UNITED STATES OF AMERICA

     
ENVIRONMENTAL PROTECTION AGENCY

     
OFFICE OF SOLID WASTE

     
REQUIREMENTS FOR MANAGEMENT OF
     
HAZARDOUS CONTAMINATED MEDIA

     
PROPOSED RULE 61 FR 18780, APRIL 29, 1996

     
PUBLIC HEARING

     
TUESDAY
     
JUNE 4, 1996

     
     
The public hearing took place in Georgetown
Ballrooms A&B, Key Bridge Marriott Hotel,
Arlington, Virginia, at 9:00 a.m., Matthew Hale,
Director, presiding. 
PRESENT:       
Matthew Hale, Director
     
     
Robert Hall, Panelist
     
     
Stephen Heare, Panelist
     
     
Carolyn Hoskinson, Panelist
     
     
Lyn Luben, Panelist
     
     
Elizabeth McManus, Panelist

ALSO PRESENT:  Mark Gordon, Public Comment
     
     
   Mark Hopkins, Public Comment
     
     
   Lowell Martin, Public Comment
     
     
   Lisa Nakamura, Public Comment
     
     
   Michael Parr, Public Comment
     
     
   Kelley Peters, Public Comment
     
     
   Colin Sweeney, Public Comment

     
A-G-E-N-D-A
     
page no.
Opening Remarks and EPA Panel Introduction
Matthew Hale, Director
Permits and State Programs Division
EPA Office of Solid Waste, OSW (Note:  Office of Solid Waste, OSW, was renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009)3   

Hearing Procedures
Robert Hall, Chief
Corrective Action Program Branch
Permits and State Programs Division
EPA Office of Solid Waste, OSW (Note:  Office of Solid Waste, OSW, was renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009)5   

Summary of Proposed Rule
Carolyn Hoskinson, Corrective Action
Programs Branch 
Permits and State Programs Division 
EPA Office of Solid Waste, OSW (Note:  Office of Solid Waste, OSW, was renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009)8   

Commenter 1:  Colin Sweeney
Jersey Central Power and Light for the 
Utility Solid Waste Activities Group    
19  

Commenter 2:  Mark Gordon, State of Wisconsin
for the Association of State and Territorial 
Solid Waste Management Officials   
31  

Commenter 3:  Mark Hopkins, Chevron for the
American Petroleum Institute  
 36  

Commenter 4:  Michael Parr, DuPont
for the Chemical Manufacturers Assoc.   
47  

Commenter 5:  Lowell Martin
Morgan, Lewis, & Bockius, LLP
for the RCRA Corrective Action Project  
59  

Commenter 6:  Kelley Peters
Sandia National Laboratories  
74  

Commenter 7:  Lisa Nakamura   
82  
IT Corporation

Question and Answer Session   
87  


     
P-R-O-C-E-E-D-I-N-G-S
     
9:01 a.m.
     
     
MR. HALE:  Hello.  I'm Matt Hale, the Director of
the Permits and State Programs Division in EPA's
Office of Solid Waste, OSW (Note:  Office of Solid Waste, OSW, was renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009).  I'd like to welcome you
today to the public hearing on EPA's recent
proposal "Requirements for the Management of
Hazardous Contaminated Media" or, as it's more
commonly known, Hazardous Waste Identification
Rule for Contaminated Media, or HWIR- media.   
     
     
I'm very pleased that you're here today.  As you
know, we've developed this proposed rule by
involving stakeholders as much as possible, and we
look forward to hearing your comments today as
well as any written comments you have for the
record.        
     
This proposal takes on an issue that's plagued the
RCRA Corrective Action Program and actually agency
clean-up programs for many years now and in the
past we've attempted to skirt around the issue in
a variety of ways.  In this rule, we hope to take
it more head on.  From the first years of the
program it's been obvious to many of us and
certainly more obvious to our critics in some of
the states implementing the program that the RCRA
Subtitle C requirements don't work very well in
many cases for clean-up wastes.    
      The purpose of this proposal is to develop
more flexible standards for the management of
clean-up wastes and particularly for contaminated
media, standards that will promote more effective
and expeditious clean-ups.  To develop this
proposal, EPA convened a Federal Advisory
Committee under the Federal Advisory Committee Act
(FACA) consisting of states, regulated industry,
environmental groups, to give us guidance on how
to frame the proposal.  The committee developed a
framework.  The framework left many issues
unresolved.  We took the framework and developed
it into a proposal based on the committee's
recommendations.    
     
Because of the wide variety of opinions within the
FACA Committee and also within the general public,
we proposed a number of different alternatives as
well as the basic proposal that we developed. 
We're looking for comments on all of these
alternatives and, as we've stressed repeatedly,
we're prepared to go final on a number of them
depending on how our comments come out.      
     
I want to thank all of you for taking the time to
meet with us today and to give us your thoughts on
this proposed rule.  Above all, our goal in the
final rule is to come up with a program that moves
clean-ups along more expeditiously and removes
some of the impediments that we've suffered from
in the past.  We're looking forward to your
comments on the proposal in general, on the
specific alternatives that we set forward, and we
will certainly consider them carefully as we move
to a final regulation.   
     
I'd like to introduce Bob Hall who's the Branch
Chief of the Corrective Actions Program Branch who
will describe the procedures of the meeting today. 
Thank you.     
     
MR. HALL:  Good morning and welcome to this public
hearing.  There are some handouts on the rear
table.  We had copies of the HWIR-media proposal,
the Subpart S Advanced Notice of Proposed
Rulemaking (ANPR), from yesterday, some fact
sheets, and copies of the Regulatory Impact
Analysis (RIA) for HWIR-media.  If any of those
are no longer back there and you would like
copies, see us either at the break or afterwards
and we can have copies sent to you.     
     
Speakers this morning will be allocated 15 minutes
for their presentations.  There is a timer up here
with lights.  For the first 13 minutes there's a
green light.  For the last two minutes there's a
yellow light in which the speakers are asked to
sum up, and then there's a red light.  When the
red light comes on, time is up and at that point
in time I'll also stand up to remind the speakers
that their allotted time is over.  Speakers will
be called in the order in which they signed up. 
We have seven speakers who were pre-signed.  Once
they have spoken, I will call for additional
speakers from the audience and if you have not yet
signed up, you'll still have an opportunity to
speak.    
     
Written comments are due by July 29, 1996 and a
full transcript of today's hearing will be placed
in the public record within about three to four
weeks, so it'll be available in the docket.   
     
     
For those people who don't use their entire 15
minutes for their presentations this morning, we
will be asking if they will take questions from
the panel and the audience.  A speaker is under no
obligation whatsoever to accept questions, but if
they would it would be nice, and I'll give them
that opportunity.        
     
In addition, 3 X 5 cards were available when you
registered.  If you have questions for the panel
during this morning's sessions, simply write them
down and we will collect them and at the end of
the sessions this morning, the panel will attempt
to answer your questions.  Breaks, including a
lunch break, will be taken as needed.  Based on
yesterday's public hearing, we probably will not
need any breaks unless there are a lot of
additional people requesting to speak at the end. 
It shouldn't go more than a couple of hours.   
     
     
I'd like to introduce the panel today. 
Immediately to my left is Steve Heare, the
Associate Director of the Permits and State
Programs Division.  Carolyn Hoskinson is the Team
Leader for the HWIR-media effort and then two
other key team members, Lyn Luben and Elizabeth
McManus, are joining us.      
     
At this point I'll turn it over to Carolyn
Hoskinson who's going to give us an overview of
the HWIR-media Proposal.      
     
MS. HOSKINSON:  I know as I give this overview,
this will probably be old news to all of you who
already know what the proposal says, but I wanted
to start off this morning with my perspective on
what we tried to do in the proposal before we get
on to your testimony.    
     
As Matt mentioned, many concerns had been raised
to us about how applying Subtitle C requirements
for newly generated waste to wastes that were 
generated during clean-ups was slowing up the
clean-up programs and were causing a lot of
problems and frustrations for people in that those
standards were inappropriate, and that's why we're
all here today, to address that.   
     
