and we see
that HQ is indeed proportional to time of passage and the critical
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concentration. So once again briefly, what it tells us is that
considering these relations, there is a minimum value in there
somewhere. At that point, that is the smallest amount of com-
pound X required to be dumped into a given stream to cause the
effects we're after.
Where does that occur? If one goes through the mathematics,
and once again I refer you to Appendix L, one finds that it
occurs at the low end of the scale; that is, around 6 hours of
exposure time. By the low end of the scale, I mean it occurs
at the low end of the range we're dealing with, and once again
we're dealing with 6 to 96 hours. And if you go through the
calculations you could get a harmful quantity using a 96-hour
time passage, a 96-hour LC5Q. You could get a harmful quantity
using a 6-hour passage, 6-hour LC$Q. The 6-hour value is con-
siderably lower than the 96-hour value. So we have to recognize
that all spills are not diluted into a plume that takes 96 hours
to pass. Indeed, many of them may be compressed into a plume
that only takes 6 hours to pass. And it would take much less,
witness this relation, much less of compound X in that situation,
in the compressed spill, to cause the same effects. Consequently
we derived the application factor, and the application factor is
equivalent to .125 (1/8). So what we're saying is that if you
use the plug-flow model that we gave just before, you want to
use a value of K such that the harmful quantity actually comes
out 1/8 of the value you'd get if you just did a straight
relation using 96 hours of passage and a 96-hour LC5Q.
Now we have to fill in the flow rate in this relation.
What size stream are we concerned with? To determine this, we
did a statistical analysis of the volume of water contained at
any one time (and I want to emphasize that this is a photo-flash
shot) in the streams and rivers of the United States. We con-
ducted a statistical analysis taking the volume of the rivers
and tributaries, etc., and we developed a relation between the
volume of water in the stream and the median flow of that stream.
Doing this, then, we developed a percentage analysis. What this
graph is telling you (vertical axis is percentage) is what per-
cent of all waters in the U. S. at any one time are flowing in a
stream of that discharge rate or greater. For instance, from
this analysis using median flow rates once again, 95 percent of
all U. S. stream and river waters flow in rivers of 36 cfs or
greater; 90 percent flow at approximately 150 cfs or greater,
and so forth. For the purposes of this methodology we determined
to use the 95 percentile. Consequently, at least for trans-
portable sources and so forth, harmful quantities should be
determined on the basis of a model stream of 36 cfs flow. This
does not mean that stationary sources would have to fall under
the same sort of purview. Obviously with a stationary source
you know the flow rate of potential receiving waters and one
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can calculate harmful quantities on a site-specific basis. That
is an option that is available. Obviously with the truck or the
rail type of accident one does not know where the accident is
going to occur ahead of time. And it is not feasible, at least
it was not within our minds, to expect the truck driver (or
whatever) to determine at the time of the spill what the flow
rate was and therefore what the stream could handle in terms of
how much he spilled. Consequently we had to derive on a
statistical basis the level we were going to use in the model.
And, as I say, it came out as 36 cfs.
A similar analysis was done for estuarine waters. The inflow
was the primary variable here that we were concerned with and for
estuarine values an inflow rate of 200 cfs was found to meet the
95 percentile value.
I might note that with this methodology all fresh waters are
lumped together and all salt waters are lumped together. That's
primarily because this plug flow model requires flowing waters of
some type to work and consequently we really had to key it toward
rivers and estuaries. The lakes and coastal zones were equated
to these water bodies.
What this gives us is a critical volume. You'll recall from
the Resource Value Methodology we developed critical volumes.
This gives us a critical volume of 17.5 acre-feet for fresh waters
and 1120 acre-feet for salt waters. These, then, become the
values for determining the harmful quantities; that is, how
much of a substance is required to bring these volumes of water
to the 96-hour LC5Q/ and that would determine the harmful quantity,
Real quickly we have a trial calculation here considering an
acetaldehyde spill into the river. Once again, we find that the
harmful quantity is approximately 5200 pounds using this approach.
This is all fairly straightforward, it's just using the model
we've developed.
Now, it is also necessary to set a rate of penalty, and
using the DOHM approach, we are using a rationale that one would
set the rate of penalty equivalent to or slightly higher than
the cost of preventing this spill. Consequently one would pro-
vide an economic incentive for the responsible agent to put in
the appropriate prevention devices and therefore prevent the
spill originally from being caused. What this means is that one
has to derive estimates of how many dollars would be spent to
prevent a spill and how much material would be prevented from
being spilled under that situation. And I assure you this is a
rather intractible question with the data available today.
However, we have derived the following numbers. (These appear
on page 117 of Volume 2.)
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Briefly, stationary source data was taken from the records
of several MCA member firms. Essentially what we call prevention
here was containment. That is, a spill is not a spill if it
does not reach water. So if you can contain your plant (diking,
common sumps, etc.,) and prevent the material from reaching the
receiving water, you have essentially prevented a spill. So the
costs are based on the costs of putting in containment for
stationary sources. And you can see the number comes out at
around $4 a pound for typical industrial chemical plants. For
barges (once again the data was obtained from MCA member firms)
the data was keyed to converting from single to double hull
vessels and you'll see, using the accident history for the barge
industry and so forth, the value was $5.17 a pound.
I might note that this number, this estimated cost, is
really a function of two factors. It may be high because it's
terribly expensive to prevent spills by this mode. It may
also be high because the mode has a relatively good spill history.
Consequently the spills you are going to prevent constitute a
very low volume of material prevented from being spilled. We're
talking about a ratio here. The ratio can be big, either from a
small denominator or a large numerator. So there are really
two factors here.
Those of you who attended the San Francisco workshops will
note there is a change here from what appeared in the red report
that was handed out at that time. The rail numbers have dropped
by an order of magnitude and they are now $.37 a pound. The
reason for this is, we obtained data since that time that allowed
us to look at tank car modifications. That is, what can we do
to the tank car so that when it is involved in a derailment it
will maintain its integrity? Specifically in this case we are
looking at headshields, protection of appurtenances when possible,
certain changes in the structure of the tank car itself, that
is, internally coiled vs externally coiled for certain materials,
and also conversion to F-type couplers. Finally, for the trucking
industry you will notice this number shows up in parentheses.
The reason for that is we simply could not obtain the data
required to come up with an appropriate estimate. The number
you see is given for stationary sources. The reason it is given
for stationary sources is that statistical analysis shows that
95 percent of trucking-related spills occur at the loading and
unloading facility. Consequently this solely reflects what
one would do for spills in those cases, and one would have to
develop further numbers to derive a rate of penalty that would
apply strictly to a spill involving a truck in transit, and we
just simply do not have the data for this.
Once again we are talking here about a base rate of penalty,
and one needs to modify this rata of penalty to reflect toxicity,
degradability, and dispersibility. We developed three adjustment
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factors to do this. These are in no way meant to reflect some
new relations, Newton's 25th law or something. These are
operators which we developed to reflect a change in rate of
penalty based on property of the substance. For instance, you
see here how one would derive the dispersion factor. It varies
from 0 to slightly greater than .8 based on the ratio of the
solubility to the LC5Q. This number, once again, is solely an
operator, and all we are saying here is that the dispersion
of a hazardous material spilled into a receiving water can be
considered as a function of the ratio of that substance's
solubility to its toxicity. The greater that ratio, the more
likely it will disperse to toxic levels or greater. The smaller
that ratio, the closer the toxic level is to the solubility, the
less likely you are to achieve a toxic level in a spill situation.
And similarly, a relation was developed for looking at toxicity.
Once again, this is simply an operator and we're just saying
the more toxic the substance, the higher the adjustment factor,
the greater the penalty should be. And finally, degradability,
which is just taken as a straight line relation, since we're
talking about 96-hour passage time here, we're talking about
degradability over a 4-day period, it could be from biochemical
degradation, it could be from photochemical, whatever. All
we're saying is the more degradable the substance, the lower
the fine should be. Fairly straightforward here.
These factors then, are all summed up, and what they
essentially do, is they form an adjustment factor when put
together in a multiplicative manner which varies from 1 to 2.
The rationale for that is that in reviewing the data from
industry it was found that costs of prevention may vary by a
factor of 2 because of the flammability, corrosiveness, and
other physical-chemical properties of the substances we are
dealing with. The more corrosive the substance, obviously the
more expensive material has to be used in the containment devices
and so forth, and one finds this varies over a factor of 2.
So what we're saying is for the more toxic, less degradable,
more dispersive material, you provide greater incentive for
putting in costs of prevention, so you use an adjustment factor
closer to 2. For the more degradable, less soluble, less
dispersive material you use basically the base rate of penalty
which is the cost of prevention.
All right, let's look at the trial here: once again the old
familiar example, acetaldehyde, 2,000 gallons, spilled into a
river. And we're going to say that this one results from a rail
accident. We're talking about a base rate of penalty of $.37
a pound, the adjustment factors are given there on the slide.
When you calculate it, the fine comes up $506.
Now I caution you, this methodology is different in its
rate of penalty from the other three methodologies in that the rate
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of penalty here is a function of the spill source. Had we
assumed in this example that the spill source was a barge, that
number at the top would be $5.17 a pound, instead of $.37 a
pound, and that rate of penalty down below would be closer to
$7,000. So in this approach and only in this approach the
rate of penalty is keyed to the spill source.
That concludes the technical presentation of the 4 alter-
natives we've developed. I'd just like to make some summary
comments before we get into an open discussion of this. Those
would be, of the three volumes you hold, the first one (the
executive summary) is pretty much self-explanatory, the second
is the tech document itself, and the third is the appended
materials, which include a lot of the derivations and source
materials used to derive what was derived. Also given in that
appended volume are the input data (as I mentioned before in
Appendix A), but also there is a computer printout towards the
end of that appendix, I believe it's Appendix M, which has the
printout from all four approaches. It gives you the harmful
quantities and the rates of penalty that would be calculated
from these four approaches for all 400 designated hazardous
substances at this point in time. So it enables you to run
through the chemicals of interest for yourself to see how the
four methodologies relate.
I'd like to echo something that Mike said; that is, we
developed these methodologies with the idea that any individual
part of the development should be a module which could be
applied across the board. The locational variables we talked
about in the Resource Value Methodology can be applied to any
of the four. The various adjustment factors could be used
interchangeably. One could use harmful quantities fron one
approach for streams and lakes, and harmful quantities from
another approach for estuaries and coastal waters. The idea
is to maintain as much flexibility as possible so you can come
up with the most equitable combined approach.
And now, we'll just open this up to general discussion.
We'll start off with Jerry Selman cause he's got something
left over from before.
MR. JERRY SELMAN (FLOOR MIKE): Thank you. I'd like
to make some comments about the adjustment factors that apparently
are being used both for the IMCO Methodology and for the Unit
of Measurement Methodology. It seems that these factors are
derived from this consensus that you have, which you have used
the DELPHI approach for. First my question: whether you used
any other approaches other than the DELPHI to get this consensus,
if you needed a consensus. And secondly, to use DELPHI, the
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reference that you use is a '63 Management of Science reference
by Dalkey and Nelmer, which as I recall deals with a report
they did 10 years previously based upon a number of atom bombs
that should be dropped to reduce the munitions capability of
various cities by soviet planners. I bring up the date because
this represents an early DELPHI approach, as compared with DELPHI
approaches that we used, say, last week at Puerto Rico with the
Operations Research Society. It's changed many times over the
years. The use of the DELPHI, if you decided on that rather
than on some other method of inquiry, has various types of feed-
back which it is not too obvious that you used in your report.
Is it included in the actual data? If this is supposed to be
used as a model by EPA or others to come up with factors in the
future using experts other than the Battelle experts, the report
is not clear. In other words, you can't see what the results
were of the first questionnaire, whether they used the median
value and extreme ranges, what the ranges were, whether they
were interquartile ranges covering the middle 50 percent,
middle 25 percent or just the middle 95 percent. You can't
see how the convergence progresses from one to another, if you
need convergence. You have no way to indicate whether the
median should be used or whether the 63rd percentile should
be used, as Dalkey indicated in 1970, rather than the 50th
percentile. In other words, these were some of the things that
came to mind.
Secondly, the actual comments by your participants aren't
clear. In other words, I'm not quite sure the DELPHI was con-
ducted in a way that continues the three or four basic points
of a DELPHI — in other words, the anonymity, the feedback,
etc. — whether the comments of the participants were actually
fed back to a controller who then gave these to all the partic-
ipants and asked them (those who were outside, say, the middle
interquartile range) to indicate their reasons, and then fed
this back to them and reiterate. The example you used had five
rounds; you used two. I just don't understand how these values
can be used as the basis for anything other than just to show
that this possibly is one way for getting group consensus, if
you need group consensus actually. So I have a whole bunch of
questions about the technique but I don't know whether you want
to get into that or not.
MR. MIKE STRADLEY; We haven't got too much time here. How
many other people would like me to go into this? I mean I think
maybe we could get together afterwards to talk about it.
MR. JERRY SELMAN (FLOOR MIKE): The point is, the DELPHI
as reported here looks like it is very gospelly, looks like it
is official and means something. Actually, you know, the whole
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DELPHI technique is like the story of King Croesus of Lydia who
asked the Delphic Oracle should he attack the Persians or not,
and the Delphic Oracle, in a sort of doped up sense, said "What-
ever you do, a great nation will fall." Well, he did, and he
lost. (laughter) So with this stuff, you have to be careful
of what you do.
MR. MIKE STRADLEY; Why don't we get together at the social
hour.
QUESTION (FLOOR MIKE): It appears that the methodologies
differ widely in the values derived. Is there any basis for
assuming from this that any one methodology will have higher
or lower values consistently?
MR. GAYNOR DAWSON: Yes, largely we find that the Unit of
Measurement Methodology or approach allows the lowest rates of
penalty. Resource Value typically is the second lowest, then
the IMCO and finally the DOHM Methodology. Obviously this is not
true if one considers the data we've presented for rail, for
instance, and also there are some variations when you use
Resource Value when you get to a highly toxic material, something
like a pesticide with several hundred parts per billion toxicity,
the values suddenly skyrocket. So you can't say it across the
board for all 400 substances but in general, they fall into that
pattern.
QUESTION (FLOOR MIKE): I have a question regarding the
method used to value the cost of containment. $4 per pound
and the resulting $52,160 for a 2000 gallon spill seem terribly
high. Could you elaborate?
MR. GAYNOR DAWSON: That is the cost of containing what
would be spilled. Now you have to consider that that containment
vessel has so many years' life and that its integrity is going
to be broached only some fractional amount of time during its
life. Say we take a plant A and we say its spill history is
20 gallons per year for the whole plant on an annualized basis.
Then you take the cost of containment for that plant, say the
equipment you're putting in has a 10-year life. You're talking
a total of 200 gallons, over which the cost of that facility
has to be normalized. We're talking about cost per pound no
longer spilled, not per pound of capacity for the plant, or so
forth.
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QUESTION (FLOOR MIKE): For the barge case, the Coast
Guard indicates 80-85 percent of all spills occur in transfer
operations, and yet you cost the penalty on the basis of
changing from single to double skinned barges.
MR. GAYNOR DAWSON; Absolutely, but those would refer only
to spills which occurred during transit and the reason we did it
there was because we had the data. All I'm saying is I'd like
to use the same number for the trucking industry, I simply do
not have the data. But I did have good spill data for in-transit
spills for barges.
QUESTION (FLOOR MIKE): Do I understand then that you have
a different rate of penalty for spills that occur during transfer
than those that occur in transit?
MR. GAYNOR DAWSON; Yes sir, by that approach you would.
QUESTION (FLOOR MIKE); How come the barge numbers are so
high and rail numbers so low?
MR. GAYNOR DAWSON: Well, there is a lot of speculation on
that. I would hate to put anybody on the spot. Let's just say
that from the data that now exists, if we could indeed give the
car 100 percent integrity from what it now has, we would prevent
an awful lot of gallonage from being spilled on the ground. Now
the one thing that number does not reflect, this probably is the
key issue, it might bring it right back into the same ball park
with the others, is the percent of those spills that actually
reach water. And that's a difficult number to come by. The
only even close approximation I can give you to that is an early
estimate we made back in 1970 or so, that approximately 30 per-
cent of the rail lines border waterways. So if you assume
equal probability for accidents, which is a terrible assumption,
you could save 30 percent. So that number would be closer to a
dollar per pound.
QUESTION (FLOOR MIKE): Could you assume that these penalty
rates reflect a higher spill rate for rail than barge?
MR. GAYNOR DAWSON; Well, no, you can't say that directly
because they also reflect different cost approaches available
to those people. It may simply be cheaper to improve the
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integrity of a tank car than it is to improve the integrity of
a barge. There are two factors involved there, the spill
history and the cost of improving that point. And I don't
think from looking at those four numbers you can determine
which was the overriding factor.
QUESTION (FLOOR MIKE): Did you try to consult these regional
personnel and ascertain if these changes would indeed have the
effect you associate with them?
MR. GAYNOR DAWSON: No, we did not. We tried to (and
perhaps this was an error on our part) but we tried to obtain
our data through contact with the industries themselves and the
people who are responding to spills in the industry. In other
words, the people from the railways, trucking organizations and
the barge lines who actually go to a spill after it has occurred
and assess what went wrong, and so forth, and I would hope that
they have similar experience to the regional people.
QUESTION (FLOOR MIKE): I am concerned that the extent of
these costs would be such that the manufacturers and transport
people would be unwilling to handle and process some of these
materials. I think the reasons the costs are getting so high
is the idea you have that the protection costs are equivalent
to the water resource. I question that following the example
of the oil spill regulations, where you have to put in contain-
ment facilities anyway, why have the additional incentive of
fines for a spill when, by the regulations, you must have spill
prevention facilities in place? I think we should have regulations
for control facilities, then a reasonable fine — and not try to
get the maximum amount of money out of it.
MR. GAYNOR DAWSON: That's very possible. Once again, we
developed technical approaches within the context of the law
as it was written and given to us, and what you suggest would
be an alternate approach, but it requires more than the technical
work we were dealing with.
QUESTION (FLOOR MIKE); I think the DOHM Methodology could
have attempted to apply one of the many lake models that exist.
MR. GAYNOR DAWSON; Yes, the people who were involved in
selecting the models and so forth went through a great many
dispersion models. The problem there was what size lake you
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use, because there are simply no statistical data on the lakes
in the United States. Just take Minnesota alone, and it pretty
well wipes you out. So it was simply a matter of convenience.
The data didn't exist to select the volume of lakes over which
we should be concerned and consequently we just had to equate
all freshwaters in that approach.
QUESTION (FLOOR MIKE); A point regarding your steam flow
model. You say 95 percent of the streams in the U. S. flow at
36 cfs or greater?
MR. GAYNOR DAWSON: 36 cfs, right.
QUESTION (FLOOR MIKE); Why did you pick 95 percent and not
some other number like 90 or 100 percent?
MR. GAYNOR DAWSON; Well, I tried to make that point before,
and I guess I should reemphasize it. The data is there, and in
the final analysis, one can select any percentile he wishes. We
selected 95 because if you look at classic statistical theory,
in normal distributions, the 95th percentile is two standard
deviations from the mean in either dJreoHon and it is classically
thought of as the bulk of what you should be concerned about.
Events outside of the 95 percent quartile are considered pretty
slim in probability and that is solely the reason. You are
absolutely correct. However, I would caution you against using
the hundred, because using the hundred it would be zero cfs.
That becomes difficult to put in a plug flow model.
QUESTION (FLOOR MIKE): Yes, but there is a much clearer
differentiation at, say, 90 percent.
MR. GAYNQR DAWSON; That's true, there is a large drop there,
and like I say we solely picked 95 on a basis of our own working
model for what we developed in the technical work, and one could
select any level for the final analysis.
QUESTION (FLOOR MIKE): Why did you decide to use $1000
per unit of measurement and not $100 per unit of measurement,
as allowed in the law?
MR. MIKE STRADLEY; Under the Unit of Measurement Methodology
(I think it's the one you are referring to, the second one I
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talked about) the base rate of penalty is set at $1000 over the
unit of measurement. This base rate of penalty only becomes the
final rate of penalty when it is multiplied by an adjustment
factor. The range of this adjustment factor is .1 to 1 and
therefore, the final rate of penalty does indeed range between
$100 and $1000 per unit of measure.
QUESTION (FLOOR MIKE): Your adjustment factor is based on
this but the factors come from a different set of numbers al-
together.
MR. MIKE STRADLEY: Yes, the adjustment factor is used to
compute the rate of penalty.
QUESTION (FLOOR MIKE); You're plugging in a value which is
entirely different than the legislation intended it to be. You're
coming up with a different factor to take in different circumstances
because of the hazards, dispersal and physical properties of the
material. But the legislation says you take a unit of measure-
ment and plug in $100 or $1000.
MR. MIKE STRADLEY: I'll read this again. The lav; says that
the Administrator shall establish by regulation for each hazard-
ous substance a unit of measurement based upon the usual trade
practices. For the purpose of determining the penalty he shall
establish for each set unit a fixed monetary amount between $100
and $1000. He shall establish this set fixed amount based on
the toxicity, degradability and dispersal characteristics of the
substance. Now, our interpretation here is that we start with
$1000 but we really have a range, depending on the chemical,
because we bring in the adjustment factor applied to this
thousand dollars, and this adjustment factor can make this
thousand dollars actually swing between $1000 and $100.
QUESTION (FLOOR MIKE): You have indicated that fish kill
data was employed in developing some of these approaches. The
last summary I saw indicated that municipalities play a very
important role in causing fish kills. How does this affect your
work?
MR. GAYNOR DAWSON: Well, first of all let me suggest to
you that we did not take all of the fish kill data per se. We
did systematically discard sources which could be attributed to
non-spill related events. We tried to look at transportation
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related fish kills and other events that could clearly be
associated with non-continuous discharge situations and non-
runoff related situations whenever possible. Much of the data
for the municipalities was actually excluded from that we looked
at. The only other thing that I could say according to that
would be under the approaches we have developed, if one were
to have a spill from a municipality, say a discharge of untreated
sewage or untreated sewage sludge, etc., the approaches are
geared to pure compounds and elements. Consequently one would
have to find some way of dealing with the constituents of the
material released. Sewage sludge is not, at least under the
present list, a designated hazardous substance.
QUESTION (FLOOR MIKE): Where did your fish TLm data come
from?
MR. GAYNOR DAWSON; Check Appendix A, where there is a
detailed reference given for each material which we look at.
Just briefly I would suggest it largely comes from some pretty
widely distributed sources, McKee & Wolff, Water Quality Criteria
Data Books, etc. I'd also note we did give a copy of the input
data we were using to the MCA and it was circulated to most of
the member firms, and we considered all comments we received from
organizations and we are glad to still receive more comments if
you disagree or you have values that we did not have, etc.
These things can always be changed, but we essentially called
for data from any and all sources and considered everything, and
in fact we did include data from industrial files which was sent
to us in addition to the data we already had. So we did attempt
to surface anything that is available.
QUESTION (FLOOR MIKE); For some of the materials shipped
in large quantities, such as chlorine, there are some very small
harmful quantities. Much smaller than the shipment size. Is
there some further consideration to be made here for, say, the
Resource Value Methodology?
MR. GAYNOR DAWSON; The only point I could make on that is,
by that methodology that would be the harmful quantity for that
substance, and obviously it is considered severe toxicity for
that substance. Beyond that, it is really a policy interpretation,
and I think you'll find out more about that Wednesday.
QUESTION (FLOOR MIKE): There is no minimum cutoff?
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MR. GAYNOR DAWSON: There is no minimum cutoff by any of
the alternatives that were presented today.
QUESTION (FLOOR MIKE); You talk about four water bodies.
How would you define something like the Inter-Coastal Waterway?
MR. GAYNOR DAWSON: That's a real good question. Once again,
I think that's probably more pertinent for Wednesday. (Laughter)
That's true, it will be very pertinent to enforcement of the
method, and again that is really up to the administering agency.
QUESTION (FLOOR MIKE): How do these approaches deal with
other hazards? They don't seem to address things such as sewage
where severe BOD problems can result from spillage.
MR. GAYNOR DAWSON: These approaches are for rates of penalty
for nonremovable hazardous substances. Unless they appear on
the designated listing, they have not been defined. And these
approaches were solely directed to the rate of penalty for non-
removable. To that point I suggest you send a comment to the
EPA telling them to add to their list.
QUESTION (FLOOR MIKE); In your DOHM presentation, with
rail you put in only costs to improve integrity of the tank car.
I was wondering why there were no costs for roadbeds which also
contribute to spills. Also, in the system you came up with a
series of penalties according to the mode of transportation.
Why not an average prevention cost for every mode and an average
penalty?
MR. GAYNOR DAWSON: I think that's a very good suggestion
and I'm sure the EPA will take that under consideration. The
point about the roadbeds for the people who attended the San
Francisco workshops and received what we call the "red report",
which is the initial draft of this, that is exactly what the
figure was based on — roadbed maintenance and some other
modifications. We, however, found that tank car modifications
were more cost-effective, and we felt that we should use the
most cost-effective method, not necessarily the most expensive
one. Any other comments?
QUESTION (FLOOR MIKE); Getting back to an earlier question
about getting a penalty of from $100-$1000, I agree with you that you
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can factor down or factor up, but I was curious if there are any
factors which get you all the way to the $100 level?
MR. MIKE STRADLEY: No, there are none. (laughter) I
don't think there are any adjustment factors that go below one.
In fact, I would say with 99.9 percent certainty that, I don't
know every number on that table, but I don't ever recall seeing
one less than .1 on the adjustment factor table.
Your question was whether it went below $100, right?
(FLOOR MIKE): No.
MR. MIKE STRADLEY: $200. If it had an adjustment factor
of .1 it would go to $100.
QUESTION (FLOOR MIKE): But that did not occur, is that
correct?
MR. MIKE STRADLEY; Well, let me look at Appendix I here
and see if there are any . 1's in there. While I'm doing that
why don't we take another question?
QUESTION (FLOOR MIKE): Earlier, Mr. Dawson, you said that
under the first approach there were levels of civil and criminal
penalties that would come into play depending on detection. At
some point, you said the fine level would be such that it would
be best to report all spills of a harmful quantity or not. Did
you determine that point?
MR. GAYNOR DAWSON: Well, that decision tree I showed in the
slide essentially was aimed at that question and in our minds,
that cutoff was $10,000. Anything greater than $10,000 would
begin to have negative effects on reporting.
QUESTION (FLOOR MIKE): What other values would affect this?
MR. GAYNOR DAWSON: The value of approximately $2000-per-
spill costs for follow-up by the regulating agency and so forth
were also affected by the apparent fascination with the $5000
level by Congress. And I think you'll find all of these
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in the write-up there, page 35 through 38 of the second volume.
I would hate to try to relate them all right now, because I
might miss a few, but it's spelled out in there, essentially
the thought process that we went through at the time.
MR. MIKE STRADLEY; In answer to the previous question, there
are some .1 adjustment factors in Table 1-1 which can be found
on page III-205, so they do indeed range between .1 and 1.
QUESTION (FLOOR MIKE): You indicated that consideration
could be given to setting a specific harmful or pro-rate for
each stationary source located on a stream.
MR. GAYNOR DAWSON; Using the DOHM Methodology, yes.
QUESTION (FLOOR MIKE): Will that be done? I doubt many
stationary sources are discharging into streams with 36 cfs
flows.
MR. GAYNOR DAWSON; I really couldn't say, that's really
up to the —
(FLOOR MIKE): It seems a bit unfair.
MR. GAYNOR DAWSON: I think that is a valid comment to make
to the EPA.
QUESTION (FLOOR MIKE): Under the DOHM Methodology, could
you explain why penalties are set for different modes or sources?
MR. GAYNOR DAWSON: The original rationale was that the
penalty should be set high enough to encourage the construction
and operation of preventive equipment, and it was found that
these numbers varied considerably, depending on the source.
And so essentially we presented the numbers by source. Now I
think this gentleman's comment over here could be used? one
could average them for sources, one could go about it in
several ways. One could use the lowest number, one could use
the highest, the mean, the median. There are all sorts of ways
we can go at it. We simply determined that they were different
enough and without any particular rationale for doing something
with those numbers, we related them as numbers for a spill source,
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QUESTION (FLOOR MIKE); Was this by mode or source?
MR. GAYNOR DAWSON; By mode, correct. They fall into a
nice grouping there,stationary source, cost all grouped
nicely, the rail cost and so forth.
Bob?
QUESTION (FLOOR MIKE): I want to make a comment to the
gentleman who made the reference to carrier of toxic or hazard-
ous commodities and the way the penalty would be too high.
That's exactly what the Congress meant. That's exactly what
they want to do. The want that trucker to multiply the
penalty by the tank capacity and say "Hell no, I won't take
that risk." It is an effective embargo on some commodities
that are very toxic. My question to you is how are you deter-
mining the cost for trucking spills? You've milked us dry.
MR. GAYNOR DAWSON; We just gave the report to the EPA.
(FLOOR MIKE); It's a real problem.
MR. GAYNOR DAWSON: I know, and it's probably going to
stay there for a long time. We really don't know how to deal
with it until we can develop better data. And I would hope
with your new reporting requirements and so forth, you are
developing that kind of data. It's just going to take quite a
few years to generate something that is significant.
(FLOOR MIKE): That's exactly what I meant the problem
would be, with the reporting as you set down the data.
MR. GAYNOR DAWSON; Absolutely. The only thing we can do
is treat them like the railroad commission and the preventive
measures they are having to take with the hazardous materials
regulations promulgated by the DOT. You can take the DOT regu-
lations, 49 CFR parts 170 to 189, and read there what we're doing.
Then you need to have manufacturers of tank trucks tell you what
has got to be done to allow you to transport hazardous materials
safely — whether it's going to be piping, or what. So that is
a sore spot, and I don't know whether you can do that or not --
but I don't think you did. Our problem I think as you recognize,
because you tried to help us in this, was in trying to associate
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how many spills we could prevent, because there simply was not
enough historical data as to spills in transit, the cause of the
spills, where the integrity loss was, etc. So it's really a
data gap which will not be filled until the reporting fills in
a lot more historical data. Yes sir.
QUESTION (FLOOR MIKE): In your approach to setting penalties
How do you propose to account for mitigating actions taken?
MR. GAYNOR DAWSON; That's an implementation type of thing.
All we're talking about is setting the base rate of penalty as
required by Section 311. The manipulations that are done with
that afterwards are solely a function of the administering agency.
QUESTION (FLOOR MIKE): I think I have one more question.
It seems you apply any one of these given methods only for the
purpose of reporting, that you wanted to establish the harmful
quantity. I was wondering where you got that notion?
MR. GAYNOR DAWSON: That's from the law, sir. The harmful
quantity is a self-reporting triggering mechanism.
QUESTION (FLOOR MIKE); Don't you have to determine if
substantial harm occurred?
MR. GAYNOR DAWSON: No, the harmful quantity is based on
substantial harm, but its function is to trigger the mechanism.
(FLOOR MIKE): It seems to me that the basic tenet of the
law is to establish the prevention of spills of harmful
quantities.
MR. GAYNQR DAWSQN: I think you'll find right early in
Section 311 that the policy of the law is to prevent all spills,
Harmful quantity is simply a single facet of that. Are there
any other questions? Yes sir?
QUESTION (FLOOR MIKE): Going back again to the preventive
measure and I realize we are only talking about these four
systems, do you intend the regulations also to include the
revisions, for instance, that tank cars will have double walls,
and all storage tanks will have double tanks?
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MR. GAYNQR DAWSON; We were not addressing prevention. We
were using that solely for the basis of developing this technical
alternative for developing the base rate of penalty. Those are
different regulations entirely and these gentlemen here are going
to have to fight that one.
PR. ALLEN_L. JEtlNINGS; Just like the removal regulations, the
prevention regulations are yet to come and are a year or so away
probably, but these will address preventive procedures, probably
much like the oil prevention procedures now in effect. If there
are no more questions right now, we are about ten minutes over
but I realize this pile of paper that you've been given is quite
substantial and I think Wednesday afternoon we will probably have
some additional time in which we can put the Battelle people back
up here for specific technical questions if you have any. But,
in the meantime, I urge you to read this report, look at the
methodologies, look at the assumptions and judgments and the
data and then tell us where we can improve it, where we can
refine it. That's the kind of info we are looking for in this
symposium. Thank you.
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DAY 2, OCTOBER 22, 1974 - MORNING SESSION
MR. HAROLD SNYDER: Good morning. We are primarily the
operational arm that is involved in the oil and hazardous
materials spill program both from a prevention and response point
of view. I'm a member of the Prevention and Control Branch and
I am involved in a response section where we coordinate and do
participate in spill response actions. We will in a sense
inherit much of the program that is really being discussed here
these three days relative to implementing the program. We will
participate with our regional offices in implementing the three
regulations, or really the two regulations that are being dis-
cussed now, the first, the designation of removability regulation.
We will have responsibility for preparing prevention regulations
eventually for hazardous materials as we did for preparing pre-
vention regulations for oil. We will have responsibility for
preparing removal regulations for hazardous materials as we
currently have the responsibility and are in the process of
drafting regulations on the removal of oil. Today's topics
will range from inputs from other governmental agencies who
have programs which are somewhat analogous to the broad subject
of hazardous materials. We will be hearing about those programs.
We will be hearing, hopefully, from them how they feel their
programs will relate, either in a complementary manner or
perhaps in a conflicting manner, with the regulations being
discussed today and the program that will emanate therefrom.
In the first session (these are all Federal Agencies) one of
the presentations will be from a companion program within EPA.
We will hear later this morning from a state program, we'll
get that emphasis. This afternoon, we'll try to fortify ourselves
at lunch with fluid and food so that we can then prepare ourselves
for a series of industrial presentations relative to what has
been discussed the first day and a half. Hopefully there we
will have some stimulating input relative to their views on what
we are proposing, their views on how it will impact them, and
also inputs on their own programs and efforts in this broad
general subject area.
My own experience in the field of hazardous materials is a
bit mixed. I worked with Hugh's group, a year and a half ago,
in the early onslaught of regulation preparation after the '72
ammendments to the FWPCA were passed and did participate in some
of the discussions on removability and some of the early dis-
cussions relative to the rationale of whether materials were
removable or not and under what conditions.
I have just returned from three weeks in most unseasonally
sunny weather in Seattle. It hasn't rained there in three months
and everybody's absolutely delirious with pleasure, I might add.
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I was out there on a PCB spill incident. PCB's are a non-
removable substance, as are all candidate substances currently
on the proposed rulemaking. This incident occurred when one.
of our companion federal agencies, the Department of Defense,
had a transformer fall on a pier. The transformer was damaged
and PCB's were the heat transfer medium in the transformer. A
large portion, somewhere between 100 and 200 gallons of the
material, did flow into the Duwamish waterway, which is a heavily
industrialized waterway in Seattle. It also does serve as a
salmon run. So even though its quality may not be of the highest
order (of course water quality in the Northwest is a different
ballgame than water quality in the East, and what they get
disturbed about, we'd love to have). The PCB's had a density
of about 1.4 and did go to the bottom. The waterway is large
enough to actually handle an ocean-going freighter under tug so
it is a significant waterway subject to about 6 feet of tide.
We did not initiate our actual mitigation operation in an
effort to try to pump material from the bottom of the: Duwamish
and remove it until about ten days ago. The spill actually
happened on the thirteenth of September and we were still able
to find and identify material on the bottom of the river, which
we thought was a rather unusual situation, at least illuminating
relative to what you can actually do to remove hazardous materials
under a spill situation. In this particular spill the material
was bezng removed (and I use that word very carefully) by means
of pumps and then going through a solid handling system and
eventually through a treatment trailer that was developed for
EPA by Rex Chainbelt, Rexnard, whatever they call themselves
this week. The Rex Chainbelt people developed a physical-
chemical treatment trailer for us a couple of years ago. This is
now the second spill application this unit has been used on and
it worked very effectively in removing PCB's from the liquid
slurry that we brought up. We tried to concentrate most of the
spill material in the sludge. The amount of material still sus-
pended or solubilized in the water was eventually removed in a
treatment unit, which basically consists of mixed media filtration
and carbon adsorption. So we had a very effective removal
operation under conditions where one would have not thought that
such could have been performed.
It's certainly an illustration of a way that the operational
side of our program intends to approach hazardous materials. And
that is, in those situations where we can do something, we are
going to do it. We don't expect to spin wheels when nothing can
be performed, but if we can get our hands on material, if we can
control the spill situation, we are going to try to mitigate the
circumstances around that spill and remove as much material from
the environment as we possibly can. Public reaction, I do not
think, will tolerate a careful, smoke-filled room rationalization
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of the on-the-spot impact of that spill relative to the total
impact over a long period of time from either industrial effluents
or municipal discharges or storm water or any one of a number of
other inputs that one might want to consider. The kind of public
attitude we perceived out there was, if the material's there and
you know it's there and you can do something about it, then you
damn well better do something about it within the limits of
your technological abilities.
So that was the kind of an effort that we launched in Seattle
and it's the kind of effort that we expect to launch in the
future. We did that effort using our own internal operating
funds and hope the Department of Defense will realize the error
of their ways and reimburse us. We ran a rather efficient
operation financially, simply because we had limitations on
funds. "When the revolving fund comes, we can move a little more
quickly because we won't be so inhibited relative to some of
the cost alternatives that one could undertake.
So we would expect from the industrial side of the house,
the ones that would be examining their spill situations relative
to what they can really implement, there are a number of things
one can do with a bulldozer on a spill event to give you some
time relative to actually conducting some sort of operation that
will minimize the damages to the environment so that you can
physically control your spill. I just use that as a simple
illustration of one kind of response function that's very
meaningful -- and then we can bring in the chemical engineers,
the process engineers, etc. to come up with ways of disposal
following the early opportunity to actually get your hands on
the spill.
I don't want to dwell too much on that except to let you
know that we do do things. EPA tries to do things and sometimes
they are even reasonably successful. In our headquarters element
out of Washington, we do provide some technical support to our
regions when they request it or when we suggest that it might be
appropriate. On occasion we do call our regional offices and
talk to them. We even know the number up in Chicago and we talk
to Russ Diefenbach on occasion. Sometimes he's smoking a
cigar and it's hard to communicate but we do have, we feel, a
program where we tie very closely to our regional offices and
try not to operate in a vacuum. Well, that's enough of my stuff.
If there are questions or comments that you wish to ask about
the operation that I was involved in, we can do it at one of the
breaks.
Starting today here, as we go through each presentation,
I think, unless we get into big trouble on time, which we
probably already are because I've talked too long, I think
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discussion after each paper gives a little more spontaneity. We
would like you to identify yourselves as you make your comment.
I hope that's not too stifling. I don't think it is.
We will have two mike monitors today so we can actually
deliver a microphone to you. I think the acoustics here aren't
very bad, but there is an effort here to try to develop a meaning-
ful set of proceedings and the only way we can do that is if the
comments are adequately recorded so that we can develop those
proceedings and possibly come back to individual commentors at
a later time for something you said which maybe didn't come out
quite clear and you'd like a chance to correct the record.
Congress does that all the time so it's perhaps fair for us.
So if you would, identify yourselves. We have very nimble
mike monitors so we'll try to get there so that you don't lose
the spur of the moment comment that you might have relative to
any of these presentations.
So the first presentation will be by Al Grella, who is from
the Department of Transportation. He is chief of the Technology
Division of the Office of Hazardous Materials and his program or
his presentation this morning will be on the DOT proposed Hazard
Materials Information System. Mr. Grella.
MR. AL GRELLA: Thank you very much, Harold. If anybody
can't hear me at any time, just raise your hands. I'm very
pleased that the DOT was asked to participate in this conference
on the: hazardous material spill regulations. The subject that I
have to talk about is not directly related to the spill regu-
lations per se but it's certainly of great relevance.
The main topic I wanted to cover is the proposed Hazard Infor-
mation System, or as we refer to it, the HI System. It's basically
a system to improve the hazardous materials information system
for communication of information via the system of labels, placards
and shipping papers during the transportation of hazardous materials
I've got a series of slides that I'll be using and we might as
well get right into those. So let's get started. If we could
turn on the slides, please and put the lights down.
Now, in transportation, as this slide shows, we've got a
jumble of many different types of hazardous materials, all sizes
and shapes, all types of containers. Often in transportation
things go wrong, as we can see here in the next couple of slides.
In particular in rail transportation there has been a series of
serious accidents. During these incidents, it is not always easy
to identify materials. This is fairly identifiable tc the common
person. They know what gasoline is. They recognize a gasoline
truck and are somewhat familiar with the hazards. If all of the
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particular hazards information were this available and this
easily accessible to the lay people and the public, we wouldn't
have any real problem in communication. So basically this
hazard information system is an attempt to improve the system
of labels and placards for all types of hazardous material
shipments.
Now, miscommunications can often be a problem. On this
slide you can disregard the two numbers but experience has
really shown that transmission of information can easily intro-
duce serious errors. As a case in point, I would like to just
cover quickly, a few years ago a shipment of a chemical called
acetone cyanohydrin, which is classified as a Class B poison
material, was involved in an accident. In the course of identifying
the leaking material, the last word of the product was dropped
and personnel dealing with the incident proceeded on the basis
that they were concerned with acetone, which is, of course, a
flammable liquid. Both materials are hazardous, of course, but
the recommended handling procedures in an emergency differ con-
siderably.
There have been several identification systems consisting
of numerical designators, color codes or combinations thereof
which have been developed and proposed as solutions to this
problem of trying to convey rapid and positive information on
hazardous materials. After very careful consideration of several
alternative identification proposals, the hazardous materials
regulation board of the DOT in June of 1972 published an advance
notice of proposed rulemaking. This was under our Docket No.
HM103, proposing for the first time, as an advance proposal
(not a formal proposal) the elements of a hazard information
system.
Now, this slide just depicts the present placards for
hazardous material shipments by highway. You'll notice that
you mainly have one or two words just telling you what the class
of the material is. As a comparison, on the next slide, we
show the placard for flammable liquids by highway at the top and
that same placard for rail shipments on the bottom. So we have
an inconsistency in the format of placards for rail and highway
shipments at the present time. These are the present placards.
You'll be seeing a lot of the slides showing the proposed placards.
Now, I think it would be most appropriate to read directly
from the preamble of this Advance Notice of Rulemaking back in
June of "72. Within that notice the Hazardous Materials Board
stated in part, "The need for improved hazards communications
has been the subject of considerable controversy and debate
during recent years. It has been pointed out that the communi-
cations requirement of the regulations 1) generally are not
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addressed to more than one hazard, 2) do not in all instances
require the disclosure of the presence of hazardous materials
in transport vehicles, 3) are not addressed to the different
hazard characteristics of a mixed load of hazardous material,
4) do not provide sufficient information whereby firefighting
and other emergency personnel can acquire immediate information
to handle emergency situations (this is essentially the infor-
mation conveyed in highway shipment), 5) are inconsistent in
their application to the different modes of transport (as
illustrated here, the present placards are inconsistent for
rail and highway). The board believes that there are deficiencies
in this area and that certain changes are necessary to provide
for the adequate communication of hazards for material in trans-
portation. However, the board also believes that it must con-
sider the complexity of any regulations that it adopts in that
area and what is to be imposed on the personnel who will be
required to follow them."
Now let's get into the salient features of the proposed
system itself. Basically the salient features of the Hazard
Information System, or HI System, as proposed are: the assign-
ment of a hazards information number to each hazardous material
which will identify not only the primary hazard to be considered
but also any other significant hazard characteristics to be
taken into account, such as secondary hazards or tertiary
hazards. This is done by a two digit number, which as you can
see there would be assigned to the placard on the left and the
package label on the right. So that the major part of this
system is that a two digit number is to be added to a revised
system of placards and labels. Another salient feature is the
publication and dissemination of hazard information cards for
each number to emergency personnel and local authorities with
emergency procedures to be followed as well as those to be
avoided in dealing with the specified identified material. For
instance, there will be a booklet published in conjunction with
this system with about 60 generic hazard information cards or
sheets in that booklet. For instance, there will be a sheet
dealing with hazard information number 35. In addition, there
will be requirement that this hazard information number be
entered on the shipping documents and, of course, there will be a
prescribed method for the assignment of hazard information
numbers. Now on January 24 of this year, the department
published, again in its Docket HM103, the actual proposal for
this hazard information system. There have been extensive
comments on it, the proposals and comments are under staff
considerations. The comment period expired, I believe, on
October 3.
Now, in each case the first digit of the two digit hazard
information number is the same as the United Nations class —
that is, the UN group of experts on dangerous goods have established
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classes for hazardous materials and assigned them a number. In
each case, the first number of this digit is consistent with the
UN class. For instance, for flammable liquids, the first digit
would be 3, for poisons 6, for radioactive materials 7 and so on.
The second digit of this hazard information number is somewhat
arbitrarily assigned in that it denotes the significant secondary
hazards or, in some cases, if there is a zero, there are no
secondary hazards. As I said, there are approximately 60, or
to be exact, there are 57 hazard information numbers or cards
that will be in this booklet. This is a listing of the hazard
information numbers in the flammable liquid series 30, and you
can see here by the headings that when you get away from 30, you
get into essentially materials that are flammable, but also have
a secondary hazard. Case 31 is corrosive; 32 is a flammable
liquid that's poison, and so forth. This is just an outline
of the series of numbers in the poison category and I selected
these two because I have some detailed examples to show how this
would be applied to the labels and the placards.
Going back to that example of acetone, now. Acetone would
be a flammable liquid with a hazard information number of 30.
Acetone cyanohydrin would be primarily classified as a toxic
material or poison with a number of 67. This is what the pla-
card would look like and I've got some actual illustrations of
the placard we'll show later when I'm done. This placard has
been designed to existing rail placard holder size, that is the
existing size of placards that are presently on rail cars in
the United States. You can see the placard has three elements
to it, the symbology of the flame for flammable materials, the
word designating the class of hazardous materials, and, of course,
the hazard information number in the lower block.
This is what the hazard information booklet sheet would
look like in the HI manual. You can see that it gives information
as to the potential hazards, fire and health, and also emergency
action guidelines. Now probably the most interesting and most
prominent feature of this system is that, as I said, there are
approximately 60 information cards which are generic in nature
so that there are literally dozens of materials that may be
assigned the same generic hazard information instructions. This
is because of the commonality of the hazard characteristics of
many materials. Going on again, acetone cyanohydrin would be
given a number 67 and this would display primarily the poison
identification. Again, if you were to examine the specifics of
the hazard information on these cards, you would see that it is
geared toward the particular hazards of that generic class of
material. Just as a couple more examples, flammable number 35
in the system would be a material that is conbustible or
flammable liquid, corrosive, self-reactive, or thermally unstable
such as ethylene oxide or acrylo nitrile. Again, this is just a
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display of how the hazard information sheet in the booklet would
look, a little more closeup view. Keep in mind that this hazard
information number appears several places. It appears on the
package label, on the vehicle placard and on the shipping
papers. Flammable 38 would be for pyrophoric liquids, NOS. All
of these are illustrated in exact detail in the Hazards Information
System proposal of last January. This is a placard for a poison
which would be extremely toxic, such as hydrocyanic acid. We've
also fit radioactive materials into this system by assigning
hazard information numbers, mainly on the basis of quantity, type
A quantities and type B quantities being the designators.
Now this is not a very good slide and it's not completely
up to date. But this is a layout of the present package labels.
It does not show a block in the lower part of each of these
labels where the hazard information number would be assigned.
They are the current labels that were adopted about two years
ago when the U. S. formally adopted the UN system of labels.
So the only major change to the labels would be the insertion
of the number in the block in the lower part of the diamond.
These are the present hazard information labels based on UN
labels. Again, this is just another closeup of the one we looked
at before.
Now the present regulations for transportation have a number
of requirements for documentation; that is, the addition of
information to the shipping papers. Some of these things are:
papers must show the consignor, the consignee, proper shipping
name, classification of material, shipper's signature. Now,
as I said, this system involves a revision of placards, new
placards with the hazard information number, the insertion of
the hazard information number onto labels of packages.
A third place where an emergency person might possibly avail
himself of this information would be on the shipping papers.
And part of the major requirements that would be imposed if the
system were to be adopted would be a requirement that the hazard
information number appear prominently with the proper shipping
name; in this case gasoline 30, flammable liquid. So that with
this system, we have improved communications by being able to
view the placard from a greater distance, the reference to this
hazard information number by packages or labels or through the
shipping papers, if these are accessible. In some cases the
shipping papers might be obtained out of the vehicle or the
truck or some other way. So the problem is really being attacked
in a three-fold manner, by labels, placards, and shipping papers.
The system does tend to get complex in some areas, such as
when you have mixed loadings. For any hazard information system
it would be relatively simple to develop a system if you always
had only one class of material on a vehicle, but unfortunately,
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this is not the real world. In many cases vehicles have mixed
loadings of hazardous materials and this is just a sort of a
catch-all type placard, Dangerous 01. I refer you to the details
of the proposal to see how this would be used.
Now in some cases, such as materials that are both flammable
and toxic, there was great disagreement as to whether the secondary
hazard should be disguised within the second digit or whether dual
placard or labeling would be required. This is not a good
example of dual placarding but there are some cases, especially
with materials that are flammable and extremely toxic, where
labels and placards displaying the information for both hazards
will be required. Now I hesitate showing the next slide but it
illustrates one of the complex problems in an absurd fashion,
the complexity of the problem with mixed loadings. This is
what we tried to avoid, because you'd have nobody going down the
highway behind a vehicle with this kind of placard on it. But,
like I say, I kind of enjoy this slide. It does show the kind
of problem that you have in designing any system of this type,
especially when you have mixed loadings. As I said, if you
always had the same type of material on a vehicle, it wouldn't
be any problem. So, of course, we're trying to avoid this and
I think we will.
And lastly, we always advise people shipping hazardous
materials to check their load. I think we can put the lights on
now and that'll be the end of the slides. Ray, if you could grab
those illustrations and just stand them in front of the table
over there. These are actual size illustrations of placards and
labels.
There has been a lot of discussion about being able to find
information on the specifics of the material. This afternoon
you'll be hearing from Mr. Zercher, I believe, from MCA. MCA
has had an operation for several years, a system called Chemtrec.
This is, as you will find out, a means of finding out information
on the specifics of specific materials. As I said the hazard
information system is a generic system and it's designed to give
information at the scene of an accident in the first fifteen to
thirty minutes — what to do in the case of fire, spill or leakage
and so forth. It would remain then to find out more about the
specific material, once you found out what the material is. Now,
as a corrollary effort in this whole program, the department
expects to be putting out guidelines on specific materials and
has actually done so in one case. I have at the back of the room,
and they will be handed out during the break, copies of a new
pamphlet that has just been issued by the department. It's
entitled "Emergency Services Guide for Selected Hazardous
Materials." You'll find a lot of similarity between this and
the hazard information cards; however, this information is
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specific to the material — acrolein, dimethyl ether, and so
forth. Now, there are about thirty different chemicals covered
in this Emergency Services Guide. They were selected mainly for
several reasons: because they are shipped in bulk, and their
gases are highly volatile liquids that are both toxic and
extremely flammable. Now, this gives specific information on
the left hand side as to what to do for the particular material
(ethylene oxide), potential hazards to fire and health, what
to do in case of fire, spill or leak and first aid. On the
right hand side there are wind rose patterns, evacuation distance
information for fragmentation from explosions or for downwind
distances to be safe from clouds, from spills, and so forth.
