UNITED STATES  ENVIRONMENTAL  PROTECTION AGENCY

                           REGION X
IN THE MATTER OF:
'/
PUBLIC HEARING -
CONSOLIDATED PERMIT  PROGRAM
REGULATIONS
                  TRANSCRIPT OF PROCEEDINGS
      Taken at Conference Room 12-A,  Park Place Building




                           VOLUME II

                         Pages 1-51
APPEARANCES:

        Panel Members:
                   EDWIN COATE, CHAIRMAN
                   FRAN  PETERSON
                   LLOYD REED
                   SAM MOREKAS
                   DAVID SCHNAPF
                   FANNY KNOX
DATE TAKEN:
REPORTED BY:
August  1,  1979
John A.  Portesan
                                              IRWIN & ASSOCIATES, CSR's
                                             1525 Peoples National Bank Building
                                                Seattle, Washington 98171
                                                     623-7881

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                                   I  N D 2  X

 2

 3   SPEAKER                            PAGE NO.
 4  EDWIN COATE                            1

 5  HAROLD  SOLOMON                        3

 6  DON PROVOST                          12

 7  DAVID ORTMAN                         27

 8  HERB SCHUYTEN                        39

 9  JACK HUNT                            43

10  DAVID BERNER  (Written  state-       46
                    ment)
11

12  STEWART BLESDOE  (Written           49
                       Statement)
13

14

15

16

17

18

19

20

21

22

23

24

25
                 . IRWIN & ASSOCIATES, CSR's Court Reporters • 623-7881 Seattle, Washington

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 1           SEATTLE, WASHINGTON;  WEDNESDAY,  AUGUST 1, 1979

 2                               9:00  A.M.

 3                               --ooOoo—

 4


 5                   MR. COATE:   I would like to call this meeting

 6         to order.

 7                   Good morning,  my name is Edwin Coate, Deputy

 8         Regional Administrator of  Region X, and the Chairman

 9         here this morning.  This session,  this hearing is being

10         held to address  the consolidated permit regs and the

11         permit application forms and the proposal which was
t
12         promulgated in the Federal Register on June 14th, 1979.

!3                   At this time,  I  would like to introduce the

14         members of the panel.   On  my far left Is Ms. Fanny Knox,

15         next to her is David  Schnapf,  Sam Morekas and Tom Belk.

16         On my immediate  right is Lloyd  Reed and to his right is

17         Ms. Fran Peterson.

18                   I would like to  briefly cover two ground rules

19         for our hearings this morning.   First of all, a public

20         record .will be available in Washington, D. C., the

21         address is listed in  the preamble.  Transcripts will be

22         made, and be available within three weeks.  They will

23         be available here in  this  regional office, and head-

24         quarters.  Our purpose this morning is to listen to you.

25         All oral comments at  the hearings and all written commen


  	 IRWIN & ASSOCIATES, CSR's - Court Reporters - 123-7881 Seattle, Washington 	
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i         received will be considered.  All major comments  will



2         be discussed in the preamble of the final  regulation.



3         This is not a trial-type hearing, but will be  sort of



4         a presentation by which each of you who wish to comment



5         will make a presentation.  The panel will  then ask



6         questions, if that's agreeable to you.  And we will



7         proceed accordingly.



8                   I would like to limit oral comments  to  around



9         ten minutes.  We will not get into a question  and answer



10         exchange. However, if there is time at the end of the



11         hearing, we will close the hearing and take questions



12         from the floor, if you like.  All written  comments in



13         full will be placed in the record, and considered just



14         as if you gave an oral statement.  So, if  you  have a



15         lengthy written presentation, we would like you to just



16         sort of summarize and highlight it.



17                   I hope that you have all filled  out  a form



is         if you wish to speak.  I will go over the  list very



19         quickly here.  I have four people who have indicated



20         they wish to speak.  Those are Mr. Harold  Solomon of



21         Chevrolet, Mr. Don Provost, Department of  Ecology, Mr.



22         David Ortman, Friends of the Earth, and Mr. Schuyten of



23         Chevrolet Chemical Company.



24                   MR. SCHUYTEN:  Chevron.



25                   MR. COATE:  Chevron.  If there are others who




  ^	IRWIN & ASSOCIATES, CSR's - Court Reporters 423-7881 • Seattle, Washington 	

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i         wish to speak, please let the people in the back  of  the



2         room know, and we will act accordingly.  This is  the



3         final session.



4                   At this time, then, I would like to ask the



5         first speaker to come forward, Mr. Harold Solomon.



6                   MR. SOLOMON:  Mr. Chairman, and members of



7         the Committee, my name is Harold Solomon.  And  contrary



a    -     to the speaker's list, I reside and work here in  the



9         Seattle area.  I am a member of the Marketing Department



10         of Chevron U.S.A., Incorporated, not Chevrolet.   I am



11         appearing here today on behalf of Chevron, which  is  the



12         domestic operating subsidiary of Standard Oil Company



13         of California.  In my job, I am required to be  familiar



14         with environmental issues that Chevron must address,



15         including the application for permits to operate  market-



16         ing terminal facilities.  I appreciate the opportunity



17         to present our views on the proposed regulations.



is                   Chevron shares the concern expressed  for



19         uniform procedures and requirements to streamline the



20         process of obtaining permits.  The number of environ-



21         mental permits, approvals, licenses and authorizations



22         required to construct or operate an industrial  activity



23         has rapidly increased in recent years.  Industry,



24         frustrated by the complexity of the environment permitting



25         process, where one facility may require multiple permits




  ^	IRWIN 4 ASSOCIATES, CSR's Court Reporters 623-7881 Seattle, Washington 	

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 1         for different  activites, or where different agencies



 2         are regulating the same activity, has called for simpli-



 3         fied and expedited permitting procedures.  Government,



 4         frustrated by the duplication of effort in various



 5         agencies, has occasionally considered streamlining permi



 6         programs by the consolidation of environmental permits



 7         into a master permit and on June 14th, 1979, EPA publish



 8         proposed regulations consolidating permit programs that



 9         are the subject of today's hearing.



10                   From our review of the consolidated permit



11         regulations proposed by EPA, however, it is apparent



12         that they do not meet the need for fundamental regulator



13         reform.  In fact, they appear to add yet another layer



14         of government bureaucracy and will make the permitting



15         procedures more complex and time consuming than at pre-



16         sent.



17                   EPA attempts to justify the proposed permit



is         program consolidation by claiming benefits to the enviro



19         ment, the regulated community, the general public and



20         the Agency's institutional efficiency.



21                   The Agency has given the proposal a fair amoun



22         of publicity pointing out the expected benefits and the



23         problems precluding complete uniformity.  They have also



24         issued a misleading statement of the optional nature of



25         the proposed permit consolidation.  The Bureau of




  	IRWIN & ASSOCIATES, CSR's • Court Reporters 623-7881 • Seattle, Washington 	

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 i         National Affairs Environmental Reporter, June  15th,  1979,



 2         published an article containing a paragraph in  which EPA



 3         officials emphasized the new  regulations would  be optional



 4         in  that they would not require that  all aspects  of a



 5         permit application be approved simultaneously,  but that



 6         permit approvals could be broken out  separately.   Howeve



 7         it is important to note that  the proposal  provides that



 s         this option of separate or combined processing  is at



 9         the choice of the permitting  authority,  and is  not



10         optional from the point of view of  the  applicant.



11                   Chevron further believes  that the permit progrjam



12         proposed by EPA would have serious  negative effects on



13         our domestic energy operations.  EPA's  approach intro-



14         duces major additional uncertainties in  permit issuance



15         and renewal, and is extremely burdensome in that  it



16         applies the most stringent aspects  of each permit prograjm



17         to the consolidated permit program.



is                   Our experience with obtaining permits is that



19         the terms and conditions of operating permits issued to



20         our existing operations are rarely  determined by precise



21         reference to specific regulations.  Instead,  the  terms



22         and conditions are the result of extensive negotiations



23         regarding the applicability of the  regulations  to the



24         source in question.  The severity   of the  final permit



25         terms and conditions usually  reflect  the attitude of




         	IRWIN & ASSOCIATES, CSR's Court Reporters  623-7881 Seattle, Washington 	

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 i         the regulating agency  toward the regulated industry and
 2         the capabilities of the  respective participants in the
 3         permit negotiation process.   As  flawed as the existing
 4         system is, it is better  than the one we are discussing
 5         today where the issuance of  a master environmental per-
 6         mit must meet the approval of the agency involved and
 7         the agency, no matter  how weak its statutory authority
 8         or poor its technical  arguments, can compel compliance
 9         with its directives by "hwarting issuance of the master
10         permit.
11                    In addition  to the practical problems posed
12         in negotiation of a master permit, the legal problems
13         appear to  be virtually insurmountable.  For example,
14         the definition, of "state",  "person" and "drinking water"
15         are different under the  different regulations.  The
16         penalty provisions are also  different in civil and
17         criminal penalties which must demonstrate whether intent
is         is willful, negligent, knowingly, or willfully.  Some
19         permit programs are delegated to states for implementa-
20         tion, while others, such as  RCRA, are likely to be issuejd,
21         in most cases, -ฉ•ฃ the  Federal level for the foreseeable
22         future.
23                    It is not clear how the proposed master
24         environmental permit procedure would be implemented in
25         a state such as California where many agencies have
                IPUUIM 4, ASSOCIATES, CSR's - Court  Reporters - 623.7381 - Seattle, Washington 	

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1
          responsibilities for issuing permits.  Would a new law
2         be required to name a single agency that would have pent
                                                                   it
3         responsibility?  If not, and the existing multiple  agence-



4         would have to individually approve  the  consolidated per-



5         mit, there would be no savings of either time  or money



6         under  the proposal.