As you all know, that affects more than just RCRA
corrective action clean-ups but any clean-up where
you would be managing clean-up wastes that are
RCRA hazardous which could be at Superfund
clean-ups or at state clean-up sites or any kind
of clean-up site where you're managing RCRA
hazardous waste.    
     
The three areas that most concern was raised about
to us at the beginning of this process were the
land disposal restrictions (LDRs), minimum
technological requirements (MTRs), and RCRA
permitting.  Those were the three areas people
raised most in their concerns, and that's where we
focused.  
     
Our original attempt to address this was in the
original HWIR Proposal that was proposed in May of
'92.  As many of you, I'm sure, know, we received
many negative comments on that proposal.  We
subsequently withdrew that proposal and formed the
FACA Committee that Matt spoke of to try to get
feedback from a variety of stakeholders as to
where we ought to go.  And the proposal we put out
that was published on April 29th was our best
attempt to follow the guidance we were given from
the various stakeholders in the FACA Committee. 
That proposal was actually developed through what
we think is a unique co-regulator process where we
try to work very closely with states who would be
eventually implementing these regulations.   
     
The proposal has really been a top priority for
the agency.  It was recognized by the President in
his reinventing environmental regulation report in
March of '95, and we've really received a lot of
support internal to the agency on these efforts. 
It's a very high priority for the agency to try to
solve these problems.    
     
What the proposal would do, as we proposed it, is
to establish modified land disposal restrictions
(LDRs) and permitting requirements for
contaminated media that would remain subject to
Subtitle C under this proposal.  It would allow
EPA and states to exempt hopefully a large volume
of contaminated media from Subtitle C.  So in that
way, we've tried to address the three areas that
were raised as most concern.  Land disposal
restrictions.  We've proposed modified land
disposal restrictions.  We've proposed modified
permitting requirements and, to the extent that a
large volume of media is exempted from Subtitle C
regulations, it would no longer be subject to
MTRs.  So we've tried to address those three
areas.    
     
In addition to that, we also addressed state
authorization.  It was a concern that was raised
to us, particularly by many states but also by
others that we ought to try to streamline the
state authorization process, particularly for this
rulemaking so that those reforms could really go
into effect and get implemented.  So there's a
large section on state authorization in the
proposal.      
     
In addition to that, the proposal proposes to
withdraw the Corrective Action Management Unit
(CAMU) regulations which many of you probably know
we were sued on those regulations, and this is our
attempt to address that.  What we propose to do is
replace the CAMU regulations with HWIR-media, so
the CAMU would be withdrawn at the time that
HWIR-media goes final.   
     
And finally as a sort of separate issue, we
addressed navigational dredged sediments.  We
would exclude them from RCRA Subtitle C if they
were managed under a Clean Water Act or Marine
Protection, Research, and Sanctuaries Act (MPRSA)
permits.       
     
What the proposal doesn't do is it doesn't set
clean-up levels or address when clean-up needs to
be done or how clean-up needs to be done, and
that's something that many people ask questions
about, and that is nothing we're trying to address
in this proposal.  All we're trying to address is
how you manage that clean-up waste that you would
pick up under a clean-up program.  
     
Many people ask what the relationship is of this
proposal to the HWIR-waste Proposal.  The way I
see it, HWIR-waste Proposal addresses any wastes
that are RCRA hazardous and proposes conservative,
concentration-based exit criteria for getting out
of Subtitle C for any kind of waste which could
include clean-up waste could be included in the
scope of the HWIR-waste Proposal.  What we've done
is tried to propose a less conservative exit from
the system but you would need to have government
oversight under our exemption and it would be only
for clean-up waste.  So a smaller scope of waste
but a hopefully less conservative exemption under
our proposal.  
     
Many people also ask what the relationship is of
this proposal to Subpart S which we addressed in
yesterday's public hearing, and I think they're
very complimentary.  Where Subpart S talks about
how to do clean-up and how to run a clean-up
program and does not address management
requirements, we address management requirements
for what you eventually pick up under that
program.  
     
So the scope is one of the really big issues, the
scope of this proposal people raise often, and, as
I mentioned, we limited our reforms only to
contaminated media at clean-up sites.  There are a
few parts of the proposal that could be used for
other clean-up wastes, and those are our reformed
permitting requirements which we call Remediation
Management Plan (RMP), and also  our requirements
for temporary piles and those could be used for
other clean-up wastes, but the majority of the
rulemaking applies only to contaminated media as
we proposed it, and that's a big issue, and we
request comment on whether that scope ought to be
broader.  
     
Also, it would only be for clean-ups that are
overseen by either EPA or an authorized state and
it wouldn't be a self-implementing proposal. 
That's another big part of the scope.        
     
And finally, I think something that a lot of
people ask me about is it would only apply to
wastes that would otherwise by subject to RCRA
Subtitle C, so we're certainly not trying to
expand the scope of Subtitle C requirements, and
that's something we do get a lot of questions
about.  So this rule would only get triggered if
you were already subject to the Subtitle C
requirements, and this is a way to get out of
them, we hope.      
     
One of the big issues that a lot of people have
concerns about is our concept of a bright line
dividing more-contaminated media from
less-contaminated media.  This concept arose as a
compromise between various concerns that were
raised by different stakeholders, and it's a very
controversial one, not only how we set the bright
line, what risk information we use to set it, but
also whether we should have one at all.  And so we
request comment on those issues, and we're
interested to hear suggestions you have about
that.     
     
The treatment standards was another big area.  The
LDR treatment standards.  I think there's a very
good discussion of them in the preamble to this
rulemaking.  We really heard a lot of concerns
that the current requirements were very difficult
for people to comply with, so we've taken our best
attempt to try to address those concerns, and
that's another area we expect to get a lot of
comments from you on and that would be very
helpful.  
     
The permitting provisions, as you all know, I'm
sure, the statute requires a permit for treatment,
storage or disposal of hazardous waste on-site, so
we've tried to streamline those requirements with
what we call a Remediation Management Plan and
tried to make that as simple to do as possible and
to address only the remedial aspects of what
you're doing on a site.  Part of the problem a lot
of people had with RCRA permits was the
requirement to do facility-wide corrective action
to clean up your whole facility if you wanted to
clean up a part of it, and so we've said that
Remediation Management Plans do not have that
requirement.  We've tried to address that concern.
     
     
And finally, state authorization.  We've really
tried to streamline that process and really reform
the state authorization procedures, possibly for
all new RCRA regulations.  So it could be broader
than just this proposal.  Specifically in the
proposal we address the HWIR-waste Rule and the
Combustion Rule in addition to this one, but if we
receive favorable reports on this, it might be
expanded to many more regulations.      
     
I expect that we'll hear a lot of comments on our
legal theory.  That was an issue that we have
heard a lot of concerns about.  We have chosen to
exempt media from Subtitle C based on our
contained-in theory saying that media itself is
not a waste but it might contain a waste and when
it no longer contains that waste, it can be
exempted from the system.  There are proponents
who prefer a contingent management approach that
would say if you manage it a certain way, it can
be exempted from the system.  So we've discussed
both of those approaches in the proposal and we
expect to get many comments on that.    
     
I'm sure we will get many comments on our proposal
to withdraw the CAMU rule.  We felt that was
something we really needed to do.  I know it's a
rule that a lot of people like, including a lot of
people at the agency.  So I expect that you'll
have a lot of opinions about that and we're
interested to hear what you have to say.  But we
have proposed to grandfather any CAMUs that were
approved during the current time when the rule is
in place and I'd be interested to hear your
comments on that, as well.    
     
Basically, we really hope that these reforms will
speed up our ability to do clean-ups, will allow
us to make more common sense decisions about how
to manage contaminated media.  We hope that it'll
allow for the use of more innovative technologies
at site and more creative solutions to our
problems that maybe we aren't able to be so
creative under the current requirements and we
hope particularly the new Remediation Management
Plans should speed up some of the procedural
problems that we've run into.  So we hope that all
of that will be really beneficial.      
     