This is the first time anyone has attempted to put this kind of
information down for transportation. It's only guideline-type
material. This presentation of format in the HI system and also
in this booklet are very similar to the MCA Chemcard system,
which was designed years ago for shipment of bulk chemicals,
so I would just mention this. It's been a very popular guide
in terms of response by the fire service and rescue people and
things like that, because there has just been nothing of this
type issued. And we do have a copy of this for everybody.
At that I think I'll just end the formal part of it. I've
attempted to give you the basic features of this hazard infor-
mation system. If you're interested in it, you can still write
to our office and get copies of the formal proposals. I might
also mention that on the same day in January when we proposed
this system we also had another proposal in Docket HM112 which
was even bigger than the hazard information system proposal.
This was a proposal to consolidate into one title (that is,
Title 49) all of the hazardous materials information of the
department. At the present time, the surface regulations are
essentially in Title 49, the vessel regulations in Title 46 and
the air transportation regulations in Title 14 of Part 103.
This reconsolidation proposal, as we call it, would combine
the surface, vessel and air requirements into the same title.
In doing that, the list of hazardous materials has assigned to
it these proposed hazard information numbers, so it is essentially
a rewrite of the book except for the packaging requirements.
It's a rewrite of the list of hazardous materials assigning the
proposed hazard information numbers and putting in that same
table a list of limits for aircraft and for vessels, because
currently you have to go to a different code to find the regu-
lations for vessels and for air. So the whole combination of
our Dockets HM103 and HM112, the hazard information system and
the consolidation, is a massive rulemaking undertaking. I've
just given you a very brief summary of the hazard information
part of it so let's throw it open to any questions. I don't
know how much time we have.
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I think we're doing pretty good on time and so I think the
questions are better now than later. There's a gentleman in the
middle, Ken.
QUESTION (FLOOR MIKE): Dick Hall of Diamond Shamrock. Is
there any attempt being made to coordinate between the DOT Trans-
portation Information System and the EPA Material Identification
System or Hazardous Identification System, such as the EPA
registration number or the EPA establishing a number and putting
these all on the same piece of paper?
MR. AL^ GRELLA: I'm not sure how the coordination is taking
place as to which piece of paper, but there is a great deal of
coordination to the extent that I believe the President has
established a Federal interagency group concerned with labeling
of hazardous substances; probably someone here from EPA would
know more about it than I do. I'm not on that particular work
but we, in particular, have tried to coordinate to the maximum
extent with other agencies, not only the labeling but definitions;
for instance, the definition of a flammable liquid. We're trying
to establish consistent definitions as well as labeling require-
ments and marking and it's not an easy thing to do. I can't
answer you specifically, but I answer you generally that we would
coordinate with anybody we think we have to.
DICK HALL (FLOOR MIKE): Thank you.
MR. HAROLD SNYDER; We've got a question over in that corner
over there.
QUESTION (FLOOR MIKE): I want to ask you a question. I'm
Bob Reese, with National Tank Truck Carriers. Since you've
already made reference to the shipping paper here, we were
discussing last night on this determination of harmful quantities,
etc. with lakes, streams, rivers and estuaries and the coastal
zones, or whatever they are, whatever the classes might be,
maybe DOT would want to take a look at marking the shipping
paper further so that these harmful quantities could be shown
right on the shipping paper. What I mean by that is, there's
no tank truck driver who can determine what a harmful quantity
is. And since you have control of the shipping paper you may
have to look at this too.
MR. AL GRELLA; I'll pass that along to whoever I have to.
I'm not that versed on the harmful quantity as far as the quanti-
tative aspect, but it's certainly something that's worth passing
on.
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I know our fuels response people have always been concerned
about identification of cargoes, particularly in railroad
accidents and other incidents, and I'm curious as to whether
there is any action or response from either EPA's spill response
people or industry's spill response people as to the adequacy
and helpfulness of this kind of improvement vs the status of the
situation today. I'd be interested if anyone would get up a
little comment along those lines.
MR. HAROLD SNYDER; Question over in the corner there.
QUESTION (FLOOR MIKE): I'm Bob Graziano with the Association
of American Railroads. You have indicated that this is a generic
system. EPA's is a very specific system, which is one of the
ways we operate on the rails today. With a very specific symbol,
an identified product on a placard which is pasted on the tank
car or on the box car, why in the face of EPA's considerations
of specifics do you choose to go to a generic system?
MR. AL GRELLA: Well, I believe, Bob, in terms of tank car
transportation, there is a requirement to mark the name of the
chemical involved. I'd have to check that, but I believe that's
part of the requirements. Now, in terms of the overall spectrum
of hazardous materials, when one starts dealing with the hazard-
ous materials regulations he finds that there are eight or nine
classes of hazardous materials and in most of these classes we
have a generic category such as a flammable liquid NOS. What
this means is that there are some materials that are not listed
specifically by name. However, there are test criteria or means
to determine whether a given material meets the criteria for a
flammable liquid — say a flash point. The alternative to this
is to list the thousands of materials specifically by name, and
as any of the agencies know who have tried to maintain lists of
hazardous materials, it's an unending job that's never complete.
The important point that I want to make here is that without
the NOS category, our regulations would probably be in ruins.
Now, to get back to the specific question, the generic approach
was selected because there are many materials for which the
emergency handling in the first half hour is quite common and
you can tell the people the same kind of information for many
different materials. I'd have to say that was the primary
reason for selecting the generic approach. I'd have to check
the details on marking tank cars but I believe there are some
requirements for marking the name.
QUESTION (FLOOR MIKE): The marking of the name on tank cars
is only required in certain commodities, such as chlorine, motor
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fuel antiknock compound and a few of the nastier items, but in
all cases, the specific product in that car is required to be
marked on the placard and that would evidently satisfy EPA and
the railroad industry in terms of identification of materials
that they might have on their specific hazardous materials list.
However, if you were to have a flammable liquid 40 for example,
you wouldn't know whether you had a material which was on the
EPA's hazardous materials list or whether you were just dealing
with a material that was regulated by the DOT. I think this
represents a very real problem to the transport agencies. We
would, on one hand, assume that a flammable liquid 40 is not on
the EPA list, for example, and by that token we might be subject
to the harmful quantity and fines and penalties.
MR. AL GRELLA: The only way that I can answer -- and it's
not an answer that you will be satisfied with -- is that the EPA
harmful quantity regulation is an entirely different basis of
regulation than the transportation regulations. Entirely differ-
ent, as I tried to point out with the description of the NOS
categories. So I would assume you have addressed those comments
in the docket. I hope you have.
QUESTION (FLOOR MIKE): Howard Schwartzman from Procter and
Gamble. Many of the materials on the EPA hazardous materials list
are toxic to fish but not toxic to people. Do you have some
numbers on your placard system that would take care of new
categories of this sort? Because it isn't covered right now.
MR. AL GRELLA; There are, I believe, some rules in there
for getting a hazard information number assigned in the regu-
lations now. As far as determining whether it's regulated as
a hazardous material, for several of the classes, we have
quantitative definitions. We do not have quantitative definitions
for all materials yet. We have them for toxic materials, for
corrosive materials, for radioactive materials. These are
quantitative definitions. We're working on trying to develop
quantitative definitions for oxidizers and flammable solids so
that for derivation of hazard information numbers, where they
are not prescribed in the: book, there will be a way of getting
these assigned. Yes?
MR. HAROLD SNYDER: We have time for about one more question
from this presentation. Again, I don't think we've heard from
anyone, if I'm not mistaken, relative to spill response people
in that kind of a business, as to whether this program as pro-
posed helps you out significantly, or is status quo, or what. I
would be interested in hearing a reaction about that. Apparently
everyone's quiet this morning.
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MR. AL GRELLA: I might add on that there's an awful lot
in this proposal that affects a lot of different parties of interest
and I think, as it's stated in the preamble, that as far as fire
service personnel goes, we know quite well how they feel about the
system and it's stated in there. I'll just refer back to the
present placards and see what kind of information is there.
QUESTION (FLOOR MIKE): For clarification, I think you might
find most of the companies have responded to HM103 already and
if you would look over those records, I think you could tell
quite clearly whether there was support for it or against it.
That might be more helpful than this discussion here today.
MR. AL GRELLA: I've tried to keep my presentation fairly
neutral and not speak for or against, just tell what the features
are, because this is a docket matter, so I am just trying to
give an objective explanation of what the system is. Bob?
QUESTION (FLOOR MIKE): One final question with respect to
EPA and DOT. What positive steps are you taking to find these
areas where both of you have an interest to protect?
MR. HAROLD SNYDER: I'm not sure that I'm totally aware of
that. You had a comment. Ken, do you want to give it to Hugh
back there?
DR. C. HUGH THOMPSON; I think this is exactly the type of
discussion we ought to get into and we ought not to skirt the
issue. This HI system has been under development for quite a
while and EPA in various capacities has participated with the
Department of Transportation in looking at this system. I
think you should also look at the list of materials that was
published on August 22. That list of materials EPA tentatively
considers as the first cut. The top priority materials which
when spilled, pose eminent substantial threat to the aquatic
environment and public health and welfare. If we can ever get
that regulation promulgated, to say, that is 60 percent of the
problem, or something like that, that we are shooting for now,
and if we can get the harmful quantity regulations promulgated,
then the obvious next step is to integrate this into an efficient
communicative system. This is one.
I would call to your attention, and I assume that it
immediately came to your mind, that the similarity in concept
of the IMCO Methodology on grouping materials (even though we
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did not call them generic groupings) is a similar type of a
ranking, and as a matter of fact it has a similar base coming
out of the IMCO people, groups of experts involved in either
dangerous cargo or noxious material discharges. So, let me
just suggest this. All is exactly right in that there is
coordination, but I could not state at this point in time that
it's all going to match at the end of the week, or the end of
the month or the end of the year. As we are feeling our way
along and identifying materials that are hazardous when spilled
in the water, we have deliberately tried to steer away from
materials whose properties are flammable, because we recognize
that the Department of Transportation and the industries involved
have been addressing that problem rather adequately for quite a
while and why would it be necessary to establish further regu-
latory burden? With that, you might think that this symposium
should be utilized to think about these methodologies from your
perspective, what would make sense to you to fit into existing
regulatory requirements. As we get into the discussions tomorrow
on our first assessment of what we think might make sense, I
think that your comments will be most helpful to call out, not
in generalities of inconsistencies, but be quite specific, rub
our nose in it, if you will. We're aware of these problems, we
would like to do things about them but they are quite complicated.
When you look at the list of materials the DOT considers as
hazardous and then you consider the statutory basis that we are
working with for water pollution, I'm sure there would be people
who would criticize me for saying that boxes of oil rags are not
much of a water pollution problem, but I must take that stand
and say on a priority basis we won't look at those right now.
We're going to look at the two dimethyl umptygump type problem
that is quite toxic and hazardous to people and the aquatic
environment.
MR. AL GRELLA; I might add to that, Hugh, that the coor-
dination problem is no less simple, as far as consumer product
safety commission activities and consumer products. I think
this was the reason for the formation of this interagency group
just on the subject of labeling, which has just gotten going, I
believe. Thank you very much.
MR. HAROLD SNYDER: The next presentation this morning will
be by Ray Zintz. He's chief of the Emergency Preparedness Branch
in the Division of Operational Safety of the Atomic Energy
Commission. He will talk to us this morning about AEC's radio-
logical emergency response program. Ray.
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MR. RAY ZINTZ: Thank you Hal. Good morning, Ladies and
Gentlemen. I'm really glad to be here this morning. I came in
the door just behind the Chairman of the Atomic Energy Commission,
Dixie Lee Ray, and I though, boy, this is going to be rough to
have to follow the chairman at a meeting. Then she got on the
elevator and went on upstairs so I relaxed and I knew I wasn't
going to have her listening to everything I said this morning.
One of the things that we did want to note, and I'm sure
everyone is aware of it here, is that the list of substances
that are now considered hazardous does not yet include specific
radioactive materials. It is the objective, I believe, that
eventually radioactive materials will become one of the sub-
stances under the Federal Water Pollution Control Act and the
implementation of that act. Now we, of course, would like to
emphasize that care should be taken in establishing what the
concentrations, circumstances, and conditions would be for
radioactive materials that would constitute a hazard to public
health and welfare. Under the Atomic Energy Act, AEC has
adequate authority to take action in the event there are spills
of radioactive materials that might pollute the environment or
be released into public areas or on controlled sites. Having
this authority and responsibility, we have established contin-
gency plans for onsite and offsite releases from accidental
causes of radioactive materials so that at least attention is
being given to polluting accidents and releases from radioactive
materials. We work very hard at this and believe that we are
doing a fairly good job.
As was pointed out by Al Grella, there are also here today
presentations on the Chemical Transportation Emergency Center
activity and the pesticide safety teams under the National
Agricultural Chemists Association organization. We have coor-
dinated with both of those organizations so that if an incident
involving radioactive materials came to either of their attentions,
they would now work to direct the request for some immediate
assistance. As you know, the President signed the Reorganization
Act of 1974 on October 11 of this year which says that AEC is
going to split. We are going to become an Energy Research and
Development Administration, and we're also going to become a
Nuclear Regulatory Commission. We are now quite involved in
determining the manner in which we are going to split the
Atomic Energy Commission and all of its organization and all
of its programs. Assuming that we still are an AEC, there are
two sides, the General Manager's programmatic side and the
Division of Operational Safety under the General Manager and
we have responsibility for the emergency preparedness program.
Now, just to give you the scope of this program, it
involves emergency preparedness for emergencies that occur in
AEC operations, whether those operations are on a site or off
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a site. It includes radiological emergency assistance, assistance
for other organizations, individuals, and agencies that may become
involved in radiological accidents. And we have a responsibility
for planning against national emergencies and for national
defense. And then there is a regulatory emergency preparedness
planning program under the Director of Regulation. All of this
is integrated at the present time to produce one large emergency
preparedness program.
We're going to focus down only on the radiological emergency
aspect of it. Here we have a subprogram which we call the inter-
agency radiological assistance program. Basic to this are two
things: the AEC radiological assistance plan, which was updated
in May of this year, and the interagency radiological assistance
plan which was dated November of this year. There are several
other interagency agreements that have to do with arrangements
between the Department of Defense and the Atomic Energy Commission
on responding to incidents involving radioactive materials, which
includes nuclear weapons and nuclear explosive devices.
In order to provide the response that's necessary throughout
the United States, the AEC has divided the United States into
eight geographical regions for radiological assistance. In each
of these eight regions, we have assigned one of the Atomic
Energy Commission field offices to be the regional coordinating
office. The AEC is not structured on a regional basis for
purposes of conducting these programs, so this is a unique
assignment of geographical responsibility. Under the Director
of Regulation, however, there is a Directorate of Regulatory
Operations. They are divided into five geographical regions,
so that they have five regional Directorate of Regulatory
Operations offices. And there is coordination of radiological
assistance between the Directorate of Regulatory Operations
regional offices and the eight AEC regional coordinating offices
for radiological assistance. Of course, the national coordinating
offices, the headquarters located out at Germantown, Maryland, and
the responsibility for the national office is in the Division of
Operational Safety.
The kinds of incidents we are concerned with in radiological
assistance are losses and spills of materials during transportation.
Now, by losses, I mean literally it is lost. They can't find it.
It's gone and everyone knows it's gone, but the search is on. A
spill, of course, you know you have it and your identification of
the problem is a little easier. There are problems of accidental
contamination which could occur anywhere; generally it would be
in a facility of some kind. Then there is material that is mislaid,
not during transportation but on a site or in a building, and
then someone needs assistance for that. Occasionally, thieves
make mistakes and steal the wrong things and they turn out to be
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radioactive materials. Then they have some really hot items on
their hands. A little advertising in the newspapers and on the
radio generally brings these things back. Of course, the donor
never identifies himself, but we are glad to get the materials
back so no one gets hurt with them. I understand there really
isn't a good radioactive materials fence in the country anyway,
so the stuff is on their hands. And then there is material that
we call "found material." And that's what happens; someone calls
and says, "I found something here and it says radioactive on it.
What"11 I do with it now?" So there are these kinds of materials
involved in radiological assistance incidents.
Every program has to have policies and objectives and radio-
logical assistance is no different. Our policy is simply to
minimize injury to people, to protect public health and safety,
to reduce the impact of the incident on the environment and to
provide advice and whatever assistance — immediate emergency
assistance — might be needed in order to overcome the conditions
or hazards of the incident. In general, the objectives are to
establish the organization and the procedures to carry out these
policies. I've just described generally that we have an organi-
zation and procedures. We want to assure that the capabilities
are ready to respond. We want to coordinate with other agencies
and we do this through the interagency plan and in other ways.
And we want to effectively use the resources in responding to
the radiological incidents. We want to encourage others to have
their own plans and their own capabilities to respond to
incidents so that we can have the earliest response possible
made, rather than having to depend upon some remote Federal
agency office to get somebody there in some period of time. So
we do encourage anyone involved with radioactive material, or
who could be involved with it, to think about having their own
plans and their own capabilities. There's particularly a lot of
work done with the states and with county and municipal agencies
to encourage them to be able to respond to radiological incidents.
We're always available for backup and support through the inter-
agency radiological assistance program, but it is backup and
support and it can't be every place all the time. So it is
important for anyone who is going to have any contact to have
some idea of what he can do immediately and what he should do
and some things that he should not do.
The radiological assistance plan provides a 24-hour a day
contact point. It provides a response mechanism for these
requests. It makes federal resources available. It provides
technical advice and hazard assessment. It supports the authority
in charge at the scene and it provides protection for the public
health and safety. It provides coordination between the Federal,
state and local response capabilities. There are some things
the radiological assistance does not do. It does not preempt
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legitimate authorities at the scene. It does not abridge state
or local government authorities. It does not direct the overall
emergency operations. Some local authority is in charge of
overall emergency operations. The plan does not provide any
control over private people or their property. We only have
control over Federal property; we do not control any others.
It does not provide any post-emergency decontamination or
recovery. Beyond that required for immediately controlling
the hazards, the personnel the equipment, the capabilities that
are at the scene to give assistance, their mission is emergency
assistance. It's not to dig around for the next two days, trying
to find all of the material that was lost, or to carry on all
of the recovery procedures that might have to be done. The teams
do not respond to nonradiological emergencies. If they know
before they leave that it is not radioactive material, they are
not going to go. But they will call someone else and get some
help. We don't just drop the problem because its not radio-
active material. And the radiological assistance does not
relieve other organizations of their emergency responsibilities.
Under the interagency radiological assistance plan, twelve
Federal agencies are coordinating their resources and their
capabilities. As I pointed our earlier, this plan establishing
the policy, objectives, and guidelines for interagency coordi-
nation has recently been updated and we are publishing it dated
November 1974. It's an integrated capability that is also
being coordinated into other Federal major emergency planning
being developed within the Federal family. Now the interagency
plan, in addition to of course following the same policies and
objectives of radiological assistance, provides for this
coordination of the Federal agency radiological emergency
responses. It provides for the integration of the Federal
agency capabilities. The interagency plan provides for imple-
mentation by the AEC headquarters and its field office organization,
so that the interagency plan is implemented on an eight-regional-
interagency plan basis. And the plan provides that there shall
be training and technical assistance encouraged for state and local
development of radiological emergency response capabilities.
This training and technical assistance is done within the existing
programs and framework of the agency; it is not set up as a
separate new and distinct effort.
There are several things that the planned interagency radio-
logical assistance plan does not apply to. It does not apply to
accidents involving nuclear weapons or explosive devices. That's
taken care of under the joint agreements between the AEC and the
Department of Defense. It does not provide for monitoring of
radioactive fallout from a nuclear attack. That is done under
the Office of Defense Civil Preparedness Agency, Civil Defense
Radiological Monitoring Program. It does not respond to national
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emergencies or major disasters declared by the President except
where it would support or be an adjunct to other Federal dis-
aster relief and control measures.
In general, the kinds of capabilities, equipment, facilities
and services that we have are used for surveying for radiation;
that is, detecting and measuring radioactivity that may be released
into the environment or contaminating people or equipment or
facilities. Capabilities are used for personnel exposure assess-
ment so that we can advise the authorities in charge and the
medical people as to what the exposure may be, or might be
assessed to be, of individuals involved. Capabilities are also
used for providing radiological protection to assure that no one
else is exposed to the radioactive material than has already
occurred. Capabilities include handling radioactive material,
a unique skill which is well developed within the Atomic Energy
Commission's laboratories and operations. And there is capability
for environmental contamination identification and estimation.
The special capability for doing this is an aerial radiological
measuring system which is flown in an aircraft and which, from
an altitude of 500 feet, can make precise measurements of radio-
activity on the ground.
We have established a computer-based program for our
emergency resources identification. It's called the emergency
resources identification system and it will put into a computerized
catalogue information on personnel, equipment, facilities, emer-
gency systems, technical data, and information that would have
a possible use in an emergency. It's not only radioactive
material that we are concerned about, however; we have many,
many chemical and biological hazards in our laboratories so our
system will cover all kinds of hazardous materials that we
might have to deal with in the atomic energy programs. And with
ERDA, the program becomes broader and I would believe that we
will be dealing with many more new biological and chemical hazards
than we have been doing in the past. ERIS is online. We are
building our initial data file at the momment and
extending the ERIS hand to the other 11 Federal agencies so that
we can pull into this one system the combined resources of all the
Federal agencies.
We keep some numbers on experience in responding to radio-
logical incidents. To give you some notion of how it's been
going (and right now it's going up like everything else,
inflation you know), the curve is up and so is the curve on
incidents. I don't know if it's an inflationary curve or a
more real curve. But since 1970 we have seen a steady increase
in the number of incidents that we have been responding to
through this AEC interagency radiological system. In 1970
we handled 58 incidents; in 1971, 66; in 1972, we handled 90;
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in 1973, we handled 112. Now that's for a span of 10 years;
from 1964 through 1973, we handled a total of 747 radiological
systems-type incidents. These are almost exclusively non-AEC
incidents. So we have had some business. Fortunately, none
of these have resulted, to our knowledge at least, in what
could be identified of an overexposure of any individual to
radioactive material or radiation dose.
Since there's a lot of discussion here on transportation,
we did some small study on our experience for 1969, 1970, 1971
and 1972. Just to show the trend, in "69 the percent of our
responses relating to transportation was 74 percent of the total
level to which we responded. In 1970 this dropped to only 45
percent of the total number of incidents to which we responded.
In 1971 it went up to 56 percent. In 1972, it went up slightly
more, to 62 percent of the incidents to which we responded. So
we do find ourselves involved quite a bit with transportation
incidents.
Well, who is eligible to receive this? I think maybe by
now I've already told you almost anybody can receive radio-
logical assistance. Once we receive a call, the call is
evaluated to determine whether this is a real need, whether the
person has a legitimate problem on his hands, and the appro-
priate responses are made to it. An appropriate response, as
I've said, could be transferring this over to a state health
department, to an EPA office, to an HEW or public health service
office, to whoever might be the most appropriate agency to
respond to this request. The request can be made essentially
to any AEC office. It can be made to most Federal agencies
that are coordinated into the interagency plan system. You'll
luck out if you call a state agency too. Any law enforcement,
civil defense or health agency in-state organization probably
knows about the Federal radiological assistance organization
and how to reach it. We're of course also interested in receiving
reports of incidents, even if we don't get a request to respond
to it at the same time. In order to spread the good word that
there is assistance available, we have issued for a number of
years (by a number of years I mean beginning in 1958) a small
map that shows the eight regions for radiological assistance
and gives the names of the regional coordinating offices, their
post office addresses and the telephone numbers to call for
assistance. I am quite sure that we have distributed roughly
200,000 of these over the years and they've been reproduced
many, many times. Thank you very much.
MR. HAROLD SNYDER; Are there any questions or any dis-
cussion from the floor? Thank you very much, Ray.
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We'll move on with the program then. The next discussion
will be presented by Jack Lehman, who is Director of the Hazard-
ous Waste Management Division of the Office of Solid Waste
Management Programs in EPA and he's going to discuss the impact
of the Section 311 program and regulations on solid wastes. Jack?
MR. JACK LEHMAN: Well, thank you. I know we're running a
little late, the coffee's getting cold so I'll try to confine
my remarks to a fairly short time here. One of the things I
want to do today is to provide sort of a point-counterpoint
approach to this situation as to the similarities and the
differences between the 311 hazardous and toxic spill program
and the hazardous waste management program in a different
office of the EPA. But before I do that, and to sort of put
it into context for you, I would like to first of all very
quickly give you a little philosophy about our approach in the
hazardous waste management area and also to bring you up to
date on the status of the solid waste legislation, because it
does impact to a great extent.
So could I have the first slide please? Turn the lights
down, please. All right, that's not working so I can't go to
the screen. I'll have to describe it to you. Our first
objective is to concentrate waste streams which we consider
to be hazardous at the source. These wastes come from three
different sources: first is the manufacturing or process
wastes themselves; the residues from air pollution control
systems; and the residues from water pollution control
systems, which in effect remove the hazardous materials or the
toxic substances from the waste stream, concentrate them, and
turn them into sludge, solid or slurry form. So this encour-
agement of concentration of hazardous wastes at the source (which
we want) enhances management control, first of all; also reduces
the economics of transportation; and last but not least, increases
the potential for recycling of this material. On the other hand,
this has implications for spill prevention because the trans-
porter is handling a more concentrated waste. It also puts
more stress on the adequacy of the transport, storage, treat-
ment and disposal system.
May I have the next slide please. The next phase after
you've got this waste under control as we see it, is the
recovery phase. Many of these waste products have useful
materials still within them. It boils down to economics,
whether its economical to get this material back out or not.
But we would certainly foster recovery as the first phase and
our little diagram there is intended to show how we would see
this working.
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First of all, the material that came from company ABC in
the first slide, at least part of that waste, might be useful
as a feedstock to company XYZ. This is a waste exchange
philosophy that is currently being used in Europe to great
effect. In Germany, for example, over 500,000 tons of waste
materials were exchanged in this fashion last year and we're
trying to foster this approach here too. So at least some of
the wastes then might be exchanged right off the bat and that's
our first concept.
Second is to either recover the material directly via
chemical treatment for material recovery and to provide new
raw material for other processes or, if possible, to incinerate
this material with appropriate air pollution controls and
recover some energy while you are doing that. This is done in
many cases. It's done in Europe also. I know, for example,
the Bayer Chemical Company in Leverkusen incinerates their
organic waste materials and does have a heat recovery, steam
generation step in thatpprocess and recycles the steam back into
the process.
So first we would like to see some recovery, either of the
material itself or of some energy from it. Failing that, we
would see a distruction phase via chemical treatment to either
detoxify, neutralize or destroy this material, which would
result in an innocuous residue which could be handled in the
normal solid waste stream and go to a routine sanitary landfill.
Or again, via incineration, which can destroy many organic
materials, to in effect remove the toxicity or the hazard
from this waste prior to the mix step. The last phase would
be the disposal phase where, if none of the above steps work,
to first of all go through a volume reduction step to minimize
the amount of waste that goes onto the land (that includes the
dewatering step and any other type of volume reduction that
you can have) and then to put this material into a specially
designed and designated landfill which would have the appro-
priate security and monitoring systems around it; possibly
having liners to prevent leachage from reaching groundwaters
and perhaps having a leachate collection system underneath to
make sure that none of it gets out. So this, then, in very
brief form is our concept of how hazardous waste products should
be handled. Slide off please and may I have the lights back?
So perhaps that gives you a feel now for what our philosophy
is. Now let's talk about the solid waste legislation for a
moment. As you may know, the Solid Waste Disposal Act was
amended by the Resource Recovery Act in 1970. Both of those
acts expired on June 30 of this year. So the solid waste pro-
gram is, in effect, operating on a continuing resolution with-
out any specific legislative authority at this moment. Now,
the Legislature recognizes this and they are working very
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diligently trying to develop a new thrust to the waste management
program. A number of proposals have been brought forward in
bill form. Some of these have passed various House and Senate
committees, but what it boils down to is that the Senate
Committee on Public Works, the traditional source of such
legislation, has held hearings on all of these various pro-
posals, including one of our own which the EPA originated last
year (the Hazardous Waste Management Act) and has from all of
this reached somewhat of a concensus. Just last week, on
October 15, it published a staff working paper which is, I
think, available to the public, which is the last step before
it reaches bill form and is introduced. It amends the existing
Solid Waste Disposal Act and adds several significant features,
many of which are not concerned with hazardous materials (in
other words, resource recovery, source reduction, etc.).
But let me confine my remarks to the hazardous waste manage-
ment section. First of all, one of the jobs that EPA would have
if this bill became law would be to designate those substances
which should be called hazardous wastes. The way this is now
written, this designation would have to include, as a minimum,
those substances which have previously been designated as hazard-
ous under other sections of the Clean Air Act and the Water
Pollution Control Act. The bill does not now specify Section 311
as one of these, but it might before the bill becomes law. Con-
sequently, we are very much interested in the designation of
hazardous substances under Section 311 because we may have to
live with those, or at least include those, in the designation
of hazardous waste under this law. So there is a very close
correlation between these two laws.
As I've implied, we do not now have regulatory authority
for land disposal of hazardous wastes, but we may have it within
a year. It's problematical whether over the next few weeks
that are left after this Congress comes back after the election
and before they go home for Christmas, that they will get this
bill out. You can draw your own conclusions, but I'm not looking
for a new bill this year. But next year, I think probably, yes.
So, one of the reasons we've been pushing for this bill so
hard within EPA is that the increasing effect of the regulation
of the air, water regulations, and ocean dumping regulations all
have the net effect of increasing the pressure on the land as
the last sink. The reverse is also true. If this bill passes
and we put more strict regulation on land disposal, you may
see an increase in the number of "spills" by generators or
transporters who are looking for the cheapest possible disposal
option. So it works both ways. Here again we are very anxious
to coordinate all facets of our program, including the imple-
mentation, the enforcement, and the regulations development, with
the 311 effort. So it's this cross media impact that is a very
strong function of why we are interested.
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Now let me talk for a moment about some of the similarities
between what the Section 311 program is doing and what we would
do if we get a new law. The most important similarity, as I
mentioned, is that we will be directed to define hazardous wastes.
As we are dealing with mixtures of materials, this will be perhaps
a little more difficult. Also I wanted to point out that (I
believe this is correct by law) the 311 program in their definition
process is required to primarily base their definition on the
potential for impact to navigable waters and, generally speaking,
from a point source, that is a spill. Whereas, our definition
of hazardous wastes would have to be based on a more catholic
view of the situation and also be aimed at the potential impact
of longer term effects, not only on surface waters but also on
the land, the air and on the groundwater; and also from more
diffuse sources, not a point source, but perhaps a landfill, for
example, or a dump, which is not currently classified as a point
source under the water act. So, as a consequence, different
variables will come into play in our definitional process. For
example, such things as rainfall, soil conditions, soil types,
geological aspects, etc. become very important to us. These
are not so important when you are talking about spills in navigable
waters. So there are some differences there.
In the similarity category, we also share concern for adequate
containerization of hazardous substances, whether they be pure
substances or wastes, and for the appropriate labeling of these
containers for the protection of the transporter as well as the
treatment and disposal operators who handle these hazardous sub-
stances. I won't go into any gory details but one of our biggest
problem areas is the fact that many hazardous wastes come into
a land disposal site completely unmarked. Many land disposal
operators have been killed and many more have been injured by
just running over a barrel of something that is not labeled,
not controlled. That's certainly one of the aspects that we
want to regulate if we get our legislation. Also, hazardous
substances which are spilled into navigable waters and which
are removed may well become our problem, for the land disposal
of hazardous wastes is what our program is all about. I won't
go into that because a gentleman from my staff, Fred Lindsey,
presented a paper at the San Francisco meeting in August on
that subject, about some ideas about the proper disposal methods
for recovered spilled materials. His paper, unfortunately, did
not get into the proceedings but it is available on request if
you want to send that request through.
There are some other differences, however, and I would just
like to point those differences out. One is that in the 311 pro-
gram we're trying to minimize the occurrence of spills of hazard-
ous substances, which usually occur in a random fashion in both
time and place and therefore have an element of probability
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involved. We, in contrast, know that there is a 100 percent
probability that we're going to have hazardous wastes and they
will have to be dealt with. While we would like to foster pro-
cess changes which would minimize or eliminate the generation
of hazardous wastes, realistically I think we know our main
problem is not how to prevent the generation of these wastes,
but rather, the best way to manage those wastes. So in that
sense we're dealing with routine, ubiquitous industrial dis-
charges to the; land, rather than individual random spills with
which the 311 program is concerned. The removability of hazard-
ous wastes is not a big issue with us, except insofar as we
hope to maintain the integrity of certain hazardous wastes
until some future time when changed technological or market con-
ditions make resource recovery from these wastes possible, where
it may not be so today.
There are also some differences in the enforcement penalty
area. I think by definition the 311 program mission is to
prevent random spills which have an acute short term impact on
the environment. In contrast, the impact of improper management
of the land disposal of hazardous wastes is not immediately
apparent. There are some good examples of this, documented
examples, which I can give you. There are also many more in our
report to Congress on disposal of hazardous wastes which was put
out last year. One in particular illustrates the point. There
was a grasshopper infestation in the State of Minnesota in 1934
and in 1972 eleven people were hospitalized with arsenic poisoning,
It may not seem that there's any correlation between those but
there definitely is. The source of the arsenic was traced to
lead arsenate pesticide, which was used in the grasshopper
infestation. The remainder, which was a substantial amount,
was merely buried on some agricultural land and it took 40
years for this material to leach through the soil and get into
the well water that these people drank. So this is the kind of
long term impact that can occur.
Consequently, if the solid waste bill passes, we would be
concerned with regulating the management of hazardous wastes,
including the treatment, storage and idsposal of these wastes,
to prevent public or environmental damage over very long time
spans. Consequently, our enforcement would probably be based
on compliance with established standards for routine and con-
tinuous practices. Another point is that our options for
enforcement if a violation occurs, at least under this draft
bill of the Senate Public Works Committee, would include a
range of options, including administrative orders without
penalty or seeking injunctive relief in the courts. If a penalty
were prescribed, it would be set by the courts and by the
EPA probably and would not be predetermined through a schedule
of charges as is being developed here. Another difference is
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that we see the hazardous waste management program as a subset
of the overall solid waste management program that the EPA is
developing and therefore best implemented at the state or local
government level. The new bill does recognize that philosophy
and sets up uniform national Federal standards but does put the
bee on the states for the implementation. So, unlike the 311
approach, which is mainly a Federally-oriented implementation
program, we would expect state implementation under national
standards for the land disposal of hazardous wastes. So here
again, we would expect considerable interplay between EPA and
the states and localities in implementing our program.
In summary then, I have tried to make some points about
some of the areas of mutual concern that we have in our program
with the hcizardous and toxic spill program. Quite obviously
there is a definite need for close working relationships between
our two groups and also with other Federal agencies and industry.
We've already had such coordination via the working group process
and we also have individual contacts back and forth between our
two groups. We've also had a fairly substantial interplay with
the other Federal agencies and also with industry, primarily
through the Industrial Trades Association. The hazardous waste
management program is relatively new, about two years old, and
its future direction is not yet clear. It will be shaped to a
fairly large extent by this pending legislation, but nevertheless
our goals are fairly clearly defined and are, I think, consistent
with the 311 program. Thank you very much.
MR. HAROLD SNYDER: If we have any question or comments,
there's one over on the side, Ken. You want a mike? To your
right, Ken.
QUESTION (FLOOR MIKE): My name is Leif Sigmond, with
Scientific Chemical Processing. We're in the business of reclaiming
and converting chemicals and our main problem has been the land-
fills for the solid waste, what I consider lack of management in
that so far in most places that we operate you can take these
chemicals, solvents, or what have you that can in fact be
regenerated, and just pour them in the ground. What I can't
understand is the fact that essentially, if I understand this
presentation, when you pour these chemicals and these toxic
substances that could be recovered into the ground and then you
have a rainfall, all of this stuff then is swept into rivers
or oceans, then it is not a point source and it is not going to
be considered as a contaminant under this law. Is that correct
or am I incorrect in that assumption?
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MR. JACK LEHMAN: My understanding of the legal niceties
of this is that you are correct; mainly, that a diffuse dis-
charge from a landfill is not considered a point source discharge
under the Federal Water Pollution Control Act. You've also
touched on another area which is very sensitive to me and to
everybody else in the solid waste management program. That is,
that the land is the last sink that is not protected by any
legislation at the Federal level. You say some of your problem
is that people can dump this material on the ground; that's
very true. In only a very few states which have taken action
at the state government level is this prohibited. In most
states the land is fair game. Anything you want to put in the
land you can.
QUESTION (FLOOR MIKE): Jack, I'm George Hanks from Union
Carbide.
MR. JACK LEHMAN; Would you wait just a second for the mike
there? It's coming.
MR. GEORGE HANKS (FLOOR MIKE): I would like to make a few
comments. One is the fact that you referred to the fact that
there is a great deal of recovery of waste chemicals in Germany,
also that there is a fair amount of incineration for energy
recovery of certain organic materials. I'd like to point out
that that's not uncommon practice in this country. There's a
fairly viable waste chemicals industry here and I know from our
records that we do sell substantial quantities of materials to
these people who in turn recover chemical values from them.
Also, it's our practice, and I think it's also the practice of
a number of other companies in the country, to incinerate
organics for energy recovery. So, I guess what I'd like to say
is, give the U. S. a push every once in a while, or a plug, I
think it deserves it. As far as the point source matter, I
haven't seen the most recent draft of the Public Works Committee
bill but I did see an earlier draft and I believe it required
that discharges from landfills were to be identified as point
sources as a part of this new piece of legislation. So I think
some of the protection that this gentleman is looking for would
be a result of that section of the act.
MR. JACK LEHMAN; That's true, that would have been; however,
in the new version that point is not included. In other words,
that position by the Public Works Committee has been removed
from this latest draft.
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QUESTION (FLOOR MIKE): I'm Dave Boyce with the Environmental
Protection Agency,Region I. One of our problems in the past
under the oil laws has been to come up with a source shortly
after a spill to dispose of the materials. What assistance can
we envision in the future, both in oil disposal and in hazardous
materials disposal, in trying to find a source in a short period
of time, maybe a week after a spill, when we have trucks of mater-
ials that we're trying to get rid of?
MR. JACK LEHMAN: Well, it's a good point. I have a tech-
nical assistance function within my division which is set up to
respond to requests such as you describe. We do have published
lists of facilities such as this gentleman's here, for example,
which are in the business of receiving chemical materials either
for treatment or disposal. One of the problems that we have
with that list is that we have not had an opportunity to examine
these facilities to determine whether or not we would consider
their operations environmentally acceptable. But at least we
know of the existence of these groups. They are not all private
companies; some are run by state and local governments as well.
That list now numbers about 65 different facilities that are in
the business of accepting these wastes or can accept such wastes.
We certainly could make that list available to you now, or to
anyone for that matter who wants to have that in advance, plus
we would be more than happy to respond to any requests along
that line in an emergency spill situation.
MR. HAROLD SNYDER: I'd like to add a comment to that, more
or less reinforcing what Dave said. From our perspective here
in Washington, we recognize that disposal of residue materials
from a spill is becoming our single biggest problem. We're kind
of learning how to work a spill on water and then we get a large
quantity of material that we have to do something with. In
most cases it's mixed with sufficient quantities of debris, soil
and other matter that recovery in any kind of a normal sense is
out of the question. I'm wondering here, Jack, relative to the
potential regulations that would emanate from this legislation
and their impact on state and local patrols, it's been our
experience that state and local authorities are very reticent
to approve any kind of a disposal operation for these materials.
They want the most strict of controls and I'm wondering if we're
going to superimpose another set of controls that's going to
make it even more difficult for the state and local governments
to actually come up with something they can live with.
MR. JACK LEHMAN: Well, you raise a good point. There is
a chicken and egg situation here where, if you don't have any
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regulations over land disposal, and if you do have some facilities,
those facilities are not used because they are more expensive than
the normal dump or landfill, and therefore the companies go out
of business because they don't have any business. And if you
have the regulations but no facilities, then you can't enforce
the regulations and you have to apply waivers and other things.
So one of the things that we're trying to do in this program is
to break that cycle, crack the egg if you will, so that we can
bring along on a progressive basis the development of the regu-
lations and also the development of the facilities either at the
local or the state level or mainly by the private sector. I
think this is the way it's going to work. So that these facilities
will be available and will be licensed and so forth over the time
when these spill materials have to be disposed of. In the interim,
where there are no controls, I would just put in a plea to try,
if you're involved in a spill, try to find out for sure what's
in that spill. Then if there's any question about the environ-
mental adequacy of the disposal emthod, contact us or the nearest
state group and we'll try to give you as much help as we can.
I've mentioned there is a lack of legislative and regulatory
control at the Federal level but there are six states that have
specific hazardous waste management legislation on the books.
In other words, they are ahead of us. Let me name those six
states: California, Oregon, Minnesota, Illinois, Kentucky
and New York. About four other states have issued regulations
which impact on hazardous waste management under the broader
solid waste management laws that exist. I can remember at
least two states under that category; one is Texas and the other
is Oklahoma. I think the other two, Massachusetts and Hawaii,
have those regulations still in the development stage. So
within the next year, approximately ten out of the fifty states
will have some regulatory control over the disposal of hazardous
materials onto the land. But that's 20 percent, and that's
not too good.
MR. HAROLD SNYDER; If there are no other questions, I
think it's time for our break. We'll make it a fifteen minute
break. Be back at 18 after.
(Break)
MR. HAROLD SNYDER: Well, it looks like we're getting close
to our quorum level so if all of you will take your seats we
will reconvene the morning discussion. We have a little bit
of buffer time in here, you'll note on your programs that from
11:30 to 12:00 is open discussion and from 11:00 to 11:30 we
have the next presentation so we've got a little bit of cushion,
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but we don't want to just be concerned about the schedule and not
draw from you your reactions to things that you've heard this
morning or things you are about to hear or anything else that
might bother you like anything from the whole program to the
taste of the coffee. The next presentation will be by Warren
Westgarth, who is Administrator of Laboratories for the Oregon
Department of Environmental Quality. He's going to talk about
the Oregon accident response program. It sounds like Oregon's
already got a sort of accident response problem right now
relative to power transmission, but I don't think that's his
topic so without any more chatter from me, Warren.
MR. WARREN WESTGARTH: Among this group of predominantly
Federal and industrial people, I feel a little bit out of place.
However, I am happy that I was asked to present some material
here and was given the opportunity to listen to the things that
came beforehand. One of the things I would like to point out
before I start is that anyone who says he has a good accident
response system, or who says that he can respond and take care of
any spill with a system, probably does not know what he's talking
about. Each one is an individual case.
Now addressing the subject of alternative approaches to
regulations pursuant to Public Law 95-500, Section 311 reminds
me of the effect of the rest of Public Law 92-500 on the State
of Oregon. Congress actually outdid itself and created a work-
load that no state can handle. I figure that if we work together
as Federal, state, industry, local, and other people 24 hours a
day, 7 days a week, 52 weeks per year to the turn of the century,
we cannot handle all of the mandates that are given here. EPA
is faced with implementing the mandates under 311 in a timely
fashion. This is why we're here and we are going to have to do
it whether we wish to or not. It reminds me of a tanker trailer
with a three-fold combination on a downhill run running free.
It has a Congressional mandate in the back trailer, Federal red
tape in the middle trailer, and a tape shredder on the front one
with four steering wheels in the cab headed for the end of the
road with five off-ramps. The first one is labeled Harmony;
the second, Compromise; the third, Strong-Arm Techniques; the
fourth, Futility; and there is a stone wall at the end. Now,
when Dr. Thompson said that this is a serious proposition, he
understated the problem. The EPA has to do this job whether
they like to or not. They will do it, without our help or with
it. There is going to be duplication of effort with EPA, the
Coast Guard, with DOT, with the state and industry each having
a piece of the pie. But again, this is the reason for this
meeting.
In the State of Oregon, we agree pretty much with the
regional philosophy that was presented by two people yesterday.
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The field people have to do a lot of work. We have taken on the
NPDES permit system in the State of Oregon and all of the other
items that are mandated for our state by Federal edict. We intend
also to handle our spill system with the help of industry, EPA,
the Coast Guard and whoever else will cooperate. Most of our
spills are small. We do have plenty of laws and we have a
general response system with which to handle any condition that
comes up. Our beliefs are slightly different from what Section
311 wants us to start believing. But we know that these rules
will come and we're trying to gear for them. We believe generally
that the spiller does not want to spill and needs help at the
time of the spill. We believe that the spiller who purposefully
dumps something should have the book thrown at him. The immediate
cleanup job belongs to the state and industry in general. They
are better equipped, industry in particular. We are not after
penalties in our state, but rather cleanup and prevention of
further incidents. Our system as it's promulgated is composed
of all action agencies of the State of Oregon. We work in team
harness through a memorandum of understanding and we have also
got an agreement. I met with Governor McCall at the airport
Sunday night and he agreed that there will be an executive order
putting it as an official accident response system. Now, spills
are something that are very difficult to handle as I mentioned
before. Each is individual. You cannot set up a system that
handles everything. The chronology of a spill I think is
important, so I'm going to go through it just in general.
A spill occurs in a localized area. The best thing you can
do is keep it localized in general. It is reported by the first
person on the scene to local police, fire or other emergency-
oriented groups. So in general, this is the first line of command.
Those people respond to handle the first emergency and then
contact help. They're interested in the order of three things.
The first is people, their health or death; that's the first con-
sideration they must make. The second is property; fire, explosion
and so forth. And last, and we don't think the least, is the
environment. That includes air, water, solid wastes, all in a
package. The emergency people are busy. When they first get
on that scene they are busy. They don't want a complicated
system. We have to have something that is simple. So our
response is designed to try to make things simple for those
people and they are the ones that should have control of that
scene; not someone from EPA, not someone from the state, but
the emergency people. They're the ones who know how to handle
it. The response teams, however, need to be ready for emergency
action. They have to have proper gear, they hcive to have some
know-how, they have to be able to respond night or day. You get
a call at 3:00 in the morning, you have to be ready to go.
Now, one of the things that people do not do frequently
enough is to take each spill as a separate incident and to
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follow through with a critique. This is a very necessary part
of what happens because this way you can institute prevention
techniques and stop recurrence of the spill. A part of our spill
response system is also to establish, through our NPDES permits,
a contingency plan so that when a spill occurs, there is some
contingency for taking care of that particular kind of material.
I'll give you a case in point. We had a nitric acid spill a
while back of 44,000 pounds; concentrated nitric acid, a pretty
good amount of material. We had a concrete retaining wall put
up around that tank because it was right alongside an estuary.
It fumed and bubbled and boiled, gave all kinds of difficulty,
but it was contained. They cleaned it up within a matter of four
or five hours and were back in business, whereas if they hadn't
had this contingency, they would not have been able to do it.
This, I think, is the intent of our laws, rules and regulations.
Now, I want to show a few slides to illustrate the kind of
system we have. Got those slides? I'm not sure these will show.
I don't have the facilities for making beautiful slides like
some of the rest of them do, so they are all hand done. Does
that show all right from the back?
This is just taking the kind of incident that can occur.
The OR stands for Oregon Response System. They dump that onto
us because of the title. And it fits. In this case, you
would have to respond to the incident through a communication
system with a response, further communication, further response,
follow-up report, prevention and education. Now one thing that
occurs in every one of these spills that's very difficult to
control is people. There are people at every one of these
spills and you do have to control them, whether you like it or
not. It's dangerous having them around but you can't seem to
eliminate them. You have to provide somebody to take care of
that problem.
This in essence is our accident response system. We can
handle anything from the raw product, manufacture, warehousing,
merchandising, packaging, transport, application and disposal.
If an incident occurs the police are generally the ones that
are called in. They are busy and need one number to call. We
have provided them two, because in many cases it's pretty important,
We use the Chemtrec number as our first number for them to call
in most cases, because at least there they can get an idea of
what to do to contain that first emergency. Also at the same
time industry is notified, and they are usually the ones that
have the expertise to take care of that kind of problem. So
the call to Chemtrec does two things: it gives the emergency
people information and it gives the industry the information
on getting teams to the site. We heard of both CHRIS and OHM-
TAD during the course of this conference. Neither one of these
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is operational from our viewpoint. We cannot use them so we go
to Chemtrec because it is an operational system and a usable one
at the present time. Our emergency service is set up in such a
way that we can use it as our central communications system. If
it's an airplane accident, they have a tie radiowise to FAA. We
have ties to almost every emergency system across the United
States so it's a natural for communications systems. They have
response team agencies, depending on where this occurs. We
have a central clearing house which is in charge of all of these
operations. I just happen to be the chairman of it, but this
particular operation is set up with the working heads of most of
the action agencies. Notice I didn't say the administrative
people, because in general they do not work. This central clearing
house is designed to be a working team, and they are to follow
up on any actions that occur with reporting, education, safety
studies, statistics, prevention programs, all of this type of
thing. We have already instituted education among our police
departments across the state and among our fire departments so
that we have a good education program ongoing. Now this is not
by ourselves. The DOT is helping us on the education program.
On the oil spills part of this system, the Coast Guard is working
very functionally and is helping us beautifully with no problem.
We are working as a team with them. We are also working as a
team with EPA on hazardous materials spills. So far we have had
very little problem working together with these groups.
This just gives us kind of a run-through of the system with
a feedback loop. The police, fire, ambulance, whoever responds,
can get to emergency services by radio. Then by telephone,
emergency services can get to any of the action groups and the
clearing house. The feedback, then, is back through the emergency
services to the police department. Now if the incident is minor
(and we ask for all minor ones to be turned in also because we
want to get some data feedback so that we can control all these
wherever possible), the minor ones go directly to one of the
action agencies or to the clearing house. You say, "What's the
definition between minor and major?" That's what you talked
about all day yesterday. We don't differentiate too much. If
the police are called out and feel that it's an emergency, we
take care of it through the emergency system. If they don't
feel that it's an actual emergency, they call us directly and
we go out and take a look at it to see what we think. That's
crude, but it works.