7                   Violations under a master permit  program  could



8         be particularly onerous. . Violation of  a condition  relat



9         ing to RCRA, which might be resulted by an  operational



10         change, could result in application of  the  NPDES permit



11         effectively closing our entire facility.



12                   Lastly, it appears in the mechanical process



13         of consolidating these regulations  EPA  is using this as



14         an opportunity to extend its control beyond the limita-



15         tions which Congress has established in authorizing spe-



16         cific programs.  This is a trend which  recently has



i?         become very apparent to us in other EPA permits and it



is         must be stopped.



19                   In conclusion, the EPA consolidated  environ-



20         mental permitting program proposed  in the June 14th



21         Federal Register, does not offer the hoped  for stream-



22         lining of the permitting process.   The  program would



23         have serious negative effects on our operations by  intro



24         ducing major additional uncertainties in permit issuance



25         and renewal, the introduction of another  layer of




   _ __ IRWIN & ASSOCIATES, CSR's - Court Reporters - 623-78S1 - Seattle, Washington -

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 1         bureaucracy and in applying the most  stringent aspects


 2         of each permit program to the  entire  consolidated permit


 3         program.


 4                   Expedited permitting is  possible within the


 5         framework of existing regulation and  we  question the


 6         need and justification for a master environmental permit



 7         program.  Thank you.


 8                   MR. COATE:  Thank you, Mr.  Solomon.


 9                   Are there any questions  from the panel?


10                   Do you care to answer questions?


11                   MR. SOLOMON:  Yes.
                ^

12                   MR. MOREKAS:  I have a couple  to make sure I


13         understand your testimony, .Mr. Solomon.   Will  you be


14         submitting specific written comments  on  parts  that you


15         feel we could improve on, or is this  going to  be the


16         extent of your commentary, sir?


17                   MR. SOLOMON:  This was to be our comments.


is         However, if you gentlemen feel that we should  clarify


19         some of the statements, I am sure  we  can do that.


20                   MR. MOREKAS:  Okay.  I believe — I  want to


21         ask you a couple things about  your comments relative


22         to RCRA.  I believe you stated that RCRA permits are


23         likely to be issued in most cases  at  the Federal level


24         for the foreseeable future.  I wonder if you could expanji


25         on that a little bit.  Do you  have information, I guess,


                               w=r
   ____^_________ IRWIN & ASSOCIATES, CSR's"- Court Reporters - 623-7881 • Seattle, Washington 	

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 i         that we  don't  have?



 2                   MR.  SOLOMON:   This is just our legal departmer



 3         feeling  on  this.   I  am  an engineer with the company.  It



 4         falls  to me to make  the application for permits and so



 5         forth.   But the word we get from our legal counsel is



 6         that this is probably the way it is, at least this is



 7         what they see.



 8                   MR.  MOREKAS:   But they see the states will



 9         not be taking  the program, therefore —



10                   MR.  SOLOMON:   That's correct.



11                   MR.  MOREKAS:   That EPA will be issuing the



12         permits?



13                   MR.  SOLOMON:   That is correct.



14                   MR.  MOREKAS:   Okay.  I guess I have a little



15         trouble  deciphering  the statements you are making about



16         a master environmental  permit.  I don't believe in the



17         regulations we are using the term nor are we implying



is         there  would be one overall permit.  I think the approach



19         that's in the  regulation is basically these can stand



20         on their own and  be  separate.  Could you expand on that



21         a little?



22                   MR.  SOLOMON:   Well, we are mainly addressing



23         the aspect  of  a consolidated permit procedure, which



24         is what  we  are referring to as a master permit.  It is



25         our concern that  if  several agencies are pulled together




  	 iRWIN & ASSOCIATES, CSR's  Court Reporters - 623-7881 - Seattle, Washington 	
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 1         under one permitting process,  then we are going to be



 2         in real  trouble if  we have a violation, well, say, in



 3         one area of,  let's  say,  NPDES, we may be shut down com-



 4      ,   pletely  even  though we are in compliance with the others



 5         RCRA or  the UIC program and so on.



 6                   MR.  SCHNAPF:  I don't think that's actually



 7         legally  possible insofar as we — the permits are



 8         separable insofar as the requirements for the RCRA



 9         program  would be contained in what would be identified



10         as RCRA  terms and conditions and violations of those



11         RCRA terms and conditions would not — we could not



12         legally  be able to  affect the NPDES permit under these

                                              •  UJha.4- "Hve^

J3         regulations.   We set forth very clearly results of viola
                                                  \


14         tion of  the NPDES would be.  One of the grounds for



15         revoking NPDES is not violation of the RCRA.



16                   I would also like to stress, this is very



17         important, we are not requiring any reorganization of



18         any state government.  The states are free to implement



!9         these in any  way they see fit.  What we would like to



20         see is consolidation at the state level, because of the



21         benefits we see happening.  This would not require any-



22         thing along those lines, nor does it require EPA to get



23         the approval  of any other agency to issue a permit.  And



24         that seems to be one of your fears.



25                   You say the existing process is better than  th



   	IRWIN 8. ASSOCIATES, CSR's - Court Reporters • 423-7881 Seattle, Washington 	
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 1         proposed process, but that doesn't  fully  recognize the



 2         fact with respect to the RCRA program and the UIC pro-



 3         gram there is no existing process.  And what we have



 4         tried to do is take these programs  in i/tCa. way that woul



 5         be consistent with the existing programs.   And I am wond



 6         ing if you could expand on that point a bit?



 7                   MR. SOLOMON:  Not except  to say we feel like



 8         that within the existing permitting process — we feel



 9         that, this concerned a feeling of frustration in attempt



10         ing to obtain permits for all sorts of governmental



11         requirements, programs, especially  environmental.  The



12         frustration of having to submit an  application, and then



13         later on we are required to submit  additional informa-



14         tion.  We feel like the process, as we know them today,



15         could be streamlined, maybe by saying that an agency



16         has 30 days to respond, or 30 days  to approve or dis-



17         approve.  These are the kinds of things that are very



is         frustrating to us, as the process of  going a few steps



19         further and having to back up a step  before we can take



20         another step.  I don't have any specific  examples I



21         can point to right at the moment.   But this is the feel-



22         ing generally in the industry in dealing  with this type



23         of thing.  This reflects our feeling  on this particular



24         matter that we are talking about today.



25                   MR. SCHNAPF:  Thank you.




   	IRWIN & ASSOCIATES, CSR's Court Reporters - 623-7881 Seattle, Washington	
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1                   MR. MOREKAS:   I  wouldlike to follow up on



2         that and make sure we  are  communicating problems through



3         the regs in here.  As  we have written paragraph



4         Section 124.4 regarding the consolidation of applica-



5         tions, we feel we are  giving applicants the option to



6         consolidate those applications and submit them at the



7         same time to avoid the problem that I think you are



8         referring to.  And that it is up to the applicant, that



9         he can delay up  to 180 days in submitting two or three



10         applications.  And as  much as up to two and a half years



11         to do the very thing I believe you are driving at.



12                   I would like you to take a look at 124.4 and



13         see if that will meet  your concerns.



14                   MR. SOLOMON:   Okay.



15                   MR. COATE:   Any  more questions?



16                   Thank  you very much, Mr. Solomon.



17                   MR. COATE:   Our  next presentation by Mr.



is         Don Provost, Department of Ecology, Olympia, Washington.



19                   MR. PROVOST:   Good morning.  My name is Don



20         Provost, I am Assistant Director for the State of



21         Washington Department  of Ecology where I am in charge of



22         the Office of Comprehensive Programs.  Thank you for



23         the opportunity  to comment on the draft consolidated



24         permit program.  We appreciate it when EPA solicits our



25         thoughts on subjects that  mean so much to us.