In terms of the navigational dredged sediments
exemption, if most of you are not familiar with
that, it's a long-standing issue between the Corps
of Engineers (COE) and EPA about the regulation of
navigational dredged sediments, and we're just
trying to resolve some overlap between those two
programs.  We haven't received a lot of comments
during the development of the proposal, so I'm
interested to see what we receive during the
comment period on that.  
     
So basically, we really hope we've put forward a
proposal containing alternatives that will work
that will really solve the problems we're trying
to solve.  There are a variety of opinions between
all of the stakeholders, and that's been a real
challenge for us to try to balance those variety
of concerns and balance what we feel are our
statutory obligations under RCRA.  So that's been
a real balancing act for us and we really hope
that you'll have some constructive comments for us
on how to really achieve reform that will work. 
Thank you.     
     
MR. HALL:  Thank you, Carolyn.  
     
     
Does anyone have questions concerning the process
for this morning before I call the first
commenter?  Okay, we're ready.  The first
commenter this morning is Colin Sweeney from
Jersey Central Power and Light representing the
Utility Solid Waste Activities Group.  Good
morning.  
     
MR. SWEENEY:  Good morning.  I've been busy
dealing with reorganization issues, as everybody
else in industry is, and in the regulatory
environment so I'm going to read from this and
hopefully it won't sound too dry.  I did not have
time to memorize it.     
     
My name is Colin Sweeney.  I'm with Jersey Central
Power and Light Company.  I am the Manager of Site
Remediation.  I'm appearing here today as a
representative of the Utility Solid Waste
Activities Group, or USWAG, to present the views
of the electric utility industry on EPA's proposed
HWIR-media Rule.  USWAG will present detailed
written comments on the proposal, but today I
shall provide a brief overview of USWAG's position
on major issues presented in this rulemaking. 
     
     
As an initial matter, we wish to commend EPA for
its efforts to address the problems posed by the
regulation of remediation waste.  The development
of this regulatory proposal has been a long
process in which USWAG has actively participated
from the beginning.  The agency staff has worked
hard to find common ground between the sharply
differing views of participating stakeholders.   
     
     
USWAG agrees with the basic premise stated in the
preamble to the proposed rule, namely that there
are significant differences between as generated
process waste and remediation waste and,
therefore, that the regulatory system applicable
to each category should be tailored to reflect the
unique circumstances under which each of these
waste categories is managed.  We agree that the
application of the prevention- oriented RCRA
Subtitle C requirements to remediation waste
creates incentives to leave contamination in place
and poses regulatory burdens that needlessly
lengthen the duration of site remediations and
increases costs without any significant added
benefit to human health and the environment. 
     
     
For this reason, EPA is right on target that the
objectives of this rulemaking should be to issue a
final HWIR-media Rule that achieves as much
desirable regulatory relief as possible, that is
protective of human health and the environment,
and that can be easily understood and implemented. 
EPA has presented two alternative regulatory
frameworks for managing remediation waste, namely
the bright line approach, also called the
harmonized approach, and the unitary approach. 
Given the limited time that I have this morning, I
will not restate the details of either regulatory
option but rather I will state what I believe are
five important reasons why the unitary approach
would better achieve the objective of this
rulemaking.    
     
First, the unitary approach would more effectively
expedite remediation.  One of the primary goals
here is to get through the gridlock that we have
and to do so without compromising environmental
protection.  Under the proposed bright line
approach, remediation waste would be divided into
numerous categories, each with their own sets of
regulatory requirements.  At a given site, for
example, there may be base Subtitle C requirements
for non-media, modified Subtitle C regulations for
media above the bright line, site specific
requirements for media below the bright line, and
additional site specific requirements for
non-hazardous waste and media.     
     
In contrast, the unitary approach would establish
a single regulatory framework to govern all
remediation waste including sludges and debris
generated as part of a site remediation as long as
the waste is managed under an enforceable
government approved remedial action plan.  This
approach would eliminate uncertainty about the
regulatory requirements.  Furthermore, protection
of human health and the environment would be
ensured because the remediation waste would be
managed in accordance with a state or EPA approved
waste management plan.   
     
Second, the unitary approach would be more
responsive to actual site conditions.  Under EPA's
proposed bright line approach, the regulatory
requirements governing media would be determined
based on the regulatory box into which the media
is classified.  The unitary approach, however,
would allow all remediation waste at a site to be
managed under a comprehensive, government approved
remedial action plan.  As a result, the management
of excavated remediation waste at a site can be
precisely tailored to address the unique features
and conditions at a site without the imposition of
generic, inflexible, and duplicative regulatory
requirements.       
     
Third, the unitary approach would be easier to
understand and implement.  I want to emphasize
easier to understand and to implement.  It would
be easier for the regulated community because all
of the remediation waste at a site would be
subject to governmental oversight under a single
regulatory program.  This approach would be easier
for regulatory authorities as they would not need
to determine whether a remediation waste on a
backhoe by backhoe basis was above or below the
bright line.        
     
Additionally, states would not have to make the
seemingly contradictory determination that
remediation waste that exceeded the regulatory
threshold for a characteristic waste, for example,
nevertheless did not contain hazardous waste. 
Instead, the states would be empowered to focus on
the truly important issue:  how a particular
remediation wastes should be managed to ensure
protection of the environment rather than what
regulatory framework applies to a particular
waste.    
     
Fourth, the unitary approach does not rest on
questionable scientific assumptions as does the
bright line approach.  Under the bright line
option, EPA proposes to establish
constituent-specific bright line concentration
levels based on the assumption that management of
the excavated media occurs in an uncontrolled
residential setting.  USWAG believes that the use
of residential exposure assumptions is wholly
unrealistic.  This assumption is unwarranted in
this context where the site remediations will be
subject to state or EPA supervision.  It is
unreasonable to assume that a government-approved
Remediation Management Plan would allow land
disposal of highly concentrated, untreated waste
at a residential locale where it would pose a
significant risk to human health and the
environment.        
     
In contrast, the unitary approach avoids the
difficult issues associated with developing and
updating the bright line concentration levels by
allowing all remediation waste to be managed under
the same regulatory framework as long as it is
subject to an enforceable, government-approved
Remedial Management Plan.     
     
Fifth and finally, USWAG believes that the unitary
approach rests on a stronger legal foundation than
the bright line option.  The legal concept relied
upon by EPA to support the bright line approach is
the contained-in theory which holds that media
that no longer contains hazardous waste should not
be subject to Subtitle C.  Although we fully agree
that media that no longer contain hazardous should
not be regulated as hazardous waste, use of the
contained-in theory in the HWIR context would
divert states from concentrating on setting
appropriate management standards and force them to
engage in legal gamesmanship to allow contaminated
media to escape the Subtitle C Program.      
     
The contained-in concept originated as EPA's
explanation for how listed hazardous waste that
became mixed with soils entered RCRA's cradle to
grave regulatory framework.  Applied as a
construct for allowing waste to exit Subtitle C,
however, the contained-in theory is a cumbersome,
ill fitting device.  As we will explain more fully
in our written comments, this theory holds that
waste that would otherwise qualify as hazardous
waste under EPA's established rules for listed and
characteristic waste somehow can be determined to
no longer contain hazardous waste.      
     
In addition, the contained-in theory may not be
broad enough to support all of EPA's proposed
regulatory reforms.  For example, the use of
remediation piles prior to treatment, the
avoidance of RCRA permits and corrective action
requirements or the modified LDR requirements. 
EPA's reliance on the contained-in theory under
the bright line approach is also unnecessary,
regardless of the agency's ultimate policy
determination on the scope of the HWIR-media
proposal.  Rather, the conditional exclusion or
contingent management theory that forms the legal
foundation for the unitary approach provides a
stronger rationale for allowing waste to exit from
Subtitle C.    
     