Now on an incident, you have several ways you can go. If
it is no emergency, the report can be to the action agency, your
investigation occurs, there can be no action with a closure
memo, an on-the-spot solution with a follow-up memo, report to
administration for decision. You can go the other direction
with sampling, laboratory testing, analysis of data, report
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to the investigator, solution, then direct action; or you might
want to report for advice, then return for direct action, or
report to a commission (EPA or whoever you might want to report
to). On the other side we follow our regular system. We have
a series of numbers that we can call. I notice a couple of
these are outdated on some current information, but this is a
problem that we have. It must be worked on in a formal basis
continually in order to keep it updated.
I want to show the size of some of the spills and the com-
plexity of some of them. This one is a small spill in reality.
It's 4700 gallons of jet fuel spilled up on a mountain side.
Most of it soaked into the ground. What didn't was stopped up
there as near as possible by closing the culverts and keeping
it in a ditch. That's what it looked like down below where the
river flows through. It got into a river, some of it, probably
1000 gallons out of the 4700 before they got it stopped. There
was an oil slick on the water. Downstream was the powerhouse
and all of the water practically was out of the stream at the
time except for just enough flow to take it down beyond the
powerhouse to this water plant which is just about two miles
below. If we'd left the water level at the stage it was, this
water plant would have sucked in the oil through their system
and the city would have been in trouble. It was a small town,
but it would still have been in trouble. So I asked them at
the powerhouse to release water into that stream. You say, well
that just dilutes it and causes more problems. But it raised
the water just enough so that you could then pump without sucking
it into the pumps. That way they could continue their water
supply. And right down below, I knew the area well enough to
know that there was a dam which had boom logs across and would
contain any oil that went on down. It would be an easier collecting
point than any place else. So we threw booms across and collected
the oil at that point.
Now another spill that occurred was only nine gallons of
material. It happened to be diphenate, which is an organo-
phosphorous material. The problem with this spill was that we
didn't get the word of it for the better part of four hours.
The people who were first on the scene were the industry
response team. In our area this happens to be Stauffer Chemical,
who respond to spills for most any company. It happened to be
their product in this case, but it wouldn't have made any
difference. It spilled on this road because of a car accident.
The road itself was contaminated and if they'd contained it at
that point, there would have been no problem. But the fire
department and the police department, wanting to clear the area,
washed it down. That nine gallons went down through a park,
through a little creek (it's not very big, probably two or three
cfs). It wound down through the park about six miles, killing
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everything as it went. I do mean everything. The earthworms,
everything in that creek was dead. We had to go in and tear
up the paving, because that material will leach out later on
as soon as the sun hits it. We had to tear up about half a
block of paving and dispose of it. Sounds like an easy thing
to do? But how do you dispose of hazardous materials when you
don't have a place to put them? We had to find a temporary
storage until we could make some decisions on where to go. So
we started out by an airport behind a shed. Incidentally, just
over the hill from where we stored it, we also found pesticide
drums by the dozens, and there are many of them scattered all
over, partly because we have no hazardous waste disposal sites.
We have a system in the mill, we have laws as we mentioned earlier,
but we do not have the site because environmentalist groups have
opposed putting anything anywhere in our state. They don't
want it put there because it is dangerous. It isn't dangerous
of course to have it in piles alongside creeks.
Now this is another little spill, very small, but it happened
to be a caustic soda material that came out of a plywood plant
into just a little tributary of this type. See it flowing out
in very small quantities, but it has a devastating effect even
on that little type of creek. I don't know what the IX^g's
would be in here, but the fish were dead all through the creek
for about five miles. Incidentally, on that other creek, every
biological system within the creek was killed for six miles.
That was a year ago in May and that creek has not recovered to
date. Diphenate and some of the; organo-phosphorous materials
are supposedly materials that break down rapidly. That's only
true if they are in the sunlight and other places. You have
to be very careful setting harmful quantities because these
little spills can be just as bad as the others.
Now, I don't know if you could call this a spill or not, but
out in this desert country where not even jackrabbits like to
live, we have 25,000 barrels of industrial materials that are
now starting to leach out of the barrels and run out into the
ground. Is this a spill? We don't know. It is a very bad
situation. This company went belly-up. All those 25,000
barrels are out there; whose responsibility? The next thing
that we knew is that company was sending it up into the State
of Washington. They finally didn't like the situation so now
that company is storing that material in tank cars, barrels,
wherever they can find a place to put it. We've got to find some
way of disposing of these wastes because it is an important
situation. Is this a harmful quantity? 25,000 barrels of it.
This is what we get from some of these wastes we deal with all
the time. This is looking down through eight feet of water.
Those fish were dropped into that eight feet of water. They
swam for the first inch, then they were dead. These are
some of the kinds of materials we see all the time.
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This is a spill along the Willamette River, just a chlorine
compound. It knocked those fish out, just by interfering with
the metabolism through their gill structure. We also have another
kind of spill, it's a natural one that is not addressed in these
regulations. You have to work through a different system. But
we also are geared for this. This happened to be a flood that
occurred a while back, went right over the top of our sewage
treatment plants, industrial plants, and everything else. We
had one mess. The water was up right at the top of the stream.
That particular flood on one river took out a suspension bridge
that was 110 feet above the normal water level. The State of
Oregon was a disaster area.
The Santa Barbara oil spill is another one that many people
have talked about. We have potential for that same kind of
thing in our own area. We have tried to set up a contingency
plan so that if we do get that kind of thing we at least have a
place to dispose of materials and take care of it. We have
people working on that currently because it is very important
to be ready for these things, not to try to do something after
it occurs.
There was a spill on this sign also, and it tells you what
some of these companies are experiencing when they have a spill.
Any time you have a spill of this kind, it is a traumatic
experience. In general we have found the people responsible
for the spill are also willing to take the responsibility for
the cleanup, if they are approached right. Too much pressure
on them, and they probably will not. Our system is designed
a little differently than most in that it is designed to, in
a simplified way, take care of the spill, to help the people
who are having the spills. Afterward, sometimes we have put
on civil penalties. We do have a system where we can put on a
civil penalty if somebody throws a cup of water in a stream. So
we have facilities if we need to. We don't use it because we
find that it is simpler not to. That is just our system. It
has worked so far. Someday it probably won't. But we do have
the response system, we do have the capabilities of following
through in almost every kind of an incident. However, it's
well to point out that we make sure that we use the expertise
of all the other people that we can. We are not out to
duplicate any effort. We use EPA wherever possible. I seldom
say anything good about EPA but we do use them wherever possible.
We use the Coast Guard wherever we can. We also use the Depart-
ment of Transportation because our public utilities commissioner
uses the same rules and regulations. So it is well to tie in
with that group. We have radiological tied to this system, as
a part of it; our solid waste group, our air quality, all of
them are tied into a package. We think it is a good system, but
again as I mentioned earlier, anyone that says that he has a good
system is probably going to run into trouble. Thank you.
(Applause)
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MR. HAROLD SNYDER: I think we do have some time for dis-
cussion. I'm a bit facinated by the acronym "ORS" -- wondering
if the State of Oregon, if it didn't have ORS, would be
analogous to being up a creek without a paddle. I couldn't
resist that, even though it isn't up to my normal quality. I
had a couple of questions. That was an excellent presentation.
It sort of reminds me of yesterday when our regional people
gave a couple of presentations that seemed to inspire everyone.
I get a sense that when anyone comes up and talks from experience,
it must go over a bit better than those of us who come up and
talk from concept. (Applause) Now that we've got that rousing
cheer, one question occurred to me: in your contact with fire
or police departments, have you experienced problems relative
to their over-zealousness in hosing down spills, that sort of
thing, without your guidance, without your advice, and causing
greater runoff and water pollution problems than if they had
followed another approach?
MR. WARREN WESTGARTH: We have experienced this difficulty.
That is a reason for setting up our education program through
our police standards committee and our fire marshall. These
people are tied into our program and we have an ongoing program
that is trying to eliminate this problem. There are times
when the fire department, in the interest of protecting people,
in the interest of protecting property, has to use the wash-down
system. And it is their discretion when they do it. It is not
something we can stop. In general, we try to guide them, but
they have to make the decision.
MR. HAROLD SNYDER: One other comment here, relative to
spills from small shippers. In a sense, maybe you have answered
this question in part, but we often comment that the chemical
companies have an element of expertise and can't be ignored and
have a lead role. This seems quite pertinent when you are
talking about a small shipper or small handler or batch operator
of some type who does not directly tie into that network, and
you have a spill, where do you get your expertise in those
situations? Do you see a need sometime in the future to have,
in essence, co-ops or qualified contractors, somewhat analogous
to the oil cleanup business?
MR. WARREN WESTGARTH: There probably will have to be clean-
up people set up for that job in the future. For the number of
spills we've had, we've had the response team set up through MCA,
which in our case as I mentioned earlier is Stauffer Chemical.
These people have responded very adequately to everything we've
needed. Now in the smaller spill, we have all the safety officers
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of the transportation companies, we have the railroad safety
officers, tied in with this accident response system. This way
they are part of it, they respond probably in a better way than
we can. When we go to a railroad incident, for example, we
seldom try to do anything except advise where to put materials
or how to dispose of them, things environmentally. We seldom
have to do any of the other work. They have people that are
better trained by far than we are. That answer what you want?
QUESTION (FLOOR MIKE): Marilyn Grant from Grant Associates
I can certainly commend Oregon for what they've been doing. I
know that Oregon has been one of the most industrially environ-
mentalist states. I'd like to ask some specific questions.
Number one, can other states obtain your information?
MR. WARREN WESTGARTH: Any other state can obtain what
little information we have, yes.
MS. MARILYN GRANT (FLOOR MIKE): How can that be obtained?
MR. WARREN WESTGARTH: By writing to me you can get any
information that we happen t-.o have on hand.
MS. MARILYN GRANT (FLOOR MIKE); Number two, I'd like to
know how long you have been training your fire department and
your police department?
MR. WARREN WESTGARTH: About a year and a half.
MS. MARILYN GRANT (FLOOR MIKE): Have you personally in
the State of Oregon been doing it? You said that you were
bringing in others, the Coast Guard, DOT, etc. Have you also
personally on state levels been doing it?
MR. WARREN WESTGARTH; Unfortunately I've had to respond
to practically every incident personally for the last two years
because we have not had a big enough team established. We are
in the process of building this up. It is not something that is
working perfectly at all.
MS. MARILYN GRANT (FLOOR MIKE); Number three, I'd like to
know, in light of the fact that two gentlemen yesterday from the
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other regions described that there is a freeze on personnel, etc.
How do you conceive of ameliorating this situation, if there is
a freeze on personnel, etc.?
MR. WARREN WESTGARTH; We are setting up a duty roster
among all of our people in the state so that we can have response
We do not have money enough to allocate anyone for this job in
particular. It's a voluntary system after hours, in genera].
MS. MARILYN GRANT (FLOOR MIKE): In that case, can I ask
you one more question?If it's a voluntary system, how do you
get people to become enthusiastic, to participate in your system?
MR. WARREN WESTGARTH; So far I haven't had any trouble.
I've had as many as fifty people wanting to volunteer for this
job.
MS. MARILYN GRANT (FLOOR MIKE): I certainly commend you,
thank you.
MR. HAROLD SNYDER: Maybe they like Oregon. I would like
to steer comments relative to the reaction of the group on
Warren's practical experience in the kind of program and some
of the comments we had from the region yesterday. I don't
want to give a misimpression of simplicity, or an effort
to dismiss by experience or deed, the complexity of the regu-
latory process that's really the crux of today's discussion.
Now, simplicity in a regulatory approach has an awful lot of
virtue if you can indeed achieve it, if indeed the legislation
will allow you or if indeed the public industry and other
impacted groups will really allow a simple approach. If we
seem to get a lot of positive crowd reaction when we talk about
the real world problems and the complexity thereof and the
desirability of making this program relatively simple to fit
into that, the only way that that's going to have any chance
of occurring is if we get meaningful response, meaningful dis-
cussion from the group who are assembled here. Sharing a
comment, whether it comes from me or whether it came from Russ
yesterday, Russ Diefenbach or what have you, in itself is a
sign but it doesn't give the direct input that Hugh Thompson,
Al Jennings and his people need to actually fashion something
into a workable approach. Now as I indicated this morning, my
role is from an operational side as well, so it would be very
easy for me to join sides with a cheering group and say,
"Well, I've been out, I've had my boots muddy," and this is not
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to say that Hugh and Al haven't had their boots muddy many times,
as well, but they're stuck with the job of coming up with the
paper and coming up with Federal regulations which is not a fun
job. If you ever want a no win game, that's the one to get in
because no matter what you say, or what you write or what you
do, you're going to get it from somebody.
The kind of a group which is assembled here, which is
strongly industrial from what I see, with an appropriate sprinkling
of Federal people, this is certainly one way that the right kinds
of inputs can come about. But we're talking in many cases about
a whole wide gamut of spill events, whereas Warren's talking
about very small discharges and very valuable bodies of water
with very significant impact, which leads one to think that
harmful quantities on an elaborate approach would perhaps go to
large quantities in many cases before one would trigger any
part of this program. This might be leaving us with some
significant loopholes that trout fisherman wouldn't very well
appreciate when that incident does occur in a small stream
and physically, engineering-wise, one could possibly do some-
thing about the spill. We would find our hands tied due to the
kinds of formats that might be adopted regulatory-wise that would
impact the use of revolving funds or impact our ability to
require a responsible party to clean up. It's been our
experience in the oil game that we've had very successful
cleanup from companies that have cons airier identity. I suspect
that the same is very true in the chemical industry and I'm
not trying to impugn anybody's integrity when I say this. A
company that has very little visibility, public-wise, and faced
with a heavy expenditure based on good will rather than a
requirement under the law may find himself faced with a situation
he has to explain to his stockholders and may take a much less
aggressive posture; then we would have our hands tied relative
to using Federal funds for cleanup. So you can run a complete
gamut of how you would see a regulatory format being implemented.
Now I'm just about running out of air here, but I think this
is the kind of comment we want to get from you. If anybody's
got any thoughts left after I've said all this stuff, we'd like
to stir something up here relative to this.
QUESTION (FLOOR MIKE): Grant Arnold with Ethyl Corp. May
I impose upon the gentleman from Oregon to ask him if he finds
or believes the Federal Safety Regulations adequate or do you
find it necessary to have state regulations? I was thinking
more in terms of broad safety regulations, not just confined
to spills, the subject of this seminar.
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MR. WARREN WESTGARTH: In the State of Oregon, the State
Accident Industrial Fund has taken on the safety aspects of all
of the work and they have pretty much in general accepted the
OSHA Safety Regulations. Our safety situation is as good as
OSHA can make it come about in general. We don't have anything
in addition to that that I am aware of.
MR. HAROLD SNYDER: Jack Garrett has a comment.
JACK GARRETT (FLOOR MIKE): I think the question that
should be asked is what did we do twenty years ago before all
the governments got involved in the act? And the strange thing
about it is we did just what we do now and what we've done in
Oregon. The chemical industry, big view or small view, has
handled its spills because nobody else would or could at the
time, in cooperation with the local police and fire departments.
It reminds me of a time in Illinois once when we arrived at the
request of the Illinois State Police for a spill that was not
ours. And when we arrived (this was eighteen years ago, by
the way) at Centralia, Illionis, we arrived ten minutes before
the crew from the company that shipped it arrived. We ended
up with two crews. Now, this was long before there was any
real Federal or governmental impetus on this spill business.
And the chemical industry today has done the same thing. It's
strange, though, that since the regulations have come into
effect, since it has become a public issue, many states have
backed off and we get a great many less calls, strangely enough,
from some states than we had previously. Now, I don't know if
they feel they can handle it better themselves or they have
people pledged to it or not. But it's been our experience that
however big your administrative burden is in connection with the
organizations that are supposed to follow spills, that the guy
that gets there first is the guy that's going to ameliorate the
spill more than anyone else and he's probably going to take more
beating than anybody has ever done; and I'm not sure that if he
volunteers, he'll even volunteer again. Because this is a job
that nobody wants to do, everybody expects somebody else to do
and the guy that does it catches it from the day he does it to
the day he gets through. He writes reports and writes reports
and writes reports. If you went to a spill properly perpared
I suppose you would take at least a lawyer, a public relations
man, probably several people with white ties to stand around and
point; but somebody has got to get in there and dig up that spill
and block up that drainage and get the damn thing pumped and get
equipment, and get gravel, and get tractors and get equipment
necessary to ameliorate the spill. It's been our experience
that this comes about through fire departments, principally; high-
way departments do a great job. This is before some kind of
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expert team can get there. We've also found out, because of
distance in many cases, it's best to patch up a telephone
network and get somebody who knows something about the product
on the phone because of the time lapse between the time it
would take him to get to the spill site physically. We've
done this a great many times. In other words, we're going to
phone patch it from a state highway patrol car through the local
sheriff's department through telephone lines 500 miles away to
somebody that knows something about the product.
The problem really breaks down into several and I think
we don't want to mix the early stages of a spill problem with
regulations. Because we need to get to the spill site, get
the damned thing slowed down and stopped, get the situation
stabilized before anybody decides whose going to get fined.
And I hope that all of the regulations don't force people into
a hesitant or reticent position of not doing anything until
somebody arrives, because if that happens the spills are going
to cause a great deal more difficulty than they do now. If we
are really genuinely interested in ameliorating the spills and
stopping what they do, protecting human life and property and
environmental values, then we're going to have to try desperately
not to challenge the initial guy that arrives to do something
and make him hesitate. They ought to put spill control people
under the good Samaritan act, really, in many respects. Because
if you hesitate, as Warren has said, this is when stuff drains
off into the creek and the next thing you know, you've got it
all over the countryside and that guy is usually the fire chief
or a police officer or state highway patrolman.
MR. WARREN WESTGARTH: May I respond to that?
JACK GARRETT (FLOOR MIKE): Yes, please do.
MR. WARREN WESTGARTH: I agree fully that there is a two-
pronged approach to this thing. What I pointed out here is an
immediate response system in general, and this is, I think, the
important part of it. I also agree that it is dangerous to go
out and take part in that. I found that out when I was presented
with a $20,000 bill from somebody that I was trying to help
personally. So I'm well aware that there are two things occurring
here. After the spill is controlled, then, I think, the EPA,
Coast Guard and other groups should come in here on the spill
system and try to evaluate what has occurred and see if there
is anything that should be taken care of in terms of somebody
paying a fine or doing something else. So there's a two-pronged
situation here and I don't think we really should, in any case,
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have the immediate response system tied up so tight that you
can't do it. This, I think, is a very good point that we have
to be careful of. Now, I've worked with EPA on all kinds of
facets, I find them easy to work with in some cases, very
difficult in others. I'm not against working with EPA. I'm
not against working with the Federal Government. I have good
working relationships with the Coast Guard. Their system is
functional. I have good working relationships with DOT. So
I'm not trying to put down any of these regulations. They are
required to put these things out, they are required to look at
them. When we have a spill, we report it to them. We make
sure that they are pulled on board as quickly as we can so we
are not eliminating any of the system that you are talking
about here. Ours is an immediate response and if you'll look
at the definitions in Section 311, the United States is
identified as Federal and states both. So they assume us as
part of their team. This is automatic.
MR. HAROLD SNYDER; I'd like to add a comment that perhaps
helps tie this together in the minds of some people. You can
sort of take sides in this whole approach as far as hazardous
materials regulations; this symposium is really talking about
two regulations, one harmful quantities and the other rates
of penalties. I have a feeling that a lot of people in the
audience are deeply concerned about rates of penalties and the
impact they are going to have and the kind of legal enforcement
thrust that our agency might take with that. You have a right
to be concerned about that.
The harmful quantity, as has been explained several times,
is really a trigger mechanism that allows 311 to be brought
into play. Now 311 has at least two sides to it. It really
has, I guess, three. It has a response side, it has a prevention
side and it does have a penalty side. The response side has a
tool with that I don't think any other Federal program really
has, and that is money in a positive sense. When this program
is implemented, which means when these regulations are successfully
promulgated (and that includes all of them, designation, remov-
ability, as well as the harmful quantity; rate of penalty doesn't
have a direct bearing on what I'm saying here at this point) we
will have a rather substantial revolving fund that can be used
for spills that emanate from small companies who have no
financial resources, that come from mystery situations, that
come from situations where an act of God or it's not clear
who the responsible party is, and the industrial group with
competence, whether it is Jack Garrett from Monsanto or any one
of a number of companies who may be reluctant to come in,
whether it be because of potential legal liabilities, from
getting some tacit assumption of their liabilities for the whole
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incident, or just liability for what direct action they might
take in trying to help out. But in those situations, under
the spill program that 311 calls for, that incident can be
taken over, and I use that word more to get the subject and
verb together than to have a broad implication, can be taken
over by Federal OSC, whether he be Coast Guard or EPA, which
immediately ties him into a large quantity of funds.
Then if Jack Garrett can show up with his group or another
industrial group, if they then can be placed on our payroll,
be working for us in that incident, they are probably going to
do what they would have done anyway, they might just have to
tell us first before they do it. I don't think that we're
implying here that we're going to tell him how to breathe and
where to take his footsteps. Not at all. But we can provide
an umbrella of funds, a mechanism whereby we can get the right
people working. One is not concerned with where the money
comes from at that point in time. Those issues can be taken
care of later. And any liability issues can be taken care of
later by enough attorneys to keep all of them busy in briefs,
etc., for some time to come. But the spill incident itself
can be responded to, there can be a source of funds, and there
can be a mechanism through contingency plans, etc., with the
state tied in, local groups, what-not. Again the important
thing being funds. Now, to get to the point that I'm making,
if for some reason we can't be productive in sessions like this
so that designation regulations can become fact, that harmful
quantity regulations can become fact, then we're not going to
have the mechanism, and if we don't have the mechanism I sense
that the kind of gap Jack Garrett talks about is going to get
wider and the overall impact on the environment as well as on
the public safety and public welfare will go lacking because
we will not have implemented what can be a very effective pro-
gram. So with that speech over, do you have a comment there
in the middle?
(FLOOR MIKE): Yes, Dick Hall, Diamond Shamrock. I'd like
to expand a little bit on some of the thoughts that have been
made here yesterday by the two regional officers and Mr. Westgarth
and Jack. Our primary concern is not the penal aspect of the
fine in a spill. Our primary concern is the protection of human
life, regardless of what the costs are. We get into industrial
plants, we have spills there. We have people designated in
these industrial plants who are very familiar with the product
or material involved. The environmental control, I'll step out
of the way and let them handle it. I know that they are much
more familiar with it than I am. This is where we get into
concern that EPA is supposedly going to set a OSC or ONC
commander; we know of very few individuals, if any, that are
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completely aware of all the hazards and the aspects of all the
chemicals. And we get somewhat concerned about this. The
comment was made yesterday, that if you are going to take any
ameliatory action to alleviate the: effects of the spill, you
first have to get the approval of EPA before you can take this
action. In an emergency situation, you often don't have time
to sit down, write out the proposed plan and wait to get the
response back. You have to take the action right then. I
guess the point I'm trying to make is in most of these cases,
it has been my observation that you have to get ahold of a
knowledgeable person who is intimately familiar with the compound
that is involved, or the chemical that is involved. And take
into consideration all his comments on this, his thoughts.
MR. HAROLD SNYDER: I have two responses to that. The first
may be bureaucratic. One, the OSC is called the On-Scene Coor-
dinator. He used to be called Commander, and that is an effort
on our part to, just by title, let people know that this is not
a field commander; he is not coming in with his .45 cocked, etc.,
he is coming in to serve in a role of coordinating a variety of
activities. Now, to go to the second comment relative to local
expertise, or expertise within the plant, about an EPA guy coming
in and telling everyone that they don't know what they are talking
about, that he is an expert. Now I know just about every EPA OCS
in the country and I haven't met one yet that is that stupid by
a long shot. He gets where he is and his program works because
he's intelligent enough to use all the advice that he can get
his hands on.
MR. DICK HALL (FLOOR MIKE): I didn't mean that in a derog-
atory sense.
MR. HAROLD SNYDER: I didn't really take it that way, but I
don't want anyone to get the misimpression that OSC comes out with
a full head of steam and the self-importance that he is going to
take over. The OSC's role in part ties back to something I said
earlier relative to funding. One of his chief roles is in a
situation that isn't clearly identified as far as responsibility,
not clearly identified enough for some private concern to immedi-
ately say "yes, he's going to do it and take care of the cost."
This man serves as the mechanism to get the money and he then
can bring into play whatever group is available that in his judge-
ment has enough competence. And he's going to have to make that
judgement, obviously, if he's going to use Federal funds. And
even in ruling on the kind of response action, and this is implying
a water pollution involvement here, but even when he evaluates a
chemical company's operation (and again all the men that I am
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familiar with are competent to do this) he's going to have a
pretty good sense as to whether these people have the vaguest
idea about what they are doing and are going about it in a
professional manner. Within the chemical industry it has been
my general impression, with what experience I've had, that there
is a high degree of competence with many companies. And no one
is going to come in and tell these people that they are full of
beans, and you don't know what you are doing, I've got a booklet
and I've been on the job three weeks and I know more than you do
just because you've been in the business ten years. I don't
think you are going to find any Federal people taking that kind
of action because they are just smarter than that, they are more
experienced than that. I think on this other thing, immediate
action, mitigating action, ameliorating action, you have to get
prior Federal approval. I think that a comment was made yester-
day, I think there was a reply that sort of diffused that. I
don't think anyone is saying that you've got to call up somebody
or write them a letter and ask them what you can do first. Now
we may get into some kind of a regulatory mode later on where one
may define a range of things that we would consider appropriate
ameliorating action. I think the intent there would be to set
the stage for what kind of things you ought to be thinking about,
rather than giving one the out of saying, "Well, I didn't know
what to do so I didn't do anything." I think our attempt would
be to try to give some direction for individuals who in the
absence of such direction would do absolutely nothing. It would
not be an effort to try to slow down a process on the part of
people who are actually conducting that first on-the-scene oper-
ation. There's a couple of comments on the back. The first
had up was clear in the back there.
QUESTION (FLOOR MIKE): Bill Ward, General Motors. As
General Motors, we have a certain amount of corporate visibility.
(Laughter) We have realized for quite some time our responsi-
bility for cleanup of spills. We are more than willing to clean
up any spill that is ours. We also will clean up spills that
are not ours. We spend a great deal of money cleaning up spills,
a lot of effort, a lot of manpower, a lot of equipment time.
When we get through with cleanup, we suddenly get a letter from
the Coast Guard or the EPA saying, "You've been bad boys, so
we're going to slap your wrists." How come we spend money,
tremendous amounts of money, in a good faith effort to clean
up a spill, to fix up any damage that has been done to the
environment, and we realize that this is part of the responsi-
bility of cleaning up a spill, and suddenly we get slapped
with a fine?
MR. HAROLD SNYDER: Are you talking about an oil spill or
a chemical spill?
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MR. BILL WARD (FLOOR MIKE): Both.
MR. HAROLD SNYDER: Obviously, no fines under — no Federal
fines for chemical spills to this date, only oil spills.
MR. BILL WARD (FLOOR MIKE); It simply does not make sense
to be assessed a penalty, a wrist slap, when you have expended
tremendous amounts of effort, time, money on cleanup and
amelioration of a spill, restoration of damages, and then come
in with something that's like frosting on a cake. This simply
does not make sense. The penalties that we are discussing h~re
these three days, it just leaves me cold; that's just a comment.
MR. HAROLD SNYDER; Any comment I would make on the oil
fines, that is a part of the law and EPA didn't vote on the law,
Congress did. And, I think that program is administered by the
Coast Guc.rd and there have been some efforts to provide some
additional rationale for the types of civil penalties that would
be levied under spill events, trying to bring into play consid-
eration of the kind of response action that took place. There
will be a "wrist slapping" penalty for every oil spill under the
civil penalty provision and there was a lot of pressure by
Congress on the Coast Guard that they were being too lenient,
but it was some time ago. So they have responded to that
Congressional criticism. So one might make some of his views
known to those individuals who put the pressure on the enforcing
agencies.
MR. BILL WARD (FLOOR MIKE); Just on other thing. There is
mechanism in the law, as I see it, for the fellow that does not
cooperate. The guy who cooperates, the guy who exhibits the good
faith effort to clean up the spill, to fix up the damage, restock
the stream if necessary, restock a trout pond, this fellow, I
don't feel, personally, should be fined. You've got a mechanism,
though, in the fine procedures for the guy who does not want to
cooperate, for the person who is not willing to say "Yeah, it is
our spill, we will take care of it, we'll clean it up under your
direction." Or you come in afterwards and say "You ought to
clean up this completely," and so on. This I think should be
something that works into the regulations as promulgated and
implemented.
MR. HAROLD SNYDER: That's a good point, that should be
noted.
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QUESTION (FLOOR MIKE): Bob Nuyen, Perm Central Railroad.
I think the reluctance on the part of most industries comes from
the feeling of the punitive nature of the regulations, as was
mentioned just a few minutes ago. We spend considerable sums
of money in order to clean up our spills. To cite an example,
a few years ago we spilled a tank car of acetone cyanohydrin.
It took us five years and $2 million to clean it up. Under the
new regulations, on top of this we would be slapped with a fine.
We're told that when the regulations are drawn up the administrator
may take into account any efforts we made to clean it up in order
to lessen the fine. I think industry can't work on such an
"iffy" situation. My real question is this, the laws as written
saying that you must set these harmful quantities and these rates
of penalties allow you the latitude to go one step further and
say these rates of penalty will apply when and if ameliorating
actions are not taken; in other words, if you deliberately spill,
if you don't take action, this is the fine. If you do, there is
no need for a fine because you're fulfilling your obligation to
society. Most companies are doing this and will continue to do
this. I think you are not going to get too much cooperation
without eliminating the punitive aspect of such regulations.
MR. HAROLD SNYDER: One other thought that can be made
here, I almost hesitate to make it but I will make it because
maybe we can get something fueled after lunch. We see implied
in some of the rationales we saw yesterday, the idea of achieving
prevention by a fine mechanism; in other words, prevention costs,
and then equating penalties to try to achieve that level of
prevention. There is a provision under Section 311, as most of
you know, for prevention regulation. So one could take the
tack that you can achieve all the prevention you want through
the prevention regulatory mechanisms that are called for under
the law. How one took that stance would depend directly on the
kind of prevention regulation you wanted to achieve. Some of
you in here I am sure are familiar with the oil prevention
regulation, which is a fairly open flexible program that allows
a great deal of engineering evaluation on the part of the handler/
storer of that material. He has the latitude to come up with
what he feels he has to do. One could postulate in this program,
if you wanted to achieve a certain level of improvement in rail-
road tank cars or roadbed over a railroad that was going to
handle chemicals (which means every railroad) — one could then
postulate a very complicated impactive set of prevention regu-
lations that could achieve the1, elements of prevention that one
would want to achieve, a greater element of prevention than
currently exists. And doing it through a regulatory format
that would be impactive economically through the kinds of controls,
improvements, and modifications you would have to make rather
than through a fine system. Now the sense of comments from the
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gentleman from Penn Central, comments I've heard from other
groups that I've dealt with in oil, is that the idea of a fine
becomes strongly repugnant to management. One who has a fine
levied against his operation, even though on a dollar and cents
basis a couple of fines may be cheaper than some other heavy
expenditure, the idea of fines is sufficiently repugnant that
that does not become a decision-making approach on the part of
the commercial organizations. So one of the alternatives that
you gentlemen should consider and may wish to propose could be
through very impactive prevention regulations to achieve the
same thing. So that is something one could probably stew about
over stew. If there are any other comments we'll take them now,
if not then we'll break for lunch.
MR. JACK GARRETT (FLOOR MIKE); If you think it's my management
that is worried about the fines, put that out of your mind.
In all the spills we've responded to over the years, the
greatest comment we have received is about the people over the
fines. They are out there 24 hours in the mud, and then you
hit them with a fine. The greatest single comment that I hear
from these people is about the fines. "After all the work we
did, we broke our asses while the rest of them are sitting
around and then we get a fine." It's my people I'm worried
about. My company is not going to be broken. You're asking
a guy who is not a manager, he is not a stockholder, he is not
a member of the Great Industrial Complex, he is just a plain
guy on the job, and you slap him with a fine. That makes him
mad.
MR. JACK GARRETT (FLOOR MIKE): Of course the company gets
the fine but — The point is this guy works his ass off to
ameliorate and then gets the fine. I'm not kidding you, it
makes my people a good deal more hesitant to do the work. If
you're going to fine them, let the Coast Guard clean the God
damn thing up. (Laughter) There's one other comment that's
MR. HAROLD SNYDER (FLOOR MIKE); There's one other comment
that's been patient in the back, we'll take that one and then
we'll —
QUESTION (FLOOR MIKE): My name is Mike Polito for Region
II, and a couple of things bother me. Number one, the applause
that certain operating personnel have been getting, this again
is an indication that now they are being made to do something.
I'm disturbed about people having the feeling that they can say
"I'm sorry" and everyone should walk away whether sorry means
picking up what you've dropped, that which you shouldn't have
dropped in the first place, again disturbs me.
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MR. HAROLD SNYDER: We still have some discussion, and we
could postpone lunch a little bit if we want to get it.
QUESTION (FLOOR MIKE): Bob Reese. I want to make sure the
record is clear. I made the statement yesterday and I didn't
have the book to read from. First of all I want to assure the
shippers, that comment I made yesterday was not made to discourage
tank trucks, cause we love you. My opinion is, first of all,
the carriers that I represent, the members of our association
are here for one reason only, and that is because of the penalty,
and if I told you otherwise, I would be a liar and I wouldn't
be straightforward with you. If it wasn't for the penalty
rate, we wouldn't be here today, because we don't spill that
much product in terms of quantity or volume and we can take care
of it. 95 percent of it never reaches navigable waters, but that
5 percent can put several carriers out of business and that is
why I'm here. I think the triggering mechanism of this entire
section is based on the punitive or the penalty aspects. And
I'm going to read to you right from the senate report and then
you can get it and read it for yourself. I'll take just a few
minutes. "Concern has been expressed as to the potential
magnitude of a fine to which a carrier or handler of a hazardous
substance might be exposed. The committee examined this concern
and concluded that the penalty would be limited in two ways.
First, the administrator would establish per unit limits on the
basis of the hazard posed by each of the substances designated"
— that's the exercise we're going into today, and yesterday, and
tomorrow. "Secondly, the penalty would be strictly limited to
those substances actually released into the water." And that is
another triggering mechanism, not the hazard or the harmful
quantity. Now this is the real crunch right here. "The committee
recognizes that a bulk carriage of a substance which has an
extremely higher per unit penalty will be exposed to an unacceptable
level of liability. Faced with this fact, bulk carriage of an
extremely toxic material in most cases" — and you can easily
equate that to a lot of money — "will pose an unacceptable risk.
Thus, by determining not to haul in bulk such hazardous material,
a carrier will avoid unacceptable economic risks and the public
will not be confronted with unacceptable environmental risks."
And then there is a parenthetical comment, "over which only the
carrier has any control", so you make the determination who the
onus is on in this situation.
MR. HAROLD SNYDER; Are there any more comments? I think
we've exhausted comments here for a while, so let's stew over
stew and be back at 2 o'clock.
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DAY 2, OCTOBER 22, 1974 - AFTERNOON SESSION
MR. HAROLD SNYDER: This afternoon, the first two presentations
will basically describe a couple of operational systems, very
important systems in the hazardous materials or chemical spill
realm. We will not have a discussion or question period after
the first paper, but we will wait until after the second presen-
tation and then entertain any questions or comments on both of
those. I will make one other announcement and that is related to
the booklet that Al Grella had this morning relative to the DOT
Hazardous Information System. They ran out of those books and
I understand that there are more coming this afternoon. There
was a thought that perhaps some individuals were taking more than
one copy. There is a limited supply so we would appreciate if
you would just take one and if you need an additional copy or
if they run out and we don't even have enough for each of you
that want one to get one, you can write to DOT Office of Hazard-
ous Materials, Washington, DC, and the important thing is the
zip code, 20590, and request a copy of that booklet. I don't
have the title of it at this moment, but we will have, as I
understand it, some more in this afternoon. Also I have some
copies up here, printed sheets of AEG's emergency regions from
the presentation this morning on the AEC program. This outlines
where the various regions are and the phone numbers and locations
of their response people so I'll have those at break time, set
them up here on the stage so you can get a copy of those. Let's
move right on then to the first presentation. I think we will
find, for those of us who have any knowledge at all in this
field, we've heard of Chemtrec, we may not really know enough
about Chemtrec and it's full ramifications, again a very
vital cog and John Zercher of MCA will now give us a presentation
on their Chemtrec system. John?
MR. JOHN ZERCHER; Thank you, Harold. On a November after-
noon a couple of years ago, a tank truck of arsenic acid rolled
in the industrial section of Baltimore. Captain Crockett, the
fire dispatcher, got a phone call on it and immediately did
three things. First, he dispatched a fire company to the scene.
Secondly, he notified Captain Gress of the Baltimore Fire
Department, who is the staff specialist in chemical activities.
The third thing he did was call 800-424-9300. In the latter
call he had access to Chemtrec, The Chemical Trnasportation
Emergency Center. This organization is established to provide
immediate assistance and/or advice to the scene of an accident.
In this particular case, while Captain Gress was on the way
to the scene of the accident, Captain Crockett had patched
the telephone into his radio in the car. So as the duty commu-
nicator at Chemtrec was giving out the information on how to
handle arsenic acid, Captain Gress was listening to it. When
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he arrived at the scene he was prepared to go into action. I
talked to him later and he said it was very entertaining and
interesting to be able to arrive fairly well briefed on what
he was going to have to do. As a second step, the Chemtrec
communicator had called the shipper in New Jersey who alerted
his plant in Baltimore. They sent men and equipment to the
scene and as Gress said, "everyone went home to supper with
the problem secured."
Chemtrec is. established by MCA, it is solely funded by
MCA and there is no official government position. We work
very closely with a number of government agencies as I will
indicate later. It is a two-step function. First, our
intention is to provide information to the caller from pre-pre-
pared information. It's on the general level of the Chemcard,
a bit more detailed at times. This assists the fire company,
the police, the carrier, those involved in the immediate
activity. As a second step, we then go to the shipper or
other expertise to make their knowledge available to help
with the finish up of the problem, the cleanup or whatever
else may be involved. The number is publicized in the emergency
services, the chemical industry, and in the carrier operations.
We have made no effort to publicize this to the general public
for the simple reason that there is no need to know. Environ-
mental people are well aware of it in many areas, we've had quite
a number of calls and we support this area, but we do not
publicize this to the general public. I have a small folder
which will be in the back of the room. You're welcome to take
one of them with you. I request, however, that this not be in
any way gotten into the public press. We have enough problems
with wrong numbers, people misunderstanding our services at
best.
We've all known that particularly the fire people, emergency
services, get involved in hazardous chemicals. They don't know
what they're facing and they have been quite concerned. For
that reason, we have asked our shippers to put this legend on
their shipping papers: "For help in chemical emergencies
involving a spill, leak, fire or exposure, involving chemicals
in this shipment, please call us." That worked fine until we
started getting calls from drivers who arrived at a destination
and found that is was a vacant lot. That was an emergency, so
they called us. We had five purchasing agents call last week
alone off these papers. They're running out of product, they
want to order from us. We are running about 150 a month of
that kind of call. It's a nuisance. So we're trying to stress
emergency in the sense of spill, leak or something that we can
be helpful on.
We started off Chemtrec on September 5 of '71, specifically
limiting our actions to hazardous materials as defined by DOT.
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However, there's a need to go beyond that, definitely. We
have, for example, had ten calls in the last two years on
titanium dioxide. For the nonchemist, that's a pigment in
white paint and a first cousin to sand and just as dangerous.
But the people don't know this when they run into it. In
Santa Rosa, California, a couple years back, a train hit a
truck. The fuel fire set thing going and there was a box car
smoldering. The fire chief identified it as fural residue,
he knew not what to do, so he just backed off. He had nothing
else in trouble, so he just backed away and phoned us. When
we chased it down and advised him that fural residue is ground
corn cobs, he went in and put the fire out. It was a freight
differential by using the different names. So we try to keep
information on all levels of hazard simply because we need to
be able to keep the wheels of progress going. We don't want
everybody to stop doing something simply because they had an
accident.
When we get an accident, we'll receive a call from any of
a number of people, usually fire or police, occasionally environ-
mental people, occasionally just the guy on the street. The
call comes into the Chemtrec office, where if you notice in the
background there is a tape recorder. We record all conversations
with a time signal so we can identify when it occurred. The man
on duty takes the key information which is shown here. We need
to know what it is, where it is; the old what, where, when and
how type of thing. Our actual reporting form is a little more
sophisticated than that, but on the back, incidentally, you
will notice that the agencies called at the bottom, these are
the standard places that we phone if we need to. It happens
to include EPA, DOT and other agencies. When a call comes in
we record the basic information and the communicator goes to
the file and pulls a pertinent card. He goes back to the phone
and reads it to the person — that portion of it that he can use,
spill or leak, exposure, fire, that which is pertinent. There's
no point in putting out a lot of information that a man can't
use. One of the things that we have noticed in the past few
years, when we first got involved in this, as you are well
aware and our speaker earlier today, Warren, spoke of the fact
that people came in and flushed it down with fire hoses. That
still is a very standard approach with the fire services. We
have converted an awful lot of our file cards to try to stop
that. We try to get them to contain it and we definitely ask
them to notify authorities. We can do that also, if need be.
In our file we have information on shippers, products, trade
names, personnel contacts; we have tried to tie down communications
with every known emergency operation in the country. Our cards
on file by product name are listed alphabetically. This is an
actual picture of the file system. Everything is typed by the
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communicators themselves. A typical card looks like this, and
as you see, close up it looks very much like a Chemcard. It
gives basic information on the nature of the product and what
to do about it.
After we've given the information from the card, the next
step in the operation is to access the shipper's expertise.
This gentleman could be a plant manager, a shipping foreman,
a tech service rep. He represents the experts by the hundreds
and thousands that are available in the industry and throughout
the country. We keep the address cards on the companies in
the same fashion as we keep the chemicals, in alpha order. For
operating groups we have trade associations, carriers, AEC, the
military, poison control, particularly. We have the Chlorine
Institute and its Chlorat Program.
Chlorat is designed to assign a sector of the United States
to each of the various chlorine producing plants. If you have
an incident in your town, you can call Chemtrec, we will trigger
the nearest chlorine producer or the one assigned to that area.
We had one out here in Silver Spring during the summer. A man
mishandled a chlorine cylinder at a swimming pool and the fire
marshal of Montgomery County called the office and told them to
get something going. We had Diamond Shamrock on the scene and
capped it off in less than two hours and he had to come down
from the other side of Wilmington. But these are well organized
systems.
We have the National Agricultural Chemical Associations'
pesticide safety team network about which the next speaker will
tell. These men are good. They know what they are doing and
they certainly are an asset to all of us. We've had very good
results working with them. The Atomic Energy Commission (Ray
Zintz spoke this morning) we have had to trigger them on numerous
occasions. Fortunately we have never had anything world shaking.
One time down in Bristol, Tennessee, we had a report that a cask
going back to a rework center was leaking so we triggered the
Oak Ridge crowd. They sent somebody in and announced we had a
puddle of rain water. Well, so be it, at least we knew for sure.
The truck driver was concerned. We work with the military;
Department of Defense has a well organized system to respond
to their products in transportation and we use it. Ed Walsh
and his group are quite capable.
One of the; problems we run into is synonyms. We try to keep
several of them in our files although we do keep SOCMA, books of
that type, where you can get additional cross references if need
be. We don't want to waste time if we don't know the proper
name of the chemical. Another problem we run into is spelling.
You'll find in your business that you are going to have the same
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troubles we do. Ethanol, ethanal, a difference in that o and a
makes a world of difference. Ethanal is an aldehyde, a rather
volatile material; if you don't handle it right you'll get in
trouble. Ethanol, the kicker in vodka or whiskey, if you don't
handle that right, you'll get in trouble. I keep waiting for the
day when some of these fellows come in looking for dimethyl
fornicate. But seriously, spelling is important. Trimethylamine
came in one night and it was trimethylene or vice versa, came in
methylene when it should have been amine. One is a compressed
gas, the other is a toxic compressed gas. So we need to get the
spelling straightened out as early as possible.
I'd like to point out one thing, particularly to the environ-
mental people. The men on duty are not chemists. I facetiously
refer to them at times as chemical idiots. They don't like it
much. Actually, they are very intelligent men. We decided
early in the game that it was not practical to staff this oper-
ation with chemical experts. And looking at the number of
things in file and that which passes through, I'm more aware
all the time of the impossibility of having somebody in the
office that knows everything about everything. So we rely on
our two step operation, prepare the work in advance and then
get the experts from the companies. As a result, we are using
retired military boys, we have four Navy chiefs and a Marine
sergeant, all twenty years or more. They are stable, disciplined,
dedicated, they don't come unravelled when the other guy does;
and I think we are well justified in our choice of personnel.
We work with poison control centers, we have had quite a
number of incidents with them. We had one Saturday night with
a pesticide. The poison control people couldn't find it in their
references, so they called in. Fortunately, we had it. We were
able to trigger the manufacturer in very short order. We do not
beg them to come in, we don't try to be a primary response in
poison. We try to be only a backup in case they have exhausted
their sources, but we certainly work with them.
We have the same difficulty as everyone else, you can only
have so much information on cards. We use backup documents when-
ever we can. We try to keep it in the file first, but if we
can't then we go searching for it. We try to tell our people,
the power people particularly calling us, if you can't find the
name go to the shipping papers, try to find them either in the
cab of the truck or caboose or the cab of the train. You won't
always do it, but try to find something for us. We can't
operate off of something as simple as a railroad car recording
mark. We have had this happen, where all we get is GATX-44927,
with that we can go to General American and they will tell us
who has the car under lease and we will call that outfit and find
out what's in it. We have done this on numerous occasions and
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it does work. However, we're better off, if possible, to go
with a trade name or a product name for openers, but as I say
it does not always work that way.
This gives you an idea of the type of operation we have
gotten into. The bottom line is nontransportation emergency,
the center line is transporation, the top is the sum of the two.
For reasons unknown to me, we've peaked every July. Those three
peaks are July numbers, I don't know why, but the fact remains.
That top peak represents 205 incidents that came into us, report-
able is where we render assistance one way or another, either
give information from our files or get a shipper or both. For
37 months we have handled a little over 20,000 inbound phone
calls, of which roughly 7700 were involved in emergencies. The
rest of them come in the cat and dog department which I mentioned
earlier, such as the delivery problem, information, disposal pro-
blem, how do I get rid of two pounds of cyanide? How do I get
rid of this, how do I get rid of that? High school laboratories
are always calling and wanting to know how to get rid of it and
expecting us to come and get it. And if you fellows haven't
run into that, you've got a thrill ahead of you trying to talk
to some of these science teachers out of it. By a quirk of the
phone system, Ma Bell gave us a telephone number when we started.
I locked the number up in my desk for six months so nobody would
know what it was. We started operating on the 5th of September.
We hooked up the phone a week before and put our publicity
out two weeks before. When the phone started ringing they asked
for Mr. Johnson. It turned out they gave us the former reser-
vations number of the Howard Johnson motel chain. We've taken
in over 3000 room reservations since we started. If you thing
that isn't frustrating, be in the middle of a big derailment and
some doll calls and says "Is this Howard Johnson's?" It's
been six years since they disconnected the darn thing. And we
are now down to -- we only had twelve last month. The thing
that has surprised me particularly is the split of the action.
When we started, we expected the emergency services to be the
predominant user. As it turns out we've had fire and police
only being in the 19 to 20 percent range, carriers by far the
highest in the low 70*s. The others include the environmental
area, anybody else that may be involved. Again, rail and highway
are neck and neck.
Water incidentally, which is the subject of this discussion,
is surprisingly low. A terminal or pier comes up every once in
awhile. We'll have problems at the piers when the shipments
come in, particularly on imports from Europe. Generally they
are poorly marked, usually they are poorly identified as to
where they are coming from and where they are going. In the
area of barges specifically, we have had a surprisingly little
amount of action. We've had some, unquestioningly, but it's
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not a big piece of the activity. One of our more interesting
ones occurred, I guess, two years ago, three years back. We
got a call from on the Tennessee River or one of the rivers in
that area that a barge had gotten lose and hit a bridge abutment
and was sinking so they beached it. First call was that the
barge was completely empty. It had a massive hole in the bow
and the thing was empty. We triggered the company involved and
they flew a couple of men in there. Next day we got a report
that the only thing they had done was break through the double
skin and the barge load of caustic was completely intact so
they pumped it off without losing a drop. Which does speak
well for the double skin barge.
Tank cars continue at the present time in the lead,
slightly ahead of drums. One thing I should point out, when
we talk about incidents here, severity is not involved in the
numerics. One leaking pail is a report and a massive derail-
ment is a report so you can't equate total damage simply by
the numbers of reports. By DOT regulations definitions about
70 percent of our total action runs in the hazardous materials
field. The rest of it is in the so-called nonhazardous.
One of the objectives of the program has been to get the
shipper or let's say, the problem and the answer together in
the least possible time. Chemtrec is not a reporting function
nor is it an investigative function. It is simply information
passing. If an accident occurs and we can't help you, don't
bother. If one does occur and we can help you, we'll do all we
can to do so. We have had, as I said earlier, incidents ranging
from leaking pails to distressed barges or tank cars. When you
get something like Decatur, Illinois of Houston, Texas where a
coupler got shoved through a head, there is not a frazzling
thing we can do except help pick up the pieces. We can notify
people, we work very carefully with the Bureau of Explosives of
the AAR, we work with FRA, National Transportation Safety Board,
we trigger EPA on occasions when we feel that it should be done.
We work, as I said earlier, through a broad gamut of official
government agencies, and yet we are not one of them as such.
There's one incident which I think demonstrates some of
the help we can get. As I said earlier, we've got about 180
members in MCA that support this program, and yet the entire
world is very good about backing us. We've gotten phone calls
from people who never heard of us, we've sent phone calls out
to people who have never heard of us, trying to get assistance;
and generally, if their product is involved, they will try very
hard to support you. And this is something I can speak of,
having had a lot of experience with it. It behooves the
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environmental people to think about this in their efforts —
that the manufacturer probably knows about as much about their
product as anybody. Probably more.
We had a case where — that thing was going from Pittsburg
to Youngstown -- this isn't transportation data hazard particu-
larly. A 727 went out there and when it got to Youngstown it
was a turnaround. So they walked through the plane, stripped
out the paper cups from behind the seats and all that stuff,
got back to the head and opened the door. Here stuffed down
one of the toilets was a newborn baby. It was between minutes
and maybe an hour old, I think nearer minutes. They took her
out, had to take the pot apart to get the kid out, if I under-
stand, took her to a hospital, doctors were concerned about
survival, naturally. They also wanted to know, is that chemical
fluid in that toilet going to cause poisoning or some other
problems? They didn't know. They called Youngstown's United
office and they didn't know anything about it. Youngstown called
the California maintenance base in San Francisco. There they
found the name of the material. They didn't know any more so
they picked up the phone and called in and gave it to the duty
man. This at 12:25 at night on George Washington's birthday,
October 25, two years back. The duty man chased the outfit
into Lodi, New Jersey. The information operator gave him the
phone number, he called and nobody was home so he went out to
the police, which is a standard procedure, police or fire. They're
preplanned and they usually keep phone numbers. They had three
names of officers of the company. The first answered when they
hit him, he said he knew exactly what the material was, he would
call the hospital and talk to the doctor. That one took 14 minutes,
They don't always work that well. It's not an infallible
operation. But, we've had, as we said earlier, 37 or 3800
incidents. We've gained some experience. I feel that we have
a valid operation that can render service to those people who
need it.