    	IRWIN 4 ASSOCIATES, CSR's - Court Reporters 623-7881 - Seattle, Washington 	
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 i                    The  Department of Ecology has historically beejn
 2         interested in  permit authority.   At the height of the
 3         environmental  movement in the early 70's, the Washington
 4         State Legislature enacted 14 bills involving environmental
 5         protection and natural resource  regulation.  Although
 6         the  end results were impressive, it was not achieved
 7         without problems.  Many of the laws were single-purpose
 8         laws with little thought given to the relationship with
 9         other laws.  Thus, in '73, the Washington State Legis-
10         lature  created a procedure for centralized, coordinated
11         processing of permits.
12                    This Act, Environmental Coordination Proced-
13         ures Act, or ECPA for short.  ECPA is a voluntary systen
14         in which the applicants send the DOE a checklist.
15         Within  15 days, the applicant is notified of every
16         state,  local permit he will need.  We insure the appli-
17         cant understands what is happening, that all schedules
is         are  met.  We arrange for a simple public hearing and
19         deliver all permit regs at one time.  We are rather
20         proud of the ECPA system, and we are happy to see that
21         as a result of it that EPA has instituted a similar
22         process.
23                    Again, this process is designed for complex
24         permits where  several permits are involved.  And the
25         secret, I think, there is a person involved that kind of
   	^_^	IRWIN & ASSOCIATES, CSR's Court Reporters 623-7881 • Seattle, Washington 	
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1         helps you do  the process.
2                   In  1976, we  decided to take another look at
3         our own processing internally.   And our agency set up
4         a task force  to draw up a  consolidated permit and appli-
5         cation form.  We spent quite a while designing a single
** .'       application permit,  and system.   And we see similarities
7         in what is published in the Federal Register.  While
8         our task force was successful in their mission, the
9         final product appeared to  be cumbersome and unworkable.
10         None of our permit people  or clients we worked with were
11         happy with this consolidated permit and application font
12         It became too complex  and  covered too many bases.  We
13         felt it was a little ... shaky on legal grounds.  But the
14         crucial thing was when we  looked at it, it wasn't cost
15         effective for us to  do it.
16                   We  designed  a system that affected only about
17         two percent of our clients.  We felt that when applica-
18         tions came in, we did  a six-month study and extended
19         a little further on  almost a year study all the applica-
20         tions that came into the agency.  And 98 percent of the
21         applications  that came in  were for a single permit.  Am
22         we felt that  we were creating problems.
23                   We  recognize the system you are proposing,
24         you can come  in with the usual application.   But we fel
25         that it just  wasn't  cost effective.  Every time you had
               . IRWIN & ASSOCIATES, CSR's • Court Reporters - 4J3-7881 Seattle, Washington
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1         a very complex permit, you had consultation  and negotia-
2         tion involved.  And you kind of removed  the  advantages
3         of having that kind of permit application.   So, in
4         summary, we set up a system and decided  not  to  use it.
5                   Another thing happened  right after that,  the
6         Legislature passed another bill,  a business  license
7         center.  And here all the licenses in the  state go
8         'through a process, and are coordinated.  The first thing
9         is the clearing house that's been up and running.   The
10         second thing is setting up a consolidated  permit system.
11         They did a cost study/ this was after our  cost  study,
12         and seemed to confirm what we found out.   Is that a
13         consolidated permit was.: not. cost; effective unless you cduld
14         go out and handle it by computer, and no negotiations  or
15         consultations involved.  The only permit in  our Depart-
16         ment of Ecology that was in there is what  we called a
i?         well driller's license.  That's a simple renewal.   He
is         fills out a simple application form and  sends it in.
19         we don't have to call him up, don't do any checking,  no
20         numbers to check out or anything  else.   So,  a completely
21         independent agency in the state government felt that the
22         cost effective way — the only way a consolidated per-
23         mit application form was workable was that if you had
24         it simple enough and straight forward enought that you
25         didn't have to have staff people  out either  doing site
    	IRWIN & ASSOCIATES, CSR's - Court Reporters - 623-7881 Seattle, Washington  	
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i          investigations or negotiations.  The purpose  of  that



2          is to detail it, to acquaint you with our experiences,



3          in'permit processing, implementation.  It is  hoped EPA



4         will benefit from our experience rather  than  possibly



5         add another layer of bureaucracy all in  the name of



6         efficiency and economy.  We believe there should be
                                  *


7         simplification, not another layer of requirements.  We



8         should be helping the clients as one human being helping



9         another human being and working out the  problems with



10         somebody else.  We are concerned that the end product



n         may just be the opposite of what you intend to do.



12                   We have some specific concerns and  they are



13         as follows:  adding to the regulations'  complexity and



14         certain hazardous waste and underground  injection pro-



15         grams are in their infancy.  Coordination of  permit



16         activities should be considered only after these program



17         have matured in their form and substances and are more



is         clearly outlined.  Our experience has been that  whenever



19         a program is evolving, there are a lot of unanswered



20         questions, and they take this type of discussion and



21         going back and forth.  Even if the state has  the program



22         we have to go to EPA and to the applicant and back and



23         forth, and these things take quite a while to evolve.



24         Generally, the permit programs are too complex.  The



25         application procedures, public notice requirements,
               . IRWIN & ASSOCIATES, CSR'S - Court Reporters • 623-7881  Seattle, Washington
                                  16

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i         issuance, appeal and quantification procedures  and all



2         the other procedures that make  up  ths  sun  of  these are



3         time consuming and inflexible.  That the regulation will



4         probably end up angering the public.



5                   We are, again, as in  almost  every hearing,



6         talking about enforcement penalty.  Another issue  was



i         put in here that the system eventually gets uniformity.



8         I think that state programs and so on,  as  we  work,  our



9         people are concerned that it's  voluntary.  We can  get



10         into it, put our experiences from the  past into it,



11         we start not losing state character and interesting



12         the state in special things states like to do.   And we



13         say it's now a voluntary program, but  when one  portion



14         of the application is being reviewed,  the  remainder goes



15         under review.  We see this combining,  and  we  see some



16         dangers, even though it is voluntary.   Generally,  we



n         are concerned about added paperwork of regulations and



is         just the regulations coming out.   In 1977, EPA  published



19         about 4000 pages of regulation  affecting operations of



20         the Department of Ecology.  Since  then the flood of



21         rules and regs has increased.   In  '78,  there  were  about



22         4500 pages.  And the trend is even more regulations in



23         1979.  And again, we are — we  would like  to  see rather



24         than more regulations, I think, more going back into



25         current programs and simplifying them  and  getting  more
               . IRWIN & ASSOCIATES, CSR'S - Court Reporters • 623-7881  Seattle, Washington
                                  17

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 i         straight forward.  Again,  I  hope  that  these comments  are
 2         taken as they are intended,  in  a  constructive vein,
 3         and if you have questions  about our program and what
 4         we have done and our conclusions,  we would be happy to
 5         provide any information you  want.   We  will provide
 6         detailed written comments  by the  September 12th dead-
 7         line.
 8                   MR. COATE:  Thank  you.   Are  you available to
 9         take questions from the panel now?
10                   MR. PROVOST:  Yes.
11                   MR. SCHNAPF:  Both you  and the  previous  speake
12         mentioned the fear of an added  layer of bureaucracy.
13         I think that's a quote.  I am not sure exactly what you
14         see in here as being an added layer of bureaucracy.   All
15         these programs exist, or will exist, and  have existed.
16         Someone has to process those permits.  It's going  to
17         either be EPA or the states.  Whether  they are separate
is         programs or single programs,  it's going to be the  state.
19         I was wondering where the  added layer  came in?
20                   MR. PROVOST:  We have again  looked at your
21         consolidated permit ones and ours,  that we had originall;
22         intended and we developed.   We  never got  to finalizing
23         or using them.  And we just  felt  that  the kind of  —
24         just more complex filling  out of  forms.   It is more  com-
25         plex than the single application  form.  98 percent of outs
               . IRWIN & ASSOCIATES, CSR's - Court Reporters - 623-7881 Seattle, Washington
                                  18

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 i         are for  single permits.  They are getting more compli-
 2         cated, and we see this as another complication.  It gets
 3         confusing.   We recognize this is intended for probably -
 4         where EPA circled most of them.  But again, we put ours
 5         in the place of the applicant.  And it just gets more
 6         choices,  more forms.   Which form do you use, which one
 7         do you fill out?  It gets more complicated.
 8                    This information, and some of the information
 9         we are finding on NPDES, individual ones, could be run
10         in and simplified.  We would rather see that going in
11         and working on the current applications and getting what
12         you needed rather than sending a lot of information for
13         again- the trivial and insignificant.  Are two percent
H         really significant.  We think that it appears to us as
15         being set up for a computer system eventually, control
16         background, and we haven't had the best luck in that
17         area.  I guess we are basing a lot of it on our past
is         experience also.
19                    MR. MOREKAS:  I would like to follow up on
20         that.  You say the ones you tried to consolidate.  I
21         would assume at that point you were talking about NPDES
22         and air  —
23                    MR. PROVOST:  We had our own state programs.
24         Solid waste, we were combining a program that we were
25         developing and had in place at the time, that would be
               . 1RWIN S. ASSOCIATES, CSR's - Court Reporters • 623-7881 Seattle, Washington
                                   19