Under the contingent management theory, EPA has
the authority to determine that contaminated media
and other remediation wastes that are properly
managed are not hazardous.  This theory is
grounded directly on RCRA which explicitly
authorizes EPA to base hazardous waste
determination on actual management practices
rather than on general assumptions of
mismanagement.  And EPA's authority in this
respect has been recognized in several federal
court decisions.  As a result, EPA has ample legal
authority to determine that contaminated media
and/or remediation waste, when managed under an
enforceable, government-approved plan, are not
hazardous and, thus, do not merit Subtitle C
regulation.    
     
Regardless of whether EPA chooses to limit this
proposal to contaminated media or to extend the
significant benefits of the proposal to all
remediation waste, USWAG believes that the
contingent management theory used under the
unitary approach is a stronger legal foundation
and one less vulnerable to legal challenge.  
     
In conclusion, let me say that USWAG has committed
significant resources to participating in this
rulemaking because the electric utility industry
generates a wide variety of remediation waste. 
Most of these waste volumes are the result of
historic practices such as former manufactured gas
plants which predate the knowledge of the
potential adverse consequences associated with
them.  Although the majority of these materials
are not hazardous, nevertheless our industry is
actively engaged in assessing and remediating such
sites and, therefore, has an important stake in
ensuring a streamlined regulatory system that will
promote the remediation of these areas rather than
erecting unnecessary regulatory hurdles.     
     
USWAG, therefore, looks forward to continuing the
dialogue with EPA to develop a streamlined
environmentally protective and cost effective
regulatory regime for managing remediation wastes. 
We believe that the unitary approach offers the
regulatory framework that best achieves these
goals.  We have an opportunity here and I
certainly hope that we make the most of this
opportunity and affect meaningful reform.    
     
USWAG appreciates and I appreciate the opportunity
to address these very important matters.  We will
develop many of these points more fully in our
written comments, and I thank you.      
     
MR. HALL:  Thank you.  Are you willing to take
questions?     
     
MR. SWEENEY:  Sure. 
     
     
MR. HALL:  Are there any questions from the panel
or audience? [There were no questions.]  Thank
you.      
     
The next commenter this morning is Robert Phelan
from Remediation Technologies.  Robert is not
here.  I'll call for Robert again at the end of
the session.   
     
Next then is Mark Gordon from the state of
Wisconsin representing the Association of State
and Territorial Solid Waste Management Officials
(ASTSWMO).     
     
MR. GORDON:  Good morning.  My name is Mark
Gordon.  I'm a unit leader for Corrective Action
and Planning in the Hazardous Waste Management
Section of the Wisconsin Department of Natural
Resources.  Although I've been primarily involved
on a parallel effort addressing corrective action
rulemaking for Subpart S which was the subject of
a similar hearing yesterday, I've been asked by
Catherine Sharp, who's the Deputy Director of
Waste Management Division for the Oklahoma
Department of Environmental Quality, to present
these preliminary remarks on the proposed
HWIR-media Rule.    
     
Ms. Sharp, who chairs ASTSWMO's HWIR-media Rule
Task Force that was organized as a collective
state effort to provide review and comment to EPA
on this major rulemaking effort, has asked that I
emphasize that the specific comments are still
being compiled by the task force.  Therefore, the
statement we are providing today is subject to
revision if we determine that the states' views
differ significantly based on a detailed review of
the proposed rule.  Nevertheless, the very length
of the rulemaking effort including the extensive
comment period and public dialogue has allowed
extensive discussions on a number of the major
issues contained in the draft rule.  We are
relatively confident that these preliminary
remarks reflect common themes and interests to
many state waste managers.    
     
First, we would like to express appreciation to
EPA for undertaking a rulemaking effort which
would modify the RCRA Subtitle C system as it
applies to remediation waste management.  EPA,
acknowledging that states are the primary
implementers of the RCRA Subtitle C Program,
should continue to pursue this and other needed
reforms in a co-regulatory fashion which ensures
that new rules are implementable and consistent
with the current level of expertise exhibited by
state programs.     
     
EPA has attempted to deal with specific issues
identified by state managers.  For example, early
in the development of the framework for this rule,
states indicated that there were three areas
which, regardless of other issues, must be
modified in order for state programs to implement
any new RCRA remediation waste management rule.   
     
     
First, any final rule which addresses hazardous
contaminated media must allow state programs to
address treatment of contaminated media and/or
remediation waste without the procedural step
involved in processing a full RCRA Subtitle C
facility permit.  Second, states should be allowed
to address the treatment of remediation waste
through the establishment of a sound remedy
selection process that best meets the needs of the
site specific situation as opposed to requiring
treatment for all sites.  The land disposal
restrictions treatment requirements do not
currently allow this.  And third, states require
the ability to manage remediation waste in a
manner that allows for temporary placement on the
land during the normal course of site clean-up
without triggering a host of other requirements
which are not really appropriate for temporary
land placement including such items as the land
disposal restrictions and the minimum technology
requirements.  
     
While we acknowledge that EPA has been receptive
to state interests in the development of the rule,
it appears unlikely that many states will come out
in favor of the bright line approach described in
this rule.  Based upon information gathered during
the final stages of rule development, many state
managers prefer a unified or holistic approach to
site clean-up such as the unitary approach which
is discussed in the preamble to the rule.  As EPA
acknowledges in the preamble, alternatives to the
bright line approach allow far more flexibility in
processing and cleaning up hazardous waste
contamination and, therefore, such approaches are
expected to be better received by state programs. 
     
     
Similarly in the area of state program
authorization, state waste managers have made a
convincing case for reforming and streamlining the
authorization process.  This is especially true
for programs which have a solid track record of
effectively implementing the RCRA Program.  This
rule will embody concepts which many states have
already implemented in their own state clean-up
programs.  We believe the federal government
should seek to capitalize on the state areas of
expertise.     
     
Historically, part of the delay in states
receiving authorization has been due to EPA
regional offices' slowness in responding to
applications submitted by the states.  Perhaps EPA
should consider incorporating in this rule a
provision whereby following a specific regional
review period there is a default approval
mechanism offered to the applying state.     
     
During the Federal Advisory Committee discussions,
the state requested that EPA explore a
self-certification authorization process for this
rule.  Given the nature of this rule and the fact
that many states are already doing this type of
work as part of their programs, we therefore
strongly urge EPA to adopt a flexible
self-certification authorization process for this
rule.  Such flexibility would also be consistent
with the new performance partnership system
modifications being advocated by both EPA and many
states.  We would be happy to work with EPA to
develop a workable self-certification approach. 
     
     
Thank you for the opportunity to present these
initial comments.   
     
MR. HALL:  Thank you.  Will you accept questions? 
     
     
MR. GORDON:  Sure.
     
     
MR. HALL:  Any questions? [There were no
questions.]  Thank you very much.  
     
The next commenter is Mark Hopkins of Chevron.
     
     
MR. HOPKINS:  Good morning.  My name is Mark
Hopkins and I work for Chevron Corporation.  I
represented the American Petroleum Institute (API)
during the FACA process that was part of this
rulemaking, and today I'm presenting comments on
behalf of API.  My remarks will cover the
following areas.  First, observations on the FACA
and how the results of that FACA were
characterized in the notice of this proposed
rulemaking.  Second, why API supports the unitary
approach.  Third, why API does not support the
bright line approach.  Fourth, what remediation
waste must be covered by the rule.  And finally,
why the CAMU rule should be retained.   
     
First, some observations about the FACA.  In
addition to representing API, I was one of a
couple of industry stakeholders on the
contaminated media subgroup.  Our discussions were
intensive, and my work on that subgroup gives me
an excellent perspective on what the FACA did and
did not accomplish.  The preamble to the HWIR
Proposal stated, "In July 1993 the FACA Committee
developed and approved a conceptual framework for
the HWIR-media Rule."  The preamble goes on to
note that this framework embodied compromises and
it was only a conceptual outline for crafting a
proposed rule.  The preamble allowed that,
although a tentative consensus was reached, all
members of the FACA Committee may not approve of
EPA's efforts to fill out the conceptual
framework.  This is a distinct understatement. 
The preamble is not fully accurate.  Let me set
the record straight.     
     