MR. HAROLD SNYDER: Thank you very much, John. We'll now
move right into our next presentation by Joe Moore, representing
the National Agricultural Chemists Association. He'll talk
about their program for pesticides.
MR. JOE MOORE: As a first step to assist those of the pesti-
cide industry, the National Agricultural Chemicals Association
developed a safety manual for handling and warehousing Class B
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poison pesticides. The manual contains basic safety information
for handling and storing these materials. We recommend anyone
who handles poison pesticides have a copy at his place of business.
Secondly, NACA developed a container inspection procedure which
lists recommended practices and packaging requirements for man-
ufacturers, formulators, and shippers of pesticides, practices
which meet DOT regulations. The procedures lists requirements
for the proper selection of containers and suggests a number of
prefilling inspection items; for example, random hydrostatic
testing of containers. Also it contains safe procedures for
handling on the filling line and suggested after-filling inspection
to insure against leakers. The procedure should minimize accidental
release of material.
The precautions our industry takes are sometimes not enough.
Accidents do happen, whether it be a minor traffic accident with
only one or two containers involved and little or no spillage,
or a major accident with an overturned truck with excess spillage,
lanes blocked or even the road closed. Or it could be a rail
accident where the incident is confined to a rail car, or possibly
a multi-car derailment approaching the disaster stage; the public
may be exposed to hazardous chemicals. To protect the public
and to assist public agencies in rectifying these mishaps, the
chemical industry has developed several emergency response systems.
Some are listed on this wallet card. All a person needs to do
is to call one of these numbers collect and assistance will be
available, often within minutes. The Manufacturing Chemists
Association, the lower number on the wallet card, is the prime
contact. The top number on the wallet card is Chevron Chemical's
emergency number. It is listed at Chemtrec and is called in case
a mishap involves one of Chevron's products.
If the spill involves a Class B poison pesticide, those
containers marked with a poison label or a skull and crossbones,
Chemtrec or other callers will relay information to NACA's
Pesticide Safety Team Network. The center of this network
is telephone central in Cincinnati. Telephone central in turn
relays the information to an area coordinator who has been
assigned from one of NACA's member companies. The country is
divided into ten areas with area coordinators from Area 1,
Chevron in Richmond, CA; Area 2, Shell in Denver; Area 3,
Stauffer in Omaha; Area 4, Chemagro in Kansas City; Area 5,
Diamond Shamrock in Houston; Area 6, Beltzco in Memphis; Area 7,
Niagara in Middle Fork, NY; Area 8, Union Carbide in Institute,
WV; Area 9, Monsanto in Anniston; Area 10, Dow in Midland, MI.
Each area has a number of pesticide safety teams which are
supplied by the companies, 44 pesticide safety teams nationwide.
Let's take a look at how the emergency procedure works.
Chemtrec or other caller reports an incident to the central
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answering service in Cincinnati/ who gathers as much information
as possible. The central answering service contacts the area
coordinator, relaying this information. The area coordinator
either contacts the manufacturer for handling or the caller to
obtain additional information. If the manufacturer or area
coordinator cannot handle the problem, then the area coordinator
will have to contact and dispatch a pesticide safety team under
the direction of the team's captain. On the West Coast, Areas
1 and 10, there are twelve pesticide safety teams as shown by
the map. Each one of these teams, as well as the others through-
out the country, are trained to handle such emergencies. Fresno
has two teams; Modesto, one; Richmond, two; Santa Clara, Yakima,
Portland, Los Angeles, Imperial and Long Beach, each have one.
Each team has an emergency kit such as this one. Chevron's
kits contain personal protective equipment, cleanup and decon-
tamination materials, road protection devices, reference material
and instructions. Our kits are portable so that they can be
easily transported in the trunk of a car or even air shipped,
should the occasion arise.
Each pesticide safety team, each area coordinator and alter-
nates, and telephone central are provided with guidelines for
handling accidental spills of Class B poison pesticides. These
contain procedures for handling emergencies, instructions, guide-
lines for the area coordinator, pesticide safety teams, a map
of the network, emergency phone numbers and addresses of contact
people, lists of Class B poison pesticides and the principal
manufacturer of each. These guidelines are revised and kept
current by NACA and distributed through the area coordinators.
Now that you are acquainted with our industry's response
systems, let's take you through a hypothetical accident step by
step. A minor accident occurs, some pesticide is leaking,
fortunately no one is exposed, what should be done? Whether
you are in the accident or just come up on it, it is important
to know what to do. Points to remember to keep the accident
or incident from getting worse: stop the leak; upright the
leaking containers; close valves; rescue people; wear protective
equipment; don't charge in blindly; administer first aid; stop
the bleeding; wash infected body area with water from a hose,
ditch, shower, fire truck; remove contaminated clothing; treat
for shock; get medical attention; get help from the police or
highway partol, ambulances; the fire department have inhalators,
resuscitators; local doctors, hospitals, public officials can
help; isolate the area; rope off; keep people 30 feet away from
the spill, out of the drift; treat the spill with utmost respect
until technical advice is available; stay with the vehicle until
properly relieved or dispatched; contact your boss or the shipper
or the manufacturer for instructions. While waiting for help
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the area should be isolated and protected with traffic control
devices such as flares. When you do contact, report what
happened, exact time and location, what chemicals were involved,
how much spilled, other containers involved, is any leak con-
trolled, etc.
When an area coordinator or the manufacturer dispatches the
nearest safety team, they will proceed to the site to handle
the cleanup chores. Basically, this is the procedure any clean-
up team will follow, step-by-step. When the team arrives it
gets its safety gear and cleanup tools and proceeds with the
job of cleaning up. Once on the site, if it has not already
been done, the team must minimize the incident by isolating it,
keep it from spreading and getting worse. Further control may
be necessary by diking to prevent runoff of the spill material.
Leaking containers must be separated from other containers. The
remaining contents in these leakers will have to be transferred
into some type of container that can be safely removed from the
site. The leaking containers are then placed in a drum or
plastic bag so they can be safely removed from the area.
The spill is further controlled by spreading absorbent
material (heavy granules) over the entire spill. This is true
of most liquid spills. In the case of a dust or powder spill,
further spreading is prevented by either dampening with a fine
spray of water or covering it w: th a tarp. Our kits contain
plastic tarps for this purpose.
Once the spill is contained, we can start cleaning it up.
The team is spreading the absorbent material around, sweeping
it up and then placing it in a plastic bag. In the case of a
solid or powder spill, the team may have to work from underneath
the tarp as they roll it back. Once the spill has been absorbed
and swept up, it may be necessary to decontaminate or neutralize
the residue, particularly if it is an organic phosphate. The
man here is using Clorox at full strength and hydrated lime.
The decontamination solution is then spread on the spill and
worked into the pavement with a coarse broom. Then we must
absorb this solution by using fresh absorbent material which
is spread around over the entire spill area. This material is
then swept up and placed in a plastic bag or drum sililar to the
initial absorbed material that was spread on the spill. It is
then swept up and placed in a plastic bag for disposal. Remember,
fresh absorbent material must be used for each step. As a sub-
stitute for absorbent material, dirt or sand can be used in an
emergency. Should the shoulder of the road become contaminated
by the spill, it is necessary to remove all contaminated soil
by first removing all soil at least two inches below the moist
contaminated soil and placing this in a plastic bag or drum.
Secondly, cover that area with at least two inches of lime and
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thirdly, cover the lime with fresh topsoil. Before any of the
vehicles involved can be moved, all contaminated parts that might
be exposed to the public or the highway should be cleaned off
with decontamination solution. If the drainage permits, the
runoff will not be a problem. The contaminated spot can be
sometimes washed off with fresh water. Before washing off and
during the cleanup and decontamination, the team must consider
exposure to fish, animals such as grazing cattle and other wild-
life, irrigation water, potable drinking water, watering ponds,
recreational waters, and any other environmental factors such as
schools, cross walks, weather, rain, wind, terrain.
After the cleanup has been completed, the crew removes their
rubber or plastic clothing and places it in a plastic bag to
guard against contamination. Back at the plant, metal tools are
decontaminated, then cleaned thoroughly before being used again.
Porous material and equipment such as wood brooms, floors and
leather shoes cannot be effectively decontaminated and therefore
must be discarded and/or destroyed. The contaminated clothing
should be washed in a strong alkaline detergent, rinsed several
times and then hung out to dry, provided of course it is still
serviceable; otherwise discard it.
In addition to being prepared to handle emergencies, our
industry has worked closely with the trucking industry in
educating drivers. Further, Chevron provides each contract
truck driver with a pamphlet advising him that he is transporting
a product which is classified as hazardous material and what to
do in case of an accident: isolate the area, contact the shipper
for instructions. Inside this pass out are the basic DOT regu-
lations for hauling hazardous materials that the driver should
be acquainted with. These are available from Chevron in San
Francisco for 6C each. Also to assist truckers, we stamp on
the bill of lading the telephone numbers of people to contact
in case of a mishap, not only the working hours number but an
off hours number, with alternates. You will know that we advise
them to call collect. These numbers are tied into Chevron's
emergency task force. The same answering service and the same
people we use for the Pesticide Safety Team Network also handle
our own spills. We have 25 teams of our own that can respond.
This book contains step-by-step procedures for them to follow.
The job of the Pesticide Safety Team Network is to minimize the
hazard to the public, minimize property damage, involve respon-
sible people so incidents will be confined, provide expeditious
coordination and cleanup on the site; in other words to protect
the public. Thank you.
MR. HAROLD SNYDER: We'll take a few moments now and enter-
tain any questions on either of the two presentations that you've
heard this afternoon, MCA or NACA. Yes, please.
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QUESTION (FLOOR MIKE); My name is Lee Frisbe, I'm with
Chemagro. You heard us mentioned as one of the area coordinators
there. I've been involved with this Pesticide Safety Network
since the beginning and I saved my comment. I really wanted to
put it in after Jack Garrett's comments this morning. When we
got together and tried to form this Pesticide Safety Network,
the operating people can agree, the lawyers had a terrible time
with it and I would add my thoughts there to Jack's. If you do
things to make it harder for the man that comes onto this
emergency to properly handle it — if you put penalties and
problems in there that he's going to be sued by somebody because
he didn't do the right thing or something like this, or that
he caused their fine to be bigger, something like that, you're
going to decrease the effectiveness of this emergency action;
and again, the action in these first few hours is very important
and many of these things happen at odd hours of the night,
weekend and so forth so you don't have a great access to all
the people that you might want to have to ask questions and such
as this. You need to have quick action and it needs to be very
direct and not involving a lot of people. So I put in a plea
for thinking of the person who has to be on the scene, handling
these emergencies.
QUESTION (FLOOR MIKE): I haven't been involved in Chemtrec,
Clorep and NACA PSTN. I think it's safe to say that all three
of them exist in spite of the attorneys, rather than because of
them. These were management decisions from the word go in every
case. Then finally the lawyers were told to make it as easy as
you can, but it had to be management decision to move, because
the attornies would sit there and sit there and sit there.
MR. HAROLD SNYDER: I was trying to be controversial this
morning.It looks like we can get warmed up again this after-
noon. Any other comments? Ok, if not, we'll move right into
the next part of the program. Is Mark Hooper in the audience?
Ok. The first presentation this afternoon will be by Jerry
O'Driscoll of Southern Railroad. Jerry is fairly well known
in the spill business. As a matter of fact, I sicced a couple
of people on him not too long ago to get some insights into how
he did things in a contract that we have going in an effort to
perhaps disseminate a little more widely some of the good things
that we know throughout the country relative to spill response in
different industrial groups. So Jerry is now going to direct his
comments pretty specifically to the 311 problem, the regulatory
process that we are talking about here today. Jerry?
MR. JERRY O'DRISCQLL: Thank you very much. First, before
I get into my brief presentation I want to take this opportunity
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to congratulate Hugh and Mr. Dawson of Battelle for putting this
program together, for giving everyone a chance to come forward,
participate, express his views and, in effect, try to assist them
in developing meaningful, effective regulations. It's unfortunate
that other government departments don't have the same interest in
allowing the various people that are going to be affected most
importantly by their developments and actions to do this. I
also want to compliment Battelle and Hugh's work with the results
they've come up with. I'm impressed every time I look at the
manuals, every time we go through the depth of the analysis,
all the considerations they've put into it, all the many hours
they've put into it, I have to say are very impressive. I want
to compliment them in their effort and I certainly don't want
my remarks to be taken in any way as criticism of them. They
have a job to do, like all of you and myself. I think they've
done a damned good job. I think they do need our help so I
would like to address some of my remarks in those areas where
I think we ought to offer them some help.
First, it's certainly a pleasure to have this opportunity
to talk to you about an extremely important matter that can have
a tremendous impact in our society's day-to-day activities. It
can affect the transportation of practically all commodities
upon which this society has built its material welfare, if not
the whole maintenance of our living standard. The effects are
going to have a significant impact. In the last five years,
ladies and gentlemen, we've seen a whole series of governmental
actions. Practically, they have been in reply to conditions, or
chaos conditions, if you will, and they've been made in response
to visible needs. Serious needs. However, in many of these
actions, as in this one, serious doubts have been raised as to
Congress' capabilities, whether their solutions are really
addressed to valid needs, and in effect, if the whole sequence
of significant regulatory changes we've seen addressing themselves
to these revolutions, such as occupational safety and health,
transportation safety, environmental protection, water control
acts, all the range you go through. They've been dramatic. But,
unfortunately, in dramatic actions, and in revolutionary-type
actions, there are always excesses. Unfortunately, if excesses
are incorporated without people's recognition of them, they are
actually going to do more damage and threaten society's welfare
more than anyone ever dreamed.
The Environmental Protection Agency's studies, proposals,
policies, ideas as they move forward in complying with the
responsibilities as spelled out in Section 311 of Public Law
92-500, when analyzed and looked at carefully, portend serious
effects on our society as we know it. Unfortunately, many of
them are not readily apparent. I would like to go into a few of
them a little bit later, but first I think we have to have some
sort of a guideline or motto or a theme to approach things.
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My wife has recently been reading a book that I thought was
very appropriate. It was written by Ms. Lyle Russell in '55 and
the title of her book is "God will Work With You, But Not for
You." It's identified by her as a livingpphilosophy. However,
it contains some very appropriate expressions that I would like
to mention and suggest we use as a guide in this sort of
deliberations. First is her interpretation of the Golden Rule.
It's a scientific Golden Rule, if you will. It's very simple.
Every action in nature is simultaneously balanced by an equal
reaction. I emphasize balanced. And then the additional and
more pointed quote is what she calls her first rule of life;
that is, "He who would command his destiny must first learn how
to balance the conditions which control it." Again, I would like
to emphasize the balance.
Ladies and gentlemen, I firmly believe that society, like
mother nature, eventually commands respect and demands that
balance be brought into all activities that affect society's
existence. Society demanded that our environment stop being
abused in a reckless, abandoned manner. Also that we stop
destroying the quality of our air, of our water, and of our
earth. It became apparent, obviously, that to continue in the
manner that we've been doing business over the years would
surely result in the rapid destruction of our environment, and
of course we need that if we're going to continue.
We've seen society's needs being met. There have been a
flood of corrective measures and regulations. That's where
the danger lies. I think we're going to have to be very cautious
and recognize the fact that excesses are entirely too easily
included in these measures. Those excesses contain the germ or
the disease of destruction of the whole venture. If anyone wants
to be destroyed, the gods said, we'll make them mad with power,
then we will destroy them. So balance in weighing the potential
ramifications, I think, has got to be accepted as a guideline if
we are going to succeed in our efforts to protect our environ-
ment and our society.
A recent study by McGraw-Hill indicates that in "74 alone,
business plants are going to invest a total of $7.4 billion in
air and water pollution control devices. Occupational Safety
Health and Equipment expenditures are going to exceed 3 billion
dollars. The total estimate for such all expenditures for the
years '73 to '82 will reach 43 billion dollars. The EPA has
indicated, in reviewing these figures, that operation and main-
tenance costs will probably double those figures.
Many people have indicated that serious consideration should
be given to delaying or holding in abeyance all significant
expenditures and efforts directed toward advancing our current
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environmental situation in any place where these expenditures
are not capable of contributing to productive capacity. They
say the productive equipment and devices that do not contribute
to productive capacity are economically useless and a waste of
essentially needed assets and capital. I'm beginning to wonder
if there are people in society that have that opinion today
about the improvements that have been made that definitely have
improved the pollution aspects.
What do you think the economic impacts are going to be and
the reaction to all the aspects of Section 311? I personally
believe that in total they will be completely unacceptable to
society, industry, and any fair-minded person. In my opinion,
it is a bad law. It's overdone in punitive measures that are
economic penalties of a destructive level. They are going to be
applied arbitrarily upon the person identified as being in
custody of the material or activity when a spill or leak occurs,
whether accidentally, negligently, or due to a cause beyond
his control. In effect we have police, judge and jury. I
believe Section 311 must be identified as a bad law. And I
believe society, which has always defended itself, is going to
see to it that it is rejected or modified or replaced by reason-
able, workable, and constructive law to protect the true welfare
or balance of society — which, incidentally, includes the total
environment.
You may presently think the major oil companies are coming
under needed political pressure and economic threats. The
majority of the recent proposals that I've seen submitted to
Congress, I believe are unsound economically, philosophically,
and morally. And I also believe that if such measures are
implemented and placed into effect, the results on our society
are going to be devastating. They are not going to correct
the problem and I think its just another verification that
any regulations or legal actions taken in a time of crisis or
in emotional upset are going to be damaging. They are not
going to help solve the problem.
That brings me to one last observation in regards to the
economic impacts of regulatory actions. That is, whatever
levels are decided upon and whatever criteria are used to deter-
mine the assessment of penalties, in the end they're going to
be paid for and in effect those that are penalized are everyone
of us. Anyone who enjoys the benefits of society, who uses,
consumes, enjoys and disposes of the products of society, is
going to have to pay their fair share of every dollar that goes
into penalties. Economic society will maintain a balance and a
major flaw to the whole unreasonable financial penalty concept
being considered as a tool to bring about improvement in oper-
ations or activities is that truly the penalty dollars are lost
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or wasted for constructive purposes. I would like to clarify
another idea that I've seen reflected. No one deliberately
spills materials in transportation. Unfortunately penalty
dollars cannot bring about the needed improvements. They are
wasted. They are nonproductive, inflationary and they are
going to add to our economic difficulties because they are not
contributing dollars.
I would now like to explore from a railroads viewpoint the
threats that are implied and evident in the proposed regulations
resulting from Section 311. First, I want to give you one bit
of information about the railroads. I know what many of you
most probably think and hear and read and repeat. I've gone
over the background of the business and in the transportation of
hazardous material, by rail transportation, which has been my
career for the last 35 years, the average fatality rate has been
less than 1 and 1/2 persons per year. Just think of that, less
than 1 and 1/2 persons lost in the transportation of millions
of tons and millions of shipments of hazardous materials by the
rail industry. Ladies and gentlemen, everything in life has a
cost and everything in life has a risk and I think that sort of
statistic gives a pretty damn good indication thcit somebody's
been doing a pretty good job.
Now I would like to put these aspects of 311 in a little
more meaningful situation. I've gone back over our experiences
on Southern for the last five years. I calculated the penalties
that we would have been subjected to had Section 311's approach
(Bb) been in effect and had we been subjected to the administra-
tive "s decision, that they would be. In running these by two
approaches, one, the original DOHM Method and second, the Resource
Value Method, the rate of penalties that would have been imposed
could have varied by as much as 90 to 1. Putting the half a
million dollar upper limit in, they would have varied even then
30 to 1. Now, in my own book, that sort of indicates that
either one or the other is out of kilter. If we can't get that
range in closer, then I think it's an indication that we're
dealing with an extremely difficult set of factors, an extremely
difficult situation to come up with a hard and fast rule. And
that incidentally is why I wanted to compliment the Battelle boys.
I could visualize the ramifications and the head scratching they
had to do in trying to put these complicated situations into
perspective.
However, all the methods can impose serious threat to con-
tinued transportation of materials and for those commodities
which incur unreasonable levels of penalty, it becomes an econom-
ically unacceptable business risk to accept such materials in
transportation. Unfortunately, no actual damage figures or
resulting loss figures have been developed. The entire concept
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has been and must be based on theoretical damages, on potential
damages, and consequently society will be paying for unproven
or imagined insult to the environment. There are apparently no
cost-benefit analyses to be done. It was my understanding of
the law that that was the primary guideline. A variety of
unfavorable results could occur by these excessive penalties.
Some materials would have to be withdrawn from transportation.
Others will face special handling requirements which will involve
delays, congestion at various key transportation points and also
could require special containment devices, protective equipment,
as well as serious changes in the model routing of traffic of
materials. You put all these things together and you realize
that all materials subjected to any penalty level for spillage
will of course be subject to rate increases. These rate
increases will have to be comparable to the increased risk
level of the penalty established. Gentlemen and ladies, when
the environmental impact statement is prepared on this regulatory
action, it's going to be the grandaddy of all environmental
impact statements.
As you can see from this brief outlook at the effects of
the proposed penalty scheme, the results are going to be entirely
different from those originally intended. The penalties could
result in serious dislocations in the traditional living patterns
that society has become accustomed to. If we assume a more
reasonable penalty is selected, which I honestly believe it will
be, and more manageable economic penalties are applied, the impact
will of course be substantial. It will most probably be of an
acceptable nature and the cost to society will probably be agree-
able. Any level of penalty, of course, supposedly is a deterrent
on those who willfully or negligently permit spills of materials
into the environment. However, I seriously doubt that that
threat will affect the mentality of people that do those things.
To illustrate one materials future under the various schemes
proposed, I would like you to consider chlorine. Chlorine, I
imagine, is one of the most essential materials handled in trans-
portation for the health, welfare and well-being of all of us.
Every town, city and metropolitan center depends on cniorine to
have pure drinking water. The penalty rate, however, for chlorine
proposed under one method will be at $38 per pound for any spills
into rivers. This penalty would mean that the loss of one 50-ton
tank car of chlorine into a river under conditions where its
entire contents could be absorbed into that river could result
in a total penalty level of $3,800,000. Fortunately, Congress
did work in a maximum penalty for on-shore transportation modes
of a half million dollars. On Southern in 1973, we handled
approximately 50 tons. When you realize we earn perhaps $250 to
$300 transporting the typical tank car of chlorine several
hundred miles on our railroad, it becomes apparent that one
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incident where the maximum penalty could be applied would destroy
the total income from the handling of over 2000 tank cars, or
25 percent of our total efforts in the transportation of chlorine.
Imagine what such an economic penalty threat is going to do to
the railroad freight rates for the transportation of chlorine.
It's particularly ironic when we recognize the fact that in a
number of rivers the addition of chlorine would actually be a
damn good thing. Assuming reasonable penalties are established,
however, then we must look at other far more threatening aspects
of Section 311.
Those are the ones that impose an upper limit for cleanup
activities of $8,000,000 on any on-shore activity spilling
designated materials. A liability of this magnitude is totally
unacceptable business risk unless a form of insurance or govern-
ment assistance is provided so that its economic impact threat
can be spread over an acceptable time period. Gentlemen, the
alternatives are not pleasant. Since cleanup activities and
costs are at present time wholly unpredictable and uncontrollable,
since there are no specific guidelines or criteria to be followed
in these activities and the administrator has full freedom, through
his on-scene coordinator, in demanding whatever actions are
thought necessary at the time, carriers must in self-defense
consider withdrawing from the transportation of those commodities
subject to the provisions for cleanup of Section 311.
If a government-sponsored insurance program becomes avail-
able similar to the Price-Anderson Act for the protection of
atomic energy activities, then carriers could incorporate in
their freight rates provision for providing such sufficient
funds to be utilized in accordance with the whims of the admin-
istrator. The premiums required to make available such a sizable
insurance company is going to place a significant financial
burden on present freight rates to allow these materials to
move in commerce. I await with keen interest the EPA's environ-
mental impact statement and cost-benefit analysis for the regu-
lations proposed and required for Section 311 "s implementation.
Regardless now of our various personal opinions, society
will remain in balance. And balance is the only solution to
preventing bad laws from doing more damage than the suspected
disease or imagined problem. Congress must act to correct such
excesses or society will. Ladies and gentlemen, I appreciate
this opportunity to express my thoughts on the various aspects
of Section 311. Again I want to compliment Dr. Hugh Thompson
in his approach to his awful challenge; and the resulting regu-
lations, the implications, as we've seen, are going to be
tremendous. I feel the EPA is to be commended for providing
this opportunity for all of us to express our views on the law
and its resulting impacts on the balance of our society. I
hope those comments have been heard on Congress Hill. Thank
you very much.
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MR. HAROLD SNYDER: Do we have any comments, any questions?
We will take a few moments here to entertain a couple of comments
or questions.
Well, you must have won a lot of souls, Jerry. The next
presentation will be by Mark Hooper of Robertson Distribution
Systems, Inc., and the general thrust of his comments will be
on the economic impact of the 311 regulations.
MR. MARK HOOPER: As indicated, the thrust of my particular
presentation will be the economic impact of these proposed levels
of fines on Robertson Tank Lines, Inc., and the tank truck industry,
Although today I represent the tank truck industry, the numbers
that I will be portraying on the screen later are those figures
for Robertson Tank Lines. I felt that even though Jerry and
others have alluded to the economics, Jerry tossed out some
specific numbers, one of the main things lacking in this dis-
cussion, both in San Francisco and here in Washington, is when
it comes down to the bottom line, what is it going to cost? Not
so much what is it going to cost us as Robertson Tank Lines, or
us as a tank truck industry, or the shippers we have to pass
these costs on to in rate increases, but what is it going to
cost us as John Q. Public? Because that is where the brunt of
this cost is ultimately going to be borne.
Everyone here today is either concerned with the movement
of raw materials and products from origin to destination and/or,
and I hope its and in most cases, concerned with the protection
of the human, marine, terrestrial, and atmospheric environments.
Most, I hope, are concerned with both. Because there are few it
any in this room who do not need, or whose life style is not
dependent and affected by, both. The question then remains, how
do we accomplish both? The manufacture and transport of goods
which our life style is so dependent upon, our standard of living
is so dependent upon, as well as protection of the environment
at maximum benefit and at minimum economic impact. Stated
another way by the EPA in the proceedings of the recent conference
in San Francisco, on page 14, under Prevention Goals and Objectives
No. 6 - "develop an approach to maximize the environmental protec-
tion and minimize the associated cost to the general public." One
of the goals and objectives stated by the EPA. To best illustrate
what I feel is both the objective of this paper in part, as well
as the objective of this conference in total, I would like to
relate a story to you.
While formerly with an environmental consulting firm, Roy
Weston, Inc., I had the opportunity to be project manager on two
projects in Israel. The man who was coordinating this project
in Israel was a former head of the Air Force during the 6-Day
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War. The man has got a lot on the ball. Very economics-oriented.
This particular project was the environmental impact of a bulk-
loading terminal on the Gulf of Alat. In most instances, we
would approach this environmental impact by plugging and cranking
type of thing. The Israelis didn't want to look at it this way.
They wanted to know for each incremental increase in cost, the
cost of prevention, the cost of environmental protection, what
would be the incremental benefit to the environment and in turn,
the incremental increase in cost of the finished product. They
wanted to do a cost-benefit trade-off. At what point are your
expenditures essentially wasted, at what point do you finally
get to 90 percent prevention and then each additional percentage
point costs you millions upon millions of dollars, and you're not
really accomplishing that much more.
Is this not also what we wish to accomplish here, a cost
benefit trade-off? In other words, remember the Israel story;
for various incrementally increasing fine levels, what incremental
increase do we get in prevention incentive and what is the incre-
mental improvement in spill frequency reduction and environmental
protection? At what point do we get the most bang for our bucks?
At what point do we get the most out of a fine incentive without
a resultant detrimental economic impact and disruption of the
market place? Because that is where it is going to be felt in
the long run. I have a number of slides here.
This first slide just gives you an indication of the size
of some of the companies I'll be talking about. The Number One
carrier in our industry is Chemical Layman Tank Lines. They're
represented today here in this room. They are the first carrier
whose revenue has exceeded $100 million. As indicated here,
Robertson Tank Lines, whom I represent in my daily job, is number
9, with a revenue of a little over $26 million in 1973. However,
I would like to caution you on one point. Even though the
companies listed on this particular chart all have revenues in
excess of $14 million, there are a lot of small tank truck carriers
out there that have 4 and 5 tank truck fleets that make a lot
less than this. And they have spills too.
What I have done, in order to develop some statistical data
to be used in economic impact evaluation, is take spill incidents
that were experienced by Robertson in 1973 and in the first three
quarters of 1974. Under product designation I have included both
hazardous materials as well as other petro-chemicals, primarily
to draw comparisons between spillage rates, spillage volumes,
etc. This data for 1973 was taken from past files of Robertson,
including DOT accident reports, internal product loss forms, and
internal accident reports. The amount spilled indicated there is
the size of the spill which was reported. The location is
indicated simply as over-the-road or at a terminal — a terminal
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being either a loading or an unloading facility. Under spill
deposition I have either blanks or a lot of waterways in paren-
theses with a question mark. The blanks mean the thing definitely
did not get into the waterway. The waterway question mark in
parentheses means who knows?
To give you an instance, we recently (and it will turn up
in the 1974 totals) spilled 800 gallons of caustic soda over
20 miles of interstate highway in Louisiana. A valve was left
open. More than likely, some of this ended up in the Mississippi
River. I couldn't tell you how much. A lot of these spills
end up on a highway, end up in a drainage ditch alongside the
highway. You try to pick up, in most instances, as much of this
as possible. Some of it's left. Maybe all of it's left. We've
had incidents, and some of them in 1973, where the guy left
Texas, developed a leak somewhere en route, and ended up in
Ohio with 600-800 gallons less than he started out with. Need-
less to say, we didn't go back to try to pick that one up. We
didn't know where it was. This thing possibly ended up in a
waterway. We don't know for sure, though.
What is going to be the effect relative to the administration
fine system on this kind of spill? Under spill cause I have
indicated either equipment failure and/or driver negligence. In
some cases I have indicated both. I would like to clarify this
driver negligence. The driver negligence, as interpreted here,
is human error. It is failure of a driver to close a valve,
whether it is a valve on a tank truck, rail car, barge, or fixed
facility.
These are spills for 1974. In 1973, every one of the water-
ways was question marked. In 1974 we had two spills which
definitely ended up in a waterway. These are the chromic sulfuric
acid and the sulfuric acid. We have two spills here, however,
that were indicated for statistical purposes but really are
question marks as far as whether they really should be even
considered a spill. One of them, the spill of January 31, the
asphalt spill. That was a case where a truck had stopped on a
highway in dense fog and one of our units ran into this parked
vehicle. Both vehicles exploded. Most of the asphalt burned;
however, some was released. The other incident is that of June 10,
with the ethylene. One of our drivers was driving through pouring
rain in Mississippi and there had been some road construction work.
However the contractor doing the work had failed to put up any
detour signs. He said he had intended to do it the next day but
it started raining so hard that he figured the next day was good
enough. Well, suddenly our driver found himself running out of
road. He ended up in a ditch. Due to the danger to surrounding
homes, as well as the problems of just trying to get a trailer
load full of ethylene out of the ditch, we had to flare approximately
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10,000 gallons of this particular product. That was a release
into the environment; however, more than likely little or none
ended up in the water.
I might also indicate at this point, as far as the spill
reporting system within Robertson, there are some pretty small
spills. We've indicated to our people that over the road all
spills are to be reported, no matter what the quantity or what
the product. Unloading and loading terminals, the magic number
is 50 gallons. Any spill in excess of 50 gallons must be
reported immediately no matter what the product, no matter
whether it was contained or not.
I would like to emphasize one point here with the two
waterway spills. Both of them, the chromic sulphuric acid, as
well as the sulphuric acid, occurred at unloading terminals.
In both of these instances, when the spill occurred they were
flushed down the drain by terminal personnel into the waterway.
Robertson is quite concerned over this type of exposure. We
were told by the terminal personnel, with the chromic sulphuric
acid incident, that what Robertson should have done, prior to
providing a service to this particular company, was determine
whether or not their unloading facilities had the capabilities
to contain a spill should it occur. When we were to find out
that they did not have this capability, then we should have made
the judgement as to whether or not to serve them. My response
to that was that if we stopped serving all of those, especially
unloading facilities, the little farm co-ops, the little wide
place in the road, if we stop servicing all of these unloading
facilities that at the present time do not have the capability
to contain a hazardous material spill, we would have to stop
delivering to about 60 percent of our customers. Needless to
say that is not a very good alternative.
I hope most of you can read these numbers. What we've done
here is take those products which Robertson hauls that were on
that proposed hazardous materials designation list. Some of these
are listed under chemical NOIBN. The only reason for this is
that in our computer printout system, where most of this data
relative to tons transported, revenue, and so forth was stored,
this is how they were entered, as chemical NOIBN. Under tons
transported, I would like to refer you to two numbers down at
the bottom of the page under total tonnage. Approximately 10
percent of the total tonnage of 6,300,000 tons in 1973 was hazardous
materials. In 1974 our total tonnage, including cement and so
forth (which was left off the all petro-chemicals tonnage figure),
was approximately 3,000,000 tons transported thus far in 1974.
Of that, about 17 percent is hazardous materials. The columns
under spills indicate the number of spills for '73 and '74.
The first number outside a parenthesis indicates the number of
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spills into a waterway of that particular material. The next
number in parentheses indicates that it might have ended up in
a waterway. The number after the dash is the total number of
spill incidents while carrying that particular product. As
indicated under 1973, down at the totals, of all petrochems or
total hazardous materials, no spills definitely got into a water-
way. There were five possibilities out of a total of nine for
the total all petrochemicals in 1973. None definitely got into
a waterway, eight possibily got into a waterway out of a total of
33. In '74, total hazardous materials, two definitely got into
a waterway, four might have, out of a total of eight. For
total all petrochemicals, two definitely got into a waterway
(both of which were hazardous materials, by the way); eight
might have ended up in a waterway and there were a total of 22
spills thus far this year. Under tons spilled to tons trans-
ported, this is just carrying over the tons transported column
and in turn correlating it with the number of tons that were
spilled in each one of the incidents referred to in the previous
columns. Down at the bottom of the page under total hazardous
materials there was a total of 19.4 tons of hazardous materials
spilled in 1973 out of approximately 600,000 tons transported.
In 1974 that number is about 53 tons out of every 550,000 tons
transported. This works out in 1973 to approximately one ton
spilled for every 30,000 tons transported and in 1974 to one ton
spilled out of every 10,000 tons transported.
This next slide is to develop some numbers as far as numbers
of spills per load and tons spilled per number of spills, so I
would like to refer you to a couple of the bottom lines under
subtotal acids unitized. There in 1973 we experienced one acid
hazardous materials spill for every 6500 loads, in 1974 one
acid hazardous materials for every 3100 loads. Under total
hazardous materials unitized we have one spill for every 3500
loads in '73, one spill for every 330 loads in '74. Over under
tons spilled, over numbers spilled, once again go down to the
bottom of the page (and it's slightly cut off there) but as
far as acids are concerned in '73 there was approximately .2
of a ton per spill; in 1974 it's 6.65 tons per spill. Under
total hazardous materials in '73, a little over 2 tons per
spill and '74, 6.65 tons per spill.
I'd like once again to refer you to some numbers in the
total hazardous materials line, in the top chart. If you read
across under s"pills ' 73, '74 loading and unloading, there was
a total of four spills in '73 and four spills in '74. If you
head on over to spills '73, '74 over the road, there were five
over the road in '73 and four over the road in "74. Pretty
much even, loading and unloading terminals and over the road.
Now the loading and unloading terminals are only those spills
that are directly a result of Robertson personnel. They do not
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include spills due to loading and unloading terminal personnel,
overfilling a tank, or this sort of thing. Now if you look at
the tonnage figures, in '73 at loading and unloading terminals
we spilled 9.52 tons and the number for '73 over the road should
be 9.62. That was left off. In '74 there was 28 tons of hazard-
ous materials at loading and unloading terminals and 24.87 tons
over the road, a slightly larger amount, as far as tonnage goes,
at loading and unloading terminals.
As far as the bottom chart goes, Analysis of Spill Location
and Cause, this was done in order to identify what is the cause
of loading and unloading and over the road spills. We've
broken them down according to driver negligence or human error,
equipment failure, and other. If you go down once again to the
total hazardous material row, under loading and unloading,
there's a greater number of spills in '73 and '74 due to equip-
ment failure than due to driver negligence or other causes.
There's also a much greater number of tons spilled due to equip-
ment failure. However, over the road there's more spill in
1974 due to human error and a much larger tonnage spill due to
human error than due to equipment failure -- equipment failure
being you roll the thing over in the ditch and something breaks
or the tank itself is holed or something like that. In most
cases it is not the case. The large volumes that are lost over
the road are the result of the guy forgetting to close the valve
and you dump 800 gallons of it over 20, 30, 500 miles.
What is Robertson and what is the industry doing to prevent
these spills? The industry has a number of regulations that
have to be followed that have been put out by the DOT. Relative
things like in the case of equipment failure type spills, of
tank inspection frequencies, how the tanks are to be inspected,
how the equipment that goes on a tank is supposed to go on there
so that when the thing rolls over in the ditch it doesn't break
off and dump the load all over the ditch. Beyond this, Robertson
has come up with a number of other items to help reduce spills
(and by the way, these were all developed prior to San Francisco).
One of them is formal spill evaluation subsequent to a spill.
What went wrong, how can we prevent it in the future? What went
wrong as far as reporting? What can we do to improve it in the
future? This is direct input from the guys out in the field,
from the driver, so that we can incorporate it into future spill
prevention. Another thing being done by Robertson is a Master
Product Handling Manual. This particular manual will be developed
either by us or others. It will indicate, for every product
we haul, such things as equipment compatibility. For a given
product what tank type should be used, what insulation is com-
patible, what linings, what gaskets, what hoses. We've had a
number of equipment failures this year that were due to linings
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being eaten up on acid tanks or improper hose material being
used as far as the handling of acid. In a lot of instances we
went back to the shipper and they had been having the same
problems. Wrong liners had been used and wrong hose materials
had been used.
We'd also like to include information on safety and health
hazards for the driver at the loading and unloading rack, for
the guy that has to clean the tanks, as far as what kind of first
aid should be performed relative to somebody getting this par-
ticular product on him or inhaling this particular product. We
would like to provide in this manual some kind of indication
of spill response. You get a driver that is out in the middle
of nowhere, fifty miles from the nearest telephone and Chemtrec
and me and anybody else that can help him, he's going to have
to do something. The highway patrol arrives on the scene, the
fire department arrives on the scene, a bunch of farmers arrive
on the scene and he doesn't know what to do about the spill.
He doesn't know what to tell them, other than what the material
is, and it then becomes the blind leading the blind. We would
like to provide him with some kind of information so that he
can do some initial steps in responding to this spill, at least
in reducing the potential for human injury and, if possible,
reducing the potential for environmental damage. Prior to his
going that fifty miles and getting on that phone, you see it's
kind of difficult with a tank truck carrier. He's got to leave
his vehicle, he's got to leave the scene of the spill in order
to go report it. We'd also like to provide some information
in this Master Product Handling Manual relative to response to
fires.
Another item that Robertson is undertaking and has undertaken
for a number of years is driver training school at Texas A & M
University. We feel that the key to the human error problem
is training the drivers before you get them out there in your
unit and retraining them periodically so that they don't make
that mistake; so that they remember to shut that valve, they
remember to go over that unit prior to leaving the terminal in
a loaded situation and they look for leaks, check the valves.
Then once you get outside the terminal area, stop once again,
check the thing for leaks, check the valves, make sure they haven't
vibrated open. We dumped about a thousand gallons of sodium
chlorate that had gravitied back into one of our tanks. The
driver was unaware of the fact that it had gravitied back into
the tank and the unloading terminal personnel closed the valves.
However, they didn't close them adequately and the things vi-
brated open on the highway. We dumped a thousand gallons of
dilute sodium chlorate over about ten miles of highway right
through Quarns City in Texas -- over the Mayor's yard, a real
nice thing. We figure, once again, by training these guys
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before they get out in the units and retraining them periodically
that we can help reduce some of these problems. They'll check
these trailers, they'll remember to close the valves.
We're also developing beyond the requirements of the oil
SPCC plans, SPCC plans internally for all products that also
incorporate those measures that should be taken by the drivers.
When he gets to a loading terminal, he should check with that
loading rack supervisor prior to hooking up. Does he have the
capability of containing a spill should it occur? What will
that loading rack supervisor's response be if a spill occurs
and what would he want the driver to do should a spill occur?
Try and go over these items before it happens so you can make
some of these decisions. You're not going to be able to predict
everything, but you can make some of these decisions ahead of
time. And after the thing is hooked up and he is loading, we
want that driver to go out there and check that unit, if possible.
In some loading and unloading terminals our driver's not allowed
to stay with the unit. So we're entirely dependent upon the
terminal personnel. However, if allowed, we want him to check
that unit. We don't want him to sit up in the cab. Once the
thing's loaded, we want him to check the unit. Before he gets
out of that terminal, we want him to stop, check the unit. After
he gets out of the terminal, we want him to stop again and check
that unit. All of this is covered in the internal spill con-
tingency plan.
However, when it finally comes down to it, one of the things
we are going to have to do, given the level of fines that we are
looking at, is also do a spill hazards risk analysis in many
instances in order to prevent spills. Those products that are
simply uneconomical to carry, we're going to have to stop carrying
them. That doesn't sound too much like spill prevention, but
that is one of the alternatives we are having to look at and the
reason we're having to look at it are the numbers you will see
on this particular chart. '73 wasn't too bad so I'll pass on to
"74. In line Acid Hazardous Material, our 1974 revenue to date,
or through the first three quarters, was in the neighborhood of
1.5 million. The spill cost, and this spill cost is the cost of
cleanup, the cost of lost products, property damage and so forth,
was about 12,600 dollars. The DOHM spill cost, and this is based
upon the numbers given in San Francisco, not the new numbers, the
DOHM spill cost for those spills that got into a waterway only
would have been $219,475, or approximately 14.2 percent of the
acid revenue. The DOHM spill cost in '74, if we had had to pay
for those that might have gotten into a waterway, would have
been $435,456, or 28 percent of the acid revenue. The DOHM
spill cost '74 total, and this is just for two spills, two acid
spills, assuming both of them got in a waterway (one we know did,
one possible) would have cost $654,931, or 42.4 percent of the
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revenue. The total spill cost in fine plus cleanup, property
damage and so forth would have been 43.3 percent, the last
column over there, 43.3 percent of the acid revenue.
We can head on down to the subtotal for hazardous materials.
The first three quarters through 1974, the hazardous materials
revenue in Robertson was $5,848,886. Our spill cost for
hazardous materials was $64,600, or 1.1 percent of the hazardous
materials revenue. The DOHM spill cost just for those spills
that got into a waterway would have been $728,620 — that's
just for two spills — or 12.5 percent of the hazardous material
revenue. If you go on over to the DOHM spill cost '74 total
(that's just for four spills, two that definitely got into the
waterway, two probables) you are looking at a DOHM cost of
$1,437,778 for spills, or 24.6 percent of the hazardous material
revenue.
I'd like now to refer you to the total RTL line at the
bottom of that particular chart. Through the first three
quarters of 1974 Robertson Tank Lines had $21,684,604 in total
system revenue. This is cement, hazardous materials, oils,
everything. If you add up the total spill costs, assuming
all four spills got into a waterway, we are looking at $1,599,778
for four spills, or 7.4 percent of our total system revenue.
Robertson and many other tank truck companies look at a net
profit of approximately 4.5 percent after taxes. From these
numbers the EPA would be one of the major stockholders in
Robertson in a very short period of time.
I'm sure many of you who represent shippers will be inter-
ested in the next set of numbers. This is what we would have to
look at possibly in the way of rate increases with this level of
fine. If you look at the acid hazardous materials column,
go once again to '74, we are looking at an average revenue per
load in '74 for acid hazardous materials of $122 a load. We are
looking at a DOHM spill cost of approximately $52 a load, a
little increase in cost if we had to tack that $52 on top of
the $122. If you go down to the subtotal hazardous for '74,
revenue per load is $220, DOHM spill cost per load a little over
$54. The man in our company responsible for rate increases
said, "Never fly, never fly." If you relate this back to the
cost of transportation as reflected in the final marketplace
for hazardous materials, you are looking at an increase of
approximately 3£ a gallon in transportation costs for hazardous
materials and the guy out on the street complains about a 1C
a gallon increase.
I then looked at some projected impacts. The past is behind
us and we didn't have to pay the fines for it, but what happens
if we maintain the same spill frequency with various products we
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handle and have to pay the level of fines that have been proposed?
And once again, these are the level of fines that were proposed
in San Francisco.
Under the spill load frequency, I used numbers not for total
spills but only for those spills that definitely got into the
waterways or that were possible waterways. For nonacid hazardous
materials, the spill load frequency came out to one spill per
every 4600 loads. For acids, as you can see, phenol and sulfuric,
it came out to one spill every 4200 loads. If you look across
the page, especially at sulfuric acid, we can project one spill
for every 4200 loads. We can project 8.84 tons to be spilled.
The revenue for 4200 loads of sulfuric acid would be $463,540.
The spill cost, cleanup and property damage would average about
$4200. The DOHM fine cost would be somewhere in the neighborhood
of $193,000; the total spill cost would be about 42.6 percent of
the sulfuric acid revenue.
If you look at phenol, the total spill cost is 40 percent of
the revenue from handling phenol. Granted these numbers have
been derived from the spill cost or the spill fines proposed in
San Francisco. However, in looking over the new levels of fine
proposed, I came across napthalene. I projected, and it's not
shown up here, but I projected one spill for every 4600 loads.
I projected we would spill 8.73 tons. We would see a revenue
fcr those 460C loads of $508,200. Cur spill cost, cleanup and
so forth would be approximately $17,325 and our DOHM fine cost
would be $488,880, for a total spill cost of $506,205. Now
remember our total revenue for handling that many loads of
napthalene was $508,000, so it wouldn't take much mathematics
to figure out what percentage of the revenue that is. 506,000
over 508,000. After this there is probably going to be a run
on moth balls because I don't think anybody could afford to handle
it, once this thing hits the street.
In conclusion, as long as the people of the United States
demand the standard of living and the continuously improving
standard of living that they have demanded in the past, the people
in this room are either going to have to continue manufacturing
the goods or continue gransporting the goods. As long as people
and equipment are involved in transporting those goods and manu-
facturing those goods, we're going to have spills. At the same
time we have to protect the environment. I don't think anybody
will argue that point. However, at some point there has got to
be a cost benefit tradeoff. What are the American people willing
to pay for these environmental amenities? At what point is it
just bucks down the drain, not helping anything, the catfish, the
frogs, nothing?
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I think the cost-benefit tradeoff is the key here. I
think that EPA should do this type of evaluation. However, in
doing a cost-benefit tradeoff and resultant impact on industry,
it should not be the type of economic impact that has been done
so often in the past. The reason I say this is that while as
Project Manager with Roy F. Weston, I had to do an environmental
impact assessment on a proposed refinery in the Virgin Islands.
EPA's input to that environmental impact assessment was that
we not only had to determine or assess the impact of that pro-
posed refinery on the surrounding environment, we had to assess
the cumulative impact. In other words, not only what impact we
had on the environment but what impact we plus our neighbors
had on the environment. Now how does this relate to an economic
impact assessment of this particular piece of regulation on
industry? Very simply, every time I've heard an economic impact
assessment by industry, they say it won't devastate you. But
they only look at one particular regulation. They only look
at spills, say. But what about spills, plus air, plus noise,
plus wastewater, plus OSHA, plus, plus, plus? You know, maybe
the spills only take a percent of two of our revenue, waste-
water takes a percent or two of our revenue, each one individually
is not going to devastate us, and they can say that in their
economic impact assessment. But cumulatively speaking, it's
sure going to be hard as hell for the American people to pay
for it.
The next conclusion is that I think something has been
brought out very vividly and very well by people like Jack Garrett,
and that's that no matter where you set the fine levels, the
implementation of these fines must be subjective. If I dump
hazardous material glop in the ditch and I know that, no matter
how hard I've worked to keep it out of that ditch, I'm going to
get fined the same amount as Fly-by-Night Tank Truck Carriers,
Inc., that's not going to make me very happy. It's not going
to provide much motivation if I know that even if I get out
there and spend five days in the bottom of that ditch and lots
of money to clean that thing up, I'm still going to get fined
the same amount as Fly-by-Night Tank Truck Carriers, Inc., that
not only did nothing in the way of spill prevention, but just
left it in the ditch and hoped it would go away and nobody would
notice it. The implementation of any level of fine has to be
subjective or there's no motivation for prevention and there's
no motivation for cleaning it up. I don't care how high you
raise the level of fines, because the guy that's going to have
to pay for the fines is you. You is Hugh Thompson, not EPA, and
not Robertson.
The last conclusion relates to service continuity. The
American people wish to continue enjoying their present standard
of living. We'd like to continue our part in that. However, if
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we are looking at this type of impact on our business from these
fine levels, we are going to have to do a product-by-product
evaluation. This was brought out at lunch time. Could we
afford to drop a high revenue item? Yeah, if when you look at
that revenue and then subtract out the cost out of handling that
particular product, subtract out the cost of treating the waste-
water, subtract out the cost for spills and everything else, and
it comes out in the red. You know, why handle it? It's not
doing you a bit of good. So what if it's a good revenue producer?
If the bottom line's red, you are going to have to really sit
down and evaluate whether or not you want to haul it and I think
with some products, such as napthalene, under the new system
you are going to have a hard time finding people to manufacture
it, much less haul it, if you are looking at fines of half a
million for dumping an average spill. That's it, ladies and
gentlemen, thank you.
MR. HAROLD SNYDER: I think we have time for a couple of
questions, if there are any. I think there's one back in the
corner there.
QUESTION (FLOOR MIKE): My name's Lief Sigmond. I'm with
Scientific Chemical Processing. This is not so much a question
as a comment on what was said in that we are called out quite
often from the various major manufacturers to come and retrieve
materials that have been spilled and then bring them back and
reclaim them and possibly send them back to them, or market
them. They know other companies are doing the same thing but
they are generally small companies and with this kind of
penalties, where we would normally go and take care of a spill
around the clock, I don't think we would consider going for this
spill, in that if we have an accident with our own trucks
pulling them back, we would be out of business.