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 i         our solid waste,  of some hazardous waste regs.  We
 2         were looking  at the time at our state hazardous waste
 3         regulations.   Before the state law was passed, we had
 4         done just about what you had done in the format.  In
 5         formating it.
 6                   MR.  MOREKAS:   But your experience, of course,
 7         as you  stated, is that only two percent of those could
 8         be classified as facilities that need more than one of
 9         those;  is that basically it?
10                   MR.  PROVOST:   Yes.  The other one that went
11         with it are that these are complex facilities, and the
12         thing — the  company would be large and rather experienced
13         in handling them, or else if it was you needed — if
14         they weren't  in that class the ECPA process where you
15         had state coordinated or agency coordination was the
16         more effective route to go.  And so, when you looked at
17         the actual  forms being consolidated, they were the least
is         important part of the process, in our determination.
19                   MR.  MOREKAS:   But, of course, I think your
20         testimony is  the need to consolidate and coordinate —
21         rather, coordinate the various applications is certainly
22         important.
23                   MR.  PROVOST:   I..think the need is for the
24         basic single  purpose laws to be coordinated, and timing,
25         and all those things that roll back the acts and get
               . IRWIN & ASSOCIATES, CSR's • Court Reporters - 623-7881 • Seattle, Washington
                                   20

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 1         those all  together.  And be  coordinated in a bettar way,
 2         and then start  from  there very slowly.   I guess ours is
 3         that you start  this  process  a step at a time, a step
 4         at a time,  rather than — you are starting at the end of
 5         the process, rather  than getting everything together.
 6         we see problems.   We would,  in the State of Washington
 7         — it would be  voluntary,  and we would be very careful
 8         if we were  to get into that  sort of thing.   Our experi-
 9         ences would indicate we would look at it very carefully.
10                   MS. KNOX:  I wonder if you could clarify some-
11         thing.  You said  one thing that the single permit appli-
12         cation was  only effective when you didn't need to have
13     •'•   staff contact.  Yet  you are  saying a consolidated permit
14         form was only effective when you find need to have staff
15         contact.   But you also said  it was only two percent and
16         complex facilities where you needed any more than one
17         permit.  I  am a little confused about your first state-
is         ment.
19                   MR. PROVOST:  The  one study, the business
20         license center, said when you consolidate a permit they
21         did a cost  benefit study,  looked at all the permits in
22         the state.  Their basic conclusion was that a consolidated
23         permit only works when you can put it on data processing
24         and send it out to the applicant.  They fill in the
25         blanks and  send it in.  An example I could use is a
               . IRWIN & ASSOCIATES, CSR's - Court Reporters - 623-7881 Seattle, Washington
                                   21

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 1          grocery store getting a cigarette  license.   T.iay nave


 2          to renew it every year.  They have a bunch  of  otr.ar


 5          permits in that same class, maybe  eight  or  nine  or ten.


 4          They get a consolidated permit,  they fill out  the blanks


 5          it comes back in and it is keypunched  in the computer,


 6          and checked out some numbers.  Then, in  that case,  what


 7          they are doing also issuing it,  that's when they say


 8          consolidated permits make sense.
    "si,

 9   .                 In our case, when we were going through this


10          process with the business license  center, everyone,


11          except the well driller's license,  required some kind


12          of negotiations.  We had to check  the numbers, in most


13          cases we do a site inspection if you are working in a


14          couple different programs.  Again,  the concept is where


15          are decisions made on permits.   Do you have a  permit


16          writing group and someone else calls the shots?   These


i?          are all managementproblems you look at.  In that case,


is          it gets real complicated internally.  Say you  are withir


19          an agency and handle a permit within different programs.


20          The paper going around there increases rather  than


21          decreases if you have it in a consolidated  permit. I


22          don't think you can help decrease  the paper flow.


23                    MS. KNOX:  We also think there is some bene-


24          fits.  If you have someone who is  writing an NPDES, he


25          has looked at what they need for RCRA, and  identify wha



  ^	IRWIN & ASSOCIATES, CSR's - Court Reporters 623-7381 Seattle, Washington 	
                                   22

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 1         ever overlaps there might be.

 2                    MR. PROVOST:  Again, that's only trua — it

 3         is a concept you are working with.  We have a concept,

 4         and is  large industries in the state that we have one

 5         contact person for an industry in these major classes.

 6         And they do everything, solid waste, air and water.  Anc

 7         I don't see this in your program.  If that were your

 8         management scheme, and we are to have a single contact,
    •. i
 9   ,      and a company could have that single contact and do it,

10         I think that is a management concept you set up before

11         you go  in this consolidated permit.   That would work

12         out. If you are going in, the water program is going to

13         fill out one part, and another part, say, EPA doing this

14         and you have, for example, survey lines going out from

15         another one, and not being controlled and calling the

16         shots from one area they all have to have all that paper

17         And so,  you are going to, rather than having the RCRA

is         person  calling shots he is going to have all the other

19         stuff.   I don't know how it would work out.  We feel

20         it's more important to have one person contact, again,

21         with complex industries.  And having still individual

22         permits  and trying to keep it as simple as possible.

23         so, you have a person know contact rather than the paper

24         contact.

25                    MS. KNOX.:  I would like to add one more thing
                . IRWIN 4 ASSOCIATES, CSR's  Court Reporters - 423-7881 Seattle, Washington
                                   23

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1         One thing we would  try to do in defining the forms was
2         not only  make them consolidated,  if you did need to
3         apply for more than one form,  and also make it easier
4         if you only needed  one.  If, in your detailed comments,
5         you could go back and say how well we managed to do tha
6                   MR. SCHNAPF:   I would like to thank you for
7         your comments.   I think the State of Washington has bee
8         a leader in this area,  and we are aware of some of the
9         things you have  done.   I think we in EPA are experiment
10         ing with these new  management schemes you are suggest-
11         ing, and I think in their Region X we have gone about
12         as far as anywhere  in the country.
13                   I wanted  to ask you one question with respect
14         to the thing you said under the ECPA process.  I believ
15         you said that in that process  you issue all the permits
16         at once; is that correct?
17                   MR. PROVOST:   Yes.  Sometimes we can't issue
is         a permit.  For example, it becomes a problem, for exampl
19         sometimes NPDES  we  may not have all the detailed draw-
20         ings.  But what  we  will do is  say to the applicant it's
21         our intent to issue these permits.   If the drawings and
22         detail and stuff are — meet the certain regs, whatever
23         it may be.  This is in essence how we would do that.
24         in some cases, when you are doing it, NPDES application
25         doesn't have to  be  in until 180 days before.  We would
         	(RWIN & ASSOCIATES. CSR's - Court Reporters - 423-7881 - Seattle, Washington	
                                    24

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1         say you have to have new source performance s-candaris


2         at the. time the permit is issued,  and that sort of


3         thing.  That's how we handle it.  In essence, we issue


4         that if the applicant meets a certain set of criteria,


5                   MR. SCHNAPF:  If I could follow up on that.


6         We have been hearing some concern in some of these hear-


7         ings that under this process, EPA will do exactly what


8         you do.  In other words/  issue all the permits at once

   ' l.i
9  ,       rather than issue them separately.  Industry is saying,


10         well, if my RCRA  permit application is satisfactory, I


n         don't want it held up while you are considering my


12         NPDES permit.  I  was wondering whether you got any criti


13         along those lines, and how that .worked out for you?


14                   MR. PROVOST:  This is a basic problem in setti


15         it up.  In most of these, again, we are talking primaril


16         new sources or expansions and so on.  And there is a


17         time frame that each permit comes in that's appropriate


is         for a permit.  That's a problem.  We also in the EPA


19         new source review group,  that's what the — do you give


20         them all the other ways of handling a situation.  Our


21         approach is just  basically that.  Give a conceptual


22         approval in a sense, and say if you will meet the new


23         source performance standards at the time we will go


24         through and do this.     It is a problem, and it's


25         awful hard for an industry coming in with a proposal  to


       	|RWIN g. ASSOCIATES, CSR's - Court Reporters - 623-7881 Seattle. Washington 	
is;
                                   25

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1         face any more  at  the appropriate time.   It's very com-
2         plicated/ and  some of it becomes duplicative.  We try
3         to minimize  that.
4                   MR.  SCHNAPF.:   One final question,  and you don1
5         have to answer this.   Which of these state programs that
6         are set forth  in  123 would the Department of Ecology
7         be interested  in  assuming?  I know you have the NPDES
8         program.  Are  you presently working towards getting any
9         of the others?
10                   MR.  PROVOST:   The Department of Social Health
11         Services has the  drinking water program.   Hazardous
12         areas, we have the program, and we are still evaluating
13         that.  And we  probably  would go in accepting that progra
14         from EPA.
15                   MR.  SCHNAPF:   To what extent do you regulate
16         underground  injections  under your NPDES program?
17                   MR.  PROVOST:   Again,  we don't have — again,
is         between the  Drinking Water Act and NPDES, we don't have,
19         thankfully,  very  many of the injections around.  We
20         only have a  couple instances, and they are very minor.
21         As a policy, some years ago, before the Department of
22         Ecology was  formed,  its predecessor agency before EPA
23         was formed,  we strongly resisted underground injections,
24         and that was one  of the better decisions we have ever
25         made.  We haven't had a problem.
                . IRWIN 8. ASSOCIATES, CSR's - Court Reporters - 623-7881 - Seattle, Washington
                                   26