First, the FACA process did not end in July '93. 
July '93 was just seven months into a process that
lasted until September '94, some 14 months later
than one might infer from the preamble.  The FACA
lasted 21 months, not seven.  What do we conclude
after the initial seven months and what happened
during those last 14 months?       
     
First, in July 1993 we agreed that a bright line
approach could be a consensus approach if the
remaining significant issues were resolved
satisfactorily.  All at the table reserved our
judgment pending the resolution of those issues. 
During the next 14 months EPA put the meat on the
bones.  Only during the last few months of the
process did it become increasingly clear that meat
was being put on a Trojan Horse.  Once you looked
inside the horse, it was not as what was
originally envisioned.  Rather, it was a horse
made hollow by a tactical legal theory.  This
legal theory that relies on the contained-in
principle as a basis for the bright line was never
discussed during the initial seven months leading
up to the tentative consensus and is a legal
theory was inherently self-limiting as to the type
of rule that could eventually be developed.   
     
     
The record of a final FACA meeting in September
'94, some 14 months later than our July '93
tentative consensus, is a much more accurate
rendition of the results of that FACA.  At the
final meeting there were fundamental issues still
on the table.  These were extensively discussed by
the Contaminated Media Subgroup at the last
meeting.       
     
First, what is the legal theory to support the
bright line?  The record shows we're unable to
agree on a legal theory.  It is ironic that the
record shows the one thing we did agree on was
that the contaminated media below the bright line
would be deemed not to be a hazardous waste.  This
one agreement is not carried through in the
proposed rule.  Rather, below the bright line
media subject to a hazardous waste discretionary
decision by the overseeing agency.  The
nondiscretionary determination we agreed to was
turned into a discretionary one.  There are many
other fundamental disagreements among the FACA
recorded in the minutes of the final meeting.  Key
disagreements included: should characteristically
hazardous waste be eligible for relief?; how does
one calculate a bright line?; should non-media
waste be eligible?;  Is it possible to achieve the
prescribed treatment standard for above the bright
line media?;  and, what is an appropriate state
authorization approach?       
     
These fundamental disagreements led us in the end
to seriously question the viability of the bright
line approach.  I think the minutes of the final
September meeting accurately reflect the
disagreements at the end of the FACA.  Tentative
consensus in July '93 became lack of closure on
basic fundamental issues by September '94.  The
point of my rendition of the FACA is not to harp
on the process.  The staff of EPA were outstanding
during a very difficult time.  Rather, my point is
that EPA should not dignify the Trojan Horse
bright line as the outcome of the consensus based
process.  Rather, EPA should recognize the
fundamental disagreements that existed then and
still exist today among the stakeholders.  It
should discard the bright line approach and
develop a final proposal based on sound public
policy.   
     
As a matter of sound public policy, API does not
support the proposed rule's bright line approach. 
Rather, we support the unitary approach.  To
explain why we use EPA's yardstick of policy
objectives discussed in the HWIR Proposal.  One
simple policy objective articulated by EPA is that
the regulation should be easy to understand.  The
bright line approach fails this objective.  It is
indecipherable.     
     
For example, a key question for any clean-up is
what are the requirements including any treatment
that must be made for clean-up wastes?  With the
bright line one has to answer a whole series of
questions such as what is the waste?  Is it a
sludge, a sediment, a contaminated soil, a ground
water, a surface water, a debris or a treatment
residual?  What are the concentrations of
constituents in it?  Will the regulatory agency
overseeing the clean-up make a contained-in
decision for the contaminated media or debris? 
When was the media contaminated with waste? 
Before or after land disposal requirements became
applicable for the waste?  Is the waste eligible
for a treatment variance?  Is the variance based
on concentration of constituents in the waste or
other factors?      
     
Depending on the answer to this series of
questions, a clean-up waste could end up in one of
two dozen possible combinations of type of waste,
type of Subtitle C requirements and, in
particular, type of land disposal treatment
requirements.  To illustrate this complexity, one
shovelful of contaminated dirt could be regulated
in one of at least six different ways.  It could
be regulated as, 1) above the bright line and
subject to modified Subtitle C requirements
including technology-based land disposal
restrictions or, 2) below the bright line and
subject to modified Subtitle C requirements
including technology-based land disposal
restrictions or, 3) below the bright line and
subject to modified Subtitle C requirements and
treated according to a site specific media
treatment variance or, 4) below the bright line
and regulated as nonhazardous but still have to
meet technology-based land disposal restrictions
or, 5) below the bright line and regulated as
nonhazardous and treated according to a site
specific media treatment variance or, finally,
below the bright line and regulated as
nonhazardous according to the requirements of the
remediation management plan.  
     
For this shovelful of dirt, additional
requirements may apply if it is characteristically
hazardous or has analyzable constituents.  A
regulated party has little, if any, idea when they
start down the clean-up path what type of
requirements they eventually will be required to
meet.  The bright line is not simple.  It is
mind-numbing, complex, and uncertain.   
     
By comparison, the unitary approach is simple. 
There are no predetermined mandates to meet or
need for variances.  Rather, everyone going in
knows that the management requirements for the
remediation wastes will be developed on a site
specific basis with the approval of the overseeing
regulatory agency.  The focus is on protecting the
environment in a common sense way, not in
fulfilling certain regulatory mandates.  You might
be able to get to the same endpoint using a bright
line approach, but the complexity of the decision
making process itself will inhibit clean-ups from
going forward.      
     
The unitary approach is superior to the bright
line approach in meeting other fundamental EPA
policy objectives. 1)It provides for flexible
management decisions that reflect actual site
conditions.  The bright line approach provides
inflexible mandates independent of site
conditions;  2) it relies on the sound
professional judgment of the regulator.  The
bright line approach does not trust that judgment;
and 3) removes administrative obstacles to
clean-ups and encourages voluntary clean-ups.  The
bright line approach creates new regulatory
obstacles and an uncertain decision path for
clean-ups.     
     
Finally, API would like to comment on two
additional issues.  These are simply and
adequately addressed in the unitary approach but
the proposed rule must be changed in any version
of the bright line approach that may ultimately be
promulgated.  First, the definition of the type
remediation waste covered by the rule.  We believe
all remediation wastes should be covered, not just
contaminated media.  The threat to the environment
is due to the type of contamination posed by the
remediation material and how it impacts the
environment.  It does not matter if the material
is a soil, sediment, waste pile or sludge. 
Management requirements should be based on
environmental concerns, not on current regulatory
classification schemes for materials.  The legal
justification for the proposal, the contained-in
principle, has obscured a rational environmentally
based approach to regulating remediation wastes.  
     
     
Second, the CAMU rule should not be rescinded as
part of this rulemaking.  The rule when
promulgated had broad support from many
stakeholders.  It does not suffer the flaws of the
bright line approach.  It is ironic that the
rescinded rule is the only mandatory aspect of
this rulemaking that states will be forced to
adopt.  The HWIR contaminated media rule will thus
become a rule not for reinventing regulation as
promised by the Administration but rather a rule
that rescinds previous common sense and further
restricts the ability of regulated and regulators
alike to bring common sense to clean-ups.    
     
In summary, API believes the bright line approach
fails to meet key EPA objectives for rationalizing
site clean-ups.  We support those objectives and
support the unitary approach as the best way to
meet them.  We urge EPA to use this approach in
the final rule.  I appreciate the opportunity to
comment on this important rulemaking and will be
happy to answer any questions.     
     
MR. HALL:  Any questions? [There were no
questions.]  Thank you very much.       
     
The next commenter is Michael Parr from DuPont
representing the Chemical Manufacturers
Association.   
     