MR. HAROLD SNYDER: Thank you, any more comments? We have
time for one more.
Mark, I think you have done an excellent job of portraying
some costs under the DOHM Method. Might I ask one thing, did
you consider at all the cost of cleaning up the material to the
satisfaction of the EPA?
MR. MARK HOOPER: This was a question in my mind. We had
a spill of glacial acetic, we dumped about 17 tons in a ditch
alongside the road. We went out there and had the thing contained
within about thirty minutes, picked up as much of it as possible
with a vacuum truck. However, subsequent analyses showed that
there was a lot of acetic acid still out there in the soil. How
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much cleanup is enough so that you are not going to have to pay
for whatever is residual in the soil because it might leach into
a waterway? Are you going to have to go in there and dig up
something like a hundred-yard-long stretch of the shoulder of the
highway and the ditch and treat that soil, or is it sufficient
simply to get up most of it? I think this is one of the big
items as far as cleanup cost. At what point have you cleaned
it up enough? At what point can you walk away and say, "Ok,
my spill liability has ended"? Are you going to have to pay
for that stuff that may take years to leach out into a waterway?
MR. HAROLD SNYDER: I think we will now take about a 10
minute break so let's reconvene at 14 after the hour.
(Break)
MR. HAROLD SNYDER: I think it's time we reassembled. The
afternoon's going to get a little big long if we don't get
started. So you might, someone close to the door, might motion
to the others outside that it's time for the road show to begin
again. You can't hear. I could probably talk a lot louder
without this than I can with it. All righty, let's start
getting back to our seats and see if we can get the program
back under way. Beg pardon, no, I'm the moderator. Ok, let's
start assembling. I don't know if we have a night time lease
on this facility or not. I would think that everybody
would just be anxiously awaiting to get stirred up again, either
that or you got stirred up enough, you have to vent it off.
Those of you who have made it back into the room, I would
appreciate if if you would take your seats and those of you who
aren't in the room, you can take them when you get here.
Let's kick this afternoon's program off, I think we're going
to have actually a few more presentations this afternoon worked
in within the presentations that are shown on your program, a
few more speakers, let's put it that way. I'm going to have to
hire a sergeant-at-arms next time. The first presentation will
be made by Jim Smith of the American Waterways Operations Asso-
ciation and then after his presentation will be a short comment
by another gentleman who Jim will introduce. So, Jim?
MR. JIM SMITH: Mr. Chairman, Ladies and Gentlemen, the hour
is getting late and I think we should all give me a rousing round
of applause because I'm going to permit this meeting to get back
on schedule. My name is James R. Smith. I'm President of
American Waterways Operators which is the industry association
of the barge and towing industry. I'm here with a number of
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my colleagues who are also in the water carrier industry. Let
me start by saying that I have no prepared text, no prepared
dissertation for a variety of reasons, one of them being that
until this meeting had proceeded along as far as it has now, I'll
be very candid about it, as I sat in my office, I didn't know
what precisely should be said. So there really wasn't any way to
get any kind of, in my opinion at least, constructive handle on
what the comments of the water carrier industry should be after
the meeting had progressed to this point. So let me start by
saying one of the purposes of my being here, as well as my
colleagues in the industry, has been to learn and to listen and
to see what we could absorb about the methodologies that have
been used to develop these rates of penalties and so forth. I
might add there that we are very seriously disturbed. I want to
share the expressions that others have made in congratulating
EPA for the open type of meeting that they are holding here,
this seminar, I guess is what you would call it. We know, and
I'm sure it's well shared here, that EPA very literally has in
its hands the power, the ability to, I'm afraid, almost literally
destroy the economy of the United States if it does not act with
wisdom. We're hoping and I think we can trust EPA to do just
that.
I was very taken by the remarks made by the railroad spokes-
man when, based on a measly $500,000 penalty, he indicated that
there might be a considerable amount of freight diverted from
the rails by virtue of the economic hazards in assuming an
uninsurable penalty such as a maximum of $500,000. The reason
I was disturbed and somewhat shocked is that the water carrier
industry has a $5,000,000 maximum penalty written into Section
311 of the law. We all agree in our industry that that kind of
a penalty maximum can literally wreak havoc on the whole economy
of the United States and that if there is not some method by
which that penalty is ameliorated to a reasonable and insurable
level, an awful lot of commodities are going to be pulled off
the waterways by the independent businessman unwilling to assume
these high risks. And then I got a little scared when the
Southern Railway said they weren't going to take it either.
The dislocations of industry with this kind of a penalty
which could possibly be applied for the spills of hazardous
polluting substances not removable from water are simply beyond
comprehension. And I hope that EPA knows it and I hope that
Battelle knows it. I haven't seen yet one of the four method-
ologies that wouldn't create the kind of havoc of which I am
speaking. I think it's been fairly well documented in a variety
of studies, the most recent one being by the Maritime Administration,
who took ten selected commodities, that the transportation of
these commodities by water is far and away the safest. You add
to that the additional Coast Guard regulations that have been made
applicable in the last two years since this law was passed and
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you find a constantly declining need for the kind of onerous
penalties that this law provides. I'm in complete agreement
with the gentleman from the railroads that this is bad law. And
if it is fully implemented, as EPA must do unless something
happens to change the law, it's going to be so serious to the
economy of the United States, especially in this day when we are
trying so desperately to fight inflation, that I shudder to think
of the sudden obsolescence of plants because they can't get the
feed stock or they can't put out the raw materials. I shudder
at the obsolescence of plants which are using an intermediate
substance for the manufacture of some finished product who
suddenly can't transport that commodity. I see the Ohio Valley
and I see St. Louis and I see other portions of the United States
who have a thriving employment, a thriving industrial base,
suddenly finding that nobody can afford to transport these
commodities and suddenly we have unemployment, we have even
more rampant inflation.
I could go on and talk philosophically about the dangers
that are implicit in this legislation, but as I said, that was
not my purpose for coming here today and it's not the purpose
of my colleagues. We're trying to evaluate the methodoloav
that has been used by Battelle in developing some rationale
for an assessment schedule of rates of penalties that is not so
inimical to the economy of the United States as to destroy it.
I would be less than truthful if I expressed the thought that
they could do it. I'm not at all sure they can. I see in the
materials which I have read (and we have not had very much time
yet in which to read it) a rather strong bias in favor of heavy
and punitive penalties. It isn't going to work, gentlemen. It
simply will not work unless you wish to take the blame, you
and EPA, for what you might do to the economy of this country.
We had in my industry an ad hoc committee on hazardous
polluting substances. It's a committee of all the organizations
representing the water carrier industry. I don't think today
is the day for us to make any strong and definitive response
on the methods used and what their implications are. We've
had the material only for a very brief period of time; we have
not had time yet to really digest them. What we read initially
is somewhat frightening, I must confess to that, again sharing
with the gentlemen from the railroads a strong fear of what
could happen. I promise this to the Environmental Protection
Agency, and I promise it to Battelle or however you gentlemen
care to work this in, that from the point of view of the water
carrier industry, coastal and inland, we will provide to you a
rational, well reasoned, documented and documentable comment on
what has been in the voluminous material we have recieved in
the past two days. In the event that you might like to hear
just a few off the top of the head, quick reactions, one of the
gentlemen representing the water carrier industry, Dick Wilson
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of Chotin Towing is here, as is Bill Creelman of National Marine
Services; Johnny Lehman of National Commercial Barge Lines;
yesterday Tom Drennan of Sioux City, New Orleans Barge Lines
was here; James Glenn of the Waterways Operation Conference is
here. We've all been seeing each other frequently during this
two-day period. We've talked to one another and we've been
trying to get a handle on what we've heard here today. And so
instead of me spending the rest of my time in attempting to
go into a learned dissertation, I'm not going to do that.
Frankly, we haven't had time yet to fully assimalate what we've
already received. But just for a very few top of the head
quickies, I would like to call on Dick Wilson of Chotin to
give you just a few of our industry's initial reactions to what
Battelle has done. Dick?
MR. DICK WILSON: Thank you, Jim, I'll just stay over here.
As Jim mentioned, I'm with Chotin Transportation and we are a
liquid transportation carrier on the inland waterways. I've
been in the industry only three years so I'm a youngster in that
sense. I can assure you in that period I've gotten my feet wet
in the regulatory environment. I hope in the next three years
I can get back to the barging business some. As Jim said, we've
just had time for a cursory examination of the Battelle study.
We will do more work here, I can guarantee that, and we hope
to be able to furnish constructive comments that will be the
basis for the determination of what we feel will be a more
realistic penalty base. It is our opinion from our cursory
examination that the penalty structure is biased to the high
side and that the assumptions that Battelle very candidly
admits to, that permeate the entire study, in our view almost
invariably are biased to create high penalties. We have a
calculator in our room which we've been burning up for the
past few days and I won't bore you with all of the results
of the calculations. Let me say at this point also that it is
our impression of the conference that we're here to talk about
the mechanics of the methodologies and I haven't heard a lot
of that. I hope we get more into it. If we don't, as I say,
our industry intends to input a very definitive resume' of our
view of the studies and the impending penalties.
Typically, in our industry we will have barges that vary
anywhere from 1000 tons up to 3000 tons; this is on the inland
waterways. Some are larger but that is a pretty good range.
When you take the chlorine product, which was mentioned by our
railroad friends in terms of a $500,000 maximum, and you apply
the methodology in terms of the penalty, I can't remember the
name of it but the methodology is outlined in the blue book you
have in your folders there, the penalty for a 1300 ton barge,
in this case, applying the formula would be $96,200,000. This
product is also carried in barges of 3000 tons, or in that
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neighborhood. The penalty there carried to the extreme of the
formula applications would be $222,000,000. In terms of ammonia,
another product that is moved on the inland waterways, tightly
regulated by the Coast Guard, the equipment inspected much more
frequently sometimes than we think necessary, but very, very
frequently, the penalty or fine would be 6.6 million dollars
for the 3000 ton barge.
Now, my point is, the formula results in excessive penalties
in terms of our industry. It is our view that the $5,000,000
limit, which is the penalty for discharges of a vessel into the
water imposed by Congress, should represent some kind of catastrophic
occurrence. In my business if I lose a barge and all its pro-
duct, I can guarantee you that's catastrophic. However, there
are ships moving on t he inland waterways of this country that
carry up to 40,000 and 50,000 tons of product. To the extent
that these people would have an incident and lose all of their
cargo, God forbid, that would be what I would term in the area
we operate a catastrophic occurrence. That should elicit a
response of maybe something in the $5,000,000 neighborhood,
assuming that the $5,000,000 penalty stands. Of course, from a
legislative standpoint, we have a very significant effort to
remedy that situation. But to the extent it stands, the penalty
should be scaled from a $5,000,000 maximum, representing some
sort of catastrophic occurrence. We don't think that is the
case and I think if you look at a formula that ends up with a
$222,000,000 penalty, then obviously we're off base. Again this
is a result of a high bias, not so much the concept or the
theory of the methodology. The assumptions that permeate it,
almost in every case, as we will depict as we get further into
the study, result in these exorbitant penalties.
There is another factor in terms of this high bias. $10,000
is arbitrarily picked out of the air, now that's a little harsh
statement. $10,000 is the basis for the penalty. The $10,000
figure is based on the penalty, that is the criminal penalty,
that a person in charge of a vessel will suffer if he fails to
report the incident. The Battelle logic says that since we
want this fellow to report it, then we must start with a penalty
that is $10,000 or more. Gentlemen, this man is not going to
pay a $10,000 penalty for spilling product. He's the person
in charge. He's our captain. He's our tanker man. He's got
instructions to report that spill, I guarantee you. Every
single one of our captains are going to do that. We as a company
are more responsible than to have our people out there and
personally subject them to penalties on that basis. So this
$10,000 number just does not apply. There is not an economic
incentive because the guy that you are basing the $10,000 on is
not going to pay any penalty from the standpoint of cleanup.
That's an example of a high bias. Again we don't have all our
ducks in a row yet, but they will be there.
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In terms of the harmful quantity, again in orders of
magnitude, I want you to notice. The assumption that determines
the harmful quantity, and then subsequently down the road in
terms of the penalty calculation gets to the $222,000,000 figure
I mentioned in one of the examples, based on an assumption of
Q in a formula that is equal to 36 cubic ft/sec. Now we saw
some damage this morning in a stream that had a flow rate sub-
stantially less than that and quite frankly, it is a sickening
thing to see. I think on the other hand, you have to recognize
that that 36 number, when it's put into the formula and ending
up with $222,000,000, you have to contrast that for the water-
ways that we operate on. The cubic ft/sec of the Mississippi
River at St. Louis ranges, say at Vicksburg, one point on the
river, between 128,000 and 2,278,000 cubic ft/sec. Now if you
plug that into these formulas and come up with a harmful quantity,
then our penalties are not going to be $222,000,000, they're
going to be 22C. But the point is, the scale of magnitude here
is biased to the very high side to the extent that you have made
a determination that estuaries, coastal areas, rivers and lakes
are to be treated differently. Within the stream or river
category, I can demonstrate this kind of disparity in the numbers.
I think that in effect there needs to be a greater gradation
within the stream category. You have a gradation between
different types of water bodies, but I believe within the
stream category, given this fantastic disparity in the flow
rates of streams, some method needs to be developed to recognize
this disparity.
Just another quick comment along the same line. The plug
theory indicates that as soon as you spill a hazardous product
into the waterway, what results instantaneously is a dispersion
of the material to a fixed quantity concentration in the water.
That concentration is then taken as a concentration that exists
from then on and so long as that material is doing harm to the
environment. Now, I don't know too much about physics or
hydraulics, but it seems to me that there is going to be a
definitive dispersal impact once this material hits the water.
As I say, that's the examples I have and our work has just
begun obviously.
I'm not stating these examples to criticize the concept.
I think that the EPA and the Battelle people have come up with
viable concepts. Let's try to fix this penalty to some kind
of economic measure. And for that I applaud the efforts; but
when the results based on a chain of assumptions are so
unbelievable, then we've got to go back and do some work on our
assumptions. We read throughout the study that there is no
data, hence, we will make the assumption. When that assumption
is made, there ought to be a sensitivity analysis conducted in
an effort to determine the result. Now, I would like to think
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that there are some people within this study group, within the
EPA, whoever did the study, who have reviewed it who have taken
the time to plug in numbers to find out what the impact is.
I think if they do that, they will come up with conclusions
similar to mine. And to the extent that they prefer not to --
I think they will do this — but to the extent they do not,
I can guarantee you that we will provide data they can study.
Are there any questions? I know that some of the Battelle
people are here and I might be off base on some of these points.
I've just begun to review this data but I would be glad to
entertain any questions. Thank you.
I thought he was going to ask a question. Well, if there
are no questions. Did anyone have questions — should I ask
for questions for me now?
MR. HAROLD SNYDER; Yes, if there are any questions, we
won't have too many or you will miss your original tenet, which
was to get us back on schedule.
MR. JIM SMITH: Gee whiz, is there one question? Are there
no questions? Thank you very much.
The next presentation will be a duo as well. The first
discussion will be led by Mr. George Hanks of Union Carbide and
he will review MCA's response to the August 22 Federal Register
publication on the proposed designation list and removability
determination of hazardous substances.
MR. GEORGE HANKS: I think that you ought to recognize that
one of the things that resulted from the last conference was that
EPA gave us an opportunity to examine their proposed, or at that
time tentative, thinking regarding designation and determination
of removability of hazardous substances in water. I think the
previous speaker made a point that is well worth making again;
that is, that we appreciate the effort that the Hazardous and
Toxic Substances Branch of EPA has been making to try to assure
they get input from all interested sources in the course of their
development of regulations under Section 311. I think this is a
commendable way of approaching a regulatory matter and one that
I hope is emulated by other groups within EPA. Regarding the
proposed designation regulation, MCA has had, from time to time,
various active so-called task groups within its technical organi-
zation (in other words, task groups in which member company
people were represented) to review and comment on various pro-
posed regulations. One such task group was developed for the
purpose of commenting on the designation regulation. Joe Knott
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asked me if I would make a summary of the Manufacturing
Chemists Association comment in regard to that regulation. I
understand, for those of you who are interested in it, EPA kindly
duplicated a number of copies and I assume they are available
on the table outside.
I would like to address my remarks in regard to the MCA
commentary to the comments that we made in relation to the
designation criteria and the removability. You will recall
that the designation criteria fell into three areas, the potential
of hazard to mammals and to human health, the potential of hazard
to aquatic animal life, and the potential of hazard to aquatic
flora. We examined these criteria on the basis of the wording
of Public Law 92-500, Section 311, which requires that EPA
designate as hazardous substances those which present an imminent
and substantial danger when spilled into waters of the United
States. In regard to the mammalian criteria, there actually were
three, one relating to the hazard resulting from ingestion of
the material, one from the hazard associated with the potential
for inhalation of vapors of the material, and one for the hazard
associated with the potential for absorption through the skin
as a result of exposure. The ingestion criterion required, or
selected, was that a substance be lethal when taken in a single
oral dose in a quantity that amounted to the equivalent of 50
milligrams of the material for each kilogram of body weight;
that would be a hazardous substance.
We got some assistance from toxicologists within our
companies and examined this criteria and came to the conclusion
that it would be an unlikely spill situation that would provide
a concentration of such a substance that would indeed result
in a single lethal oral dose. And on that basis, we felt that
this criterion was probably well selected and we support that as
a designation criteria.
The skin penetration dosage of 50 milligrams per kilogram
of body weight absorbed through the skin as an indication of
lethality represents approximately the same relative or equivalent
degree of toxicity. In actual situations, however, you have to
bear in mind that the method by which toxicologists determine
the lethality from skin absorption involves direct painting on
the skin of the animal of the substance that's being examined.
We believe and suggest that actually in spill situations,
exposure to dilute solutions of the material would certainly
result in markedly less skin contact and that therefore the
likelihood of absorption of this quantity material into the
body is fairly slim.
As far as vapor inhalation criteria, the selection of the
200 cm^ meter3 again represented a material of about the same
degree of equivalent toxicity and therefore would be consistent
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with the 50 mg/kg body weight for ingestion and the 200 mg/kg
body weight for skin penetration. However, we felt that if
vapor inhalation is used as a criterion, then certainly in
consideration of whether or not to designate a specific material,
the matter of the volatility and the solubility of the material
ought to be taken into account. Only volatile materials,
materials volatile at atmospheric conditions, would be likely
to present any substantial hazard.
Now, as far as the aquatic animal toxicity criterion, you
will recall that this was a criterion of 500 mg/1 concentration,
in water. Now in our review the selection of a concentration
of this magnitude is unreasonably high. We used a calculation
method which has been developed or at least used by the IMCO
Gesamp group of experts and in examining the amounts of material
we determined had to be spilled in rivers and lakes and estuaries
and coastal waters to reach this degree of concentration,
we felt that the selection of the 500 mg/1 was higher than it
should be and we recommended the use of 100 mg/1 as being more
reasonable. Also we suggested that there is for many materials
a substantial difference between the freshwater and the marine
water toxicity and that indeed if material was to be designated
as a hazardous substance because of its aquatic toxicity, it
should be specific as to whether it is toxic in marine environ-
ments or toxic in freshwater environments, or both. We offered
no comment on the aquatic flora selection. I would point out
however that EPA chose to use 100 mg/1 as a toxic concentration
to aquatic flora which would be consistent with the recommendation
we made of 100 mg/1 as toxic to aquatic animal life as well.
As far as removability, our comments were directed toward
some of the words in the proposed rulemaking which indicated
that conceivably all substances that were listed would be
designated as nonremovable. And we feel that this is incon-
sistent with the definition in Section 8 in 311 which defines
removability as more than merely physical removal of the material;
in other words, because a material may sink or float or therefore
is accessible for removal it should qualify for removability.
Similarly, there are chemical steps that can be taken that in
effect remove the material. An example would be a neutralization
of an acid with a base to in effect convert it to a nonharmful
substance.
Lastly, we expressed an opinion that 311 does not apply to
discharges which are in compliance with effluent limitations under
Sections 301, 304, 306, and 307 and which are permitted under
Section 402. In actual fact, we believe EPA's exclusion of
such discharges from 311 is not only proper, but it's not a
matter of their discretion because the legislative history of
the act very clearly indicates that it was not intended that
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such discharges be regulated under 311. Well, those are the
matters that I was asked to comment on and I'll turn the rest
of our presentation over to Joe Knott of PPG.
MR. HAROLD SNYDER: One quick comment, those 200 copies are
not yet available of the comments on the designation regulations.
Hopefully they will be available on the table tomorrow.
MR. JOE KNOTT: Guess we couldn't get them printed quite
fast enough but I think those printed comments will give you a
better feel and its a publicly available document. I think
MCA's approach in responding to that request for information
will be similar to what we'll provide in detail on harmful
quantity and rates of penalty. Let me describe to you MCA's
two-pronged approach to Public Law 92-500, Section 311. The
first prong of this approach is to deal with the matter in a
legislative reform style. That's not the topic of our dis-
cussion today but I think we'd be negligent if we didn't point
out that this is an approach of MCA through the ad hoc inter-
industry committee. We believe that legislative reform is not
only possible, but it's reasonable and necessary. Those who
are interested in this approach must keep in mind that EPA is
not a legislative branch, that there's another form for those
discussions and we welcome any assistance of those interested
in pursuing that with us. The regulatory work within EPA is
something that MCA has tried valiantly to provide input to.
I'm sure EPA wishes we had done more; so do we. It's a very
difficult area.
The two-pronged approach then, legislative and regulatory,
we believe are mutually exclusive efforts. It kind of reminds
me of when a good nun that I had in grade school found me not
studying my algebra one time. She said, "How come you are not
studying, Joe?" And I said, "It's very simple. I've said two
rosarys, I figure I've got it knocked." She said, "Young man,
I'd better explain it to you. You better pray as if all depends
on Him, with a capital H, but you'd better study as if all
depends on you, with a capital U." Our two-pronged approach
is somewhat the same way. Within MCA we're working diligently
as if all depends on legislative reform and we're also working
as though all depends on reasonable regulatory action. We must,
however, keep the two separate.
Next let me comment on the EPA working relationship. As
the other speakers have done, we applaud the open forum of EPA
under the leadership of Dr. Hugh Thompson. Ladies and Gentle-
men, I think we're making history here, as we did in San Francisco,
As far as I can determine, this is the most open forum of any
regulatory process, certainly in this country. Making history
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can be good history or bad history. Let us cooperate in a spirit
which will allow the record to read favorably. That can only be
done if we have an open forum with lots of contributions. Now
I've heard some comments about the disparity of view within EPA,
about the disparity of view between carriers, between the chemical
industry and other people. I think disparity is a wonderful
catalyst for a forum of solving problems. But at some point
this disparity of view must be rationalized and must come to-
gether in a concensus. Obviously, tradeoffs are required to do
that. In a spirit of statesmanship, we must find those trade-
offs. I certainly don't have the answers. Neither does PPG.
Neither does MCA. But with the resources available to us, we
think we do have the ability to find those tradeoffs. Let's
help each other find them. EPA's taking a large gamble,
particularly this part of EPA who's looking for the open forum
approach. There are many people within the agency who are very,
very skeptical about this approach. If we want this open
approach in the future, this time it's got to work. I hope
we're all dedicated to that.
MCA's position on the harmful quantity methodology can be
stated by the fact that we were looking for a principal in this
methodology. The principal we were looking for was clarity,
quick determination, and thus not subjective or not requiring
consultation. The prime emphasis of harmful quantity is to
get the report out, to make sure we report, and obviously this
can't be done if there's lots of consultation required. In
looking at the methodologies presented, we feel that the IMCO
approach is too subjective. The Resource Value Method is
very, very subjective and gives no consideration to flow con-
siderations. The Unit of Measurement alternate was viewed as
contrived and unrelated to the basic objective. By process of
elimination that left us with DOHM. We don't think that's the
worst possible. We think it's a practical way, with some
reasonable modifications, remembering that the maximum value
of harmful quantity is to get accurate, consistent and timely
reports to the extent practical. The less subjective the
program, the better the cooperation. It's that old KISS
principal, Keep It Simple, Stupid. I have to remind myself of
that; I think we need to remind ourselves of that as we look
for something very simple in putting forward the harmful
quantity methodology.
MCA's position on rates of penalty, here we were looking
for appropriateness to the actual situation at hand, not
national averages or theoretical conditions or situations, but
an opportunity to have the real facts fed back to the decision,
allowing the administrator then to make a rational decision.
In looking at the; methodologies presented, we had these comments.
The DOHM method was viewed as the least desirable for the reason
that it's based on the elusive, if not impossible, cost-of-pre-
vention philosophy. It lacks meaning and cost effectiveness
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considerations and bears no relationship to the real world.
The IMCO approach was felt to be ocean-oriented and a misfit
with the designation criteria. The contrived LJM approach does
not really relate to the situation at hand. Again, by process
of elimination, we have the Resource Value Method. We can
appreciate that there are some problems in applying the resource
method, but we think with rational people, this can be resolved.
In passing, I would like to comment on the units question.
Practically speaking, EPA has gotten around this issue. In the
blue book which we received yesterday afternoon, they've
obviously gotten around this situation and we think that that's
to be applauded. We think they've gotten around some unfortunate
wording in the law. We cite this as an example of how rational
people can get around tough problems, if we're willing to work
it through.
I'd like to emphasize that our comments are relevant to
methodology and approach without regard to absolute values or
resultant penalty amounts. Our objective was to report to you
based on rationability of these approaches as they relate to
the objective of the law and the practicability of enforcement.
You'll notice, however, that by using the approaches we have
endorsed for harmful quantity and rates of penalty, we have in
neither case selected an approach giving the minimum impact on
our industry, when viewing the calculations done by Battelle
charts. We know these will be changed, we would hope they
would be changed in the future. What remains to be done then,
is if we develop a reasonable rational approach or methodology,
we need to go back and look at the parameters in the equations
that are actually derived from detail on a very, very narrow
data base. Battelle admits to this. We all have said to
Battelle, "Hey, you didn't consider my input or this input or
that input." I think Battelle and EPA have been quite fair.
They've said "Give us your input and we'll include it." To
the extent that we can all provide rational data for the
cells of data to be used in the calculation, I think we will
have come a long way.
After MCA has had a chance to digest the bluebook approach
to EPA we will develop a more detailed response in the very
near future. We will withhold detailed comments on that report
until we have this detail completed. However, there are some
verbal comments which we would expect from EPA tomorrow which
would give us a head start on that work. We look forward to
receiving those comments.
Next I'd like to comment on some matters requiring additional
clarification on the basis of the information we have in hand.
We believe we need some further definition with regard to water
bodies. Here, we are particularly interested in the intercoastal
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canals and what their classifications will be. Obviously there
is a lot of product carried by barge in the intercoastals and
we need a clarification of the status of these water bodies
relative to the methodologies. With regard to mechanical
details, we need better information on dispersion data, as
commented on by an earlier speaker. We need some further
clarification on pinpoint spill vs discharge during loading
and unloading vs in-transit spills. We need further clari-
fication on land based spills, an open discussion of land
spills, entry to waterways, entry to subterranean waters, etc.,
now, so we can discuss openly and know the status in advance
of rulemaking. Lastly we'd like some conversation with regard
to the prospect of regional meetings or hearings to expand
mutual understanding and data sources.
One subject further that's been commented on and not
clarified yet is the role of mitigating action and treatment
by the EPA administrator. If we can clarify the application
of this intent by EPA, by written policy guidelines perhaps
with some preapproval by EPA chief counsel, we think this
would be beneficial.
In closing, we'd like to pass on these comments to Battelle.
We find ourselves pleasantly surprised with the progress you and
EPA have made in this area since the very first discussions
between Battelle and EPA in the spring of 1974. We are
encouraged by the creative and thorough approaches you've
generated in defining boundary conditions within which EPA
should be able to find a fully rationalized approach for setting
harmful quantities and rates of penalties as required by the
law. We feel we'd be negligent, however, if we did not point
out that we are making every reasonable effort to attempt to
change the basic law by legislative reform, as mentioned
earlier. Even though this request for legislative reform would
in essence remove the strict need for the kind of effort Battelle-
Northwest has been contracted to perform, we nontheless continue
to follow and contribute to the best of our ability to this
specific effort, since not only do we lack assurance that
legislative reform will occur, we also now feel that the creative
and penetrating approaches you have developed can be a legacy to
all of us interested in preserving and improving the environment,
even if the desired legislative reform occurs. Our hats are off
to fellow scientists who have approached a very comprehensive job
in a very professional manner.
To EPA, we've had a long hard road, but there's a longer and
harder road ahead. We have yet to deal with the economic issues.
We have yet to definitively define those issues. We could not
provide truly quantified economic impact statements until we see
the final methodology supported by broader data bases giving more
widely accepted values for penalty equations. However, we do have
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a serious concern about the current situation as expressed by
both water and land-based carriers of our products. You heard
Jim Smith's comments about the waterway industry. Yesterday
afternoon in this room, you heard Mr. Reese of NTTC give the
opinion of his constituents. What we are providing, gentlemen,
is an out for carriers not to carry our products. What we'd
like to do is to invite them in. We all have the same problems.
We are facing acid dislocations that will not enhance water
quality one bit.
Our views on commenting on your methodologies then are some-
what tainted with an overall feeling that the approach is overlv
reactive in a sense that it appears to place all of the burden
for cost-benefit prevention on a penalty issue. In the real
world of making economic business decisions in this area, the
factual situation is that managers like myself are very conscious
of investing both expense and capital dollars to insure safe
transit well above any cost-benefit ratio related to current
penalties or even to proposed penalties, since we must also
face the collateral judgement in the field of third party
liability, loss of product, product contamination, loss of
property, disruption of service and hazard to our own employees.
We would like to be able to offer you a concrete way in which
to incorporate these additional considerations to help EPA see
that the entire reason for using the best available technology
need not be associated with the size of the penalty EPA could
impose.
In closing, if we had our druthers, we would ask both the
legislative and the regulatory bodies not to legislate or regu-
late us out of any product on any mode, but to hold us account-
able in common law to face our peers in the populace. We want
to be responsible citizens in the community, but that requires
a delicate balance, a word you've heard earlier today. A
delicate balance of all facets of our community obligations
with the environment, all phases of the environment, but in a
context which includes return to stockholder investors, creation
of jobs, EEO requirements, etc. Obviously, there will be lots
of division of opinion and lots of strong feeling, but the
statesmanship of which we talked earlier has to come about soon.
Diversion is a wonderful thing for bringing out the issues. We've
about brought out all the issues. Soon we must make some
decisions of compromise. I hope we can start doing that very
soon.
MR. HAROLD SNYDER; Thank you very much, Joe. Are there any
questions, comments, on the two MCA presentations that we've
just heard?
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QUESTION (FLOOR MIKE): Joe, your feeling than is to
support the Resource Value Methodology?
MR. HAROLD SNYDER: Please identify yourself, sir.
(FLOOR MIKE): George Creaghe, Ethyl Corporation.
MR. JOE KNOTT: Yes, basically, yes, for penalties. Do you
want to repeat the question? What's the basic approach of MCA
on penalty issue? It's Resource Method. That's basic.
MR. HAROLD SNYDER: Anything else?
Before I introduce the last speaker, I have a question my-
self relating to what takes place after the presentation this
evening. It is my assumption there is nothing, no social calendar
for this evening. There was a question raised earlier relative
to tomorrow's program, as to the lunch period which shows two
hours. The question was asked whether we could reconvene at one
in order to end a little bit earlier for those wanting to catch
earlier flights. Is there any reason why this cannot be done?
Or what's the schedule for tomorrow? Ok, so don't everyone run
off as soon as it sounds as if we're beginning to wind down a
bit, because Hugh will have some remarks.
Ok, the last presentation on the program today, other than
what Hugh will say, will be from Gene Wingerter, I probably
said that wrong again, from National Solid Waste Mangement
Association. He will talk about information requirements for
materials to be handled, those materials being hazardous
materials as we've discussed here in this proceeding.
MR. GENE WINGERTER: Thank you, I plan to solo it this after-
noon. I know we've been flying double for the last hour. Espe-
cially on a long day with no social function at the conclusion
here, I'll try to make my remarks brief.
We as an industry that is involved in the handling and dis-
posal of hazardous waste materials view perhaps one of the sig-
nificant requirements of any Federal program or any aspect of
the Federal program as the establishment of information require-
ments. We as an industry must know what we're handling. To
this extent we would look to the generators of these materials,
those that rely upon our services for handling and disposal to
provide us with an identification of both the generic as well
as the chemical identification of material to be transported
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and disposed. In addition, we would like a list of the chemical
and physical properties of the compounds or compound mixtures
that are necessary for treatment and disposal, as well as for
safe handling. We would also request, where possible, an
identification of the appropriate safety measures that should
be used in handling these materials should an emergency situation
occur (such as a spill) as well as in the course of normal
handling of these materials. Finally, we would look to the
recommendation of the best acceptable and available methods for
storage, handling, treatment and disposal of these materials.
Now in lieu of recommending the most acceptable and available
methods for storage, handling, treatment and disposal, we
would accept a complete chemical analysis of the materials to
be disposed of.
With this information base then, we could state that it
would be the responsibility of the organization providing the
transportation, off-site storage and treatment and final dis-
posal of these materials to not accept these materials until
that sufficient information is available; to utilize the
approved methods for handling, storage, treatment and disposal;
to establish and utilize the appropriate safety measures for
handling these materials; and, finally, to obtain all the
necessary permits and licenses for proper handling and disposal.
We have found that a number of states, approximately 12
states at this time that we're aware of, are developing hazard-
ous waste disposal regulations. The unfortunate part of these
programs is that they do not establish clearly what the infor-
mation requirements shall be and the accepted methods of dis-
posal, so the responsibility seems to be on industry to do this.
And with this partnership between the organizations which are
the sources of these materials in providing the information, we
as an industry believe we can then utilize the best and safest
method of treatment and disposal for the final handling of
these materials. With respect to Section 311, however, we
believe that any Federal regulations should establish a clear
basis for transferring of liability. The liability that could
be established under the regulations and the penalty systems
that are being proposed could create an insurance risk for which
private sources of insurance coverage are unavailable or con-
sidered inadequate. It may be therefore necessary to supplement
these available sources of liability insurance with some form
of government-sponsored program of coverage.
With respect to waste disposal, we are dealing with many
compounds, with many constituents. Any penalty system developed
for a list of compounds such as suggested under Section 311
should not be so restrictive as they would apply to the mixtures
of compounds. The penalty system should not be additive in
those situations where mixtures of compounds are involved. We
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would suggest that consideration be given to the establishment
of a penalty system which treats compounds in a manner similar
to that of single elements, as proposed in the section.
This, in summary, is our view of the current needs for the
Federal program. We are also aware of the fact that before the
Congress at this time is a hazardous waste disposal regulatory
program which is being considered by another component of EPA.
We would suggest and we would hope that both organizations within
EPA would work more closely together to insure that whatever
program is developed for hazardous waste disposal is compatible
with the program being developed under this act. Thank you.
MR. HAROLD SNYDER; You should get an award for brevity,
timeliness. Are there any questions or comments relative to
the last presentation? Hugh?
DR. C. HUGH THOMPSON: I think basically what I want to
discuss with you is the format that I have in mind for tomorrow's
activity. You have now had a couple of days to look at the blue
covered staff paper on hazardous substances. It may be desirable
to start out with that format in hand; that is, all of us with
our documents in front of us and we'll start out with the basis
of the Advance Notice of Proposed Rulemaking designating hazard-
ous substances and determining removability, but we should not
dwell on that a long time unless there's considerably more input
which should be brought before us than was suggested by MCA.
In other words, what I am saying is, we heard the MCA comment,
we don't have to go into it any more. What I am reaching for is
to be sure that each of you will go away from this symposium
understanding the words that you have in your hand as we tenta-
tively are thinking about them and that we can, if possible, put
circles around words and square brackets on phrases and concepts
which are bothering you. Now obviously Mark Hooper would like
us to go to the numbers and erase them all and start over, I
guess. I think, however, that this whole thing that we're talking
about, the end product is going to be a piece of paper and just
to assure myself that you are reading these things in context, I
would like to try this. This is again an experiment and I'm
calling this to your attention now, so think about it this
evening. Al Jennings and I are rather flexible in the approach
here and we will deviate from what I've outlined to you if there
are some suggestions from the floor that you feel that you could
use your time to a greater benefit. My objective is to have
notes representing your fears and concerns in context of a
regulation. However you may suggest that that could be done,
we would be open to your suggestions in the morning. Thank you.
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DAY 3, OCTOBER 23, 1974 - MORNING SESSION
DR. C. HUGH THOMPSON: I'm Hugh Thompson and on my left is
Allen Jennings and what we hope to do today is to provide you a
sense of the direction in which the Environmental Protection
Agency may proceed in promulgating regulations designating
hazardous substances, determining their actual removability,
determining what are harmful quantities and determining what
are rates of penalties for those nonremovable hazardous sub-
stances .
There are a couple of ground rules which I would like to
make sure that we put this conversation in context within. The
staff paper which you have (which has a blue cover), dealing
with harmful quantity and the rates of penalty, is just that.
It is a staff paper. The intention here is that your input
and subsequent discussions that we would have will be useful
to the working group and steering committee activities within
the Environmental Protection Agency as the issues are raised
and alternatives are developed for promulgating these standards.
What I am trying to suggest to you is that I cannot make any
of these decisions today. I can provide to you a vehicle for
receiving your concern and try to explain to you the rationale
that we are attempting to uncover and develop and employ. If
that then is acceptable to you, we can engage in some substantive
discussion on where we have started, where we are, and where we
intend to go. Just to make sure that I know who we are finally
talking to here on this third day and to make sure that we are
able to get back to you on any issues that you may be raising,
Mr. Walt Miquez will be passing the registration list around.
If you would simply look to see that your name is on the list,
spelled correctly, your mailing address is correct and just put
a check on it or something so that I know that you were one of
the few that hung on to the bitter end here.
I think the next point that I would like to go to is to
remind some of you of the issues that I raised the first time I
spoke to you. Reflect over the; last couple of days on that
which you heard from EPA's Office of General Counsel, from enforce-
ment, effluent guidelines, solid waste program, other Federal
agencies, industry's comments, state comments and see if you now
have any better feeling for the resolution of the issues which I
called to your attention the first day and issues which I am
sure are in your mind now. These issues, just to summarize,
were that, relative to the August 22 publication for designation
and removability, issue can well be defined as the length of the
list, that is, the: scope of coverage of the designation and of
course the criteria for selection. The second item that you
might think about is the determination of removability, that
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administrative interpretation that removal means to remove or
mitigate, and how we have split that definition in the deter-
mination of nonremovability. The question relative to what
is a spill from a fixed facility and its relationship to
permanent program decisions. Another one is can the removability
penalty be controlled to avoid over regulation and severe
economic hardship? Another one is, will the harmful quantity
require too much reporting and is it too stringent? Or is it
not protective of public health and welfare? Another one is,
can mitigating expenditures be used to ameliorate the nonremov-
ability penalties in an after-the-fact appelate procedure?
Another one is relative to the water bodies which have been
selected — are they representative for protection of public
health and welfare? Another issue would be, are the adjustment
factors reasonable and can you support the concepts, both
environmentally and economically? Another item is, are these
approaches sufficiently compatible with existing or planned
business practices, state and international programs? Another
point of conern is, are we moving fast enough in this area or
too fast in reaching our conclusions? If so, why? And will
these regulations cause a transportation modal shift?
We do have a time table in mind. We had hoped to have this
staff paper reviewed at sufficient levels within EPA to where we
could have it published as an Advance Notice of Proposed Rule-
making prior to this symposium. However, that was a bit ambitious,
number one, and secondly, there was considerable thought in the
agency that your input over these three days might be a very
valuable contribution to have before we even get to the ANPR
stage. So I think we can think in terms of within the month of
November attempting the publication of an Advance Notice of
Proposed Rulemaking. The comment period will be quite comfort-
able after that. The comments on the Advance Notice of Proposed
Rulemaking for the designation have been received. Al Jennings
will discuss this here in a couple of minutes. The next step
then would be to go to the proposed rulemaking for both sets of
regulations. Again, a comment period will be available and
then we are down to the crunch on the final promulgation. We
would still like to see the promulgation of the designation
and the determination of removability to lead; however, it may
make more sense to promulgate the regulatory set as a package.
If that were to be done, it certainly could not be done, as
I've suggested, much before late spring or early summer, about
the May time fraiie of 1975. As we go into this discussion this
morning, I am not trying to threaten anyone. I am simply telling
you the facts, as near as I can tell them, that we must reach
some decisions and we must promulgate these regulations and we
must base them on the information we have. And if you're upset
with the data base we're working with, you can change that and
we would look forward to receiving that information. We would
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look forward to removing an assumed number and putting in an
actual factual number. That goes all the way from the realm
of the aquatic environmental impact actual field data-type
information of damages which have been observed or not observed
to the actual demonstrated economic impact. Whereas I was some-
what disappointed with the results as Mark Hooper presented
them yesterday, I want to sincerely thank him for the time that
he spent in preparing a very careful analysis of the economic
impact in his industrial area. I would suggest to each of you
that work like that will be given most considerable, careful
thought as the Environmental Protection Agency reaches a decision
for promulgating these rates of penalty. I don't like the group
dynamics we've got set up here at all. You're a long way from
me. We're too formal. I hope we loosen up here pretty quick.
So I'm going to turn this to Al now and let him talk about the
comments from the ANPR. I think the format we ought to run with
is -- you should feel free to interrupt at any time. It would
be still very valuable to have your name and your affiliation
and for you to speak into one of the microphones. This is not
meant to put you on the spot. It's meant so that everybody can
hear you and understand and know somewhat why you are saying
what you are saying and also so that perhaps we can get back
and ask you more detailed questions later.
DR. ALLEN L. JENNINGS: Before getting into where the
comments from the advanced notice are stacking up, I have been
asked by some of the attendees to go over it one more time,
exactly where we are in the regulation process, and is anybody
susceptible to a penalty at present and does anybody have to
notify. Well this August 22 publication of the Federal Register
that you have, the green covered handout, is our first effort.
This is an advance notice and until the designation that this
represents is finally promulgated as a rule, no penalties are
operational and no reporting is required. The speaker on the
first day on enforcement pointed out that there were some
enforcement actions going on for spills but these, keep in
mind, are not under Section 311, they are under the refuse act
permit program or a similar different law or different section.
In terms of comments received, the comment period closed
October 15 on this particular piece of paper but still outside
of that I would be interested in receiving any comments that
any of you may have in light of what you've heard here and on
second thoughts, just in an informal manner. We heard from the
MCA yesterday on their evaluation of what we have done with the
advance notice. I really don't want to get into the individual
materials; of course, many people commented when their favorite
material was on the list that it seemed unfair, but if we talk
about selection criteria, comments were favorable in terms of
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the mammalian selection criteria, that is the standard highly
toxic classifications for ingestion, inhalation, thermal
abosorption that Mr. Hanks ran through yesterday. It appears
that we are being questioned on the aquatic toxicity data. Our
cutoff limit as you know is 500/kg/liter. Materials more toxic
than that we consider as candidates for designation. The comments
seemed to think this was too high and suggested limits of 50 mg
or 100 mg/liter. Now occasionally there was a little data to
back this up but it is basically a gut feel, I think, that
people would like it lowered and I'm having difficulty finding
a rationale consistent enough to justify lowering it. And I
feel that 500 is a good number and it's a justifiable number.
That statement's open to comment from the floor here.
QUESTION (FLOOR MIKE): Wat's the justification for 500?
DR. ALLEN L. JENNINGS: Pardon me? Well, we can envision
credible accidents. Say an average size truck discharges its
contents in a reasonable length of time into a stream of a
reasonable size, I think it's about 100 cfs that we use, then
you can generate a concentrated slug of material at 500 parts
per million. We have seen environmental damage resulting from
the spillage of materials with average aquatic toxicity values
in the range of 200 mg/liter, for example, on up to 300 in some
cases, so I don't think that 100 is acceptable. We've seen
dead fish resulting from spilled material less toxic than 100.
We're sort of in the game of, "I can pick a number and attempt
to justify it;" you can say, "Why isn't it 450 instead of 500?"
Any time we pick a number there is some degree of arbitrariness,
I guess, involved. But if someone can justify a better number,
I am willing to listen.
Along the same line, there seemed to be some confusion in
the comments about what we were really saying when we talked
about these toxicity criteria. People seem to think we should
specify the test species and specify exactly the test conditions.
I want to make it clear that we are putting this limitation of
selection criteria and data on our cells. This is how we
examine the available data. We are not asking you or telling
you to go out and run bioassays on your material and then decide
whether its hazardous or not. The things we are listing are
hazardous -- or when we finally list them, they are hazardous.
The inconsistencies in data and how the bioassays have been run
in the past are such that we have to do some interpretation and
all we are trying to do is lay out to you kinds of data that we
are using. If you've got data on any species run under any
conditions on any materials on the list or not on the list,
please send them in. It's valuable to us and don't worry about
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the species. We did say, we're using median sensitivity receptors.
This is to again narrow our scope and the spread of bioassay data;
we are not concentrating on trout, for example. They're generally
more sensitive than other species and we think that is would mis-
lead the selection. We're looking at the bluegill, the bass, the
typically in-the-middle-type species and this is the thing Battelle
has used in quantifying any harmful quantity and penalty rate
toxicity numbers.
(FLOOR MIKE): You said we could interrupt.
DR. ALLEN L. JENNINGS: Please do.
QUESTION (FLOOR MIKE): George Hanks of Union Carbide. Is
it reasonable to assume that the toxicity data that appear in
Battelle Appendices to Volume 3 are the data by which you chose
to include or not include a material as a hazardous substance?
DR. ALLEN L. JENNINGS: We have used that data in addition
to others. Battelle, I think, I haven't look at this recently,
but they show you here in the data input the actual number used
for that material in their calculations. Now, we used this
number in addition to others. Bioassays on any species were in
consideration in the selection.
MR. GEORGE HANKS (FLOOR MIKE): I think in view of the fact
that the cutoff is 500, my question isn't as significant perhaps
as it relates to designation as it might relate to the calculation
of the right penalty or the hazardous quantity using those data,
but I did want to clarify the significance of the material in the
appendix. Thank you.
DR. ALLEN L. JENNINGS: There's a question over there. Bob,
could you get the microphone to the gentleman in the back?
(FLOOR MIKE): (Unintelligible)
DR. ALLEN L. JENNINGS: If they do not have a saltwater bio-
assay number, we probably don't have one either. This is a big
limitation, saltwater data. For the purpose of designation, I
don't think it's a big problem, though, because the spill can be
either salt or fresh and for designation, using freshwater data
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doesn't seem to be a problem. It could be more of a problem in
terms of quantifying since there are obvious differences.
(FLOOR MIKE): I'm concerned about freshwater data or fresh-
water species being used to develop penalties and harmful quantities
for saltwater spills.
DR. ALLEN L. JENNINGS: Right, but you know we are addressing
spills that are going to occur in an estuary and there if it's in
the river leading to the estuary, you have all species, both
fresh and salt, or some species fresh and salt represented.
You've got the borderline area. I don't think it's that far
off that we have to concentrate on salt, per se, vs fresh.
Generally, the observed magnitude is the area of concern.
(FLOOR MIKE): Dick Hall, Diamond Shamrock. I think it
would be helpful to us and to the people involved in transportation
if we knew why a particular chemical was included on the list.
That is, whether or not it was due to the fish toxicity or the
LC5Q to humans or the LD5Q to some animal species. And this would
also help us in evaluating whether or not we might have additional
data that would concern whether or not the compound should be
included.
DR. ALLEN L. JENNINGS: Right, when we go to the proposed
rulemaking stage on this thing, we will indicate the criterion
used for selection of a material. After the advance notice,
we have the notice of proposed rulemaking after which we will
again invite comments, so you have one more shot at us.
QUESTION (FLOOR MIKE): This will be by material?
DR. ALLEN L. JENNINGS: Yes, and in addition we will publish
a technical document in which all data used in the evaluation of
materials will be specified. This includes chemical-physical data
that we use to determine removability as well as the biological
data and, when we have it, production data and use data. I
guess the second most popular area for comment on this thing
was the removability question and we were accused of not con-
sidering the dual definition of removal as specified in the law.
Well, for the purpose of bringing the material under the penalty
options, we have determined in this advance notice that they are
not actually removable, meaning physically removable, from the
water after the spill in the most general case. In other words,
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they are not like oils, they are not actually removable. There-
fore they would be subject to the penalty to be developed later
in the rate of penalty regulation. At the same time, we recognize
the broader definition of removal as used in the law as damage
mitigation and our position now is that you are expected to do,
when you have a discharge, all of your fine response things.
You go in and prevent the material from getting into the: water
to any greater degree than it already has, to protect the environ-
ment and people. This is included in your responsibilities.
If you can't or won't do it, the government can and will do it
with the use of a revolving fund and you can be liable for it
later. This is over and above any penalties that may be
established. However, in the rate of penalties, as we've heard
here, we're looking toward after-the-fact adjustments to that
base penalty rate based on how well you've undertaken damage
mitigation. This is a possibility that's still open. But we've
not ignored this removal question and the fact that you can take,
in some instances, after-the-fact damage mitigation action doesn't
actually make the material removable. Many people seem to think
that we should consider, for example, a sulfuric acid spill as
removable because you can, as was stated, go in with caustic
solution and neutralize the material in the water body. Maybe
some of our regional people could comment on the feasibility of
those actions. Russ Diefenbach, I think, has a comment.
MR. RUSS DIEFENBACH (FLOOR MIKE): Al, I think one thing
you will have to consider there is that our legislation may
put some people between a rock and a hard spot because we do
have some state agencies that forbid, once a material has gotten
into a stream, using the stream as a beaker, to try to neutralize.
We have had spills from an army munitions plant where the State
of Illinois EPA has been adamant in not wanting to neutralize
once it is in the stream because they do not feel it is an
effective way. Now, we're going to have to make some type of
provision for cases where a man cannot take mitigating action
because of regulatory action of state agencies.
DR. ALLEN L. JENNINGS: Well, as shown by Russ' example and
several others from the regions in which attempts have been made
to neutralize, say, an acid spill, it has not been very successful.
What you didn't kill with the acid, you killed with the caustic
later, so we're not pushing that as a damage mitigation scheme.
Damage mitigation means that if half of the sulfuric acid is
still lying on a river bank or on a dry ditch to the river bank
that you should take a bulldozer and dam off that dry river bed
before it gets to the main water body and then remove it.
Actual removability in the water body we don't see as practical.