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 i                   MR.  SCHNAPF:   You have the authority to con-
 2         trol it?
 3                   MR.  PROVOST:   Yeah..  But we have resisted it.
 4         There are situations,  and we have just a couple instance
 5         where it has been approved, and we watch it very closely
 6         It's controlled by NPDES permit.
 7                   MR.  COATE:   Thank you very much.
 8                   Our  next presentation is by Mr. David Ortman,
 9         Friends of  the Earth,  Seattle,  Washington.
10                   MR.  ORTMAN:   I don't  have a prepared set of
11         comments at this time.   We will be submitting to EPA,
12         before September, a more detailed listing of our in
13         depth comments of the  consolidated regs.
14                   At this point, I wanted to focus mainly on
15         the 404 Sections of the regs.   I have been with the
i<5         Northwest Friends of the Earth  office here in Seattle
17         for the last four years monitoring, commenting and
18         reviewing various aspects of the 404 program from permit
19         to regulations.   And as the regs have come out, we have
20         been very anxious to see how EPA has handled the very
21         difficult tasks that Congress has laid on EPA, to figure
22         out a way to turn off  to the states those aspects of
23         the 404 program under  phase two and phase three wetlands
24         That is required under the new  Clean Water Act amendment
                     I  guess  I  could say briefly that the consolida
                                                   ted

IRWIN S. ASSOCIATES, CSR's Court Reporters - 623-7881 Seattle., Washington
                                   27

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i         regs, as they  are set up,  do make it difficult to
2         review the  Section 404 program.  Sort of an isolation
3         since in most  respects there is very little overlap
4         between the 404  program and other permitting activities
5         such as the Clean Air Act.   Throwing these all together
6         in one basket, that's sort of  exacerbated the problem
7         of. trying to focus in on what's involved in the state
a         programs, regs and guidelines.
9                   Again,  specifically,  there are aspects of
10         these regs  which are very complicated, and will require
11         some more detailed analysis both in terms of legisla-
12         tive history of  the Clean Water Act amendments, and
13         also in terms  of how the regs fit into both the Corps
14         of Engineers regulatory scheme  and the EPA's overview
15         and approval of  the state programs.
16                   At this time, I would like to run through
17         specifically some things that we would like to comment
is         on.  And among these are Sections 123.91, where it state
19         no partial  Section 404 programs will be approved by EPA.
20         We definitely  approve of this task.  In too many other
21         cases, both EPA  and other Federal government agencies,
22         the concept of partial approval comes in, you cannot
23         convince a  state or local entity to carry out the com-
24         plete program.   And,therefore,  to get half the carrot,
25         you essentially  approve half the program.  I think in
       	,RWIN 4 ASSOCIATES, CSR's - Court Reporters - 623-7881 Seattle. Washington 	
                                   28

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 1         this case  that the 404 program is of enough significance


 2         that unless  all the requirements are met by the states


 3         that no  approval should be given.  And'we would certain


 4         wish that  to be retained.


 5                    Section 123.94, the authority to prohibit the


 6         discharge  of dredge or fill material into areas which


 7         is currently an area which EPA can avail themselves of.


 8         It is  also passed on to the states.  We think this is


 9         also a positive handle that the states can then use to


10         indicate which areas are not available for dredge dis-


11         posal  areas.   I guess the problem we have seen in the
                                <.

12         current  setup with EPA, and also this transfer of what


13         would  be. called a nondesignation process, is that there


14         is no  process really set up.  The authority is there,


15         but how  do you initiate that.  We can propose areas for


16         nondesignation, and they can be looked at.  The experi-


17         ence of  EPA   not really taking this on in the past, may


is         be even  harder for states that are under far more local


19         pressure,  perhaps, for nondesignation or to not designatle


20         these  areas,  to never use that authority.  So, perhaps,


21         there  ought  to be some mechanism built into this that


22         provides the process and not just the authority.


23                    Section 123.99, on objections, is somewhat


24         unclear.   And perhaps later I can get some clarification


25         on this  aspect, as to just how permits are appealed.   It
                . IRWIN 8. ASSOCIATES, CSR's - Court Reporters 623-7881 Seattle, Washington
                                   29

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 i         appears  to be  somewhat nebulous as to whether this has
 2         to come  from the Regional Administrator or wnether he
 3         simply operates as an instrument of passing along the
 4         state objections from citizen groups, for instance, and
 5         just what the  mechanism is for appeal of that state
 6         -ฃev permit in  that case.  Currently, there is only a
 7         sort of  quasi-nebulous appeal in the Corps project, or
 8         the current Corps 404 permits.  Talking to the division
 9         engineer, the  district engineer has issued a permit
10         that appears to be in violation of the Act, which then
n         goes up  to the Corps headquarters and ultimately, of
12         course,  EPA is supposed to have the ultimate responsi-
13    •'•    bility for the issuance of that permit.  But once again,
14         we have, maybe because of the lack of personal priori-
15         ties, EPA appears to have a very low priority monitoring
16         flow for permits, and considering the area EPA and its
17         region covers, which includes Alaska, it's probably a
is         wonder why only a very slim number of permits ever
19         receives the type of monitoring and in depth looking
20         into that they deserve.
21                    So,  another Section, 123.103, I guess, is
22         unclear  as well.  It refers to agency board membership.
23         it reports to  board or bodies which approve the permits.
24         And I am curious as to where this concept has crept
25         into the regs  as far as who then actually is responsible
               . IRWIN 8. ASSOCIATES, CSR's - Court Reporters - 423-7881 - Seattle, Washington
                                   30

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 1         within the program for the issuance of it.  Ara  tr.asa
 2         bodies mandatory, or are they voluntarily set up  tliat
 3         can be utilized by states for the issuance of the state
 4         404 programs.
 5                    And another area is Section 123.112, includes
          the reporting mechanisms.  And it asks for annual report
 7         ing of the number and nature of permits, how many have
 8         been issued,  cancelled, denied, etcetera.  Currently,
 9  ,       the Corps of Engineers under the 404 regs are required
10         to issue a monthly statement of those permits, and this
11         has been very useful for groups in following a myriad
12         of permits, and following what sort of track record
13         the district engineers have had in terms of how many
14         permits have been issued, and when they were issued, how
15         many have been denied.  And we would certainly prefer
16         to see the states also be required to retain that secticjn
17         for their own state programs.  That is, monthly report-
18         ing of permits as opposed to a yearly summation.  I
!9         think this helps everybody keep a better track of permitjs
20                    And I guess finally, the most controversial
21         of all state programs has been, of course, what  the
22         exemptions for requiring permits are.  I do have  to  say
23         that by and large we have been very pleased with  the
24         setup of the regs in this respect..  I am sympathetic to
25         some of. the concerns of people with more than one permit
                . IRWIN & ASSOCIATES, CSR's - Court Reporters - 623-7881 - Seattle, Washington
                                   31

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i         trying to  figure out how in the world these consolidated

2         regulations  and permits are going to work.  3u~ I think

3         the Section  404 permits which by and large are  fairly

4         narrowly focused,  with little overlap.   Perhaps, some

5         with NPDES.   I  think that these regs have succeeded in

6         providing  the mechanism for turning over to the states

7         the opportunity to regulate, the phase two and phase

8         three wetlands  for dredge spoils, if they so desire.
  ; {
9 ,                   Again, recognizing this was Congress1 wish,

10         and not particularly one of our goals.   Yet, I think,

11         gives credit to EPA they have been able to come up

12         with regs  that  do this in a fairly separable manner.

13         Again, the controversial nature of what is to be excepte

14         from these regs in terms of best management practices

15         is one you will hear a considerable amount of comment

16         on, and no doubt have already.