MR. PARR:  Hi.  Well, I fear you may have heard
some of these remarks already so it's going to
start to sound a little stale, but at least you
don't have to sit up here and listen to them over
and over again, so be thankful for that.     
     
Well, good morning.  My name is Michael Parr.  I'm
Remediation Program Manager for the DuPont
Corporation's Corporate Remediation Group, and I'm
here on behalf of Chemical Manufacturers
Association (CMA).  CMA appreciates the
opportunity to comment on this important
rulemaking, and we also appreciate the agency's
hard work in bringing this proposal about.  I
bring to the comments the perspective of a
participant in the Federal Advisory Committee that
EPA formed to consider various approaches to
HWIR-media.    
     
I'd also like to recognize the hard work of my
fellow FACA members, some of whom are here this
morning, and the long-suffering patience of EPA
staff in what I'm sure at times felt like exercise
in herding cats through those 21 months that Mark
described.  CMA's members consider protection of
human health and the environment a very important
responsibility.  Many of us spend more than $50
million per year on remediation activities alone. 
We also feel the responsibility to ensure this
protection in a sensible and cost effective manner
and applaud the agency's recognition of this need. 
     
     
Much of our remediation costs, be they in RCRA
corrective action, Superfund or the various state
programs, are driven by the application of RCRA's
waste management standards to remediation waste. 
It's widely recognized that RCRA, which both
prescribes and motivates sound process waste
minimization and management practices, though at
times a bit inefficiently, serves as a significant
impediment to protective, efficient, and cost
effective remedial solutions.  EPA noted this in
the preamble to the CAMU rule.  RCRA Subtitle C
provides only two options for the management of
remediation wastes.  Leave it in the ground or
move it, assault it with the most expensive
treatment technologies available, and then bury it
in a hazardous waste landfill, all regardless of
the actual risk presented by the material.   
     
This binary option freezes out a wide range of
practical, effective and cost-effective remedial
solutions, solutions which are applied daily to
remediation wastes which don't happen to bear the
scarlet letter of a hazardous designation under
RCRA.  We welcome the agency's determination to
fix this serious flaw in RCRA.  EPA has laid out
several sound policy objectives for the HWIR-media
Rule.  Let me comment briefly on how the proposed
bright line approach addresses each of these
objectives.    
     
As you all aware, CMA has been a consistent and
staunch advocate of the unitary approach presented
as a regulatory option in the proposed rule, and
I'll also note how this approach stacks up against
EPA's policy objectives.  I will also attempt to
highlight issues which CMA feels are critical to
the success of any HWIR-media Rule.     
     
Objective 1.  Special requirements should be
developed which are appropriate for the management
of contaminated media.  The proposed bright line
approach does take some large steps in this
direction, but unfortunately falls short.  Only
some media are free from the yoke of Subtitle C
and then only after a complex affirmative
determination is made by the overseeing agency. 
The material remaining in Subtitle C, that above
the bright line, is still subject to a one size
fits all land disposal restriction.     
     
More importantly though, in what is probably the
single greatest limitation to the bright line
approach, much needed regulatory reform is only
provided for media, merely a subset of the
remediation waste universe.  As a remediation
practitioner, I can assure you from experience
that remediation waste in the real world is a
complex hodge-podge of media, debris, and various
solid waste ranging from power house ash commonly
used as fill on our sites to landfill trash to old
basement contents.  These materials are
unfortunately not neatly separated and catalogued
waiting for us to address them each individually. 
Rather, they're intermixed and to the extent that
any of them stay in Subtitle C, large portions of
the remediation waste universe will stay in
Subtitle C.    
     
Thus, the failure to provide regulatory reform for
all remediation wastes rather than just the
artificial subset of media will in itself doom the
bright line approach to failure as meaningful
reform.  It is much like raising the speed limit
to 65 miles per hour for car tires but retaining
55 miles per hour for the body and engine.  The
unitary approach avoids these crucial limitations
by allowing state agencies to establish
enforceable, protective, site specific management
standards for all remediation wastes without the
artificial overlay of Subtitle C.  
     
Objective 2.  Contaminated media management
requirements should be flexible and reflect actual
site conditions and the characteristics of the
media.  We applaud the agency's recognition that
remediation waste management requires site
specific decision making and takes place in an
environment with extensive oversight by regulatory
authorities.        
     
The bright line approach falls short of this
objective by leaving non-media remediation wastes
caught in the Subtitle C web and by mandating a
one size fits all standard for material that falls
above an arbitrary to narrow concentration based
bright line.  Neither the bright line nor the
subsequent treatment requirements take any site or
media specific considerations into account.  
     
     
The unitary approach, on the other hand, would
allow the overseeing agency to tailor management
standards for all remediation wastes to actual
site conditions, the nature of the wastes and the
relevant risk considerations as is routinely done
today for nonhazardous remediation wastes.   
     
Objective 3.  State and federal remediation
programs that have the authorities and the
capabilities should be relied upon to exercise
sound judgment in implementing HWIR-media
regulations.  As EPA is well aware, the states are
showing significantly greater progress in their
remedial programs than is the federal government. 
The state programs are routinely making protective
decisions about remediation waste that would fall
above the bright line but which don't happen to be
RCRA regulated.     
     
In my personal experience working with the state
agency, we managed to thoroughly study a site and
install a site-wide ground water remediation
system totaling work of some $20 million at about
the same time that it has taken us to get through
just the first phase investigation at sites
overseen by EPA.    
     
EPA should harness these state program
capabilities via the unitary approach rather than
stifle them with the complex and limited bright
line approach.  For example, under the bright line
approach, states would be allowed to determine
that more stringent treatment was appropriate for
above the bright line material but could not
specify less stringent treatment when that would
be appropriate.  This is hardly empowering to the
states.   
     
Objective 4.  HWIR-media regulations should remove
administrative obstacles to expedite clean-ups and
provide incentives for voluntary action.  Here the
bright line approach fails dramatically to achieve
the objective.  If anything, the proposed approach
would make RCRA more complex, which is no mean
feat.  Multiple decisions would have to be made
and documented.  Is the material media or mostly
media?  Is the waste it is mixed with listed
hazardous waste?  If so, does it contain hazardous
waste?  If so, when did the hazardous waste enter
the environment?  And on and on.        
     
None of the required decisions relate to site
conditions or potential risks but are simply
artificial regulatory constructs imposed by
another major weakness of the bright line
approach, the contained-in concept.  Rather than
simply remove remediation waste from Subtitle C
when there is enforceable oversight and proper
management, as we believe EPA has the clear legal
authority to do, the agency has chosen to rely on
a concept which leads to all sorts of regulatory
sleight of hand to attempt to make the rule
workable.  Not only is the use of the contained-in
concept unnecessary, not only does it serve to
force the agency to resort to vigorous contortions
in the proposed rule, it creates multiple avenues
for legal challenge by which the HWIR-media Rule
can be potentially weakened or even overturned in
the courts.    
     
Given that there seems to be no rulemaking on
which EPA can not expect such a legal challenge,
we strongly encourage the agency to proceed with
the legal rationale underlying the unitary
approach, that being that waste for which
mismanagement is improbable need not be regulated
as hazardous.  If the agency is going to have to
defend the rule in court, it should at least
defend a rule that, if successful, actually
provides real reform.  In our opinion, the unitary
approach stands a greater chance of legal success
than the bright line approach.     
     
Option 5.  State authorization for HWIR-media
should be streamlined and simplified.  CMA agrees
wholeheartedly and is pleased to see EPA and
states working closely together on authorization
approaches.  The more quickly and the more
thoroughly that any HWIR-media rule rolls out to
the states, the more progress will be made in
remediation.   
     
Objective 6.  The regulations should be easy to
understand.  I've been actively involved in RCRA
remediation issues since RCRA came into being.  I
was a participant in the HWIR-media FACA and have
actively participated in discussions and
deliberations leading up to the proposed rule.  I
do this stuff for a living, and I have difficulty
remembering and following all the twists and turns
in the bright line approach.  I've found it
virtually impossible to explain the bright line
approach fully to other remediation professionals. 
A blank unbelieving stare is the typical response
to my efforts.      
     