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(FLOOR MIKE): Yeah, I'm John Castellan! from General
Electric and I'm about to sit on the floor. Let me go back, I
was just doing a little figuring. On the aquatic toxicity level,
now taking a figure of 500 mg/liter; where you are going to get
that kind of concentration is in a small stream — in a larger
stream, it's going to take a lot of material — but for an
example of why that may be an excessive figure: if you took
a 36 cfs stream and you wanted to see how much it takes to
get 500 mg/liter in that stream, say the spill lasted 30 minutes,
it would take 264,000 pounds of material. Now the point to be
made of this is, that is 264,000 pounds entering the stream. In
a 36 cfs stream that would be, I think, less than what a barge
could carry; that would require several tank cars, several
railroad cars and the feasibility of that would be somewhat
questionable and this was the basis for the MCA comment that
using the 500 mg/liter would be excessive because you would not
see it in the smaller streams that it is designed to protect
because of the improbability of that amount of material being
exposed to a smaller stream, particularly from a transport
source; and it would not be feasible in a larger stream for
large scale transport because this constitutes so much water
that again it would be an inordinate amount not ordinarily
shipped that would have to be spilled to reach that kind of
concentration.
DR. ALLEN L. JENNINGS: What was your assumed discharge time
again?
MR. JOHN CASTELLANI (FLOOR MIKE): Thirty minutes.
DR. ALLEN L. JENNINGS: And you assumed a thirty minute
plug?
MR. JOHN CASTELLANI (FLOOR MIKE): Yeah.
DR. ALLEN L. JENNINGS: I don't have my data with me but I
think I calculated on a 100 cfs stream in one case and assumed
a six hour discharge and the average tank truck could create
a six hour plug greater than 500 parts per million. As I
remember my data.
MR. JOHN CASTELLANI (FLOOR MIKE): You're assuming equal
mixing?
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DR. ALLEN L. JENNINGS: Assuming equal mixing and a plug
flow model.I'll recheck mine.
MR. JOHN CASTELLANI (FLOOR MIKE): Yeah, and I'll certainly
recheck mine, I just did mine right now and I know there could
be errors.
DR. ALLEN L. JENNINGS: In addition, we looked at other
sources, rail, and I think we calculated barges on 5000 cfs
streams, and 500 was an achievable concentration in a reasonable
time plug. Yeah, George.
MR. GEORGE HANKS (FLOOR MIKE): I may be wrong and I don't
want to argue with my General Electric friend there, but I think
he's got a decimal wrong. It may well be 24,000 pounds.
DR. ALLEN L. JENNINGS: Well, that's a reasonable tank
truck capacity, 24,000 pounds, is it not?
QUESTION (FLOOR MIKE); Stu Rose from Lederle Labs. My
concern about the removability revolves around the actual
definition or the definition of the phrase "actually be removed."
Could you give me an example of any substance that could actually
be removed, any hazardous substance, other than oil?
DR. ALLEN L. JENNINGS: No, I can't.
MR. STU ROSE (FLOOR MIKE): No, there is none.
DR. ALLEN L. JENNINGS: You know if we had a selection
criterion that these styrofoam cups we drink coffee out of were
hazardous material because of their aesthetic impairment, that
would be a material obviously removable; but we concentrated
on toxicity and particularly toxicity to aquatic life, but
given that, a material has got to be soluble to exert these
toxic actions. So we're generally talking about the soluble
materials.
MR. STU ROSE (FLOOR MIKE); But could there not be physical
or chemical means of removing substances?
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DR. ALLEN L. JENNINGS: I don't know of any that in the
general spill case we can count on. The thing I fear is that
perhaps we could say styrene is removable, therefore the burden
would be on the discharger to actually physically remove it,
as if it were an oil. The thing I worry about is getting a
call from somebody in the night from somebody on the Mississippi
River saying, "Hey, Fed, I just dropped a couple tons of styrene
on the Mississippi and I can't pick it up so you all come on out
and pick it up and send me the bill." Well, three days later,
by the time the response teams got out there, I really don't
think we could find much styrene so what is the incentive for
you not to spill styrene again and again?
MR. STU ROSE (FLOOR MIKE): I accept that. But does that
really fit the law as it's stated, whether a substance is hazard-
our or not? If it is removable it should not be defined as a
hazardous substance.
DR. ALLEN L. JENNINGS: No.
MR. STU ROSE (FLOOR MIKE): I recognize the practicality
of what you are saying. I'm thinking in terms of the letter of
the; phrasing.
DR. C. HUGH THOMPSON: This is not without advice from
counsel to take this stand, so, number one, what I have been
advised is that the Congress defined quite precisely what they
meant removable to mean and it has these two phrases in it.
But when they made the demand that a determination be made on
the actual removability, that should be interpreted to mean
actual removal. Now when one thinks about the practical impli-
cations of that and one thinks in terms of the selection criteria
that gives us this list of materials in the first place, one
realizes that it's going to be only a very unusual circumstance,
like a small lake with practically no flow, which could be
treated in essence to have the material actually removed. So
we have, if you will, the physical-chemical limitation that says
chances are the hydrodynamics will not allow us to remove it
anyway. But even if that were feasible, the logistics of getting
the material there in time to remove the material before it
poses its eminent substantial damage is very unlikely. There-
fore, we say that these materials are nonremovable. We recognize
the tremendous economic burden that opens up. However, I've
been advised by some of the Congressional staff that if we were
to go the other way and say, "Well, anything you spill, you can
do something to help it," we would then negate this nonremovability
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part of the law and the Congress would be after us for that just
as well as if we go the other way and have them all nonremovable.
So that's why I suggested in my opening remarks that, at least
so far, it seems to me that the most logical way to do this is
to use the chemical-physical properties — and if we've
blown it, incidentally, if you all can identify a material
where it's obvious that that material will be on the surface
and in hunks that can be gotten hold of very easily or something
like this — fine. We should have that information and we
should try to address that. But, in the meantime, it seems
most fair to the environment and most fair economically to
identify the penalty as nonremovable and let it take its course.
Then after the emergency is over, if we have rather clear cut
steps for appeal — in other words, people showing what steps
for prevention they have taken, what mitigating activities they
have taken, when they took them and the zeal with which they
took them -- you can back up, either at an equal rate or at an
accelerated rate, to forgive this penalty and keep it under
control with respect to the environmental damage involved in
the first place.
QUESTION (FLOOR MIKE): Dick Wilson with Chotin. Al, do
you have data on river flow for the major navigable waters? If
not, of course we plan to give them to you, but I just wanted
to know if you had that information.
DR. ALLEN L. JENNINGS: Yes, we do. That's part of the
Battelle effort, sort of an add-on. I requested they gather all
data on the truly navigable waters, those that support navigation
and barge traffic.
MR. DICK WILSON (FLOOR MIKE): I'm just picking up on your
comment earlier, where you use 5000 cubic ft/sec in a barge
calculation. I don't know anywhere where we operate on that
kind of a river. To just indicate some of the magnitudes of the
scale here, the median or mean for the Mississippi, which ranges
say a couple of points from 2.3 million on the high side and
128,000 on the low side, is 420,000 cubic ft/sec at that point;
so the 5000 in the Missouri River, which is a reasonably small
navigable waterway, in the 30,000 to 50,000 range, there is an
order of magnitude there.
Parenthetically, I might note on the criterion that we dis-
cussed that the 500 milliliters, to the extent you cast a broad
net in encompassing products on the list, you also are establishing
reasonably high harmful quantities, if the logic is consistent.
That's just a parenthetical comment. In some cases it seems
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high for a small stream where in some cases it seems low for a
large stream, depending on the circumstances.
DR. ALLEN L. JENNINGS: Recognizing the Mississippi is big,
but the Kanawha, I'm not really sure what the flow rate of it is,
but I'd be surprised if it were 5000 cfs as a median, then you've
got the canals, the intercoastal waterways, which are, of course,
not very large in terms of total flow, but do support navigation.
MR. DICK WILSON (FLOOR MIKE): I agree. I think this argues
for the fact that we should be considering a dispersion of
product given differing stream sizes as opposed to taking the
36 cubic ft/sec.
DR. ALLEN L. JENNINGS: Well, this is, you know, an after-
the-fact evaluation of the penalty of possible adjustment
factors based on the differences between the actual receiving
water and the model. These were all possibilities we were
thinking about on the penalty rate.
DR. C. HUGH THOMPSON: Remember what this harmful quantity
is going to do. It's the trigger, so obviously that should not
be the most permissive of the numbers that one could come up
with. However, as we approach this project we have repeatedly
talked to ourselves and tried to make ourselves identify a
quantity which would be harmful. In other words, most of the
regulations and standards that EPA comes out with identify
quantities that are maximum acceptable concentrations in a
receiving water, or best practicable control technology, or
other numbers which in essence indicate a margin of safety.
Ok? Now, there may be a margin of safety in the harmful
quantities we have defined, but it's not deliberately put in
there and so if, in your deliberations here in the next few
days, you can identify for us spills which have occurred in
these harmful quantities and they didn't do diddley, nothing,
no problem. Understand now, please, your company writes
this in, in your opinion it was no problem; that's a comment,
fine. But it would be much better to have it substantiated
by the state game and fish and some other people who would
agree with you and support you that that quantity, when dis-
charged into their waters, poses no problem.
DR. ALLEN L. JENNINGS; We've asked for data in this
advance notice on virtually all aspects of the rulemaking and
part of the effort here is asking for data again, the kind you
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are mentioning, and we really encourage you to send anything in
that might be appropriate. But as Hugh pointed out, not your
opinion though, real data. Yeah?
(FLOOR MIKE): My name is Leif Sigmond from Scientific
Chemical Processing. In looking around and talking to people
here, I've noticed that there is a lot or representation from
the large companies and from the government, but there are
very, very few people here from small business. And also,
there are very few small businesses that I have contacted that
even know about this. As a matter of fact, most of them don't
even know about the oil spill rules and they are probably all
in violation, the ones I've contacted, from not knowing. Now
these rules and regulations and the enforcement of this are
going to affect the small business probably to a greater
extent than the large business because one occurrence could
actually pretty much drive them out of business. I think some
effort somehow has got to be made so that this sort of thing
gets distributed to the small businesses. For example, there
are mixed loads. For example, we and others in similar businesses
handle and store mixed loads and we don't necessarily even know
what's in them. Neither do the common carriers. For instance,
when they transport lacquer thinners, they don't know whether
there is 2 percent or 50 percent toluene in that. So if they
should have a spill, they wouldn't know necessarily, the truck
driver wouldn't know, neither would the dispatcher, whether it
in fact should be reported or not. So in order to follow these
rules true, there have to be a lot of changes, a lot of additional
information made so that people specify exactly what is in these
products that they do ship.
DR. C. HUGH THOMPSON: Is Henry VanCleve here? I thought
I saw him a while ago.Well, I don't remember the number of oil
spill prevention regulations which have been sent out.
(FLOOR MIKE): Just about 9000 a year?
DR. C. HUGH THOMPSON: We're trying to get the word out.
And I would appreciate any suggestions you have for using differ-
ent trade associations, using different journals to get to those
people. You're right, we're concerned about that. We're not
interested in taking the hard hearted attitude of saying, "Well,
what the hell, if they don't know about it, that's their tough
luck." We would, if possible, meet with people any place, any
time, to explain to them this section of the law. We have been.
So any suggestions you would have of people to contact, we're
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most open to that. The next point that you speak about is the
mixed load consideration. It seems to me, if I harken back to
the days when I was working on the other side of the street,
if I were confronted with a problem like this, the industry
involved, I think, would take the attitude of reporting most
any material. Now, if our regulation is designed correctly,
that reporting of the spill should not be a great burden, such
that the knowledgeable people can be alerted in time to do some-
thing about it. And these penalty rates and these other punitive
measures should come into play in a nonemergency phase of the
operation. I would like to strive for that and I need your
ideas and suggestions and a way to communicate that so the reporting
of the spill is not a major corporate decision on whether or not
to do it, no matter what size the corporation. It ought to be
a very straightforward, easily made decision that says, "Yep,
something got away, we don't know really what it is, but we
had better tell the Coast Guard." Now, once you've told the
Coast Guard, then the Coast Guard, EPA, the state agencies, etc.,
including, as you heard yesterday, several other trade association
outfits, would be available to start assisting to try to deter-
mine what was in there. It's not a unique problem that you are
talking about. It's not a new problem. We've worked with these
things with the Manufacturing Chemists Association, for instance,
in trying to identify the contents of, I don't know, I think it
was 6000 drums after Hurricane Agnes. I understand what you're
saying. Do you understand what I'm saying as far as notice
goes?
MR. LIEF SIGMOND (FLOOR MIKE): Well, yes, in essence you're
saying what it amounts to, you've got to give notice anytime
you have any kind of spill.
DR. C. HUGH THOMPSON: Why not? Is that a problem?
MR. LIEF SIGMOND (FLOOR MIKE): It is a problem for a
small company that's inundated with bureaucratic paperwork now
anyway.
DR. C. HUGH THOMPSON: The notice is a la the Coast Guard
regulations. George Brown, where are you?
George, would you like to sketch out for them quickly how
complicated the notice to the Coast Guard is? What it means?
(FLOOR MIKE): Assuming that our center is in operation,
contact is made by our 800 number which is toll free. You then
leave all the information you have on the spill.
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DR. C. HUGH THOMPSON: Now, with that type of complicated
notification, can't that happen? How should I write the regu-
lations? What are you worried about? What do I have to do to
allow that to happen, so that now the next step as far as all
the liabilities and considerations like that can be taken in
due course. I think Jack Garrett wants to explode about some-
thing.
MR. JACK GARRETT (FLOOR MIKE): I think we've left parts
of the designation regulation too quick. For example, the
regulations say that if a material meets a designation, it is
eligible for inclusion on the next list. Is this true? I'm
talking about any kind of material.
DR. ALLEN L. JENNINGS: As I understand it, if you have
something that has a TLm of, say, 300 mg per liter, if we didn't
include it here, would it be subject to our scrutiny next round?
I think the answer is yes, if it meets spill potential and a few
other criteria.
MR. JACK GARRETT (FLOOR MIKE): We were looking at data the
other day in our couplets connected with toxicity, based both on
the acute screens, which you are defining in there as Class B,
acute screens, 50 mg per kilograms for white rats orally, 200
milligrams per kilogram for white rabbits percutaneously, and
200 milligrams per kilogram for inhalation in white rats, which
is an acute screen. Most companies do the three. If the
material's a liquid, they'll do the inhalation studies. If not,
they do generally the acute oral, the acute percutaneous, and
generally a series of now DOT irritation.
At the same time we were computer coupling these data with
a bunch of fish data we had. Number one, I never have found a
material that has a toxicity over 500 milligrams per liter in
all of the materials that we have tested. Number two, if you
compare acute toxicity, or the comparative toxicity ranges of
oral, percutaneous, and vapor on mammals to the same general
hazard level in fish, you would probably be more near the area
of 1-1/2 to 1/2 a part per million. For example, in all these
cases we looked at about 280 sets of data, and there never was
a single solitary one of the materials from a fish standpoint
that did not meet your designation. There were two of the 248
sets of data that met your designation on the oral. Which means
that you are looking at magnitudes different from the standpoint
of mammalian toxicity to the standpoint of aquatic toxicity. So
why do you have the mammalian toxicity in there at all? In other
words, it kind of wastes paper. None of the materials that
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meet 500 parts per million limit or below, it makes little
difference at all whether they meet the mammalian toxicity
unless you are using it only because there is more mammalian
toxicity available.
Now this leads you to two conclusions. One, don't ever
test anything in fish, which is not a bad idea, to keep it
from being put on the list, because you're not going to test
anything we have ever tested and get one that is higher than
500 parts per million. Second, it's really the relative levels
of toxicity, as far as hazard is concerned, if you can relate
them, and of course you are relating apples and bananas, but
the whole Federal government is a relationship between coal
and bananas, so we really don't have any setup. You haven't
got any levels. You're magnitudes above in aquatic toxicity
the hazard level that you are in connection with your mammalian
toxicity. And I don't understand one of two things. I don't
understand why you've got the mammalian data in there, because
its absurd in the first place. Because a vast number of the
materials, all of the materials we have ever tested meet the
500 designation. Now, I'm talking organics, not inorganics,
so everybody, if you're shipping inorganics, be apprised differ-
ently. Although the pH values that shipped will probably cover
you anyway. But the point is, inorganics, based on the solubility
only, they all exceed. So your designation is rather a fruitless
effort. Why don't you put down all organic compounds and be
done with it. Because that is what you have down there, based
on the limitation of your aquatic toxic designation.
DR_. ALLEN L. JENNINGS: Jack, I've got to disagree with you.
The glycol ethers, methanol, acetone, are three that I can
think of right now that don't qualify, based on aquatic toxicity
value. We've got mammalian data on these because we don't have
aquatic toxicity on some materials that can affect human health.
MR. JACK GARRETT (FLOOR MIKE): As a matter of fact, some
of your saltwater data was done by myself. I noticed you used
my acrilonytrile figures and some of my chloro-organic figures.
But, you look at compounds that we deal with every day, and as
a matter of fact it's possible that some of the solvents won't
meet that, but I've not seen any. I'm telling you what I've
looked at. All of our data shows that none of them exceed 500
in the aquatic toxicity. Of those 248 sets, only two were
below mammalian.
DR. C. HUGH THOMPSON: I don't understand where we're going
with this.Glibly,I could say, "Damn, that's good. We've
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covered the problem." I don't mean to be glib. What I am having
some difficulty with is, if you're suggesting that the selection
criteria be dropped lower, say to 100 or to 50 or to 5, with the
idea in mind that that would restrict the coverage of the material,
then it does rather bother me if what we're doing is we're
leaving out between oils and nondesignated hazardous materials,
the benzene, toluene, naphthalene, etc., type materials. And if
that's what you're talking about, if that's what the problem is,
why the hell don't you all stand up and say so and we'll come to
grips with it, because that's the real crux of the problem. Those
materials are the money-makers, those are the ones that are
shipped in bulk, those are the ones that, when they get loose,
cause the taste and odor problems, the toxicity problems and I
think that's why the Congress got concerned that you can't
remove those things.
MR. JACK GARRETT (FLOOR MIKE); From our standpoint though,
Hugh, you've got to admit that this thing has switched considerably
in importance from the standpoint of how we faced it when we
originally talked about the designation list. You've got to
admit that we did not know this was going to seriously challenge
our ability to transport our products or our raw materials. We
did not know that it was going to seriously impinge on the con-
struction of new plants and facilities. We did not know that
there were not going to be any new plants at the time and these
regulations are largely responsible. If you put that on the
designation, immediately your transporter is going to slap you
with a vastly different rate, which is going to change your
whole financial picture. That's wat's wrong with it. We don't
want things designated. You've forced us into an adversary
circumstance.
DR. C. HUGH THOMPSON; No, let's consider these options that
we are talking about in this document here, what we can do about
it. I think that we have acknowledged, repeatedly, that this is
a potentially severe economic impact. I'm not convinced that the
high rate of penalty will motivate people any more to prevent
a spill than a lower rate of penalty and it would appear that
there is a regulatory mechanism which could be designed whereby
we will continue to keep the attention of this group, demonstrating
to the public that they are doing a good job and in those cases
where they are not doing a good job, for them to do a good job.
The designation appears to me to be on the same line of a god
and motherhood and apple pie-type question, as the notification
is. Now, if we set those two problems over to the side here, that
we ought to have a broad designation so that you can have noti-
fication so that if the discharger cannot or will not clean it
up, the Federal Government is authorized to spend revolving fund
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monies to help protect the public health and welfare, we set that
aside, that's the; operational part of the program. That's the
beauty of Section 311. After the emergency is over, and we now
start talking about the liabilities and those types of consid-
erations, don't you see a way in which we can, through regulations,
develop a reasonable approach to this?
MR. JACK GARRETT (FLOOR MIKE): No. And I'll tell you why.
Because what your regulation does is between the time we are
dealing with these regulations you are materially changing the
economic structure of the transport of chemicals by the mere
appearance of the material on that damn list, is what I am trying
to tell you, Hugh. I didn't make those rules. They've developed.
Now, agreed with you, a load of wheat on a barge sunk in one of
the slack navigation dams in the upper Mississippi River can cause
death of fish. You know that. You can't hardly find the LD5Q,
or for that matter the TLm 96 of grain, and yet it is a hazard-
ous material under those circumstances. It's like the fellow
that killed the mouse with the 81 millimeter mortar. He killed
the mouse, but it seems to me he overkilled it a little. The
point is...
DR. C. HUGH THOMPSON: Now, you made reference to the: previous
work and the fact that you didn't knew what this was going to be;
well, I didn't know either. After the passage of the "72 amend-
ments, we didn't come glibly out with the same list that we have
been talking about for a couple of years. We did revise down-
ward the selection criteria, we dropped selection criteria for
consideration at this point in time. The bio-accumulation, the
BOD, the wheat problem -- we recognized that at this point in
time, the majority of the problem ought to be focussed on the
major impactors and at this point in time we should back off,
if you will, to address that 60-70 percent of the problem. Now,
it bothers me how much further one is expected to back off
and still even come close to complying with the intent of Congress.
I need help there, and that's why we are sitting here in this
room today. You have not really helped by indicating that the
majority of the materials that you test, and unfortunately will
spill, fall within a 500 part per million TLm. All that says
to me is, well, I guess we've about covered the ball game. Those
materials should, when they are spilled, be notified to the
appropriate agency; and, if possible, mitigating action should
be taken just like you've been doing for the last 25 years. The
unfortunate part then starts into this liability, and all I'm
suggesting is that we do have this regulation thrust in front
of us and obviously we are all aware of the legislative reform
effort. So I don't see why we don't get on about the business
of articulating what can be done through regulation -- legally
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and practically — to see to it that notice is given, public
health is protected, and people don't go bankrupt.
MR.'JACK GARRETT (FLOOR MIKE): My most serious point,
you asked the question of why there is unease amongst industrial
people. Our toxicologist will look at data that shows a very
severe constraint when you look at mammalian data and it does,
in fact, indicate where a material is somewhat hazardous. It
is the same breakpoint that we use in protecting our employees
in pilot plant and laboratory operations. It is the same break-
point that every chemical company has. Then you turn around and
bring one over here that is clear out of this same ball park, so
this disturbs our technical people on the premise that these
things are not in the same game. The other thing is you just
made a glib statement of your own, Hugh. You just said that
these things do 70 percent of the impacting. I don't believe
toluene and these materials do 70 percent of the impacting, as
the bill is concerned; do you really?
DR. ALLEN L. JENNINGS: You are crossing over here between
fish and mammals and the only magic in those mammalian cutoff
numbers is that they are standard toxic and that's because they
have been around for years and they have been developed by the
industrial hygienist to protect the guy in the plant. We are
in a new ball game, nobody has said what is highly toxic and
bad for fish in a spill situation. We think about 500 is it
and you can't really compare the two. The fish are exposed.
You are always asking us, for the last two days here, people
keep beating on us to prove this imminent substantial danger
and that we have to show that we are going to create havoc
from a spill here and a terrible economic impact simply because
these maximum penalties exist. Where is the data? Mark Hooper
made an effort yesterday to analyze it. He was using numbers
that were generated on the high end of the Battelle study. You
know, just $5 million in there doesn't really mean anything
unless you get back and look at your accident frequency — how
many spills, what size, spread it over the industry, what is
the impact on the industry? We haven't seen any data. People
are yelling at me, we are going to put them out of business, but
where is your data? That's what we are looking for. That's
what we need.
DR. C. HUGH THOMPSON: I would like to simply go back to
when I was struggling around trying to develop some selection
criteria in the first place, Jack. We, of course, started out
with 1,000 as the cutoff for our TLm and it was because of this
inconsistency with the mammalian and the other that we kept
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lowering this. From some of the international stuff I got
involved in I learned some more there on how to address this.
But, think about it from this standpoint. Is the major impact
of the spills that we are talking about under 311 going to be
in the aquatic environment? The mammalian toxicity (inhalation,
this type of thing) is not really used this much, but they are
there just in case you have the situation whereby a material is
discharged and is laying right on the surface of the water body
between levies, and if that would be picked up through a TLV
rather than a TLm, it seems to me most reasonable that we should
do that. It seems to me that to do that, since that was not at
least in my understanding the direct thing that should be pro-
tected with 311, that that should be a more rigorous or a more
selective criterion than the general more impactive part of the
problem we are trying to guard against, that being the aquatic
toxicity. Other than that I can't really go much deeper.
MR. JACK GARRETT (FLOOR MIKE): Well, I recognize that
initially there was so little aquatic toxicity that we used the
mammalian. I remember discussions where we put the mammalian
figures in because these data are more commonly available. And
certainly there is a great deal more of these data screens. I
agree with you, Hugh, but the thing you don't understand is we
are playing a different ball game now than we were when we
started out with these regulations. There is nobody like the
chemical business that is raising hell about spills for 25 years
with our own people, with the transportation people, with the
state people, with interstate agencies. We've been in conferences
with people like ORSANCO 20 years ago over this issue. We've
worked diligently on this. When you started the 311 regulations,
we thought this was the beginning of perhaps some kind of
responsible control of spills that would not impact on the
industry beyond the spill and its fine, but that isn't true
anymore. That's the point I am making, and now your designation
regulations become enormously magnified, because that means that
any damn thing anybody hauls can be on that list, and when its
on the list, ZAP, that's all I am trying to say. That's why
I am a disturbed audience.
QUESTION (FLOOR MIKE): Joel Jacknow, Planning Management,
EPA. I'd like you to sharpen up your response to the regulations
so it would be helpful for us in moving ahead. First of all, can
you back up a different aquatic toxicity number? If you think
that the number should be 400, 200, 300 milligrams per liter, can
you document that? Secondly, since we've gone around this point
in my office and the agency's taking the major burden in trying
to figure out what the economic impact is, can you give us some
idea of the way to develop the regulation in abstracto, so we
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can get a better feeling in quantitative terms for your problem?
That is, if you could see under real spill situations what
your final liability would be, would that help the insurance
industry in dealing more equitably with you? As I understand
it, it's your insurance people that are pushing you to look at
the whole financial interstructure of transportation differently.
Is this correct?
(FLOOR MIKE): Dick Wilson with Chotin. I think the economic
situation is fairly simple. Even as I look at my last year's
experience, that is not going to tell me what I've got to do in
the future, because I'm just not going to move a product where
I have a liability for $5 million. Now, the straight answer to
the thing is that the penalty structure as it exists now, and I
understand this is something that is being worked on, means that
if I move a barge up and down the river and it is likely to cost
me a million dollars if I lose the entire barge or something
in that neighborhood, I'm just not going to move it. Ok, the
question comes up about insurance. It is our view in our industry,
and this has come from consultation with insurance people, that
it is not legal to insure a penalty as this would be a circum-
vention of the public interest. So given those two factors, I
think the economics of the situation are fairly straightforward
and very simple.
QUESTION (FLOOR MIKE): Bob Gallinghouse from American
Cyanamid Company. I had several questions that are not related
to the toxicity aspect, but in your staff paper you say that in
a case of fixed facility, consideration is being given to the
use of actually determined median flows for the receiving waters.
Do you mean actually that in your harmful quantity calculation
you will put a flow adjustment factor which would correspond
to the actual flow of the receiving body?
DR. ALLEN L. JENNINGS: We see that as a possibility. We'd
like input on it.
MR. BOB GALLINGHOUSE (FLOOR MIKE); I'd certainly agree with
it if you want input into it.
DR. ALLEN L. JENNINGS: It's a possibility. There are pro-
blems such as, what's the maximum cutoff? We should not permit
spillage in any quantity into the lower Mississippi just because
it's big.
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MR. BOB GALLINGHOUSE (FLOOR MIKE); Well, in your calcul-
ation you're using a critical concentration as your determining
factor.
DR. ALLEN L. JENNINGS: Right, and we're assuming complete
mixing. Now, if your river gets larger and your spill is going
to be near one edge, you're not going to have complete mixing
throughout the entire water body. You're going to have acute
effects along one side, probably, and these are questions we
are still thinking about. We need input.
MR. BOB GALLINGHOUSE (FLOOR MIKE); One way to handle this
would be to take different size streams and put an adjustment
factor, say 0 to 100, 100 to 10 000 and greater than 100,000,
so that you don't actually get the whole flow of maybe two
million cfs. But it should be something to recognize that the
200,000 stream is a hell of a lot better than the 36 cfs.
Number two, why are you not extending the transportation sources
to this?
DR. ALLEN L. JENNINGS: We don't know where the truck or
rail car is going to fall off the track or the road. We don't
know which water body he is going to fall into. It could be
a very small stream, could be a very large river. This is where
we really need the model. We don't expect the truck driver to
go out and determine the flow rate of his water body after he
has the accident.
MR. BOB GALLINGHOUSE (FLOOR MIKE): My experience with truck
drivers is that they very seldom know how much has been spilled
until maybe the next day when you either check how much you have
in the truck by transferring it to another container or you go
weigh the truck. So I think what you're looking at is that you
report a spill, but it may not be a harmful quantity and that's
determined after you see how much has left the truck and into
what water body it went.
DR. C. HUGH THOMPSON: I would say you should always report.
See, the unfortunate thing there is that is not what the law
requires. You are supposed to report a harmful quantity. Now
there could exist what exists now. And that is a concerned cor-
porate citizenry who feel it is their duty to, with no regulation,
advise someone in a state or Federal capacity that a discharge
has occurred. That goes on now. That's what meager data we have
is a result of. So, here again, it seems to me that we're
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confronted with the situation of trying to respond to the pleas
of our regional office and Coast Guard and other people of having
a simple administerable regulation and on the other hand trying
to make it somewhat technically and scientifically defensible.
It would be an excellent exercise to develop probably a three
dimensional matrix which would have toxicity and flow and times
of discharge plotted on it, but I don't know whether or not
truck drivers and barge operators would appreciate that type
of a regulation. I rather doubt it.
MR. BOB GALLINGHQUSE (FLOOR MIKE): While I have the mike,
may I ask a second question that I've been trying to get answered
since San Francisco? As an operator of a shore facility, looking
at the table of harmful quantities, when do we determine that
we have discharged a harmful quantity? Over what period of time?
Compound A you mentioned is a thousand pounds. Most shore
facilities, in the case of ours we have impoundment where we
can collect the material and discharge it over any period of
time. When do we report that we have a spill?
DR. ALLEN L. JENNINGS: I would say that when it's a
quantity that's exceeding your permit.
MR. BOB GALLINGHOUSE (FLOOR MIKE): I think you're missing
it. Let's say I have a permit for one part per million which is
based on a 24-hour period day base loading from a plant and I
spilled 8,000 gallons of a chemical into an impound. We could put
that out over a period of three years. We never hit a harmful
quantity or critical concentration in the water, so why is it
called a spill? Unless you put that amount instantaneously into
the water?
DR. ALLEN L. JENNINGS: If you're bleeding it out at your
permit levelit doesn't sound like you have a spill, as long
as it doesn't get out of your containment pond. If your
storage tank tips and you lose that quantity into the river,
then you report.
DR. C. HUGH THOMPSON: I think I understand what your pro-
blem is and I don't think we can respond to it to your satisfaction
today. But let me suggest this. Based on some of the previous
comments of Monday, I believe, it became somewhat clearer to me
that the harmful quantity determination should be articulated in
terms of an actual numerical quantity discharge. Now, I suppose
that we could get into the time of this discharge, but that may
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be back-calculatable, say to six hours exposure time or some-
thing like this. Another argument can be made for loading on
a 24-hour basis. The difference in those two may be a fixed
facility vs a transportation source. At any rate, I'm not
particularly bothered. I think that we can come up with a
rationale defining a numerical quantity, much like what you
see here.
What does bother me is the point that some of the gentlemen
made in that there are unknown quantities which get away. This
is an environmental regulation. So when one harkens back to
the oil spill harmful quantity regulation, one must recognize
that that regulation is actually an after-the-fact determination
of a quantity which is harmful by observing the environmental
stress. I gave some thought to this quite a while back and I
tried to write a regulation which in essence paraphrased the? oil
sheen regulation. In trying to do that we don't have a nice
enforceable, practical handle like a sheen but we do have some
obvious damage-type parameters: fish kills, impairment of human
health, closing of a water supply, closing of a shellfishery,
definitive actions which must be taken by state and local
authorities as a result of some unknown material perhaps being
discharged. Now, what we will need is some input here on the
ramifications of having a two-part determination of harmful
quantity. One, clearly if you discharge 800 pounds of such
and such a chemical into a river, that is a harmful quantity.
You give notice. Second, if anyone discovers, including your-
self, that there is a fish kill or that the water supply has to
be closed down, that notice must be given there so that an
after-the-fact determination can be made of whether or not it
was in fact a harmful quantity. That puts us back into this
mumbo-jumbo of liability again. Again, it seems to me that we
need some guidelines for determining after-the-fact, you know,
was it in fact a harmful quantity. One option would be, for
instance, if we define the harmful quantity to be 800 pounds
of that material and you actually only discharge 400 pounds and
can prove it, but still a fish kill resulted, then it would
seem as though the Federal Government did it again. We just
obviously could not move against you on that to be fair. However,
I don't think that the public interest groups, or environment-
alists, or ourselves for that matter would feel as though we
are doing our job of protecting public health and welfare by
taking an ivory tower determination of a harmful quantity which
was 800 pounds when 400 pounds is really what wiped out the body
of water and just saying, "Oh well, that was a different number
than ours." So what I am really opening up to you is, looking
at the blue book here on harmful quantities, recognizing the
unknown quantity spilled, what appears to you to be an equitable
manner in which state and local authorities can take their action
and the Federal Government can satisfy its responsibility here of
protecting the public health and welfare against discharges and
harmful quantity?
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(FLOOR MIKE); Bob Noonan, Perm Central Railroad. I would
just like to expand a little further this harmful quantity aspect.
When we have a spill, we generally know we've spilled a harmful
quantity. When we dump a tank on a river, we know that we have
to report it. What I am concerned with is using just the criteria
of actually having had a spill as determining the harmful
quantity. We have many spills that occur within a reasonable
distance from the waterway. This material may never ever get
into the water. If it does, it won't go in as a point source,
it will go in at some finite time at some finite concentration.
We have actually had a spill where we dumped a tank of carbolic
acid. I checked the water 20 miles downstream and we never
found any. I checked the ground down to 30 feet, we never found
any. We think this car was shipped empty and billed as full.
This is rather an extreme, but the case does occur that we
spill materials where the ground is a tight clay and it doesn't
go anywhere. I think it would be rather unfair to say that when
we spill 10,000 gallons, a penalty is going to be based on a
10,000 gallon quantity, when possibly one or two gallons or
100 gallons actually reached the stream. I think we should
clarify exactly how much quantity. I don't think it should be
in terms of what is actually spilled, but what can be determined
as actually having entered the waterway, using the best practical
means available at the time.
DR. C. HUGH THOMPSON; A couple of things come to mind
there. One is that it has been our intention that these regu-
lations apply to harmful quantities discharged into our ponds
and navigable waters, shorelines, adjoining beaches and those
words that are in the law. There is some practical limit. It
would be most interesting to hear from Dr. Westgarth, Russ
Diefenbach, George Moein, and anybody else who has been out in
the field recently as far as the impacts of constraining this
reporting and this action. We have had some rather interesting
cases of discharges a long way from a waterbody which eventually
end up causing quite a problem. Do any of you feel motivated to
comment on that? Russ, Warren?
MR. RUSSELL DIEFENBACH: I brought up Monday that this
would be a terrible investigative problem; it's going to take
manpower. First of all, if you have quantity X spilled but
X - Y is only what gets into the stream, it looks to me like
the regulation is going to have to be if you see biological
damage in that stream, if you detect it, then there will have
to be some action taken because you know you have a harmful
quantity there when you see that you have either killed fish
or you have destroyed marine biota. This is evidence. This is
proof that you have a harmful quantity there although the
actual quantity is an unknown factor.
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MR. WARREN WESTGARTH: It has been ray experience that anytime
you have a spill that is not directly associated with water, a
certain portion does get into the water, of course. As pointed
out by Russ, we do have this problem under control in most cases
because we do see the effects directly in either the biological
or chemical site. It's not going to be easy to pinpoint how much
of that spill should be put under a penalty situation. The spill
itself might be large and yet a very small amount is water-
oriented. We can nearly always clean up the portion that is
not water-oriented. There is no problem with it at all. So
it will have to be looked at very closely and have to be applied
in that direction.
(FLOOR MIKE): Dick Hall, Diamond Shamrock. We have had a
couple of cases where I got called at 2:30 in the morning, when
an operator unloading a barge with 50 percent caustic all of a
sudden found an overflow line filling full. Now, we didn't
know how much we had lost. He started filling the barge at
7 o'clock in the evening and it would be about 10 o'clock the
next day before he would have the barge full so that he could
determine how much would actually be lost. In that case, we
didn't wait to determine whether or not we had lost a harmful
quantity, we went ahead and notified the Coast Guard, the EPA,
and the state agency and got them out there. We had no
evidence of a fish kill anyplace, all we could see in the
receiving stream was some fluctuation in the calcium and
magnesium carbonates. When we finally did get the figure in
the morning, we determined that less than 1,000 gallons had
actually gotten away. In this case the harmful quantity was
something like 5,000 to 10,000 gallons. 1 don't think that
we would hesitate in calling the: Coast Guard in this type of
situation, but you do put a problem on people in that they
don't know whether or not a harmful quantity did get away and
so they don't want to take the risk of being in violation, but
yet if they do notify and a harmful quantity did not get away,
they are still subject to penalty.
DR. C. HUGH THOMPSON: That cannot be separated from all
of the intricacies of the cleanup liability, mitigation liability,
or nonremovability penalty which all can be sat down and dis-
cussed in a carpeted room in a nicely comfortable well-lit
office at a later date. Now, if we can agree on a responsible,
environmentally protective and economically effective mode of
operation, then all we are talking about is articulating into
these regulations language which accomplishes that. I appre-
ciate, and I know that you are aware, that these regulations,
being administrative regulations, do not give you the solace,
the protection, the satisfaction, that a statutory directive
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would. However, if we might think about it this way -- as we
develop these regulations over the next couple of months --
the language that is prepared administratively to accomplish
this end that we are talking about now may well be observed
by the Congressional committees as being appropriate language
to adopt in some frame statutorily.
(FLOOR MIKE): Lynn Johnson, Rohm and Haas. There seems
to be some misunderstanding here. I agree with you that when
a spill is made it ought to be reported and an opportunity
given to cleanup, but we were given to understand Monday that
any spill of any size, even a spill less than a harmful quantity,
would result in a fine. If this is the case, when I spill a
small amount in less than a harmful quantity, I am going to be
very reluctant to report it because I get my name in the paper.
DR. C. HUGH THOMPSON: The law does provide that. What
we are trying to do is be honest with you and make sure that
you understand that the nonremovability penalty structure does
operate. It's a separate branch from the parent section, the
old Section 311 "Oil Removability" type language, which had
hazardous material stuck into it. That cleanup, liability,
mitigation contingency section all stayed the same. What's
different is this nonremovability thing. That is tied
strictly to the designation. It doesn't have anything to do
with the harmful quantity. However, here again is where we
need feedback from you all. How definitive does that have to
be? I think it is reasonable to assume that if EPA is confident
in the derivation of its harmful quantities, that the trigger
will normally be the harmful quantity. In those cases where
less than a harmful quantity is discharged, it would be a third
party observer that would notice this and the Environmental
Protection Agency would take that into consideration when it
was called to their attention. Do you understand what I am
saying there?
MR. LYNN JOHNSON (FLOOR MIKE); What I understand is that
my name is in the paper and I have a fine even though I spilled
only three pounds.
DR. C. HUGH THOMPSON: You get a fine from whom?
MR. LYNN JOHNSON (FLOOR MIKE): From the EPA.
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DR. C. HUGH THOMPSON: Not if the EPA is convinced that
it has identified a harmful quantity which protects public
health and welfare.
MR. LYNN JOHNSON (FLOOR MIKE): Will there be something
in the regulation which says the fine only applies when a
harmful quantity has been spilled?
DR. C. HUGH THOMPSON: What I am trying to throw to you
is, how definitive must it be? You put the administrator in
a most difficult position to, I believe the word is obviate, a
section of the law. The real problem here is under Section
513 or 509, I guess, the citizen suit right of appeal could
be taken. Where you spill it, we don't do anything about it,
you didn't report it, the individual sees this, goes up and
asks you why didn't you report it and you say, "Hell, it
wasn't a harmful quantity." He says, "Why didn't you clean
it up?" And you say, "Well, it's nonremovable." "Ah ha, you
discharged an unremovable material and you just sat the:re on
your thumbs and didn't do anything about it? I am going to
sue you." And he can do it. Now, unfortunately, not being
a lawyer, I can't really patch all this together and say this
is it; and furthermore, since I'm not running the agency, I
can't say this is going to be the agency policy. But what I
can suggest is the agency is aware of this problem. We do not
look with anxious opportunity at the event of shutting off an
option to motivate people to not spill, even in small quantities,
or to not take any action on those small quantities. On the
same hand, if it were presented factually to the administrator
that this is such a thing that gets stuck in your craw, that
you are going to go down screaming before any of these regulations
ever get out, I would think that we should try to address this in
a way which is environmentally protective; and I would say then,
that is a case-by-case assessment, that if, in fact, you discharged
less than a harmful quantity and EPA's harmful quantity deter-
mination holds true, that perhaps the EPA would want to inter-
vene in any lawsuit to suggest that that is not what we are
looking at under implementation of Section 311 — that we are
looking at major spills, the catastrophic spills and on a
priority basis that's what we are addressing now.
Tell you what, I was thinking that we should run this thing
as fast and as furious as we can until we can't stand up any
longer. The coffee is available, doughnuts are available, I
think rather than taking a formal break, what I would like to
do is just keep on running. I know several of you do have
planes. I was hoping that maybe we could get the lion's
share of feedback and forth done back by 1 o'clock so we
wouldn't break for lunch so that we could get most of this
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accomplished. Is that met with any strong objections? So why
don't you just feel free as the notion strikes to get up and
have a cup of coffee and those who want to ask questions, we'll
continue on.
GEORGE HANKS (FLOOR MIKE); May I ask a question? The
gentleman over there raised a point that I would like to make
a comment on and ask a question. This was the application of,
I forget what the term is, adjustment factor or something
like that, to take into account the conditions of the site
where the spill occurs. Is there any reason why, for purposes
of reporting, you cannot use the harmful quantity as the decision-
making mechanism by which you make your report? But, take into
account the conditions at the site, the flow of the stream and
such other things as you would consider in determining whether
or not the penalty mechanism becomes active and the degree of
the penalty. I don't see why you can't separate -
DR. C. HUGH THOMPSON: I don't see any reason why we can't
do that, really. Let's come back to basics. Let's come back
to what's being done now. I'm not sure that George Brown is
prepared to talk on something like this, but perhaps he could
share with us the civil penalty administration which the Coast
Guard uses now for the oil spills. What are some of the factors
they take into account? How well has that been spelled out in
guidelines or orders of the commandant or something like that?
George, is that putting you in a difficult position? Can you
comment anything on that?
LCDR. GEORGE BROWN: Yes, no and yes.
DR. C. HUGH THOMPSON: Thank you.
LCDR. GEORGE BROWN: I was just on my way to...I had to
get a cup of coffee...I had to get up anyway. There are three
things that I mentioned Monday that are provided for in the
statute with respect to the civil penalty: size of the business,
ability of the business to remain in business (some language
like that) and the gravity of the offense. There has been a
significant amount of anguish and gnashing of teeth within our
agency as to exactly how to administer penalties. The basic
understanding that I have, and I must caution you that enforce-
ment is not my specialty; response is, not enforcement, but I
do get on the outer fringes. My understanding is we start at
the $5,000 penalty and work down. This is not to say that's
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exactly what's happening in all cases, because I think all of
you can tell me stories where penalties of $50, $150, etc.,
have been assessed and in fact paid. Some perhaps compromised
to that level. But, basically that's where we are at. There
is, within the Coast Guard, guidance being prepared by the
commandant's staff to go out to district commanders and the
hearing officers on just how we can develop penalties and pro-
cedures to use and some other things to be considered as gravity
of the offense. One position we have taken which runs counter
to that being discussed here in the penalty provisions for non-
removability is that actions taken subsequent to the discharge,
i.e., response actions, are not considered as part of mitigation
or as part of gravity of the offense. These are not considered
in assessing the penalty. The penalty is for the discharge.
DR. C. HUGH THOMPSON: I think that's a good point to keep
in mind. And keep in mind also that even though the Coast
Guard and EPA work pretty doggone well together and closely
together, the general counsels of both agencies may well inter-
pret the law from different bases. So there may be some incon-
sistencies there and there also may be some inconsistencies
between regions and districts. However, these regulations, I
think, George, if we can push ourselves to commit as far as
possible, we might be able to overcome a lot of that. George,
did you have something else?
LCDR. GEORGE BROWN: I might add on that one part, the
removal part, it's perfectly clear that there can be differences
in the way the penalties are assessed. I think the rationale
here in the nonremovability penalty is including removal actions
and removal costs as mitigating the size of the penalty, the
rationale being that it's a stimulant to have removal actions
taken. It's not a bad one. It sounds reasonable. That's a
personal opinion rendered. It doesn't have the same applicability
to the $5,000 penalty.
(FLOOR MIKE): John McKay from the Tennessee Valley Authority,
I'd like to point out, in response to your comment about the
meaning of Section 311(b) and its penalties for less than harmful
amounts discharged, Section 311 is actually rather ambiguous as
to whether or not a penalty has to be imposed. The determination
of harmful amounts in Section 311 (b) (4) may refer back to the
nonremovable determination in the 311 (b) (2). Mr. Johnson, I
think it was, indicated on Monday that general counsel had, at
least tentatively, determined that fines could be imposed, was
reading the act so that they could be imposed. I would like to
point out that...
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DR. C. HUGH THOMPSON; Excuse me, I don't want to leave
that like that. Could you articulate that a little more care-
fully what you're trying to say there. You're making the point
of cross-relationship between the nonremovability penalty and
the harmful quantity?
MR. JOHN McKAY (FLOOR MIKE); Yes, he said that the
general counsel, I guess, had interpreted the law to say that
when a less than harmful quantity of a nonremovable hazardous
substance was spilled that the nonremovable penalty would
apply.
DR. C. HUGH THOMPSON: He was saying that the law does allow
that, he was not saying that it is the intent of the program,
regions, or regional enforcement activities to actually imple-
ment that.
MR. JOHN McKAY (FLOOR MIKE): Well, the point that I'm
making is that Section 311(b) can be interpreted to not authorize
the imposition of penalties in such cases.
DR. C. HUGH THOMPSON: I think you should write that in and
back that up.
MR. JOHN McKAY (FLOOR MIKE): Ok, fine. I will do that.
For purposes of this meeting, I would like to point out that
not only do the interpretations suggested on Monday provide a
dis-incentive for reporting those spills in that amount, it is
also taking the opposite interpretation: to not produce that
dis-incentive will have favorable effects of providing some
economic relief. We have been searching in these meetings for
ways we can reasonably deal with regulations to provide
relief in cases where it makes the most sense. Another point
is, it would aid the field staff in setting their priorities.
We've been talking about the tremendous number of reports that
are going to flood in once these regulations are created if
they don't have to worry about people making small spills and
not reporting them. If people are reporting them routinely
and they are not the ones where penalties are going to be
assessed, then their job should be made much easier. Finally,
I have a problem, under the interpretation of the law set
up on Monday, where in the events notice you say that dis-
charges in accordance with NPDES permits are not going to be
forbidden by these regulations. If the law is interpreted
to make less than harmful discharges of nonremovable
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substances, to make them subject to these penalties, we're con-
cerned that EPA may not be authorized to exempt such discharges
in compliance with NPDES permits from the ban of 311(b) and that
also, of course, will be subject to challenge. We realize that,
to be reasonable, 311(b) shouldn't be interpreted to reach that
type of discharge, but under the interpretation put forth on
Monday, EPA men ought to be authorized to make such an exemption.
That, of course, is even more serious concern.
DR. C. HUGH THOMPSON: All I can say is, that was the
Office of Enforcement and General Council speaking. That
certainly does bear some heavy weight in the agency. I would
hope that as these regulations are promulgated, that we would
be able to suggest the implications of that interpretation and
the difficulties that that interpretation would provide. I
would submit further that written evidence opinions from
legal minds throughout the country were to arrive at our doors
that I'm sure that General Council would be most appreciative
and would want to consider this. I think that in further
reference I was somewhat surprised by what was said Monday.
I think that the value of that to you should be to indicate
that EPA is a very dynamic organization and that that's the
real world. That a man is asked for his opinion in his
capacity and he doesn't cop out, he tries to give it, as best
he can at that point in time. And if that opinion appears
to be inconsistent with another opinion provided, I don't
think that should be held against the agency or against that
man, but should be done as you're doing and I hope you'll
follow up. It should be questioned and resolved.
MR. JOHN McKAY (FLOOR MIKE): Certainly, and I've been
very impressed with your openness and your willingness to deal
with the issues as they come up. I see this meeting as in part
designed to bring out the actual implications of, among other
things, legal opinions that have been issued and I appreciate
that — there will probably be a discussion within your agency
too as you put together different interpretations and the
impacts they will have. Thank you.
DR. ALLEN L. JENNINGS: While we're talking about penalties,
we've sort of concentrated the last two days on this penalty
option (bb), the rate of penalty, that ranges up to 5 million or
half a million; keep in mind and give us a thought that there's
another penalty option always available to the administrator
and that's (aa) in that paragraph which says 500 to 5,000
dollars per spill event. As far as we can tell, it is an
option always open to the administrator and hence his enforcement
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people in establishing this bill penalty. We're not sure what
to do with it yet or how it's gonna work, give that some thought,
(FLOOR MIKE): I'm Charles Spann of Sun Oil Company. I
just want to make one brief observation that is going to be
faced by a lot of the various company attorneys when they start
looking at the actual implication of 311. This has
to do primarily with your stationary sources. Now it was stated
earlier that where you have a valid NPDES permit under 402 and
you have specified parameters in that permit, that a discharge
within the terms of the permit but exceeding 311 limitations
you indicated would not be a violation. However, if that para-
meter was not in the permit it would be a violation of 311. Now
this means because right now to the best of my knowledge the
insurance industry will not insure against water pollution, for
anyone to be protected, they would have to have everyone of
these 400 parameters in their NPDES permit to effectively get
any protection. Now you're aware that in the guideline pro-
mulgation, many industries or categories of industries, I might
say, had a longer list of controlled pollutants than were
finally controlled by the final guidelines. The EPA recognized
that there were certain parameters or pollutants in these waste
streams and they decided not to control them through the NPDES
permit. But this means that the discharger must look at these
in light of 311 because he is now exposed to a half million
dollars. In addition to that, you have a very real problem
which I would say that for industry and the agency will be best
resolved if we get a very expedient definition of what will be
a discharge. I know that virtually any soil that you have is
going to contain one way or another some of these parameters or
pollutants. If I have this pollutant going out after it goes
through a treatment system, eventually I'm going to get up to
your poundage level. In other words, if you take a year's
span, yes, you know, any plant in the country will probably
violate every one of the 400. Uhh, or perhaps, not that
much, but in all seriousness, you're going to have a very real
problem. You've got to get down to a definite manageable period
of time.