17                    Again, I think, in terms of farm practices,

is         the regs are fairly clear that best management practices

19         will be carried out on normal farming operations.  I am

20         not aware  of any activities that farm operations do that

21         would not  require a permit today under the current setup

22         not require  a permit under the state programs.  And in

23         those activities which are currently exempted, would

24         aiso be exempted under the state programs.  Silviculture

25         areas, I think, appear to be a little difficult, more


        	 IRWIN 8. ASSOCIATES, CSR's Court Reporters - 623-7881 - Seattle, Washington 	
                                   32

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i          difficult matters  to address.  One is the sort of



2          sporadic and random nature of these activities occurrin



3          We have Forest Practices Act in the State of Washington



4         for instance,  that supposedly is set up to regulate



5         some  of these activities.  The activities that have



6         also  been familiar with in terms of Florida and Georgia



7         where we were shown just how silviculture practices



8         affect the  drainage of wetlands, marginal land down in



9         a very low  lying flat area in which it is difficult to



10         determine with increment of inches or a foot elevation



11         when  you are standing in the wetland and when you are



12         standing on a hill.  If that hill is the highest area,



13         being a foot up the elevation of anything in a couple



14         of. square miles,  certainly there is a difficulty in



15         determining just what the wetland criteria are.  I think



16         by and large the caution should be placed in terms of



17         the protection of  those wetlands, and certainly the



is         requirements for obtaining permits by and large still



19         have  not stopped,  or prevented people from obtaining



20         those permits,  and from proceeding with the activity  in



21         the silviculture area.  So, like I said, especially in



22         terms of drainage  questions, that has been addressed  by



23         EPA,  and they have taken a fairly satisfactory line in



24         terms of dealing with that very thorny issue.



25                   I guess  to sum up, the Corps of Engineers one




      	 1RWIN & ASSOCIATES, CSR's - Court Reporters - 623-7881 Seattle, Washington _	
                                   33

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 i         day obtained  jurisdiction of phase two and three wet-


 2         lands through the court order, and began to regulate


 3         those activities which affected wetlands and the rest


 4         of the waters of the United States, was a very signifi-


 5         cant and major event in terms of proceeding with environ


 6         mental protection.   No longer was the Corps of Engineers


 7         concerned, only with environmental community of navigable


 8         waters with large tributaries, but now with the upstreair


 9         and the areas that feed into these.


10                    Finally,  for once, we were beginning to deal


11         with these wetland concerns and basins on a more ecologi


12         systems approach, and there is some fear that has been


13         expressed  turning over the phase two, phase three wet-


14         lands to the  state may result in a digression of this


15         protection in states which by and large in the past the


16         Corps of Engineers had to make a determination on the


17         basis of whether the state objected to a permit.  The

          Cci^:>
is         -state would not issue a permit in places where the state


19         objected.  By and large, we have found the state has


20         very little objection to permits in the wetlands.  To


21         turn it over  to the state program, which they not only


22         make the determination but issue the permit, we think


23         removes a  major thrust of the environmental protection


24         that has been afforded to wetlands, especially in the


25         phase two  and phase three areas.   Nonetheless, EPA has


       	|RW,N g. ASSOCIATES. CSR's • Court Reporters - 423-7881 - Seattle, Washington __
al
                                   34

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 i         been mandated to draw up regulations for turning over
 2         the programs to the states.
 5                    In our comments, we will focus on those aspect
 4         in attempting to insure it is as strong a program as
 5         we can  obtain at this time.  Those are my comments at
 6         this point.
 1                    MR. COATE:  Would you accept questions?
 8                    MR. ORTMAN:  Sure.
 9                    MS. PETERSON:  I have several comments.  One
10         is the  Agency has,  or is about to  issue the 404C guide-
n         lines which, of course, provide EPA with guidance on
                                              by
12         404C actions, and also may be used •*& the states for
13         guidance.  Those were proposed sometime, I believe,
14         in March,  and the comment period closed sometime in May.
15         I think they should be out soon in the Federal Register
16         in final form.  And if anyone of you are interested in
17         them, David  Davis at headquarters, 422-4700, would be
is         the person to contact regarding the 404C regs.
19                    MR. ORTMAN:  Will the 404C regs and program
20         regs essentially come together in terms of final commentjs,
21         or is there  going to be this overlap?
22                    MS. PETERSON:  The 404C regs were out in pro-
23         posed form,  and are not being promulgated in final form.
24         They had a public comment period on it already.
25                    The second point would be that we do have on
                . IRWIN & ASSOCIATES, CSR's - Court Reporters - 623-7881 Seattle, Washington
                                   35

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1
          the back table  copies  of the guide to the state program
2         requirements.   I  believe that we will be issuing the



3         sections of the consolidated regs that are applicable



4         to the 404 programs  in separate form.



5                   MR.  SCHNAPF:  We certainly are thinking about



          that.  And I  think it's fair to say we will probably



7         reprint the portions of these regulations applicable to



8         404 in a separate reprint.   So, people that are inter-



9         ested only in that program can just deal with the regu-



10         lations they  have to.



11                   MS.  PETERSON:  One other thing is that we have



12         the contract  to develop a guide for states that are



13         interested in 404 program transferring that list, state



14         transfer arrangement/  and arrangements for compliance.



15         And that will give them some additional assistance in



16         setting up state  programs.



i?                   A final comment is state programs will have



is         to be in compliance  with the 404.B1 guidelines.



19                   MR.  ORTMAN:   They are also under review.



20                   MS.  PETERSON:  Right.  We should have a new




21         set late this summer.



22                   MR.  COATE:  Any other questions?



23                   MR.  SCHNAPF:  I just have one question.  This



24         is something  that wasn't covered in your  testimony.   I



25         would like to get any comment you might have.   One of




-	 IRWIN & ASSOCIATES, CSR's - Court Reporters - 423-7881 - Seattle, Washington 	—	
                                   36

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                                .
 i          the issues EPA rustled with quite  a bit  in  devising
 2          these 404 regulations was the requirement for  a  draft
 3'         permit in conjunction with a 404 application.  And what
 4          we have done is fashioned a system whereby  for certain
 5          kinds of applications and activities, no draft permit
 6          need be prepared.  The state can just issue a  permit.
 7          And other certain categories of 404 activities,  there
 8          wouldn't be the need for the state agency to prepare.
 9          Sending out its tentative determinations and ha;;'ing  held
 10          that up for public comment and review. I was wondering
 11          what your feelings were with respect to  these  draft
Xi2          permits, whether they were good or bad?
 13                    MR. ORTMAN:  This was something that was
 14          curious to me, I didn't comment on it..   I guess  I was
 15          sort of curious as to the rationale behind  the draft
 16          permit idea.  At least in terms of the review  of the
 17          current permits.  I conceive of little advantage in
 is          having before me a draft permit as opposed  to  an actual
 19          permit that this is what was submitted,  and this is
 20          what we are reviewing.  Perhaps you could explain to me
 21          in terms of other programs what the benefits of  having
 22          a draft permit are?  Since, like I said, I  am  mainly
 23          familiar with the 404 program.
 24                    MR. SCHNAPF:  If I could, then, the  reason
 25          i would like to explain that a little bit is so  I could
                . IRWIN & ASSOCIATES, CSR's - Court Reporters - 623-7881 - Seattle, Washington
                                   37

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i         get your comments.   The idea is that in certain of these
2         activities, particularly the major 404 activities, it
3         was our feeling  often the public would be just as inter-
4         ested in the  types  of conditions that the Agency pro-
5         poses to attach  tso  the permit,  and not only what the
6         discharger wants to do.   For a  minor bulkhead fill, it's
7         a go,   no-go situation,  either you go or you don't.
s         That draft permit doesn't alter much.  In some of these
9         you may want  to  restrict conditions, so you don't do
10         any activities during the spring salmon run.   The public
11         may be interested in reviewing  those conditions.   If tha
12         explains it,  do  you have any reaction to it?
13                   MR.  ORTMAN:  Yes.   Because that is something
14         we have had difficulty with, and that is trying to figur
15         out just what currently the  Corps of Engineers is doing.
16         And as you have  pointed out, it is only after the permit
17         is issued they have applied  no  conditions.  And the
is         opportunity at that point has been lost for going back
19         and reissuing it.   I guess our  initial feeling had been
20         that it was some sort of an  appeal process built in that
21         one could go  back and appeal that decision not to condi-
22         tion. it.  That that might be one way of doing it.
23                   You suggested another.  That is to draft a
24         permit including the conditions, and I think from that
25         standpoint, I can suddenly see  some very worthwhile
                . iRWIN 4 ASSOCIATES. CSR's - Court Reporters - 623-7881 Seattle, Washington
                                   38

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1
2
3
4
5
6
7
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9
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1!
16
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20
2
2
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2
benefits to that.   Because,  again,  the lack of condi-
tions is a very gray area currently in the 404 permitting
process.  Without that information, it is really diffi-
cult for citizens to review whether or not the permit
that is to be  issued is adequate or not.   We do not
have all the information available to us  to make that
basis.  And I  think from a standpoint of  including possijblf
conditions and listing it as a proposed permit, and
allowing both  the applicant and other interested parties
the opportunity to comment only on the permit or condi-
tion would be  a valuable tool in helping  to make sure
permits do meet all the requirements.
          MR.  SCHNAPF:  Thank you very much.
          MR.  COATE:  Thank you very much, Mr. Ortman.
          Our  final scheduled speaker is  Mr. Schuyten,
Chevron Chemical Company.
          MR.  SCHUYTEN:  Mr. Chairman, members of the
panel, and of  the audience.  My name is Herb Schuyten.
My position is Manager of Environmental Affairs for
Chevron Chemical Company.  It is a subsidiary of Standart
Oil Company of California and a sister operating companyj
to Chevron U.S.A.  I am located in San Francisco at
575 Market Street.
          I share the concerns about the ultimate effect]
iveness of. the permit consolidation.  I do not wish  to
      .,W.H ซ. ASSOCIATES, CSR-s Cour, ^orters - ซ3-788,  Seatt.e, Washin9,on	
                                   39

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i         repeat the many constructive comments with which I agree



2         But do want  to make one or two. points regarding the



3         proposed permit consolidation.