This dirt with one percent of a contaminant is a
hazardous waste.  This dirt with .8 percent of a
contaminant does not contain hazardous waste. 
This solid waste with one part per billion of a
contaminant is and forever will be a hazardous
waste, and that dirt with 10 percent contaminant
is not hazardous.  Easy to understand this ain't. 
The mind reels at the welter of decisions that
will have to be made on the virtually shovel by
shovel basis.  What is and isn't media?  What is
the material with which it is contaminated?  What
do I test?  By what I shall determine what does
and doesn't contain hazardous waste?    
     
I count something like 10 different waste types
with 10 differing regulatory requirements that
would result from these decisions and only a few
of which would benefit from some degree of reform. 
I think the complexity is well illustrated by the
fact that Mark can reel off something like two
dozen, I can come up with 10 and other people have
probably a wide array of guesses as well as to how
many different routes one would have to go under
this rule.     
     
The unitary approach, on the other hand, is a
model of clarity.  If there's an enforceable
remedial action plan overseen by relevant
regulatory authority which specifies protective
management of remediation wastes, those wastes are
not subject to mandatory Subtitle C standards,
period.  I have found the unitary approach rather
easy to explain to those whom I baffled with the
bright line.        
     
One important objective EPA did not enunciate but
is surely a key goal of this undertaking is that
the rulemaking provided meaningful regulatory
reform and removed the current RCRA impediments
from the remedial process.  One look at the status
of the corrective action program with virtually
all of the remedial effort still ahead of us make
this need starkly clear.      
     
This, I'm afraid, is where the bright approach
falls shortest.  After all the crystal ball gazing
and multiple decision making required by the
bright line, it would only provide uncertain
relief for a small portion of the remediation
waste universe.  That limited reform will not
unleash remediation.  The unitary approach, on the
other hand, provides true regulatory reform for
the real world universe of remediation wastes
while ensuring that those wastes will be managed
with full oversight and in a manner that protects
human health and the environment.  And we urge EPA
to remember that the protection is best achieved
by removing the barriers that impede remediation,
not by simply giving them a fresh coat of paint. 
     
     
Thanks again for the opportunity to comment, and
I'd be happy to take any questions.     
     
MR. HALL:  Any questions? [There were no
questions.]  Thank you.  
     
The next commenter is Lowell Martin representing
the RCRA Corrective Action Project.     
     
MR. MARTIN:  Good morning.  The theme for
yesterday's hearing on Subpart S was musical.  I
think a choir was used.  Today maybe a symphony
makes an appropriate metaphor because what I'm
about to say will be variations on the theme that
you just heard.  I was scheduled to go right after
lunch.  I think it's probably a blessing for all
of us that it's still midmorning.  But at any
rate, I'm Lowell Martin and I'm here this morning
on behalf of the RCRA Corrective Action Project
which I serve as counsel.     
     
The RCRA Corrective Action Project is a group of
companies that came together in the fall of 1988
out of a concern that EPA's efforts to implement
its corrective action authorities under the 1984
RCRA Amendments not replicate the agency's
experience with CERCLA.  Project members range
from Air Products and Chemicals to United
Technologies Corporation.     
     
From the beginning, the Corrective Action Project
member companies have taken a constructive,
cooperative approach to working with EPA to
achieve protective, efficient, and cost effective
remediation under RCRA.  We have been instrumental
in EPA's development of a stabilization concept
whereby corrective action efforts are focused on
achieving early environmental results by
eliminating actual exposures and controlling
further spread of contamination.        
     
The project played a key role in the agency's
implementation of the Corrective Action Management
Unit, or CAMU, regulation as a way to foster early
and effective corrective actions.  We have
continued to work closely with EPA as the agency
has developed the HWIR-media Proposal that is the
subject of today's hearing.  However, as we have
stated in correspondence to the agency dating back
as far as the summer of 1993, the project members
have grave doubts as to whether a media only
bright line approach will result in meaningful
improvement as opposed to simply adding
unnecessary complication to an already Byzantine
situation.     
     
We continue to be concerned that the bright line
approach will only create additional disincentives
to embarking on clean-ups in the context of
corrective action or otherwise.    
     
With that said, let me move on to the substance of
the project's testimony.  It is no secret that the
project is a proponent of the unitary approach
whereby all hazardous remediation wastes,
including old sludges and debris as well as
contaminated media, would be exempt from Subtitle
C requirements if managed in accordance with an
approved Remediation Action Plan, or RAP.    
     
We commend the agency for fully describing this
approach and its manifold benefits and soliciting
comment on it.  We are, however, highly
disappointed that EPA has not adopted the unitary
approach as its primary regulatory proposal,
particularly in view of the fact that, as widely
reported in the trade press, EPA has endorsed a
legislative approach that would codify the unitary
approach into the RCRA statute.    
     
In an effort to change the agency's perspective in
this regard, I'm going to use the remainder of the
time allotted to me today to focus on the policy
objectives for the HWIR-media Rule as stated by
EPA in the preamble to the April 29th proposal and
to demonstrate the way in which the unitary
approach would achieve these objectives while a
so-called quote/unquote "harmonized" or bright
line approach would fall wide of the mark.   
     
EPA's first policy objective is that special
requirements should be developed that are
appropriate for management of contaminated media. 
The project members concur that hazardous wastes
disinterred during investigations and clean-ups
vary significantly from newly generated process
wastes and warrant a separate regulatory regime. 
However, we believe that any decision to limit
that regime to hazardous contaminated media is
fundamentally flawed.  As we have stated before,
in the real world each backhoe load of remediation
waste may include sludgy dirt, dirty sludge,
debris, and other waste materials.  Providing
relief for only a subset of real world remediation
wastes while leaving all of the impediments in
place for the remaining material simply
perpetuates today's failed status quo.  
     
Any approach such as the bright line that would
further subdivide these materials and oppose
differing management strategies on them would
create even more confusion among both the
regulators and the regulated community and serve
as a further disincentive to early clean-ups.   
     
     
We urge EPA to heed its own words and avoid
promulgating a complex new regulatory regime that
will in its own right, quote, "Create
disincentives for action and constrain the range
of options available to environmental
remediators."  Close quote.   
     
The agency's second policy objective is that
requirements for management of contaminated media
should be flexible and should reflect actual media
clean-up site conditions and the characteristics
of the contaminated media.  If this objective were
rewritten to include not only media but all
hazardous remediation wastes encountered during a
clean-up, it would be a fundamental tenet of a
successful program.  But limited to media, as is
the quote/unquote "harmonized" or bright line
proposal, it is, as I noted a moment ago,
fundamentally flawed.  Real world clean-ups do not
move in a controlled, predictable fashion from
waste to debris to hazardous contaminated media.  
     
     
Industrial facilities that may have been in
operation since the 19th century have been and
reconfigured dozens of times.  Debris, old wastes
and soils are commingled and are encountered in
unpredictable random fashion as investigation and
clean-up progress.  If the considerable effort EPA
is undertaking to craft a new regime for these
wastes does not take this into account, it is
doomed to failure.       
     
As we have been doing for the past three or more
years, the Project urges EPA to move forward with
the unitary approach as the only one that is truly
reflective of "actual clean-up site conditions,"
and to drop the figment that there exists
something out there in the real world that is a
"media clean-up site."        
     
The next objective is that state and federal
clean-up programs that have adequate authorities
and that are responsibly administered can and
should be relied upon to exercise sound
professional judgment in implementing HWIR-media
regulations, again with the caveat that the
program should cover all hazardous remediation
waste, not just hazardous contaminated media. 
This objective is right on target.  What is not on
target is a regulatory proposal that runs to 84,
three column, single-spaced pages and that would
overlay an already grossly over-complex regulatory
program that now requires its own dedicated CFR
volume.        
     