DR. ALLEN L. JENNINGS: You had something to say too? You
know, the language we adopt in this advanced notice you mentioned
yourself that you've identified more parameters than you were
permitted. Now our language specifically says that you're dis-
charging substances in an application for NPDES permit which
has been issued. That if you've identified those in your
application and the permit is issued, then we're excluding you.
Now, the second point of clearly defining what we mean by a
discharge for this set of regulations, we thought about that.
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We considered giving you two standard deviations from a mean
24 hour operation for 30 days, but what does that really mean?
You know, we're not sure. We've put all kinds of monitoring-
reporting requirements on you and to monitor everyone of these
materials. I don't know how to do it. Monitoring beyond, uhh,
the monitoring requirements, the cost could almost exceed the
cost of facility in some instance, if you want to get to...
right. But now, but really...
DR. C. HUGH THOMPSON: This is the type of input that uhh
I mean you're bordering on a philosophy here that the answer to
your question, I think, you have the information. You and your
colleagues have the information to provide this. Every chemical
facility I've ever been in to, you're walking down the street,
pipe galleries overhead, and there's alarms going off all over
the damn place. Now those alarms were put in for reasons and
they are telling people different things. And I submit that
every now and then one of those bells goes off for a spill.
And I submit that there ought to be a way in which for several
different kinds of facilities for instance, that we ought to
be able to describe the reationship to when that bell goes off
and when something could come out of the pipe as a burp. That's
what we're looking for. We're not looking to write an effluent
guideline under Section 311. We're looking to actually, when
you discharge something that you haven't been permitted to
discharge, you're in violation of the permit anyway. And we're
just simply trying to integrate the 311 and the 402 type of
activity.
MR. CHARLES SPANN (FLOOR MIKE): Well, in a practical world,
I realize what you're talking about does have some validity for
wanting to get a reporting situation, in other words, information
to the agency. But when you're talking about your application,
you're ignoring that many facilities are covered by short form
D. In alot of cases, you do not actually go back to identify
every possible pollutant "that is in the effluent." Now this
is one thing we went over in the 307 that for many areas of the
country where you had a plant, had a discharge, there are certain
pollutants that you reasonably know are going to be in your
plant, depending upon, you know, how low you go; you're going to
keep finding geometrical progressions of more pollutants the
lower you go down in the control limitation. What I am saying
is that we're determining the time span or have you had this
poundage discharge, you must define the discrete period of time.
If you don't, then we're going down into the parts per billion
range, as you realize as time goes over the longer period of
time. In that regard, you could have a plant that no one would
reasonably say that they had, say, acetic acid coming out. But
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that in effect, if you go over, you know, months, years of
time, you would have acetic acid because as your time stretches
out, your concentration goes down, as far as...
DR. C. HUGH THOMPSON: I don't think that's a problem
we'reTnterested in, and I think you know that. I think you
you know that what we're interested in is the spike coming
out of the effluent. Now what we need to do is get on down
to grips with it. How do we define that?
MR. CHARLES SPANN (FLOOR MIKE): Right.
DR. C. HUGH THOMPSON; All right, now we have suggested in
some papers to use two and five standard deviations. I recognize
the problem of the imposition — you're finally identifying what
in the hell is in your effluent, but if the 311 serves no other
purpose, perhaps that's a desirable purpose, I don't know. If
you will provide comment, for instance, that that's completely
infeasible, no way, there aren;t even analytical techniques
available to measure some of the materials in aqueous systems,
that should be known also.
MR. CHARLES SPANN (FLOOR MIKE); We can't get that deter-
mination until the agency comes out with the discrete period. I
think, what I'm saying is, if you come to that and...
DR. C. HUGH THOMPSON: But we're very discrete when we
say, you know, 800 pounds, 1.97 pounds, now that's getting
pretty discrete. You want to have that per day, fine, we'll
put per day. Now, does that give you something to shoot for?
All right, you have that to shoot for, then what are you going
to do with it, besides object?
MR. CHARLES SPANN (FLOOR MIKE): Then you have a 24 hour
period. You have a much more — then you can go back and you
can tell your people how you're going to go back — are you going
to have this material coming out, in this 24 hour period? That
would be a very big help, ok?
DR. C. HUGH THOMPSON: Now, rather than me glibly saying 24
hours, I think that what would be extremely rational is for us to
observe whether for a steel, paper mill, chemical industry,
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petrol chemical plants, is there any sort of a norm? Is there
anything that because of, for instance, fire requirements, when
you flush a plant, to get it out to hell, under the reactors and
get it on out into a shop pond or something, is there any rule
of flow times from the place where the spill most -properly would
occur to the point that it might hit the river? So that
instead of picking a number like for 24 hours, which has some
reasonable basis relative to the permit, that we would be able
to keep this more oriented to the spill problem and that type
of technical data. I think it would be most useful for us to
arrive at a rationable, equitable solution to your problem,
rather than thinking a number.
MR. CHARLES SPANN (FLOOR MIKE): Ok, but I think we'll try
to do the best we can and at the same time the agency can
come back and try to give us as much of the parameters in which
we'll be operating. Briefly, the other two problems you might
have in that situation is you're immediately reporting, you
realize that everybody has their own discretion and that some-
times we have found that various enforcement officers interpret,
you know, immediate enforcement to be virtually instantaneous.
If you don't identify or notify the agency within say a five
minute period, one minute period, they're talking criminal
fines. If — I would like to know, if the material hits the
ground, say 200-300 yards from the water bank, does the water,
I mean, does the reporting time start there? Does it start when
it hits the water and then determining the amount of spill,
how are we gonna determine it? Is a burden approved on the
discharger? Must he if he spills 3,000 gallons on the land and
he's actually able to recover 500, is it assumed that 2,500 goes
into the water? Can you take into account like if you had
benzene, the natural evaporation, cause you are gonna have some
evaporation, are you gonna take into consideration that which
seeped into the land? It causes a myriad of problems in deter-
mining the amount and what I'm saying is one of the greatest
problems that I face is different interpretations by different
regions to where there is such a wide latitude of effects that
could be caused by an individual's interpretation. It actually
can make the same regulation may be 100-fold more stringent
in one area than in another area. The more discrete we can get
and the more defined we can get to how it is to work with good
guidelines, the easier that we'll be able to work with you and
I think you'll be able to work with us.
DR. C. HUGH THOMPSON: I'm not sure that's true, because
the more specific and detailed that we become, the more com-
plicated the regulation becomes and the more difficult that is
then for the regional man or the district Coast Guard office
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there or the state agency involved, to evaluate the situation
and tailor the action to the damage incurred in that specific
location. I think...if you will please separate or provide
to me reasons why they cannot be separated the emergency action
phases of 311, that is, notification, separate that from the
determinations of the liability and the other things and help
us understand why it is not in the best interest of public
health and welfare for facilities to give notice upon a dis-
charge of almost anything and almost any quantity, such that
after the fact determinations could be made and whether it
was in fact a harmful quantity which was discharged into and
upon the navigable waters of the United States including shore
lines, beaches, etc. I mean, it's not gonna happen. For us
to write a regulation like that, that has this all spelled out,
unless we here in the next couple of hours come to grips with
some very enlightened wording, we cannot have the regulations
simple, straightforward, easily administratible, and still be
able to satisfy what you're talking about. So can you not
think about it and some phase approaches?
MR. CHARLES SPANN (FLOOR MIKE): Ok, be glad to, but when
you're talking about it in that parameter, if it was not for
the fact that you find so many times a couple always, excuse
me, with your reporting requirements, it would be much easier.
You have a situation where it is one thing to say, this report,
every spill, every discharge, but to have a myriad of admin-
istrative problems as far as reports and an automatic fine
each time it occurs, it is well the human element however you
face it, says that...
DR. C. HUGH THOMPSON: Excuse me, I have to interrupt there,
because what you just said was an automatic fine. I don't think
anyone has said specifically there will be an automatic fine. I
think what we've said is that it's been our interpretation of law
that these fines are available and the law says things like "upon
having discharged a harmful quantity, up to $5000 would be
administered." George Brown just explained to you some ofme of
the difficulties that go into making that determination. I
know that some of those fines are rather insignificant fines,
when they finally get down to them.
MR. CHARLES SPAMN (FLOOR MIKE): Then, according to your
reading of the act, the administrator either in (aa) or
(bb) does have discretion to completely abate a fine?
DR. C. HUGH THOMPSON: No, I would say it's down to the minimum
of $100 or $500.
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MR. CHARLES SPANN (FLOOR MIKE): In other words, you have
to use~the $100 minimum?
DR. C. HUGH THOMPSON: Obviously, that's a pretty technically
legal point, and I can only give you my opinion. My opinion would
go something like this. From a problematic standpoint, that if
the regulation could be designed whereby the nonremovability
penalty could be forgiven in total by demonstrations of exemplary
prevention by immediate response above and beyond what's required
to protect public health and welfare, that it would seem to me
that this would be a desirable goal, that we should strive for
this. On the other hand, it is difficult for me to conceive that
a fine in the range of $100 to $500 is such a devastating penalty
that the administrator would have to get into this difficulty of
compromise to get this program running. I think you can only
push so far and I think when you're pushing down into that
range, I think you're gonna hear the squeals of the wheels start.
MR. CHARLES SPANN (FLOOR MIKE): Well, we hear squeals at
times even though I've realized that amount of penalty will not
break a company or anything like that. But when you talk to a
plant manager that says, "After all the efforts we've done in
cleaning it up, the fine I'm paying is more than the fellow got
in the criminal court when he was repremanded for the fine," it
does get a little bit hard to explain to the individual. But I
understand...
DR. C. HUGH THOMPSON: Well, I think we ought to try to
regulatorily work our way around that. I think several of you
made that point repeatedly. I share your enthusiasm that it
does not quite seem fair for a guy to work all night in the mud
and everything like that and still get beat about the head and
shoulders. But that is the law and only through an interpre-
tation and full utilization of the administrator's discretion
can there be any attempt to see to it that the public health
and welfare is protected to the fullest extent as exemplified in
the law. And if you have some suggestions along the lines of
specific guidelines that the administrator should use in
evaluating the effectiveness of mitigating action, I think it
would be most appropriate for you to provide those to us
immediately.
MR. CHARLES SPANN (FLOOR MIKE): I would say that, separate
the reporting from the fine completely. The public relations
alone, you know, are pretty tough.
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DR. C. HUGH THOMPSON; Statutorily, I don't know that we
can do that.Operationally, I think that's what I've said about
ten times. And all that matters is that you separate it in your
mind. Tell your management to separate it, and let us get on
with the business of developing the regulations so that you
won't get bankrupt for having done that.
MR. CHARLES SPANN (FLOOR MIKE): I'm going to yield to the
gentleman over here.
(FLOOR MIKE): Mark Hooper with Robertson. A couple of
comments but they all lead to the same point. First, in response
to the gentleman from American Cyanamid. Number one, our truck
drivers are not going to be the guide to determine what the
harmful quantity is, whether or not it's been exceeded or not
exceeded or whether or not to report the spill. I'm going to
be the guide and they'll report it to me. Now, there are going
to be times when it's going to be difficult to determine that
immediately and we would like to establish the policy within
our company to report them all.
Now this generates a couple of concerns. I am concerned
with the Coast Guard's action in this. We've had a number of
dealings in Robertson with the Coast Guard due to our marine
terminals. Each time we have reported a spill, it generates a
fine. These fines have been applied extremely arbitrarily. From
a number of standpoints, there is no fixed guideline. The guide-
lines that were read by Major Brown, I believe it was, leave it
wide — open to the arbitrariness of the individual interpreting
this. There's also nothing in there as far as mitigation of the
damages in order to mitigate the point. Now, this is not the
primary concern; we're also concerned with establishing a policy
as a carrier for reporting a spill that occurs in a loading or
unloading terminal when we don't know if it got in the waterway,
cause we don't know what their drain system is like. And we're
concerned that if we report and they don't, and this has happened,
(and it kind of puts us in a bad, very bad position, especially if
they happen to be a very good customer).
I think we're also concerned with something that Jack Garrett
brought up. We'd be concerned if every one of the products that
we handle were on that list; every one of the products, just about,
that we handle from Monsanto :Ls on that list. But I think the
true concern is what are the bucks boing to be? What's the final
dollars going to be? We're concerned with all the le al aid jargon,
We're concerned about how it's going to be applied and when it
finally gets down to the nitty gritty, it's "What's the economic
impact?" And I think a lot of people in this room need to sit
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down with the numbers and with their company's numbers and figure
that. I've heard a lot of people say, "We're going to be zapped,
we're going to be devastated." I've said this. But how many
of the people really know? How many of you have really sat down
with the new numbers and made a determination of what the economic
impact is going to be? You need to do this, not only for your
own company standpoint, but you need to provide this kind of
information to the EPA so they can make this determination.
Cause I feel that if it can be proved that it's going to have
a devastating impact, then they'll take this into consideration.
Now yesterday I brought up in a speech that some fines would be
potentially devastating to Robertson. Those particular fines
that were brought up would mean Robertson would go out of
business or have to stop hauling materials or have to raise the
rates, maybe double-fold type of thing. But I want to re-
emphasize, those numbers were generated from fine levels that
were given in San Francisco, not the numbers in this blue book.
How many of you have actually looked at the numbers in the blue
book? Ok, I'd say all of you should look at the numbers because
in going back over some of the things that we handle, some of
them have been reduced by as much as divisors of a hundred. Now
some of them are still quite high -- products like naphthalene.
But other products like formaldehyde, acrylonitrile have been
reduced quire substantially. You almost have to do it on a
product-by-product basis. What is the impact going to be?
I, in turn, submit that the main point I wanted to make
yesterday still holds. What is the cost benefit trade-off on that
fine level? If we turn around and say that ok, phenol is good,
formaldehyde is good, we can live with it, the benefits can be
obtained without devastation in the transportation sector and
the major factoring sector, but then you turn around and fine a
product like naphthalene. Ok, with the kind of fines indicated
yesterday, unless people like Monsanto can give us 100 percent
increase in rates or better possibly, there's a good change that
the decision would be made by management on whether or not to
haul it. And if that decision is made, then what's the alter-
native? I mean, we've faced this battle before with phosphates
and the detergents and with items like this. What are the:
alternatives if we remove some of these items from the market-
place? But I think the key here is to go back, take the numbers
in the bluebook, and determine really what the economic impact
is going to be before we show that much concern over a lot of
the other things, because it's the bottom line that counts.
(FLOOR MIKE): W. Stanick with Southern Railway. I was out
at San Francisco and I came in late to this particular meeting and
out there everybody was knocking everybody in the head and I see
the same thing going on here. The only thing I've ever seen happen
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in an advisary proceeding was somebody went to jail, no fault was
resolved. I wonder if it's possible within the regulatory pro-
cedure and maybe under the law, or maybe with a modification of
the law, to approach this thing in two phases in such a way that
we can identify the problem, so that we in industry and you at
EPA can be talking the same language. I've heard you talking
Spanish, we're talking English, and nobody understands what the
other one is saying. I think the place to start, and I think you
did it with the excellent guideline thing, you started out and you
got a reporting system started. I don't know how successful it
was. I suspect you probably had to push and you had to go and
start implementing penalties before you were really in a position
to do it. But in this particular situation, you keep asking for
information and I don't know of anybody that's got information
from anybody by beating them over the head unless they had a
tape recorder in the corner. So I suggest this, why not phase
this in two phases? The initial phase would be essentially the
reporting of all spills, a reporting of all spills. This means
some paper work, true. But after we have established a base line
under the spill reporting system then we're in a position to sit
down and talk across the table like reasonable men to do what we
want to do which is to protect the public and the environment.
We in industry don't want to kill somebody, we never have. You
in EPA want to protect the public as well, but hell, we haven't
even identified the problem and everybody is trying to solve it!
Seems to me the way we solve this thing is first we identify
the problem and how do we identify the problem? We get information,
And I propose to you that if we continue in an adversary basis,
you're never going to have the information, we're never going to
have the information. We're going to get bad regulations and the
net result is, I as a consumer am going to get screwed. I'm going
to pick up the tab. I wish there were a way around it, maybe
you're locked in, but I hope to hell we got a way out of this.
DR. C. HUGH THOMPSON: Well, let me suggest to you a couple
of things. One is, if you think this is an adversary relation-
ship, you should see Section 307. This is fun, now I'm kind of
enjoying this. I think I'm learning something. I think that
we're going to make it. I don't consider this an adversary
relationship. I do however feel that it's my duty to continually
remind a sizable proponderence of an industry-oriented audience
that there is a sizable population in this country that we are
trying to represent and protect their health and welfare. And
whereas no matter how reasonable I'm trying to be, there's a
line that we have to draw, that we just can't go back any
further. I think that your comments, as valid as they are, and
as much as I appreciate them and identify with them, are about
four years late. If this had been taking place in the summer of
maybe 1970, and had the agency had a designation under Section
12, which there were no sanctions available, we would have a
data base now. And we didn't do that, we don't have it and I
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think that the agency finds itself in a most difficult position.
To promulgate under this law which requires a designation finally,
so you know what in the hell the list of materials are and define
the harmful quantity, so that you know when to report, and then
the rest of the; law says in 180 days you're going to come out
with this rate of penalty regulation. Now there is one other
option. And we've toyed with this and I'll just throw it out
as a consideration. Under the provisions of Section 308, I
think, I don't have my statute with me, but it says something
to the effect that the administrator can require from anybody
he wants, to be able to set any effluent standards as required
by several different sections of law. I believe Section 311 is
one of those that's mentioned there. Therefore, in my engineering
interpretation of the law, it would appear that the vehicle would
be available to do what you suggest. The unfortunate thing of
it is, four years that have gone by and Congress has most
patiently waited for EPA to make up its mind to get this pro-
gram running. And for us to say, "Well, at this point in time
we can't even identify the first hazardous material," -- you're
asking a hell of a lot of the Administrator of the United
States Environmental Protection Agency to stand up to Congress
and do that. Especially in light of the evidence that we have
and you as a citizen have under the Freedom of Information Act.
I sympathize with your request. I've suggested to you a way it
could be done. I'm just one individual in the organization and
it would take a bit of a movement to make that feasible, I would
submit.
MR. W. STANICK (FLOOR MIKE): Would there be a way to phase
in the penalty aspect of it? Even though you designate...
DR. C. HUGH THOMPSON: Upon final promulgation of the
designation, the law is clear. 180 days later, you publish
that regulation on the rates of penalty.
(FLOOR MIKE): Bill Ward, GM. I think we've been skirting
the central issue here these past three days. I think we've
all got a gut feeling of what a hazardous material is and I
think Hugh's done a pretty good job of defining hazardous
material because nobody's come up with any suggestions for
deletion of any of these materials. I think we all have a gut
feeling of what a spill is, so let's define it. Let's come up
with a definition of what constitutes a spill, and let's
divorce it from the NPDES permits. Let's not talk about spills
in relation to half a part per million over what you're allowed
in a discharge permit from a stationary source. The definition
of a spill should encompass catastrophic, harmful quantities,
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harmful materials, this type of thing; but it's got to be a
separate definition. It can't be related to this discharge
permit. We've got some time between this meeting and the
final promulgation of the rule. I think what Hugh wants is
some data base. Between now and say next May, if we can report
all spills, report everything, what the hell. Report the five
gallons. So that Hugh can get a feel for what the magnitude of
the problem is. There are no criminal penalties, there are no
penalties involved in it at the moment. So why not report?
(FLOOR MIKE): Howard Brown, MCA. I believe we really don't
have a problem with you if the language that is present in the
prenotification publication holds up. If this interpretation
and intent that is expressed in the August 22 publication holds
up in promulgation. Discharges under 402 permits are clearly
excluded from the 311 Section. I think that the record of this
hearing needs to reemphasize that. Some of the expressions I
have heard from others on the floor here would be contrary to
the expression that is in the August 22 publication. In our
MCA statement, we indicated that we are in agreement with that
exclusion and we would like to reemphasize that now. As far as
penalty provision goes, we have been using liability and penalty
interchageably in this discussion today, and I think that is a
mistake. A penalty is not insurable. And liability is over
in another section entirely. It would appear to me that the
administrator, in his discretionary use of either the (aa) or
the (bb) section, can give us a lot of relief under the law.
I think that this should very definitely be stated in the regu-
lation when it is promulgated. We need to know what is the
administrator's intent, to use either the (aa) or the (bb)
Section, and in this way people will know whether or not they
are insurable.
DR. C. HUGH THOMPSON: Our only tie-in with the permit
system is that we are trying to exclude them, and if you look
at 311 carefully, the word "spill" doesn't appear, the word
"discharge" appears. If you look back in the act "discharge"
is defined to include any act of putting anything in the water,
which could include continuous effluent. Just for my information,
I did look down through the list of registrants. There is no
one here representing an environmental group, as such, is there?
(FLOOR MIKE): I'm a member of the Audubon Society.
DR. C. HUGH THOMPSON: Let the records show we have the
Audubon Society represented.
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(FLOOR MIKE); Hugh, Chuck Priesing, American Cyanamid
Company. There are a couple of things which I think are rather
basic to this act and this section of the act that I want to
bring out, hopefully, from a constructive point of view. Number
one, when we are tackling the problem of designation, it would
seem to me that we have enough expertise represented in this
attendance that hazardous materials could be broken down into
a number of categories relating to various grades of seriousness,
if you will. I was struck in the August publication of the
Federal Register that what we have listed there is simply an
A to Z alphabetical listing of everything from soup to nuts.
That disturbs me, in the sense that we are not using the chemical
expertise that already exists to provide such classification. It
would seem to me that Congress, in stipulating controls over
hazardous materials, particularly if we look at this thing as
being a policy of no discharge, they are asking you, and us in
cooperation with you, to tell them what in the world a hazardous
material really is. These gradations, or categorizations if
you will, seem to me go to the heart of the issue. I would
suggest that the industry represented here should submit to you
possible approaches for breaking down these hazardous materials
into various categories. This would get around the problem of
listing, say, 500 mg per liter as a toxic level to aquatic
organisms, because some materials are much more toxic than
that and others, a few, much less. That might be one way of
getting off dead center on the designation issue.
The other thing that has disturbed me all through this
meeting is the subject of mitigation. If you go into your
definitions, they define removal as being actually, physically,
and so forth, removable or mitigating actions, and yet I have
seen no attempt on the part of the EPA (and I don't mean this
as criticism, hopefully constructive) why not try to define what
mitigation is in the same fashion that you have tackled some of
these other parameters and try to define them? You have broken
them down, categorized them, and so forth. It would seem to me
also in this area that the industry people, and indeed the trans-
portation people, as we heard in some of the presentations
yesterday, do have quite a backlog of information in terms of
actually what mitigation is; steps, A, B, C, D, right down the
line, and if these actions are taken, they should be tantamount
toward determining whether there is any culpability after the
fact or not. I am not talking about the criminal side, but
the civil side of the thing.
I would also re-ask, if you will, on this particular issue
of no discharge whether or not that policy statement in Section
311 alone must stand on its own or whether it is the outset
or the introduction to what follows, in terms of no discharge of
hazardous materials as defined below. I am a little bit puzzled
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as to the strict interpretation of the single paragraph all by
itself without reference to the rest of the section.
There is another thing that kind of bothers me in one of
the methodologies, and that is this business of the 96-hour
TLm and the 6-hour TLm. As you well know, in the case of the
toxic pollutant standards, the adversary proceedings and so
forth that took place, we all went to great lengths to establish
96-hour TLm's as being the standard to be used in the field.
Indeed, you EPA people and many industry people testified along
these lines such that data which fell outside of the 96-hour
base was less acceptable, less reliable and so forth. Now I
see here an attempt to move into a six-hour TLm. I don't
know of a hell of a lot of data based on six-hour TLm's and
I think we are treading into very dangerous waters by moving
up into that kind of a parameter. Not being a biologist, I
wouldn't want to go beyond that point, except we are departing
from the position taken in another section of the act.
I would also like to add our endorsement to this idea of
trying to pin down as best we can what we mean by a spill, in
terms of a time frame. I mean you have put a great amount of
emphasis on categorizing the flow and volume of a stream. Why
not try and do the same thing with respect to the spill material?
We are interested in what actually gets into the water and the
rate at which it gets in, which then relates back to the harm-
ful quantities. On the issue of harmful quantities, the
question that was raised a little bit earlier, I would simply
say that EPA should be the protector, so to speak, of the
environment and that if you set up a scheme — rational,
reasonable, and realistic — to designate what is a harmful
quantity with respect to hazardous materials, this kind of
guideline could be used in any kind of court litigation simply
by citation, whether you actually intervened in the case or not,
because you are the spokesman nationally for environmental
concerns -- and here you've stated it. I would simply prompt,
in that particular area, that if we do get a good designation
of harmful quantities, that it should stand and could be used
in that fashion.
One other comment. You had suggested a separation in our
minds, and certainly one which you display, of notice response
in penalty sections of how this regulation may break down. I
certainly would endorse that, even going beyond just simply
saying, "Let's keep this in mind." Why not try and break out
the implementation portion of your regulation in those three
facets. There is some confusion, obviously, as to whether the
trucker has any responsibility for reporting for penalties and
so forth. Well, we all know he is not in a position, nor is
he qualified, to make such determinations. If we break this
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out in terms of the separate steps that actually occur — notice,
response and penalty — I think it will clarify this issue for
everyone concerned. Thank you.
DR. C^ HUGH THOMPSON: To the designation-by-grouping
question, I would respond that in the first of the, I don't
know whether we are up to 187 or 87 drafts of this regulation
now, the materials were grouped. In my naivete, I suggested
things like the following: aromatic materials. You know, it
was the category of materials that was designated and filled
in below that were examples in case Mark Hooper's truckdriver
didn't know what one of the materials might be. Counsel
advised that wasn't worth a diddly-damn. The next thing I
tried to do was to identify conditions under which almost any
material would be harmful and, in essence what I was doing was
saying that a hazardous substance was a substance which was
hazardous; and that wasn't worth a damn. And it went on like
that. So I think the grouping question comes down to the point
thcit in the technical document which will be provided with the
proposed rules designating hazardous substances, there will be
an indication why that material was designated and those will
be groups of considerations.
Further consideration of that, of course, has been exem-
plified in some of the work that I have been involved in and which
was represented in the Battelle report dealing with the IMCO
categorization, which was not too strangely different from the
NAS categorization of dangerous goods. To go much further than
that, I think that what would be very useful and desirable is
to see a specific proposal from the chemical industry as to what
you are talking about in the way of categories. If you are
talking categories by toxicological properties, maybe so; if
you are talking categories by the flammability etiological agent,
that type of thing, more, along the lines of DOT, I am not sure
that we are helping the broad gamut of people who are involved
in being regulated by this regulation. I am sure that the
fixed facility may be helped by that degree of sophistication.
The removal mitigation consideration is one in which I think
that our attempt here is to recognize the existing technology
and the availability of equipment. In that regard, we just
can't come around to say that these materials are removable.
However, the mitigating steps, I would submit, may well be
published under Section 311(J)(1)(A), which are methods for
removal. That regulation should be developed in 18 months to
two years, or before.
The policy statement, as provided by Congress, in Section
311 reads rather clearly that there should be no discharge of
oil or hazardous substance in the navigable waters of the United
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States. As we looked at that and we looked at designating
materials discharged in any quantity and we looked at deter-
mining harmful quantities when discharged, we came down with
the determination that there should be no discharge of a
designated hazardous substance in harmful quantities. Now,
you can criticize me from one side to the other, but that is
about the way we are looking at the problem, trying to keep
it in a practical, administratable form.
The use of the 96-hour, 6-hour TLm — my comment on this
would simply be that we are trying to look at the low-dose
response relationships and we are trying to look at the sig-
nificance of a 96-hour TLm. In most discharges it is difficult
to conceive that the target organism would be exposed for
96 hours, so it is more reasonable perhaps to look at their
exposure in the neighborhood of six hours.
The time of discharge question, I think, probably could
be accommodated, if it is environmentally effective, for the
fixed facility. I am not sure it makes any sense at all for
transportation-related discharges. As for the break out of
the regulations into a reporting phase, the cleanup mitigation
phase, and the fine phases, whether or not the actual format
is done that way, I think that the intent would be to communicate
and to drive the program from that direction. With that I
would like for Al to share with you his comments.
DR. ALLEN L. JENNINGS: With regard to the grouping question,
by use of the selection criteria we have done our grouping. We
have grouped those materials that we feel qualify as hazardous
substances. Now, any further grouping that you can envision
on that would be a tie-in with harmful quantity or penalty
rate, as far as I can tell. Where we have gone from there
with the methodologies that Battelle has laid out — one
method utilizes a grouping and it is based on toxicity. You
get a certain loss of resolution with that system. You've
got a group based on a median so somebody is going to be over-
penalized, somebody is going to be under-penalized. What
Battelle has done with most of the methodologies is look at the
continuum of each material as a penalty or harmful quantity
based on its actual toxicity to a median receptor. We are still
giving some thought to a possible grouping for harmful quantities,
maybe not necessarily the IMCO method but perhaps more refine-
ment, to simplify both your lives and ours in terms of, is the
truckdriver going to have to carry this massive book and look
at each material and estimate the quantity, or can we group them
for you and still make it functional for reporting. With regard
to this, we are using 96-hour LC5Q data for everything. One of
the methodologies utilized by Battelle was a plug-flow model.
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For this they have to assume a time of passage for the plug.
As Mr. Dawson presented, utilizing fish kill data, our scope
of concern is somewhere between 96 and 6 hours and probably
most often represented by something around 6 hours; so, it's
an attempt to compress that toxic concentration down to a 6-hour
plug, which means increasing its concentration. That's the only
place in which we attempt this extrapolation of 96 hour data.
Its validity is probably pretty good if you look at time-dose
response curves. But the strong data base is the 96-hour
LC5Q- We are again talking about harm, which is something to
remember in these criteria when you talk about a 96-hour
LC5Q,- you are talking about half of the test population being
dead, whether it is white rats or fish; so it is real harm.
I think that's all the comments we have on this.
(FLOOR MIKE): Hugh, I would like to make a couple of
comments and go in a different direction at this point. One of
the things that I think has happened this morning is that much
has gone a little bit different than I had visualized the
morning to be, because I had anticipated some discussion on
your part and Al's part on the thinking you went through to
come up with this selection of methodologies covered in your
staff paper. Essentially, these are a combination of the DOHM
and the Resource Value. I would like to make a couple of
comments, if I may, in regard to those methodologies. One is
that in the course of some of the discussion yesterday it became
apparent that certainly there should be some examination of
other water bodies or certain parts of the water bodies that
are covered in the various segments of the methodology so that
you take into account such things as intracoastal waterways,
barge canals, someone suggested yesterday New York Harbor which
is part of an estuary system; all these are basically commercial
waterway segments. The intracoastal waterways and the barge
canals were put in for commercial purposes. I think in refining
the methodology this ought to be taken into account. Another
point I would like to make is that you asked for comments in
your blue paper about the wisdom or the need to use the adjust-
ment factors. In my view they are a very important part of
the methodology and certainly they try to take into account
the character of materials spilled and the site conditions. I
would suggest that another thing to consider is the duration
of the spill. A spill extending over a six to eight hour period
has a completely different impact than a spill that's an immediate,
total dump.
DR. C. HUGH THOMPSON: Excuse me. When you say that, do you
mean while it is entering the water body or while the material is
identifiable in the water body. In other words if you had a
material that was pooled, that lasted there for twenty years, do
you want that to be taken into account?
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MR. GEORGE HANKS (FLOOR MIKE): I think that the adjustment
factor that is proposed, and I believe this is the intrinsic
adjustment factor, takes into account the duration of the effects
and as I recall a nonsoluble sinker that's a bioconcentrative
does in effect take this into account. What I was really
thinking of was, you asked about a transportation spill that
perhaps isn't immediate. I can think of examples in the past
where perhaps we've had a barge leak. We know that the incident
occurred at such and such a time and we know by the time we have
stopped the leak we've lost X gallons out of the barge over that
period of time. So there are time-related transportation spills
as well as time-related fixed site spills, and I think this is
what I was trying to address.
DR. ALLEN L. JENNINGS: With regard to a tentative choice
of methodologies as laid out in the blue-covered book, the
tentative position is based on our evaluation of the strengths
of the methodologies developed by Battelle. We see the DOHM
model for harmful quantities as they apply to rivers as being
the most applicable, a relatively good data base. From the
presentation by Battelle, you realize it's difficult to apply
this to other water bodies. The plug flow model just doesn't
hold as well. The next position then for other water bodies
is the Resource Value Methodology which is again based on good
data and, we feel, a consistent rationale. The same is true
of the penalty methodology. It is related to environmental
harm or proposed environmental harm. The after-the-fact adjust-
ments give us, with use*of these methodologies, the flexibility
that I think we need to apply the regulation in an equitable
manner. Those variables that can be cranked in, we're still
looking at them; they're locational. As George points out,
consistent in that system are the intrinsic properties in the
material and the particular water body. Those could be refined
possibly, but we're looking at more the extrinsic after-the-fact
water bodies, location, possible use, although it gets difficult,
and that's where we are.
DR. C. HUGH THOMPSON; I think that one point that I sort
of identified with there is the water body thing. Let me just
kind of amble through a couple of things here. But on the top
of the stage here keep in mind simplicity and straightforwardness
That's why we have tentatively looked at what we have now. We
could be defining tidal cycles, we can identify design low-flow
rates, we can go into the assessment of actual low-flow, we can
define lakes and impoundments, we can exempt the Great Lakes and
put them in a special category, we can identify the Great Salt
Lake and put that in a special category, we can identify special
lakes as being meramictic lakes, we can identify estuaries in
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terms of fairly complex hydrodynamic models, we can identify
embayments on large lakes using secchi relationships to explain
the flow, we can identify ephemeral streams, we can identify
immediate vicinities in the point of the discharge which is
that target concentration that you would back calculate to
determine a harmful quantity, we can identify the tidal exchange
ratio, what the tidal means, and we can go into rather specific
mathematical models to describe the hydrodynamics of each of the
water bodies like lakes, impoundments, estuaries, coastal waters
and embayments. Now you, George, know what I am reading from,
it's the Section 307. This is a very complicated, a very
technical, very controversial, set of definitions which are
more like the rest of the Water Pollution Control Act.
About 1985 we might get around to having some things done, in
my opinion. What Section 311 is designed to do is to get some
notice and get some cleanup and get some prevention going now.
I do not want to be glib and oversimplify the very legitimate
concern that George has raised here. Therefore, I would submit
that for points, for instance, like the intercoastal waterway, if
you can help us understand specific reaches that are traversed,
flows involved, and it is reasonable to protect the environment,
a special examination of that body of water could be made, as it
could for other bodies. Everytime you do that, however, you're
going to make the problem an order of magnitude more complicated
for other interests than, for instance, the barge industry that
is operating rignt tnere. So I must go back to that original
statement in the front of the blue book: please recognize that
even though we don't accommodate your comment, your concern, we're
listening and we're trying to weigh that against other overriding
comments.
MR. GEORGE HANKS (FLOOR MIKE): Hugh, I wanted to clarify
my comment because I'm afraid I didn't communicate very well.
I was looking at the Resource Value Methodology and basically
some sources were identified of values of waters which in trun
developed the value of an estuarine system, the value of a lake
and the value of coastal waters. I was not suggesting that you
get into the hydrology of some of these complex systems, but
merely that I think you're correct, or Battelle is correct, in
recognizing the value of the types of estuaries that they con-
sider. At the same time, I was attempting to point out that
New York Harbor is not predominantly a fishing resource, it is
a commercial resource and it has a completely different value
than some of the estuaries in the state of Georgia, which I
believe were used for an example. I think this needs to be
built into this evaluation system.
DR. C. HUGH THOMPSON: Ok, that's a very valid point. It's a
very difficult point for the administrator to operate in. It
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would appear to me that to identify lower water uses than fish
and recreational, that is probably a position that the administrator
shouldn't be backed into. In other words, by the state's
initiative, whereby they have identified a use and that's all
they want to use the water for. Some sort of a recognition of
this may be feasible, but it kind of scares me, really, as to
how to move in that direction and still satisfy the intent of
Congress of upgrading the quality of the nation's water and
protecting the intended beneficial uses and satisfying some of
the other provisions of the law which are to upgrade these to
fish and recreation as the highest use.
MR. GEORGE HANKS (FLOOR MIKE): Of course, if we look at
the generally conceded intent of 311, which is prevention, for
a ship in New York Harbor, I would assume that prevention would
be in fail-safe values and crew education, alertness during
loading and unloading, and awareness of the problems so that
the ship is operating in a spill prevention mode. That really
shouldn't change, whether he is in New York Harbor or in one of
the fishing estuaries in Georgia. Really the intent requires the
same thing ultimately, and that's spill prevention.
(FLOOR MIKE): I'm Bill Creelman from National Marine
Service. We are a tug and barge operator barging bulk liquids,
about half and half chemicals and oils. We've become very com-
fortable with the present reporting requirements with respect
to oil spills. We report all oil spills. I think we'd be very
comfortable reporting all chemical spills. There's been an awful
lot of talk here about when and where and how the reporting require-
ment is triggered. I'm not particularly interested in that. Some-
where along the line we're going to have to look at it, but I
think the more basic question at the moment, rather than dwell
on this reporting requirement, is to get back to Mr. Garrett's
point. That's whether or not those of us who are water carriers,
and perhaps other carriers too, can afford to carry these products
at all. I don't know how those decisions can be made except by
looking at the potential risk that one takes when he originally
decides to load the product or not load it. And I thought it
might be useful to take a look at the frame of reference from an
economic point of view that a carrier looks at when he starts
any trip. He may run into a bridge, he may sink, he may have a
collision with another vessel, he takes a lot of risks every day
and he's used to taking risks. But he limits those risks and
he does it somewhat by the size of his company. He insures the
risks that he can't afford to take and he takes those that he,
in his judgement, could afford to take at the maximum. He does
this by a deductible provision in his insurance policy. It may
be, in the case of a very small company, that he can't afford
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to take very much without insuring it at all. It might be as
little as, say a thousand dollars. If he's a much healthier or
larger, more stable company, perhaps he can go to 100,000 dollars.
The average is somewhere in the 10, 20, 50 thousand dollar area,
I would suspect. If there are some insurance people here, perhaps
they can speak to that. That's the level of risk in that range
that most companies in our business feel they can afford to take
on their own. Taking that deductible on their own is less
expensive than buying insurance down to the zero figure, so they
take as much of that as they can afford to take. So management
in our business has made a decision quite consistently within
that range that this is the risk we can afford to take. While
these insults to waterways do affect the fish or shrimp or some-
thing, right now, their principle value is as arteries of commerce.
They are the roads we operate on. They have a great value there.
I'm afraid that what's happening here might very well destroy the
value and I think that's what you should be considering.
DR. C. HUGH THOMPSON; I certainly respect your position
and your feeling. I do not think, however, it was the intent
of Congress to exempt so-called commercial waterways from environ-
mentally upgrading the quality of the water. I would like to
explore this further, however, by indicating that in your partic-
ular experience I believe that you probably are correct, in that
the discharges that would occur under your sponsorship would
probably be accidents. Just the same, the aquatic environment
doesn't know the difference and Congress was aware of this.
That's why they passed this law. At the same time, Congress
was aware of the impact on small businesses. Under the liability
portion, Section 311 (f) (2), there is a small facility liability
limitation capability for the cleanup mitigation-type respon-
sibilities. There is no particular directive in the law which
would allow that to happen under the nonremovability rates of
penalty; however, it would appear to me that the administrator
may be able to take some of these concerns under advisement in
these guidelines, if you will, for administering this discretionary
penalty, to control it so that the accidental discharge that
you refer to is penalized only in proportion to the environmental
damage actually incurred. Much of what you say doesn't bother me,
particularly, in that from this side of the street I see ways
that in some form we can try regulatory proposals to achieve
protection of the environment economically — with the exception
of your comments on the quality of the water. As long as we have
Public Law 92-500 in its present frame or in any near similarity
thereof, it would appear to me that the mandate on EPA is to
encourage state and local, and take Federal, action to clean up
these waters. Whereas the Houston ship channel may not have
always existed as a ship channel, there probably were viable
aquatic life there at one time. I can't resolve that and
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you can't resolve that, but by the give and take that we're
having right now and by attempting to prepare regulations which
come as close as feasible to moving toward a better quality
of water, I think that is progress and I think that's what we
should strive to do. I think that rather than identifying to
me that problem of the accidental discharge, what would be most
appropriate is for you to provide to me any cases in which you've
had these accidental discharges and in which there has been
little or no damage because of the water body into which the
discharge occurred. Similarly, to the point that George Hanks
made, if there were no industrial discharges into that water,
or municipal discharges, for instance, but it would be because
of background non-point source contribution, for instance,
still severely stressed, I would submit there ought to be a way
that we can write that into the regulation. But I'm flying
blind unless I know what that background of spill history is.
MR. BILL CREELMAN (FLOOR MIKE); If I could just comment
briefly on that. If we had such statistics, we'd be happy to
provide them. I think the history of the industry is such that
there are indeed very few spills of these products into the
waterways and even when they occur, very little has been done
by way of testing the water quality in the kind of careful,
scientific, organized way that you are talking about.
DR. C. HUGH THOMPSON: Ok, that's beautiful and that's
right to the crux of this whole damn thing. We have laboratory
data, we have theoretical methodologies, we have the regulatory
responsibility, we are trying to estimate what will happen and
it looks as though what will happen is these pounds that we are
identifying ought to be harmful and these rates of penalty ought
to be ascribed; and until we have that factual data base to be
able to remove those assumptions and put the data back into there,
I find ourselves in an increasingly difficult position.
MR. BILL CREELMAN (FLOOR MIKE): I agree, and I think that
we have no particular quarrel with the approach that you have
taken. As nontechnical people, we are very impressed by this
enormous bulk of material that has been published. We found,
and Dick Wilson has spoken to it, some apparent discrepancies
between the size of the waterways we operate in and the criteria
that you are using for rivers, for instance. I'm sure those
things can be corrected or subject to adjustment, but getting
back to the very problem I'm speaking about, there's an
illustration in the oil sphere, which I think is what we're
worried about happening in the chemical sphere. We don't want
to see it happen. We don't want to see the waters polluted and
we don't think they get very polluted from these sources. We
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think the record's quite good, particularly in the chemical area,
much better than in the oil area; but what happened in the State
of Florida a year ago when a law was passed that made it impossible
to insure the very large risks, even though they were unlikely to
occur, because they were uninsurable? Companies like ours simply
couldn't afford to continue our longstanding successful, safe
operation into the State of Florida and we stopped running to
the State of Florida until the law was changed. I'm afraid the
same thing is going to happen in the chemical sphere with this
kind of legislation unless we can find a way to limit the penalty
into an area where it's a reasonable size risk and we can insure
the balance. That's the concern thctt we are expressing here. I
recognize what the law says and your problem with it, but...
DR. C. HUGH THOMPSON: That's the statutory thrust, and Joe
Knott talked about that and I know your part of that and so be
it. If the law's changed, fine; we'll back up, regroup and try
it again. But right now, as long as we have this —
I would submit that the appropriate place for this to occur
is under Section 311(J)(1)(A), the methods for removal, and in
the contingency plan. I would suggest that some of that is
already available in the contingency plan and that what we're
talking about in these mitigating activities would be a priority.
Let me harken back to the experience in Louisville and shortly
thereafter, when General Lincoln turned to the people and said,
"Now, who in the hell is this morass of the: Federal Government
is really the one responsible for pulling the trigger on an
evacuation?" And several of the people ducked under the table
and the guys from EPA forgot to get under it and he turned around
and he said, "Well, it must be you all, because you have the
air monitoring capability." Now since that time the air office
has developed a contingency plan relationship which is compatible
with the water pollution contingency plan and I would think that
as we go forward to promulgate the removal regulation, the miti-
gating regulation under 311, that it would be reasonable to have
in that the priorities that one would be addressing and I can
assure you that there is no intent of putting fish in front of
human life.
MR. BILL CREELMAN (FLOOR MIKE): Well, I assumed it wasn't
but I would like to see it included in the record. The other area
that bothers me a great deal is when the on-scene commander arrives,
he certainly has the option to assume control or authority, I
assume, if he feels everything that's possible in his mind isn't
being done promptly, adequately and so forth. What criteria
do we have, especially in cases where we're on our right-of-way
or our property and we're paying all the bills, which incidentally
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we have voluntarily for years, and our management policy is very
definite. We accept our responsibilities to correct it and to
put it back in the water and to report it, incidentally. But I
do feel we have to have clarification as to when the incident
comes under his authority. When it enters the water? When it's
on land a hundred yards from the stream and eventually in five
years or three days or something might migrate into the stream?
How can we honestly, fairly, without having a shoot-out at the
scene under a tough situation, resolve when his authority
starts, when HE is going to accept the responsibility for his
actions? As long as we're there doing our best, can we main-
tain control of the situation? These are some of the tough
problems that I can see coming down the stream out in the field
and I believe...
DR. C. HUGH THOMPSON; I think that what you're talking
about is so vital and so very dependent on the situation and the
personalities involved, that I would be more than optimistic if
I said that regulatorily we can specify this to where this pro-
blem won't occur. In my opinion, we have come a long way in
interpreting what the Federal role should be. As was pointed
out here the other day, the Federal on-scene spill coordinator
nomenclature was invented to be just that, in that whereas you
may be most concerned with getting the line open with minimum
environmental impact and maximum protection of human health,
there may be other overriding concerns of downstream water
supplies, a press corps which is bent all out of shape, knowledge
of an air pollution episode in progress, which this would have
a complicating factor in. At this level of involvement the
on-scene spill coordinator would be working, hopefully, with the
wreck master, etc. I think that we should take advantage of the
mixture of the audience that we have here. I think Henry VanCleve
is back in the audience, some place, who in headquarters is in
charge of the prevention and response branch. He could share
his views on how he's thinking about implementing the hazardous
materials regulations, either parallel to or separate from the
existing oil regulations, if that would be helpful.
MR. BILL CREELMAN (FLOOR MIKE): I believe it would.
DR. C. HUGH THOMPSON: Van, did you have a few words?
MR. HENRY VANCLEVE (FLOOR MIKE); I don't know whether I'm
going to confuse them or help them out. If I understand what
your concerns are, I would say you have two distinct and separate
problems. One is the action in our pollution incident that would
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be taken by the discharger in his responsibilities toward his
own personnel, employees and how he handles his actions; the
second problem set, as I see it, would be what the role of that
Fed is who happens to be in the vicinity of that particular
pollution incident. If he does in fact show up. Does he know
what he's doing and does he know what you're doing? And are his
actions going to interfere with yours and possibly cause some
confusion and possibly an accident in your operations? All I
can do is relate a few experiences that I am familiar with on
hazardous materials spills and our experience in oil spill
response.
I think our basic philosophy, generally speaking, is that
when the discharger is taking "proper" actions, we monitor the
situation. We cause minimum disruption of that operation. We
want to know what you're doing, we want to include local and
state people in decision-making processes. If you don't take
proper action, I think this is where we get into an area which
is very unclear. When you really transcend a not-so-sure to a
definite you're not taking proper action; and then this authority
is invested in us by the Congress and by executive order to take
charge. At that point in time we have to give you some sort of
official notice that you're not doing the job properly and that
we're going to move in and use the revolving fund, or whatever.
That doesn't happen too many times. It has happened. It
generally is very clean and clear cut when a guy says, "I'm
not going to do anything." Then we say, "Ok, that's not proper."
So we move in and do something. Where we get into a bind is
when you say you're going to do something and you go about it
very slowly and began to build up in increments your response
actions. We may be more urgent than you in your commitment of
manpower resources and bucks. We might want to coax you to move
a little faster, for a number of reasons. It starts getting into
a grey area at that point, because at some point in time, we have
to reach a decision. We try to do this in a major pollution
incident with the help of a little outfit we call the regional
response team, in which we fold in state people. State people's
inputs to our decision-making process are very important. For
example, in the PCB spill in Seattle, State of Washington people
were very important in our actions, in our decisions. You may
not be privy to that until after-the-fact. We will present you
certain problem sets and say, "Ok, what're you going to do about
this?" And you say, "Well, I can't worry about that, I'm worried
about closing the valve, I'm worried about the guys on the scene."
Well, we're worried about that too. What about these additional
things that you have to do? And somewhere in that framework
there have been occasions where we have said, "If you don't do
certain things by a certain time, we're going to take over."
And I think that's the grey area. We really don't have the
fine guidelines of clearcut procedures. I think it's very
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difficult to do and I think Hugh made a very important point here.
We're dealing with different kinds of personalities. I think our
field people are very sensitive in most instances. I know
Al Smith has worked very closely and carefully with Hugh on some
pretty bad ones. I'm sure you all hollered and screamed at each
other a few times, but I don't know of any time that he actually
bulldozed his way in and said, "Get out of the way, you don't
know what you're doing." But we have that to face and we know
it's a possibility. I don't know if that's been responsive.
MR. BILL CREELMAN (FLOOR MIKE): I think it emphasizes the
dilemma here very well. Speaking of Al and his boys, and Mr. Moen
by the way, we have had outstanding cooperation from Region IV and
the other regions where we've been unfortunate to have to go to work.
The people in the field have been extremely cooperative, even some
of the men who flew in from Washington and other places on some of
these events. I didn't mean that facetiously. So far we haven't
come to the fueding ground where it really is serious decision
making. We've been blessed because we've been able to approach
these things reasonably and our problem is, we want to move
faster than anybody else I can see around wants to move. So it's
just a little reverse from your normal problem and I certainly
appreciate that. If people aren't going to clean up, you have
another problem. But in other places when you are cleaning up,
you want to get it straight, you want to get things in order,
you have to take some unusual action to people that are not
familiar with the ramifications. This is the dilemma. I would
like to suggest or try to suggest that there be consideration
given in those guidelines, in whatever section you feel they
fit, that if this difference of opinion arises, that it be
entered in the book, all the decisions that are not agreed to,
that they be held in an accounting table, if you will, that
maybe the government will pay for them if they were wrong or
maybe the causer will pay for them if he was wrong. But I don't
think that the law ought to say, if our man doesn't get along
with you, he takes over, he works on the revolving fund up to
$5 million - $8 million limit or $35 million or whatever it is
in the fund. Then we'll come back and collect it from you. I
don't like people spending out money who aren't taking into
account all the factors as we see them. And if we ignore our
responsibilities, I wouldn't blame them for coming in and taking
over. But I'm thinking of where we're actually, honestly,
trying to prevent increased damage, and in most cases number one
is not exposing people unnecessarily. And this arises more
frequently than I care to see repeated, but it does come up.