4                   I  believe that the significant benefits could



5         result from  a simplified, and I underline the word



6         simplified,  permit review and issuance process.  I am



7         pleased the  EPA recognizes the complexities faced by



8         applicants and by the regulatory agencies as well.  The



9         environmental permitting process can be a very frustrat-



10         ing experience.  In dealing with that frustration,



11         however, we  all too frequently miss one very important



12         point.  That point is that the regulatory function of



13         the EPA is to implement and enforce the laws enacted



14         by our Congress.   Let us be certain our criticisms are



15         aimed at the right target.  This is actually a double-



16         edged sword.   On the one hand, EPA regulations in the



17         past have more than once gone past the congressional



18         intent, and  the courts have agreed in many instances.



19         on the other hand, let us not name the lengthy incon-



20         sistencies and miles of. red tape inherent in much of



21         the environmental control legislation.  This legislation



22         is passed by your Congress and mine.  Let's hope that



23         the permit consolidation, effort will help to bring to



24         Congress' attention the need, not just for regulatory



25         reform, but  the need for legislative reform.  To




       	. IRWIN 8. ASSOCIATES, CSR's - Court Reporters - 623-7881 Seattle, Washington 	
                                   40

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i        paraphrase a rather well-known commercial, how  do  you
2        spell relief, my answer is C-o-n-g-r-e-s-s.  An effective
3        one-step permit will require regulative reform  to  pro-
4        vide simplification in the legal requirements.   As an
5        example, how can a consolidated permit program  stream-
6        line an APFD permit application and approval process
7        unless the. Clean Air Act itself is simplified.   We need
8        congressional recognition of the unreasonable complexity
9        of the existing requirements, and the unrealistic
10         legislatively dictated timetable for implementation,
11         and technology forcing laws.  We need to eliminate
12         exceptions in the framework.* By revising the source of
13        many of these problems, the environmental control  laws
14         themselves.  This is what we need, and we need  the EPA
15         to help us get this message to Congress.  Please help
16         us and yourself at the same time.
17                    I want to make it clear, however,  I do see a
is         definite need for environmental control legislation to
19         accomplish our environmental quality goals.   There is  a
20         need for. rules which .apply, uniformly to all  segments of
21         our society, including the government  itself.   But
22         rather, simplify it as much  as possible.
2J                    Back to the proposed consolidated permit regu-
24         lations.   Let's be sure  this  "simplification" does not,
25         in fact/ add to the requirements  and  to the time  delays
                . IRWIN i ASSOCIATES, CSR's - Court Reporters - 423-7881 Seattle. Washington
                                   41

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 i         involved  in  permit review and approval process.  Do not
 2         tie the permits together and hold one up awaiting com-
 3         pletion and  review of the others.
 4                    The economic benefits, from construction and
 5         operation of new facilities and modifications or
 6         expansions of existing facilities are frequently tied
 7         to prompt implementation of the project.  Sometimes,
 8         as dictated  by windows of time during which construe-
 9         tion  can  take place,  or, perhaps, as dictated by rapidly
10         changing  market product conditions.  An effective permit
11         process streamlining, which shortens the present review
12         process,  frequently means real economic savings to
13         industry  and ultimately to the consumer.
14                    I  would also hope that the state regulatory
15         agencies  can better consolidate their permit approval
16         process with the Federal review process.  We are finding
u         that  delays  frequently result from duplicative review
18         and inadequate communications between state and Federal
19         agencies. I heard what Mr. Provost said about the
20         State of  Washington along that line.  All in all, I do
21         commend the  EPA for taking on the task, taking on the
22         complexities of the framework and attempting to improve
23         it.   We at Chevron Chemical will submit additional  and
24         more  specific comments, in writing before the September
25         i2th  deadline.  Thank you for the opportunity to share
                IRWIN & ASSOCIATES, CSR's - Court Reporters 623-7881 Seattle, Washington
                                   42

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 i          these thoughts with you.
 2                    MR. COATE:  Thank you very much.  Will  you
 3          take questions?
 4                    MR. SCHUYTEN:  I certainly will.
 5                    MR. COATE:  I guess not.  Thank you very much.
 6                    That concludes the list of scheduled  speakers.
 7          Is there anyone else that wants to give testimony?
 8                    MR. HUNT:  My name is Jack Hunt.  I am  the
 9          Environmental Coordinator for the Portland area.  Port-
10          land area jurisdiction Indian trust lands in Oregon  and
11          Idaho.  And I am representing the area director in the
12          hearing here.  I have degrees in forestry and natural
13          resource philosophy and- share many of the concerns that
H          previous witnesses have discussed concerning the  Section
15          404 programs and best management practices.
16                    However, the concern I wish to discuss  is
17          the. unique position that Indian trust lands occupy.
is          Indian lands are mentioned in sub-part A 123.11(e).  It
19          is noted that in many cases states lack authority to
20          regulate activities on Indian lands.  In that event,
21          EPA, or in the case of Section 404 programs, Secretary
22          of the Army will administer the program.  I recommend
23          that EPA should consider, conferring with the Department
24          of. Interior and the Bureau of Indian Affairs on the
25          possibility of enabling tribal organizations or the
                . IRWIN i. ASSOCIATES, CSR's - Court Reporters 623-7381 Seattle, Washington
                                   43

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 i         tribal administrative  and technical capabilities can

 2         comply with the  regulatory requirements, to assume per-

 3         mit administration  similar to the states.  This would

 4         require approval of the Secretary of Interior, and would

 5         necessitate legal review to ascertain exactly what would

 6         be administered  by  the tribal organization on tribal
          fll\ffH-*4
 7        -and lottฎ4 trust land.

 8                   However,  in  the future, it would provide a

 9         potential for  those tribes who become capable and moti-

10         vated to assume  additional responsibilities and authori-

n         ties in line with the  President's policy for Indian

12         self determination.  If insufficient time is available

13         for this suggestion to be examined completely before

14         the mandated time for  the final regulations to be adopte

15         I recommend that the possibility of an amendment to the

16         final regs be  considered.  That's all I have.

17                   MR.  COATE:   Will you accept questions?

18                   MR.  HUNT:  Yes.

                    MR.  COATE:   Any questions?

                    MR.  SCHNAPF:  I would like to get a feel for

          your thoughts  about the capabilities of the Indian tribe

          to do this with  respect to most of the programs are

          highly technical and really,  there is an economy scale

          involved for a small area of land it might not make

          economic sense to make a program and set up a program.


         -	IRW1N ., ASSOCIATES, CSR's - Court Reporters 423-788! Seattle. Washington 	
                                   44

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 i         What  are  your thoughts on that?




 2                    MR. HUNT.:  I recognize that.  In fact, that's



 3         the reason I phrased the statement that — phrased the



 4         statement that way.  Looking in the future, if you look



 5         at the tribal organizations ten years ago and look at



 6         them  now, you will find many of them have developed



 7         substantial skills both in technical areas and legal



 a         areas,  administrative areas.  I don't believe in our



 9         area  that any of the organizations would be capable



10         right at  this moment to assume full responsibility.



11         Some  of them have capabilities in limited areas.   But



12         what's actually happening is that the tribal organiza-



13         tions are continuing to grow.   They are continuing to



14         assiime more responsibility.   And I feel that if we have



15         this  established in the regulations,,  so that the opportujnit



16         is there, that as these organizations develop their



17         capabilities some of them will desire to do it.  Essen-



is         tially, it's a matter of establishing a position at this



19         time,  instead of waiting possibly five, ten years in



20         the future when there could be a desire to do it, and



21         then  it would have to go through probably the Congress



22         or something like that in order to actually initiate



23         that  kind of activity.   Some of the tribes have not in



24         our areas necessarily,  but throughout the United States



25         Some  of them have developed substantial skills.




        	|RW|N & ASSOCIATES, CSR's - Court Reporters - 623-7881 Seattle. Washington 	
                                   45

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           MR.  SCHNAPF:   Thank you.  You know we will

 certainly look into this area.  You raise the possibili-

 ty of a future amendment and that is always a possibility.

 These regulations, the experiences they tend to be

 amended from time to time for any number of reasons.

           MR.  COATE:  Thank you very much.

           Is there anyone else that wishes to give

 testimony at this time?  If not, let the record show

 the public hearing on consolidated permit regulations

 held by EPA here in Seattle, Washington, is hereby

 closed at 10:18.

                          (Whereupon, the following  state
                           ment was submitted for the
                           record.)

           Comments by ITT Rayonier, Inc. to Environmental

 Protection Agency concerning  consolidated permit regu-

 lations, Seattle, Washington.  Submitted  for the record

 by David Berner, July 31, 1979.

           The consolidation of the substantive  portions

 of Section 404 regulations with  the other permit program]

 regulations makes it very difficult to review.  This  is

 the first time Section.  404 substantive regulations  have

 been proposed.  They should have been  proposed by  them-

 selves and later consolidated if it is appropriate  to

 do so.  And example of  confusing cross-referencing is

 Section 123.8.  Also, the mere volume  and breadth  of


	IRWIN & ASSOCIATES, CSR's Court Reporters - 623-7881 - Seattle, Washington 	
                                   46

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 1         the proposed regulations  are sufficient to forestall


 2         adequate comments  in  the  time frame allowed.


 3                   The  following address certain issues in the


 4         state program  requirements  under Section 404 dredge or


 5         fill program of  the Clean Water Act:


 6                   1.   The  definition of minor drainage in pro-


 7         posed Part  122.3(e) would not allow certain activities


 8         in the wetlands  which are innocuous.  It is,  therefore,


 9         too restrictive.   The construction of ditches in wet-


10         lands which do not convert  waters of the United States


11         to a new farming or forestry use, or which do not alter


12         the flow or circulation of  waters,  or which do not reduc


13         the reach of the wetland  area should be allowed.   Close


14         ditches which  do convert, drain,  modify, alter flow


15         or circulation,  or reduce the reach of wetlands should


16         not be classified  as  minor  drainage.  However,  those


17         ditches, even  in wetlands,  which  are constructed for


is         the removal of excess soil  moisture incidental to plant-


19         ing, protecting, or harvesting crops or improving the


20         productivity of  land  devoted to agriculture,  silviculturs


21         or ranching and  which do  not object the wetlands  sig-


22         nificantly  have  beneficial  effect which far outweigh


23         any small adverse  effects.


24                   2.   In order to be eligible for an  exemption


25         from the requirement  for  a  permit when constructing or

                                                                ^=r
       	 IRWIN 8. ASSOCIATES, CSR's - Court Reporters 623-7881 - Seattle. Washington 	
                                   47

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 1         maintaining  farm and forest roads, certain best manage-
 2         ment practices  must be followed.  The BMP'-s are identi-
 3         fied in proposed Part 123.107(a)(5)(i-xvii).  Sub-sec-
 4         tion  (x),  (xi), (xvi), (xvii), and the second part of
 5          (xiii) should be stricken for reasons which follow.
 6                    The cited sub-sections concern themselves witฑ
 7         erosion or non-point source pollution due to upslope
 8         road construction or general forest management, not
 9         solely to  the construction of farm and forest roads.
10         Specifically, Section 404(f) (1)  (E) deals with environ-
11         mental impacts  of road construction.   EPA has improperly
12         attempted  to broaden the focus of that sub-section by
13         attempting to write nationally applicable BMP's for
14         farm and forest management, not just road construction.
!5         Even if it were a proper expansion, which it is not,
16         such  standards   do not allow for the factoring in of
17         local variables or expertise.
is                    Further, the non-point source pollution problems
19         from forestry activities are being addressed by BMP's
20         under Section 208 of the Act.   Therefore, BMP's under
21         Section 404  are,  at best, redundant.   Section 208 BMP's
22         are site specific, they are being developed and implemented
23         by state agencies with considerable expertise in the
24         fields of  forestry and farming.   At worst,  the Section
25         404 BMP's  will  undermine Section 208  planning and
                IRWIN & ASSOCIATES, CSR's - Court Reporters - 423-7881 - Seattle. Washington
                                   48

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 1         implementation.

                     EPA's  attempt to control non-point source

 3         pollution other  than dredge and fill pollution with

 4         Section 404 BMP's is also  contrary to the Act.  Dredge

 5         spoils  and certain fill material are defined as pollut-

 6         ants  under Section 502(6).  Section 404 applies only

 7         to the  discharge of dredged or fill material and Sectior

 8         502(12)  defines  discharge as the "addition of a pollut-

 9         ant to  the navigable waters from, any point source".

10          (Emphasis added.)  The practices described in the cited

11         sub-sections of  Part 123.107(a)(5)  above cannot, by

12         definition, be derived from Section 404.  They are non-

13         point source pollution oriented.   EPA has adopted and

H         confirmed recently that there are only four silviculture

15         activities which, for purposes of Section 402 permits,

16         are point sources.  None of them is road construction or

17         the discharge of dredge and fill material.

is                    The above comments speak to a portion of issues

19         raised  by the proposed regulations, and it is possible

20         ITT Rayonier, Inc. will submit further comments.

21                                    (Whereupon, the following state
                                     ment was submitted for the
22                                    record.)

23                    404 Testimony.  August 1, 1979.  Environmental

24         Protectin Agency, Seattle.

25                    My name is Stewart Blesdoe.  I am the Executive


          	 IRWIN & ASSOCIATES. CSR's - Court Reporters - 623-7881 - Seattle, Washington 	1
                                   49

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i         Director of the  Washington Forest Protection Association

2         The WFPA is a  70-year-old organization which represents

3         the interests  of both large and small forest land owners

4         in Washington.

5                   We echo the concerns that other representatives

6         of the forest  community have expressed.   We are particu-

7         larly concerned  that conflicts and overlap not develop

8         between the 404  regulations and the 208  regulations which

9         are being administered by the Washington State Department

10         of Ecology.

11                   The  record will show that forest land owners
                                                         -*>
12         have worked diligently with the state agencies in order

13         to design best management practices which minimize the

14         impact of silviculture applications and  waters of this

15         state.  We don't believe that it is realistic to design

16         best management  practices on a national  basis.  The

17         equal system is  just too. variable from one geographic

is         location to another to. establish BMP's which are reason-

19         able and realistic.   Many of the proposed BMP's address

20         non-point sources of pollution of farm and forest road

21         construction which are addressed under Section 208.

22                   Also,  the  exemption, with respect to minor

23         drainage must  be expanded,  by definition, to eliminate

24         potential applicability to unique situations of the

          Pacific Northwest.   To an easterner, a side hill swamp


           	, RWIN 8. ASSOCIATES, CSR's - Court Reporters 423-7881 Seattle, Washington 	
                                   50

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 i         was  probably not known to exist,  however, in the mountain
 2         of the  Pacifc Northwest, we have just such situations
 3         where soil  and "topography combine in a unique circum-
 4         stance  which creates wetlands on the face of a mountain-
 5         side.   Such areas  cannot be considered wetlands under
 6         the  definitions of 404.
 7                    In closing, I  want to  emphasize the concern
 8         that the small private forest land owner has with respec
 9         to. regulations.   On one  hand, the. government attempts
10         to encourage forest land owners  to invest in culturing
11         trees for a crop.   On the other  hand, government regu-
12         lations are becoming so  overwhelming that many land
13         owners  just can't cope with the  das and don'ts of the
14         business,  particularly when it begins involving several
15         different agencies.  We  have strived hard to accommodate
16         all  the environmental concerns through adoption of fores
17         practices regulations which are  said to be some of the
!8         most comprehensive anywhere in the United States.  This
19         orange  book contains 54  pages of regulations which do
20         represent best management practices in this region.  We
2l         believe it, and the 208  program, sufficiently address
22         the  potential problems associated with silviculture
23         practices that the 404 exemptions can be refined to
24         clearly exempt normal silviculture practices from the
25         404  permit  program.
                . IRWIN &
                     ASSOCIATES, CSR's - Court Reporters - 423-7881 - Seattle. Washington
                                   51

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1                      We  will  follow  up with a derailed  .listory o;


2           our specific  concerns.



                                         (thereupon/  at 10; 18 a.rr.,  t-i

                                          proceeding  was concluded.)
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                  IRWIN & ASSOCIATES, CSR'S - Court Reporters - 423-7881 Seattle, Washington
                                       51-A

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 1


 2                       CERTIFICATE

 3    STATE OF WASHINGTON  )
                          \   ss
 4    COUNTY OF            J

 5

 6                  I, the undersigned Notary Public in and for

 7    the State of Washington, do  hereby certify:

 8                  That the  foregoing proceedings held on

 9   August 1, 1979    were taken  stenographically before me

10    and reduced to typewriting under my direction;

11                  I further certify that the proceedings as

12    transcribed are a full, true,  and correct transcript,

13    including questions and answers, all objections, motions,

14    and exceptions of counsel made and taken.

15                  Signed this , 9th  day of      August

16    19 79.

17

18
19                                  Notaฃ)y Public in and for the
                                   State of Washington, residing
20                                  at      Bellevue

21

22

23

24

25
            -IRWIN & ASSOCIATES, CSK's - Court Reporters - MA 3-S

                                           H6
                                        1301 Constitution Avenue N.W.
                                    52
                                           Washington, DC 20004

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