So if those considerations can be included, I'd certainly
appreciate it.
DR. C. HUGH THOMPSON: A few years ago when I was trying to
get this program moving in one shape or another and I hadn't
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quite reached where we are now, we had designed, and I envisioned,
what I would call the parafrogmen of the environment. This would
be a team of supermen who are completely educated in all the
toxicity, in all the hydrodynamics, in all the nomenclature of
all the product carriers, well versed in all the geography,
equipped with almost jet packs on their backs and having mobile
laboratories that would be moved into position quickly, such
that that individual had his feet on the ground and he could
get into a situation and prevent further damage and mitigate
it and get out and live to tell about it. That's a pipe dream.
I still would like to see us work in that direction. I suppose
the fellow that built the Rangers for the Army must have felt
in some capacity with that desire in mind. The reason I say
that is, with all due respect to the chemical industry involved,
I don't think that just because a man has handled a product
inside the plant, or outside of it for that matter, that the
public health can be completely entrusted to him with no questions
asked, under the variety of problems that you all beat me over
the head with. Unless the: company is nominating him for a
member of that team and that's all he does full time, think in
terms of emergency response, spill mitigating activities, human
health and this type of thing. Now, it would appear the status
of where we are is-collectively in the industry, we have those
supermen. And for this point in time, we will use our communication
skills and techniques to create these supermen. It may be the
best solution, but I just wanted to share with you that over the
years at least I have learned to respect the capabilities of each
of you in your capacities and I would hope that this situation
that you described, whereby you were there with the boots on and
muddy, and the shiny Fed arrives on scene and says, "Get the
hell out of here, I don't like you doing it that way" — I
would hope that never occurs. I could hope that you realize that
there are, of course, personalities involved and that through
the contingency plan, there is the opportunity through the regional
response team and through the national response team on very
critical issues which are, as you say, a matter of life and
death, that there could be added consultation and review of
decisions that exist now. I think most of the unseen spill
coordinators do take advantage of the regional response team
and don't go out on a limb by themselves, whipping decisions on
people.
QUESTION (FLOOR MIKE, UNINTELLIGIBLE)
DR. C. HUGH THOMPSON: Can you all hear him in the back?
(FLOOR MIKE): My name is George Creaghe. I work for the
Ethyl Corporation in Baton Rouge. I think you'll help several
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of us out if you'll take some of your time to, in this staff
report, turn to the first page and help me with the notation,
explain the various symbols and figures please.
(FLOOR MIKE): I'm Bob Reese with National Tanker Carrier.
Before you get into the details, he kind of gave me a lead in
here. For the last couple days, I've been popping up and saying,
"The onus is on the carrier, he's the one that's got to determine
the economic potential or he's got to assess his risk before
he starts carrying these products, and I know the shippers love
to hear that, etc., etc." My point being, whatever form the
final rules take, and perhaps you want to start off with the
ANPR, Notice of Proposed Rulemaking, your final rules, whatever
form they might take, whatever methodology you buy, you decide
on. We're not really concerned with that, unfortunately, because
we really don't have the expertise to get into it. So we have
to depend on Howard Brown and MCA and all the chemists that are
here today, yesterday, and Monday. So our phase is the economic
impact; Mark Hooper gave you all that. Basically what I'm saying
is, a common denominator in our industry is either a dispatcher
or a terminal manager. And if he doesn't understand it, your
office should be prepared to take a phone call for every shipment
by tank truck. What I mean by that is, before he can move this
stuff, I'm going to call you and say, "Hugh, what's my penalty?"
And then you're going to give me a penalty and I'm going to
call him back. That's going to be a hell of a switchboard
operation. Secondly, if we don't go into that, we'll go into
radicalized company tank truck management from decentralization.
Chemical Layman Tank Lines, the biggest carrier in the country
as you saw the revenue business yesterday, has 70 terminals
across the nation. They're decentralized dispatching. You're
going to require them to have a dispatch office the size of
SAC headquarters. So, Keep It Simple, Stupid is what I'm
trying to tell you. Now you can go into the details.
(FLOOR MIKE): I'm Dick Ryan from the Rohm and Haas Company
and my field is transportation. Unfortunately, I wasn't here
yesterday and I'd like to propose an idea that a strike team of
carriers and chemical shippers be established based on your
eight regional zones, whereby you would have the mode's repre-
sentative, the chemical shipper's representative (it might not
be the particular shipper of that product, but it would be an
individual or individuals that would know how to contain such
a spill and do everything possible), along with your regional
coordinator. I think if you had this capability and you had all
the experts available within an hour's notice, based on a geo-
graphical system, it would lead me to believe that it would
improve the removability and it should also have an effect I
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think on the rates of penalties to be charged. I could be wrong
here but I think then you would have the optimum, knowing that
you have experts in all fields available, say w:thin an hour's
notice, to get to the scene and that everything humanly possible
that hcis to be done would be done. Thank you.
QUESTION (FLOOR MIKE, UNINTELLIGIBLE)
DR. ALLEN L. JENNINGS: I think that we ought to keep
focused here on the damn regulations, unfortunately. I'd
much rather work in the other problem set but...unfortunately,
I'm settled on these damn regs. VanCleve gets to play that
other game. You all saw him standing back there in the back and
I think he would be interested in discussing with you any of
these ideas and also probably sharing with you some of the
things that are ongoing and on the drawing boards now as far
as the response program goes.
(FLOOR MIKE): This is Bob Graziano with the Bureau of
Explosives, Association of American Railroads. I'd like to
speak to two issues. First, I've been hearing a lot of comments
about "Where can we get data, where does the data base exist?"
With respect to hazardous materials, you may know that the DOT
has had a reporting system in effect for almost four years and
I daresay that tlrey have information on spills such as you desire,
so that may be one source that you can check. I do know that each
modal agency also makes a report which goes into considerable
detail about that hazardous material spill. So the data is
available in the government for your use; that's one observation.
The other observation I'd like to make regards a very practical
matter with respect to these proposed regulations. There are
materials in here which are hazardous and there are materials
which are considered nonhazardous, by DOT standards. If you're
familiar with commercial contracts and bills of lading, certain
of these materials that are listed in here will not be identified
as you have identified them by either the shipper or the hazardous
materials regulations. In order for us, as carriers, to notify
you of materials that you've listed in here which have been
spilled, we're going to have to have a better identification
system. That's a very practical and real problem. I see some
of the materials you listed here are herbicides and pesticides
and I daresay that the freight traffic tariffs will say just
that, agricultural insecticides, fungicides, herbicides, whatever
the case may be and will not specifically identify the materials
that you have listed here. I don't know how you address that
except perhaps to change the hazardous materials regulations law
or request that changes be made in the appropriate freight tariff.
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DR. ALLEN L. JENNINGS: I think you, in part, responded to
the first part of your question with the second comment, in
that we have looked at DOT data and it is limited in its non-
specificity in the degree that we require in these designated
materials. You find groupings such as organic pesticides,
herbicides, petro-chemicals...
MR. BOB GRAZIANO (FLOOR MIKE): You would also, Dr. Jennings,
find that there are specific materials listed in the DOT reports,
as you have specific materials listed here. And there can be a
comparison drawn -- for example, acetaldehyde.
DR. ALLEN L. JENNINGS: We have looked at those but still
a problem exists. As I understand DOT reporting, the accident
has to involve $50,000 worth of property damage, or personal
injury, or death. It doesn't tell us that — ok, maybe that's
an error but it does not tell us that the chemical itself
actually got loose, how much got loose, did it wind up in the
water or not? That's a limitation on that data base.
MR. BOB GRAZIANO (FLOOR MIKE): Well, from my own personal
observations about DOT reports, there are two reports required.
One is an immediate notification if, as you have said, there
is $50,000 damage or someone is injured or killed, or there is
a continuing problem at the scene of an accident. That's one
report, that's an immediate notification report. The second
report contained in 171.16 requires that within 15 days the
carrier must report any spills or any release of a hazardous
material out of the container. Now that gets to the heart of
what you're talking about, I believe, where spills of materials
can be identified.
DR. C. HUGH THOMPSON: I don't think so, we're aware of
that data base. We've sat down with Burns and his people ever
since that system was begun and we screamed and hollered, "Please,
put a line on there which says how much gets into water, into
air, what are the aftereffects of the damage," and we were
not able to prevail. I'm sure that we're looking at the same
data base you're talking about, and it's not there. There
would be the report, somebody kicked over a can in the warehouse,
but what in the hell can I do with that?
MR. BOB GRAZIANO (FLOOR MIKE); Well, one other point, I
think, Hugh, and that is this. Have you followed up with the
modal administrations for their more detailed and comprehensive
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report? The Office of Hazardous Materials acts as the collection
agency for the 5800 form and while you can get certain information
from that, the detailed report is normally made by the particular
agency involved. Specifically, the Federal Railroad Agency, I'm
aware of, goes into considerable more detail than you would find
in that report.
DR. C. HUGH THOMPSON: I don't think I have done that in
the last two years.
QUESTION (FLOOR MIKE, UNINTELLIGIBLE)
DR. ALLEN L. JENNINGS: We never did get around to looking
at the table as requested three or four comments ago. As I
understand, the comment deals with the table of numbers rather
than the earlier preamble part.
(FLOOR MIKE): Sir, the first few pages of the summary, if
you could help me out...
DR. ALLEN L. JENNINGS: Ok, iT you look at the first material,
which is acetaldehyde, I think the column headings are clear
enough, harmful quantities in the first four columns on the left,
rates of penalty in the last four columns. And broken down
according to water body, kg, stands for kilogram. The dash pound
notation immediately under the water body means that below that
the first number you see is given in kilograms or metric units;
below that is pound unit. Now, for the acetaldehyde, you see
3.3 E and then a zero with a line through it and then a 3. That
means 3.3 times 10 to the third power, or you simply multiply
it by a thousand. So that gives you 33,000 kilograms as the
harmful quantity for acetaldehyde. Oh, I'm sorry, 3300 -- I
can't multiply by a thousand anymore. And that's consistent
throughout the table.
QUESTION (FLOOR MIKE): So the notation means exponent to
the third?
DR. ALLEN L. JENNINGS: That's right, exponent to the third.
There's just a few moments left and I'd like to follow up
a little bit on the mechanics of the book, which we haven't
addressed a lot today. One question I have, is it understood
that this $10,000 number, which in effect establishes every
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rate of penalty, that the economic incentive envisioned in
the Battelle report is not an effective incentive?
(FLOOR MIKE); I didn't understand that, because what you
were talking about yesterday, I thought I could have jumped up
and refuted immediately by reminding you about the $10,000
criminal penalty tradeoff of notice or no notice. Congress
thought that you ought to be up in that neighborhood of a
problem before the Federal Government ought to know about it
and get involved.
DR. ALLEN L. JENNINGS: If you don't like that, then we
can back off and say if you discharged a harmful quantity the
Congress said that's up to $5,000, and if you're in violation
of a removal or mitigating regulation that would be up to
$5,000, so there's a $10 to $15,000 penalty there. So I'm
not particularly persuaded that $10,000 is not a pretty good
place to start to adjust downward, which in most cases is what
we're talking about when we ratio those penalty rates.
(FLOOR MIKE): So your $10,000 number is derived separately
from the way the Battelle study derived it, because the way the
Battelle study did derive it, they indicated that since the
person in charge would be penalized $10,000, he would have an
incentive to go ahead and report. Well, in fact, in 99 percent
of the cases the person in charge is not the person who is going
to suffer a subsequent penalty if he doesn't report. That is
the company involved, the owner-operator, there is a definitive
distinction there.
DR. C. HUGH THOMPSON: Ok, fine. I think your point is
very well taken.
(FLOOR MIKE): Ok, well, I won't dwell on it because I
said it yesterday. Then the other thing is, you asked for
data. You pointed out a dilemma and I understand your dilemma
of not having data. But it seems to me, as in everything else,
we need to establish the priorities on what data you need. I
suggest the way this be done is a sensitivity analysis be con-
ducted, utilizing these formulas to determine what is the impact
of differing numbers within the formulas? For example, river
flow number is extremely significant in the ultimate impact
and the penalty, and that's what I'm concerned about — penalty.
So right there you've got good data; it's available. I'm saying
that if I were you, I would look at the impact of these various
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variables within the formula and try to prioritize your seeking
for data and then identify what data you really need that is
going to impact substantially on the resulting impact of the
formulas.
DR. C. HUGH THOMPSON: I think that's a very reasonable
suggestion. I'm not sure that we can readily do that. It
certainly bears investigation and we'll give it a try. I really
like Bob Reese's approach much better and that is, just bull it
out -- what in the hell is the economic impact? Prove it. In
other words, what I'm saying is that Congress put us in a box
here which says, "Look, here is a problem. Something other than
oil must be knocking the hell out of the nation's water.
Mr. President, Administrator, Coast Guard, Maritime Commission,
Small Business Administration and everybody else that's mentioned
in the act, do something about it." Now, what we're talking
about doing something about is, we have some methodologies
here that from, if you will, the scientific-technical-rationale
base, we can derive some ways to go. Now, if I had on the other
hand an economic window through which to launch this thing, I
would know what I'm shooting at. It just is not too persuasive
for you to stand up and say, "We're not going to haul this stuff
anymore, by God." I don't understand that. I have not been into
the barge business. I don't know whether you're really telling
me the truth or not, I don't know whether that is your manage-
ment's honest-to-God decision — up against the wall -- they'd
rather carry coal than chemicals. I don't know that the chemical
companies for sure would then just shut down. The indications
are pretty damn persuasive, I mean -- you all have made some
pretty good points. But for the administrator to be honest and
reflective to the total public, this evidence, much along the
lines of what Mark Hooper provided, is exactly the type of
information which is necessary to make an intelligent assessment
of what can be done to protect the public health and welfare
economically, feasibly?
(FLOOR MIKE): We've already looked at that on our railroad,
trying to get an impact, and trying to answer the very questions
that have been raised here. We simply take a look at it and say,
if we can assess with some kind of probability that we're going
to have a major accident with this commodity over the next 10-15
years and our revenues, as we forecast over the next 10-15 years,
don't justify it, we have to make a conscious decision -- this is
in the future, this is not now — we have to make a conscious
decision whether we're going to haul it or not. Our problem here.
DR. C. HUGH THOMPSON: No, you don't. I'm not sure I've
said, but it's really the intention of our agency, I believe --
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and I believe this can be verified in the congressional over-
sight hearing testimony, answers to questions — it's really not
the: intention of the agency to cause a model shift. And so what
I'm trying to suggest to you is, if we can get these economic
indicators on the table, we have some of these methodologies
here and with the point made, we'll look at some of the sensitivity
of the variables. What I would submit is that the glue between
these two things is the regulation. We can design a regulation
which will protect the environment economically. You don't
have to make those decisions now. You have to provide us with
legitimate, verified factual information which says, "Honest
to God, this is what's going to happen."
QUESTION (FLOOR MIKE): You're not looking for a dollar
value. You're looking for a physical value, right?
DR. C. HUGH THOMPSON: I'm looking for both. I'm looking
for the dollar value, you know, the cost impact, but what that
really means, you know, the scenario of the change of events...
QUESTION (FLOOR MIKE): In other words, you want the
economic impact and just ignore the penalty in the cleanup
factor possibility that your people might impose? In other
words, take a look at it as we actually...
DR. C. HUGH THOMPSON: No, I think the way Mark Hooper
approached the problem is an excellent first step, in that he
took rates of penalties as provided by one of the methodologies.
(FLOOR MIKE): That's what we did.
DR. C. HUGH THOMPSON: And he worked this back and said,
"Well^looking at that spill data I have for my facility, this
is what would have happened." The next step then is to analyze
that in terms of what that really means to your business. And
of profit that you make now, how much of that would be dedicated
to these penalties, if you will? I'm told by the economic
advisors in the agency that one way to express this is in terms
of plant closures or unemployment and this type of thing which
would result from your not carrying these materials. There are
people in the audience who could talk to you in more detail on
some of the economic indicators which would be of use to the
agency, if you would want to explore that.
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(FLOOR MIKE): We can assign the penalties, you got the
penalty schedule here, that's easy enough to do. We can estimate
the amount of material spilled into the water and take that into
account. But you have that gray area which is the real dog, that's
the $8 million cleanup cost.
DR. C. HUGH THOMPSON: My opinion of where we are in the
real world today is that powers may prevail to provide to the
Congress, as the Joint Conference Committee requested, that
if proof can be given to them that there are sufficient regu-
lations available through other laws and under other author-
ities whereby prevention of discharges of hazardous materials
in navigable waters, if that evidence is provided, that that
committee would reconsider and possibly ameliorate these fines.
But I don't think there's any way in hell they're going to remove
the liability for cleanup, that's my opinion.
DR. ALLEN L. JENNINGS; It's my understanding that cleanup
liability is an insurable liability and so you'd be talking
about an insurance premium, in that case.
(FLOOR MIKE): We've got to pay the bill anyhow. All the
insurance bills do is spread out for a loager period ot txme and
next year, they're going to raise your premium and after that,
we're going to pay it.
DR. ALLEN L. JENNINGS: Right, but at least it's a cost
you can get ahold of.
(FLOOR MIKE); Saying it's insurable, that doesn't mean a
damn thing. We've still got to pay the bill.
DR. ALLEN L. JENNINGS: But it's a cost that you can
estimate and crank in right now.
(FLOOR MIKE): That's not really true. This is Mark Hooper
with Robertson. That's not really true, Al, because for some
companies, such as Robertson, once it hits the water, it's ours.
The insurance company stops paying for it. That's the insurance
we're presently covered with. So what we did instead was go back
and use historical cost data on what it has cost us in the past
to clean it up, what has it cost us in the past for property
damage, for personal injury and this type of thing. And then
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turn around and project that we're going to have this same cost
per load and the same cost per ton. These costs may go up but
you've got to use some kind of data. We did the same thing with --
we isolated that as a spill cost, separate from our fine cost,
added the two and looked at the impact, not only on total system
but on a product-by-product basis.
DR. C. HUGH THOMPSON; I suppose I could volunteer you to
discuss this in detail with people who want to talk with you,
Mark; about how you went about doing that, couldn't I? Ok.
(FLOOR MIKE): Joe Knott from PPG. I'd like to make a
couple of observations. I think as our conversations have
drifted and waned, we sometimes lose the objective again and
that is, that we're here to try to find some way to improve
and maintain water quality. Now I think some of tre discussion
gets pretty far from that and we get into profits and losses
and penalties. I don't think any of those things really, as
such, deal with water quality or insurance of water quality.
With regard to reporting, this is where we get into something
which we think can improve water quality. You dismiss the
observation from the conference committee report in terms of
data base building while earlier in the conversation you gave
us some plea for lack of data base. I think certainly the
administration had a responsibility to respond to the lack of
funding issue presented by the conference committee report. To
the best of my knowledge, neither the agency nor the administration
responded. Now they have in these kinds of conversations and in
conversations with you. That brings me to the next point that I
think is most important. You mentioned a few moments ago that
you questioned whether our managements, carriers, shippers,
really would support some of the statements made here. I guess
we could say, and I'd like the record to read clearly, that
we're asking the same of EPA. You know, it's just an awfully
shameful thing that the people who were here representing your
management or various segments of the agency on the program
Monday barely stayed after lunch. Where are they? Where is
EPA management? And what understanding do we have that anything
we work out with you will come out of the top of the agency? I
wonder, and I hope the record reads clearly that those people
aren't here. Now maybe there's some game being played about
they lay back and come out at the appropriate time, you know,
like knights in shining armor, everything will come out ok. I
don't think the record speaks very clearly to that, certainly
from my industry's reaction with EPA. It has not turned out that
way in prior situations.
With regard to the shippers, we've got a lot to do within
our own managements. I think there's been an open forum here.
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Lots of problems have come out. Our managements are not here
either, let's be honest. There were fewer, I guess, than three
or four vice presidents or officer level people of chemical
industry companies in this room in these three days. My own
company doesn't have one here either. That's an important pro-
blem. I hope that the transcripts of this meeting can be
circulated in the executive suites of shippers. To the carriers,
I think from my viewpoint you've done an outstanding job in
bringing up the issues, but we still have the diversity that I
talked about yesterday afternoon and we don't have any con-
vergence yet. Perhaps, the executive level of EPA and the
executive level of shippers and the executive level of carriers
can bring us that leadership, bring us to some convergence.
And, Hugh, I think the time is drawing on for conclusion. I
think we're to the point where we're going to have to get together
again. I don't think we've accomplished anywhere near the task
at hand and I think more face-to-face discussion is required.
I think the suggestion MCA made earlier of regional meetings,
or broader based meetings, is still appropriate. Thanks very
much.
DR. C. HUGH THOMPSON: I did promise that we would adjourn
at 1:00 and we're a little bit past that time. I do think that
whereas I'm tempted to respond to the last remark, I won't. And
so at this point in time, I want to personally thank you for
your participation. As far as future meetings of this type, if
we are able to hold such, we do have your names and addresses
and we will contact you accordingly. I thank you for your
participation.
(FLOOR MIKE): May I ask one...
QUESTION (FLOOR MIKE): When will transcripts be available?
DR. C. HUGH THOMPSON: I think it will take the best part
of a month before it gets done.
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LIST OF ATTENDEES
EPA/BATTELLE CONFERENCE
ON
HAZARDOUS MATERIALS SPILL REGULATIONS
WASHINGTON, D. C.
OCTOBER 21-22-23, 1974
263
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ABRAVANEL, MS. WENDY
The Soap and Detergent Assn,
1425 H Street N. W.
Washington, DC 20005
ADAMS, MR. JOHN K.
EPA
401 M Street S. W.
Washington, DC 20460
ADAMS, MR. RONALD B.
Virginia Chemicals, Inc.
3340 W. Norfolk Road
Portsmouth, VA 23703
AGNES, MR. JERRY V.
Research and Development
Mobil Chemical Company
P. O. Box 240
Edison, NJ 08817
ALBERT, MR. WILLIAM C.
Exxon Chemical Company USA
P. O. Box 241
Baton Rouge, LA 70821
ANGELL, MR. GORDON R.
Maritime Administration
Code 746
14th and E Streets N. W.
Washington, DC 20230
ARNOLD, MR. GRANT
Ethyl Corporation
451 Florida Street
Baton Rouge, LA 70801
APPLEBY, MR. W. G.
Shell Chemical Company
100 Clover Hill Court
Danville, CA 94526
3ATTISTA, MS. S. GAIL
BNA - Environment Reporter
1231 25th Street N. W.
Washington, DC 20037
BELL, MR. JOHN
EPA
401 M Street S. W.
Washington, DC 20460
BENCH, MR. DAN W.
EPA, Region VIII
1860 Lincoln, Suite 900
Denver, CO 80203
BENZER, MR. WILLIAM
American Iron & Steel Institute
1000 16th Street N. W.
Washington, DC 20036
BICHE, MR. RALPH
N L Industries, Inc.
Tahawus, NY 12879
BIGLANE, MR. KENNETH
EPA (WH-448)
401 M Street S. W.
Washington, DC 20460
BINDA, MR. E. L.
Sea Land Service, Inc.
Elizabeth, NJ 07207
BLANK, MR. WILLIAM
Allied Chemical Corporation
Margaret and Bermuda Streets
Philadelphia, PA 19137
BONDURANT, MR. ROBERT A., JR.
Vulcan Materials Company
P. O. Box 545
Wichita, KS 67201
BOYCE, MR. DAVID E.
EPA
240 Highland Avenue
Needham Heights, MA 02194
BRENNAN, MR. JOHN F.
American Trucking Associations, Inc.
1616 P Street N. W.
Washington, DC 20036
BREITER, MR. J. J.
Hercules Incorporated
1800 K Street N. W.
Washington, DC 20006
BRITTAIN, MR. WILLIAM C.
Koppers Company, Inc.
850 Koppers Building
Pittsburgh, PA 15219
BROOKMAN, MR. GORDON T.
TRC - The Research Corporation
of New England
125 Silas Deane Highway
Wethersfield, CT 06109
BROWN, LCDR. GEORGE, III
U. S. Coast Guard (G-WEP-4)
Washington, DC 20590
264
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BROWN, MR. HOWARD B.
Manufacturing Chemists Association
1825 Connecticut Avenue N. W.
Washington, DC 20009
BRUGGER, MR. JOHN E.
EPA
Woodbridge Avenue
Edison, NJ 08817
BULL, MR. JOHN A.
Hercules Incorporated
910 Market Street
Wilmington, DE 19899
BURI, MR. JACK
U. S. Coast Guard
USCG Port Safety Station, Bldg. 70
C.G. Yard, Curtis Bay
Baltimore, MD 21226
BURKE, MS. BARBARA
American Institute of Merchant
Shipping
1625 K Street N. W.
Washington, DC 20006
CASEY, MR. RALPH
Haight, Gardner, Poor & Havens
1815 H Street N. W.
Washington, DC 20006
CASTELLANI, MR. JOHN J.
General Electric Company
1 River Road
Schenectady, NY 12345
CHAPMAN, MR. GALE H.
Upper Mississippi Towing Corp.
7703 Normandale Road, Room 110
Minneapolis, MN 55435
CHASTAIN, MR. TOM
Missouri Pacific Railroad
210 North 13th Street
St. Louis, MO 63103
CLARK, MR. FRANK G.
Amoco Chemicals Corporation
200 East Randolph Drive
Mail Code 4103
Chicago, IL 60601
CLOWE, MR. C. TOM
Robertson Tank Lines, Inc.
2000 W. Loop South
Houston, TX 77027
COLTEN, MR. STEW
EPA/Pesticides Chemicals
401 M Street N. W.
CM-2, WH-568
Washington, DC 20460
CONNER, MR. JESSE
Chemfix Inc.
505 McNeilly Road
Pittsburgh, PA 15226
CORLEY, MR. RALPH
EPA, Region VI
1600 Patterson, Suite 1100
Dallas, TX 75202
COVEY, MR. LYNN
Diamond Shamrock Corporation
1100 Superior Avenue
Cleveland, OH 44114
CREAGHE, MR. S. GEORGE
Ethyl Corporation
451 Florida Street
Baton Rouge, LA 70801
CREELMAN, MR. WILLIAM A.
National Marine Service Inc.
1750 Brentwood Boulevard
St. Lom's, MO 63144
CRUMP-WIESNER, MR. HANS
EPA
401 M Street S. W.
Washington, DC 20460
CURTIS, MR. DAVID
EPA, Region VI
315 Linklea Drive
Duncanville, TX 75116
CURTIS, MR. R. W.
Kaiser Aluminum & Chemical Corp.
P. O. Box 337
Gramercy, LA 70052
CYWIN, MR. ALLEN
EPA, Effluent Guidelines Division
401 M Street S. W.
Washington, DC 20460
DAWSON, MR. GAYNOR W.
Battelie-Northwest
P. O. Box 999
Richland, WA 99352
265
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DEHL, MR. JESSE S.
Penn Central Transportation Co.
6 Penn Center Plaza, Room 1716
17th and Market Streets
Philadelphia, PA 19104
DIETS, MR. J. H.
Southern Railway Company
125 Spring Street S. W.
Atlanta, GA 30303
DENTON, MR. KENT A.
Air Products & Chemicals, Inc.
Five Executive Mall
Wayne, PA 19087
DeVOID, MR. HOWARD
American Cyanamid Company
895 Berdan Avenue
Wayne, NJ 07470
DIEFENBACH, MR. RUSSELL
EPA, Region V
230 South Dearborn
Chicago, IL 60604
DiNUZZO, MR. JOHN A.
GAF Corporation
1361 Alps Road
Wayne, NJ 07470
DOMBROWSKI, MS. CATHY
Business Publishers
Box 1067, Blair Station
Silver Spring, MD 20910
DRENNAN, MR. THOMAS E.
Sioux City and New Orleans
Barge Lines, Inc.
10000 Old Olive Street Road
St. Louis, MO 63141
DUENSING, HOLLIS
Association of American Railroads
1920 L Street N. W.
Washington, DC 20036
EICHMILLER, MS. LINDA
EPA
401 M Street S. W.
Washington, DC 20460
ELLIOTT, MR. PAUL R.
EPA, Region II
43 Drake Road
Somerset, NJ 08873
ELSTON, MR. HARRY S.
Chemical Leaman Tank Lines, Inc.
P. O. Box 200
Downingtown, PA 19335
FARREL, MS. CATHERINE
EPA, Region I
JFK Building, Room 2103
Boston, MA 02203
FARRELL, MR. JAMES K.
Hercules, Inc.
910 Market Street
Wilmington, DE 19899
FAWCETT, MR. ROBERT L.
Allied Chemical Corporation
Margaret and Bermuda Streets
Philadelphia, PA 19137
FERRAND, MR. PERCY J.
Freeport Chemical Company
Uncle Sam, LA 70792
FETTER, DR. EDWARD J.
American Cyanamid Comapny
Warners Plant
P. 0. Box 31
Linden, NJ 07036
FISHER, MR. C. W.
Koppers Company, Inc.
Research Department
440 College Park Drive
Monroeville, PA 15146
FIZER, MR. JAMES C.
Chessie System
P. 0. Box 1800
Huntington, WV 25718
FLINN, DR. JAMES
Battelie-Columbus
505 King Avenue
Columbus, OH 43201
FRANCO, MR. NICHOLAS .
Bethlehem Steel Corporation
405 Carver Drive
Bethlehem, PA 18017
FRANTZ, MR. CHARLES
Owens-Illinois, Inc.
Environmental Control Department
P. 0. Box 1035
Toledo, OH 43666
266
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FRISBE, MR. LEE
Chemagro, Agricultural Chemical Div.
Mobay Chemical Corporation
P. 0. Box 4913
Kansas City, MO 64120
FULLNER, MR. RICHARD
EPA, Region III
303 Methodist Building
Wheeling, WV 26003
GALLINGHOUSE, MR. ROBERT E.
American Cyanamid Company
10800 River Road
Westwego, LA 70094
GARRETT, MR. JACK T.
Monsanto Company
800 North Lindbergh Boulevard
St. Louis, MO 63166
GILBERT, MR. JOHN M.
EPA, Region III
2nd Floor, Curtis Building
6th and Walnut Streets
Philadelphia, PA 19106
GLENN, MR. JAMES T.
Waterway Operations Conference
2000 K Street, Suite 404
Washington, DC 20006
GLUCKSTERN, MR. HENRY
EPA, Region II
26 Federal Plaza, Room 813
New York, NY 10007
GRANT, MR. BARRIE
Singmaster & Breyer, Inc.
100 Park Avenue
New York, NY 10017
GRANT, MS. MARILYN
Grant Associates
101 Clark Street, Apt. 6G
Brooklyn, NY 11201
GRAZIAI40, MR. ROBERT M.
Association of American Railroads
1920 L Street N. W.
Washington, DC 20036
GRELLA, MR. ALFRED
U. S. Department of Transportation
Office of Hazardous Materials
400 7th Street S. W.
Washington, DC 20590
GRUTER, MR. ANDREW J.
American Cyanamid Company
895 Berdan Avenue
Wayne, NJ 07470
HALL, MR. RICHARD D.
Diamond Shamrock Corporation
1100 Superior Avenue
Cleveland, OH 44114
HANDELMAN, MR. MORT
Reynolds Metals Company
P. O. Box 9177
Corpus Christi, TX 78408
HANKS, MR. GEORGE J., JR.
Union Carbide Corporation
Chemicals and Plastics Division
P. 0. Box 8361
South Charleston, WV 25303
HARRISON, MR. JOHN
Shell Chemical Company
2401 Crow Canyon
San Ramon, CA 94583
HARTWELL, MR. WILLIAM V.
U. S. Department of Commerce, DEA
14th Street and Constitution Ave.
Washington, DC 20260
HAUEISEN, MR. ANTHONY J.
Betz Laboratories, Inc.
4636 Somerton Road
Trevose, PA 19047
HAWORTH, MR. B. C.
E. I. duPont deNemours
200 Building, Room 307
9th and Orange Street
Wilmington, DE 19898
HEIL, MR. PAUL
Dow Chemical U. S. A.
2030 Dow Center
Midland, MI 48640
& Co., Inc
267
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HELLMAN, DR. T. M.
Allied Chemical Corporation
P. 0. Box 1057R
Morristown, NJ 07960
HESSE, MR. JOHN L.
Michigan Department of
Natural Resources
Stevens Mason Building
Lansing, MI 48926
HOFFMANN, MR. CHARLES
EPA, Region II
Water Enforcement Branch
26 Federal Plaza, Room 813h
New York, NY 10007
HOLLOWAY, MR. ROSS
Texas Water Quality Board
P. 0. Box 13246, Capitol Station
Austin, TX 78711
HOOPER, MR. MARK
Robertson Distribution Systems, Inc,
2000 West Loop South, Suite 1800
Houston, TX 77027
HUGHES, MR. VANCE J.
EPA, Region IV
1421 Peachtree Street N. E.
Atlanta, GA 30309
HUNTER, MR. JOHN S.
3M Company, Building 42-5W
P. O. Box 33331
St. Paul, MN 55133
JACKNOW, MR. JOEL
EPA, PM-223
401 M Street S. W.
Washington, DC 20460
JAFFEE, MR. EDWARD L.
PPG Industries, Inc.
1730 Rhode Island Avenue N. W.
Washington, DC 20036
JENKINS, MR. JOHN C.
Eli Lilly and Company
307 East McCarty Street, M327
Indianapolis, IN 46206
JENNINGS, DR. ALLEN L.
EPA, Hazardous and Toxic
Substance Branch
Division of Technical Standards
Waterside Mall, Room 2824
401 M Street S. W.
Washington, DC 20460
JOHNSON, MR. LYNN D.
Rohm and Haas
P. 0. Box 584
Bristol, PA 19007
JOSLIN, MR. RICHARD
Monsanto Company
800 North Lindbergh
St. Louis, MO 63166
KALELKAR, MR. ASHOK S.
Arthur D. Little, Inc.
20 Acorn Park
Cambridge, MA 02140
KAMHOLZ, MR. MARK
Station B, Box H
Buffalo, NY 14207
KAPSNER, MR. JOHN
EPA, Region VIII
1860 Lincoln Street
Denver, CO 80203
KAVANAGH, MR. JOSEPH N.
Chemical Leaman Tank Lines, Inc.
P. 0. Box 200
Downingtown, PA 19335
KAYLOR, MR. FRANK
Southern Railway System
99 Spring Street S. W.
Atlanta, GA 30303
KEEN, MR. PAUL R.
Ashland Oil Inc.
P. 0. Box 391
Ashland, KY 41101
KELLNER, MR. STEPHEN
Chemical Specialties
Manufacturers Association
1001 Connecticut Avenue
Washington, DC 20036
268
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KELLY, MR. WILLIAM G.
Atlantic Richfield Company
515 South Flower Street
Los Angeles, CA 90071
KEWIiEY MR. TIMOTHY C.
Safety Consultant
4540 Airlie Way
Annandale, VA 22003
KERSTETTER, MR. LES L.
Hercules Incorporated
910 Market Street
Wilmington, DE 19899
KEW, MR. GREGORY
EPA, HATS Task Force
401 M Street S. W., WH595
Washington, DC 20460
KIMBALL, MR. ED
Tennessee Valley Authority
401 Building
Chattanooga, TN 37401
KINNEY, MR. WESLEY L.
EPA/NERC
P. O. Box 15027
Las Vegas, NV 89114
KLOIBER, MR. FRED
National Asphalt Company
6811 Kenilworth Avenue
Riverdale, MD 20840
KNOTT, MR. JOSEPH F.
PPG Industries, Inc.
One Gateway Center
Pittsburgh, PA 15222
KOVACS, MR. MARTIN F., JR.
EPA, OPP/C&ED
401 M Street S. W.
Washington, DC 20460
KOVALIC, MS. JOAN
Committee on Public Works
U. S. House of Representatives
2165 Rayburn Building
Washington, DC 20515
LANE, MR. SAMUEL M.
Mobil Chemical Company
P. 0. Box 26683
Richmond, VA 23261
LANDES, MR. J. H-
Tennessee Eastman Company
P. 0. Box 511
Kingsport, TN 37662
LANDGRAF, MR. DAVID C.
FMC Corporation
1917 John F. Kennedy Blvd.
Philadelphia, PA 19103
LAUBUSCH, MR. ED
The Chlorine Institute
342 Madison Avenue
New York, NY 10017
LEGAT, MR. EDWARD
Union Carbide Corporation
River Road
Boundbrook, NJ 08805
LEHMAN, MR. CHARLES
American Commercial Barge
Line Company
1701 East Market Street
Jeffersonville, IN 47130
LEHMAN, MR. JOHN P.
EPA/Office of Solid Waste
Management Programs
1835 K Street N. W.
Washington, DC 20460
LEMON, MR. DEAN
U. S. Borax & Chemical Corp,
3075 Wilshire Boulevard
Los Angeles, CA 90010
LEVIN, DR. ARTHUR A.
Battelle Memorial Institute
Washington Office
2030 M Street N. W.
Washington, DC 20036
LEWIS, MR. MICHAEL K.
Celanese Fibers Company
P. 0. Box 1414
Charlotte, NC 28201
LIBRIZZI, MR. WILLIAM
EPA
Woodbridge Avenue
Edison, NJ 08817
LION, MR. KENWORTH E., JR.
Reynolds Metals Company
6601 W. Broad Street
Richmond, VA 23261
269
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LIPTON, MR. SYDNEY
Exxon Chemical Company
P. 0. Box 101
Florham Park, NJ 07932
LITTLEPAGE, MR. RICHARD C.
Chemical Leaman Tank Lines, Inc.
P. O. Box 200
Downingtown, PA 19335
McCAY, MR. JOHN
Tennessee Valley Authority
New Sprankle Bldg., Room 642
Knoxville, TN 37912
McDERMOTT, MR. GERALD N.
Procter & Gamble Company
Hillcrest Tower
7162 Reading Road
Cincinnati, OH 45243
McGRADE, MR. DANIEL
Stauffer Chemical Company
Westport, CT 06880
McMAHAN, MR. J. RAYMOND
Arthur D. Little, Inc.
20 Acorn Park
Cambridge, MA 02140
McMASTERS, MR. MICHAEL J.
Idaho Department of Health,
Environmental Services Division
1028 F Street
Lewiston, ID 83501
MCMILLAN, MR. c. E.
Amoco Chemicals Corporation
200 East Randolph Drive (MC 4103)
Chicago, IL 60601
MAHNS, MR. HENRY
Federal Aviation Administration
MWAS H6R #9
Washington National Airport
Washington, DC 20001
MALONEY, MR. GEORGE
Travelers Insurance Company
7617 Little River Turnpike
Annandale, VA 22003
MANGANARO, MR. FRANK
Penn Central Transportation Co.
Room 360, 30th Street Station
Philadelphia, PA 19104
MANN, MR. WILLIAM
N L Industries, Inc.
P. 0. Box 420
Hightstown, NJ 08520
MANNING, MR. RALPH
Allied Chemical Corporation (NIC-3
P. O. Box 1057-R
Morristown, NJ 07960
MARTIN, MR. TERRY
Missouri Pacific Railroad
210 North 13th Street
St. Louis, MO 63103
MAURER, MR. ROBERT H.
Celanese Chemical Company
P. 0. Box 9077
Corpus Christi, TX 78408
MAY, MR. GORDON F.
Federal Aviation Administration
14804 Waterway Drive
Rockville, MD 20853
MELIE, MR. MICHAEL
T & D Department
E. I. duPont deNemours
1000 Market Street
Wilmington, DE 19898
& Co., Inc.
MESLER, MR. ROBERT J.
The Dow Chemical Company
2020 Dow Center
Midland, MI 48640
MICUEZ, MR. WALTER
EPA (WH-448)
401 M Street S. W.
Washington, DC 20460
MILLER, MR. DONALD D.
U. S. Department of Agriculture
APHIS, V. S. Federal Building
Room 870
Hyattsville, MD 20782
270
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MILLER, MR. MALCOLM T.
Canadian Industries Limited
P. O. Box 10
Montreal H3C 2R3
Quebec, Canada
MOEIN, MR. GEORGE
EPA, Region IV
1421 Peachtree Street N. E.
Atlanta, GA 30309
MONTEITH, MR. JOHN
Environment Canada
Ecological Protection Branch
Ottawa K1A OH3
Ontario, Canada
MOORE, DR. JOSEPH E.
Chevron Chemical Company
940 Hensley Street
Richmond, CA 94804
MRDAK, MR. BORIS
General American Transportation Corp
120 South Riverside Plaza
Chicago, IL 60606
HULHERN, IIR. THOMAS A.
Western Electric
81 Plymouth Avenue
Yonkers, NY 10710
MULLINS, MR. M. L.
Monsanto Industrial Chemicals
800 North Lindbergh
St. Louis, MO 63166
NEELY, MR. W. B.
The Dow Chemical Company
1702 Building
Midland, MI 48640
NELSON, MR. JAMES S.
General Electric Company
Mail Station El-Al
Fairfield, CT 06431
NESSLER, MS. ELSA
Bigham, Englar, Jones & Houston
c/o V?. E. Maloney
99 John Street
New York, NY 10038
NISSLEY, MR. RICHARD B.
Ohio Barge Line, Inc.
P. 0. Box 126
Dravosburg, PA 15034
NOONAN, MR. ROBERT
Penn Central Transportation Co.
3785 Montevista Road
Cleveland Heights, OH 44121
O'DRISCOLL, MR. JEREMIAH J.
Southern Railway System
99 Spring Street S. W.
Atlanta, GA 30303
OLISZEWSKI, MR. ALEX
American Wood Preservers Institute
1651 Old Meadow Road
McLean, VA 22101
OSTRANDER, MS. AMY L.
Polymer Intermediates, N-6451
E. I. duPont deNemours & Co., Inc.
1000 Market Street
Wilmington, DE 19803
OTT, MS. PATRICIA
EPA, Office of Pesricides
HM 568, Room 809c
401 M Street S. W.
Washington, DC 20460
PADDEN, MR. THOMAS
EPA
401 M Street S. W.
Washington, DC 20460
PENDERGAST, MR. THOMAS
Penn Central Transportation Co.
Room 360, 30th Street Station
Philadelphia, PA 19104
PELLISSIER, MR. RING
FMC Corporation
1617 John F. Kennedy Boulevard
Philadelphia, PA 19103
PHILLIPS, MR. ROBERT
Travelers Insurance Company
Hartford, CT 06101
271
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POLITO, MR. MICHAEL
EPA
174 Flanders Drive
Somerville, NJ 08876
PRIESING, DR. CHARLES P.
American Cyanamid Company
895 Berdan Avenue
Wayne, NJ 07470
PURCELL, MR. JOHN P.
E. I. duPont deNemours & Co., Inc
Petroleum Chemicals Division
Nemours 7541
Wilmington, DE 19898
REESE, MR. ROBERT S., JR.
National Tank Truck Carriers, Inc,
1616 P Street N. W.
Washington, DC 20036
REILLY, MR. THOMAS
Lederle Laboratories
Pearl River, NY 10965
REYNOLDS, MR. JOHN
The Fertilizer Institute
1015 18th Street
Washington, DC 20036
ROBERTS, MS. DONNA
Dow Chemical U. S. A.
2030 Dow Center
Midland, MI 48640
ROLAND, MR. JOHN V.
State Water Control Board
2111 North Hamilton Street
Richmond, VA 23230
ROOK, MR. JAMES H.
American Cyanamid Company
895 Beruan Avenue
Wayne, NJ 07470
ROSE, DR. STUART
Lederle Laboratories
Pearl River, NY 10965
ROTHERMEL, MR. TERRY
Arthur D. Little, Inc.
20 Acorn Park
Cambridge, MA 02140
ROZNOY, MR. LOUIS
Olin Corporation
120 Long Ridge Road
Stamford, CT 06904
RYAN, MR. RICHARD
Rohm & Haas Company
Independence Mall West
Philadelphia, PA 19105
SCHWARTZMAN, MR. HOWARD
Procter & Gamble Company
7162 Reading Road
Cincinnati, OH 45222
SELMAN, MR. JERRY
EPA, Risk Consultant
120 West 49th Street
Bayonne, NJ 07002
SHUCKROW, DR. ALAN J.
Battelle-Northwest
P. O. Box 999
Richland, WA 99352
SIGMOHD, MR. LEIF
Scientific Chemical Processing
215 Comanche Drive
Oceanport, NJ 07757
SIMONSEN, MR. ROBERT
The Standard Oil Company of Ohio
1753 Guildhall Building
Cleveland, OH 44115
SKOLNICKI, MR. W. T.
U. S. Steel Corporation
600 Grant Street
Pittsburgh, PA 15230
SMITH, MR. EDWARD F.
Hooker Chemical & Plastics Corp.
Box 728
Niagara Falls, NY 14302
SMITH, MR. JAMES
American Waterways Operators Inc.
1250 Connecticut Ave. N. W.
Washington, DC 20036
SNYDER, MR. HAROLD J.
EPA
401 M Street S. W.
Washington, DC 20460
272
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SPANN, MR. CHARLES
Sun Oil Company
1608 Walnut Street
Philadelphia, PA 19103
SPEISER, MR. ARNOLD
District of Columbia Department
of Environmental Services
415 12th Street N. W.
Washington, DC 20004
SPRADLEY, MR. J. ROY, JR.
National Association of
Electric Companies
1140 Connecticut Ave. N.
Suite 1010
Washington, DC 20036
SRINIVASAN, MR. SESHADRI
Battelie-Columbus
505 King Avenue
Columbus, OH 43201
STAPOR, MR. BERNARD
Tracer-Jitco, Inc.
12410 Washington Avenue
Rockville, MD 20851
STEERE, MR. R. C.
Tracer-Jitco, Inc.
12410 Washington Avenue
Rockville, MD 20851
STEVENS, MR. F. C.
Clorox Company
P. O. Box 522
Frederick, MD 21701
STRADLEY, MR. MICHAEL W.
Battelle-Northwest
P. 0. Box 999
Richland, WA 99352
STRIER, MR. MURRAY
EPA, EG-336
401 M Street S. W.
Washington, DC 20460
SUSEL, MR. IRVING
EPA
401 M Street S. W.
Washington, DC 20460
W.
SUZUKI, MR. ROBERT H.
EPA
4627 Seminary Road
Alexandria, VA 22304
SWARTZ, MR. FRED W.
Allied Chemical Corporation
1629 K Street N. W., Suite 500
Washington, DC 20006
THOMPSON, DR. C. HUGH
EPA, Hazardous and Toxic
Substance Branch
Division of Technical Standards
Waterside Mall, WH-545
401 M Street S. W.
Washington, DC 20460
TOBIN, MR. MAURICE
Attorney at Law
1010 16th Street N. W.
Washington, DC 20036
TOWNSEND, MR. EDWARD
Exxon Chemical Company
P. 0. Box 3272
Houston, TX 77001
TOTTtN, MR. MAX C.
ICI United States, Inc.
Traffic Services
Wilmington, DE 19897
TRUE, MR. LEIGHTON
Chevron Chemical Company
P. O. Box 3744
San Francisco, CA 94120
TURNER, MR. PAUL
Ace Oil Service, Inc.
876 Otter Creek Road
Oregon, OH 43616
UHRMACHER, MR. J. CARL
Maryland Environmental Service
Tawes State Office Building
Annapolis, MD 21401
UNDERWOOD, MR. WARREN
Owens-Illinois, Inc.
Environmental Control Department
P. 0. Box 1035
Toledo, OH 43666
273
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VAN CLEAVE, MR. H. D.
EPA
401 M Street S. W.
Washington, DC 20460
VESCELIUS, MR. CLINTON H.
Olin Corporation
120 Long Ridge Road
Stamford, CT 06904
WARD, MR. W. P.
General Motors
GM Technical Center, EAS Bldg.
Warren, MI 48090
WATTS, MR. SAMUEL
Manufacturing Chemists Assn., Inc.
1825 Connecticut Avenue N. W.
Washington, DC 20009
WEBER, MR. EDWIN C.
State of Maryland
Department of Natural Resources
Water Resources Administration,
Oil Permit Section
Tawes State Office Building
Annapolis, MD 21401
WEIOMAN, MR. JAY
Betz Laboratories, Inc.
46 East Park Avenue
Maple Shade, NJ 08052
WESTGARTH, DR. WARREW
State of Oregon
Department of Environmental Quality
8148 S. W. Beaverton-Hillsdale Hwy.
Portland, OR 97225
WHITE, MR. GEORGE
National Academy of Sciences
2101 Constitution Avenue
Washington, DC 20418
WIERIMAN, MR. DONALD
Truck Trailer Manufacturers Assn.
5512 Harvey Street
Alexandria, VA 22312
WILKENFELD, MR. JEROME
Hooker Chemicals <; Plastics Corp.
Box 278
Niagara Falls, NY 14302
WILLENBRINK, MR. RONALD
Ashland Oil, Inc.
P. O. Box 391
Ashland, KY 41101
WILLIAMS, MR. RALPH
Tracor-Jitco, Inc.
1776 East Jefferson Street
Rockville, MD 20852
WILSON, MR. GEORGE L.
Rohm & Haas Company
Independence Mall West
Philadelphia, PA 19105
WILSON, MR. RICHARD A.
Chotin Transportation, Inc.
225 Baronne Street, Suite 2404
New Orleans, LA 70112
WILSON, MR. ROBERT E.
Manager, Transportation
Stauffer Chemical Company
Nyala Farm Road
Westport, CT 06880
WILSON, MR. VIRDEN W.
Shell Oil Company
P. O. Box 2463
Houston, TX 77001
WINGERTER, MR. EUGENE
National Solid Wastes Management Assn
1730 Rhode Island Avenue N. W.
Washington, DC 20036
WOLPER, MR. EDWARD
Hercules, Incorporated
910 Market Street
Wilmington, DE 19899
WOMACKS, MR. DONALD L.
Amoco Chemicals
200 East Randolph Drive
Chicago, IL 60601
WRIGHT, MR. WILLIAM L.
Eli Lilly and Company
1410 Bowman Drive
Greenfield, IN 46140
274
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WULF, MR. W. H.
Shell Chemical Company
P. O. Box 2463
Houston, TX 77001
WYER, MR. RUSSEL
EPA
7507 Todd Place
Manassas, VA 22110
YORKE, MR. C. ALVIN
EPA, Region VIII
1860 Lincoln Street, Suite 900
Denver, CO 80203
ZERCHER, MR. JOHN C.
Manufacturing Chemists Assn., Inc.
1825 Connecticut Avenue N. W.
Washington, DC 20009
ZINTZ, MR. F. RAYMOND
Chief, Emergency Preparedness Branch
Office of Operational Safety
U. S. Atomic Energy Commission
Washington, DC 20545
275
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