As EPA notes in the preamble discussion of this
objective, "For some time states have been
successfully operating clean-up programs under
state authorities.  These states have often
completed clean-ups at substantial numbers of
sites and have demonstrated a capability for
overseeing technically complex clean-ups while
ensuring adequate protection of human health and
the environment."   
     
The much simpler unitary approach would give these
states the authority and a powerful new tool to
foster more clean-ups in stark contrast to the
agency's corrective action track record which
shows fewer than 100 clean-ups completed out of a
potential universe of more than 5,000 facilities
over a decade after the agency was originally
given the corrective action authority.  To instead
promulgate an overly complex program that is
crammed with detail is a new regulatory burden on
both the states and the regulated community
demeans the very state regulatory authorities who
have demonstrated a track record of clean-up
successes and says in stark regulatese, we don't
trust you.     
     
The fourth objective is that HWIR-media regulation
should to the extent possible remove
administrative obstacles to expedite clean-ups and
provide incentives for voluntary initiation of
clean-ups by responsible parties.  Right on.  This
objective clearly states what should be the
over-arching of a remediation waste management
regulatory regime.  As opposed to newly generated
process wastes, remediation wastes are already in
the environment.  The notion that a rational
business would somehow take process wastes and
release them to the environment to qualify them as
remediation wastes is laughable, given the added
expense and complexity of conducting investigation
and clean-up and the liability exposure that would
accrue from such an action, not to mention
existing law proscribing such disposal.  It is, of
course, faulty public policy in any event to
design a regulatory scheme based on the
hypothetical actions of the recalcitrant few. 
That is why we have enforcement programs.    
     
Every incentive should be provided to encourage
management of remediation waste where appropriate
to reduce significant environmental risk but a
complex, new, bifurcated, regulatory regime is not
the answer.  Rather, as with the previous three
objectives, a simple unitary approach will do much
to eliminate current disincentives while assuring
protective oversight of clean-ups.      
     
EPA's fifth objective is that authorizing states
for HWIR-media regulation should be streamlined
and simplified to save time and resources.  This
objective is key to achieving early results.  The
best program in the world is meaningless if the
states are not authorized to implement it.  As we
understand it, EPA and the states work together in
developing the authorization approach set forth in
the proposal and we encourage further progress in
that regard along the lines of the streamlined
authorization approaches set out in the currently
pending House and Senate remediation waste
legislation.   
     
EPA's final objective is fundamental to the
overall success of any effort to foster clean-ups
by relieving Subtitle C constraints on remediation
wastes.  The regulation should be easy to
understand.  As the D.C. Circuit has opined, the
RCRA hazardous waste regulations are a "mind
numbing journey."  We encourage EPA not to
compound that problem with a harmonized bright
line media rule that is scarcely harmonious,
establishing multiple categories of waste types
and requiring multiple new decision points, all
regulatory constructs unrelated to protective
waste management.        
     
While there may be some public policy
justification for an incredibly complex scheme for
regulation of newly generated process wastes as
yet another disincentive to their generation in
the first instance, this can not possibly be true
with regard to remediation wastes.  Here sound
public policy demands simplification, not further
complication.  The project members urge the agency
to make this the linchpin of its efforts with
respect to remediation wastes and to recognize
that the unitary approach, not a quote/unquote
"bright line," is the answer.      
     
Before I close, I would like to briefly address
several legal issues posed by EPA's bright line
approach.  First is the assertion that a
remediation management plan can serve as a RCRA
permit without triggering the accompanying
site-wide corrective action mandate of RCRA
Section 3004(u).  This assertion seems to be
particularly vulnerable to challenge and would
constitute a major disincentive to the program
until fully litigated on the merits.    
     
The second problem arises from the assertion that
depositing remediation wastes into a remediation
pile does not constitute placement for purposes of
triggering land disposal restrictions.  This
proposition seems highly dubious given the plain
language of RCRA Section 3004(k) and the currently
pending challenge to essentially the same
reasoning relied upon by EPA in promulgating the
CAMU rule.     
     
Finally, although EPA expresses concern over the
applicability of LDRs in some instances, even if
the waste is otherwise exempted from Subtitle C
requirements, this problem seems to be readily
amenable a solution.  If under the unitary
approach the agency were to redefine its current
hazardous waste listings and characteristics so
that remediation waste actively managed under an
approved remedial action plan were excluded, by
definition the LDRs for the newly generated wastes
would never attach in the first instance.  While
this concept may need further exploration and
legal analysis, it could eliminate the two gross
uncertainties I noted above.       
     
As is documented in our prior correspondence with
the agency, the Project believes that EPA has full
and adequate legal authority to implement the
unitary approach now without statutory change. 
Furthermore, since the agency will inevitably end
up litigating the validity of whatever rule it
promulgates, we urge that you go forward with the
unitary approach since if it is upheld it will
yield truly meaningful relief whereas even if the
bright line approach ultimately survives
challenge, it simply brings the added complexity
in disincentives to action in any event.     
     
In closing, let me note that I have just touched
here on several of the more key issues on which
the Project has concerns.  We will be submitting
detailed comments on these and a number of
additional aspects of the HWIR-media proposal.  In
the mean time, however, the Project members are
encouraged that the agency is taking on this
difficult area of regulatory reform.  We urge that
true reform be the goal, even if it means a rocky
road of D.C. Circuit litigation as the path to
achieving it.  Thank you, and I'd be happy to
entertain questions.     
     
MR. HALL:  No question?  Matt.
     
     
MR. HALE:  Yes.  This is less a question than a
plea.  We've heard a number of comments about
problems in our legal reasoning, and I think in
your written comments we'd be particularly
interested in your legal arguments on a number of
issues you raised.  The CAMU, we've heard at least
one comment or argument that the CAMU should be
retained.  We're certainly interested in your
legal arguments there, and another that you've
referred to, Lowell, and a number of others, how
the unitary theory or the contingent management
theory severs land ban obligations.  We're
particularly interested.  We had a detailed
discussion in the preamble, and we're particularly
interested in the detailed legal arguments on how
you would make that case.  I'm not looking for an
answer now, but this is really a plea to give us
the argument.  
     
MR. MARTIN:  Yes.  Well, we've got two months to
address that, and I can assure you we will give
you what I hope will be a bullet proof brief on
that issue.    
     
MR. HALL:  Thank you.
     
     
MR. MARTIN:  Thank you.
     
     
MR. HALL:  The next commenter this morning is
Kelley Peters from Sandia National Laboratories. 
     
     
MS. PETERS:  Good morning.  I'm Kelley Peters, and
I am the RCRA Permitting Project Leader at Sandia
National Laboratories in New Mexico.  I personally
agree and I suspect Sandia's written comments will
also lend support to many of the comments made
this morning.  However, I've been sent here on a
more specific mission from Sandia to talk about an
issue that's been touched on a couple of times
which is the impact of the proposed rule on the
CAMU regulations.   
     
Sandia will submit a Class 3 permit modification
request for the designation of a CAMU to EPA
Region 6 on or before July 1st of 1996.  The
submittal is a culmination of a two year
approximately $2 million effort to expedite RCRA
corrective action activities.  For those of you
who are here from private industry, if you're
astounded by the time and the dollar figure,
remember we are a government agency.    
     
Based on past experience and the known rigors of
the permitting process, Sandia estimates that a
permit modification to designate a CAMU may not be
approved for up to one year, which would put us in
the July 1997 time frame.  Therefore, Sandia has
significant concerns about the provision in the
proposed HWIR-media Rule to grandfather only
approved CAMUs upon publication of the final rule. 
     
     
To give you a little bit of a background on what
we've done to date as far as designating a CAMU,
Sandia initiated activities in June 1994 to assess
the feasibility of a CAMU for the management of
hazardous remediation wastes generated during
environmental restoration project RCRA corrective
action activities.  Preliminary and subsequent
analyses, and these included options analyses and
also cost benefit analyses, have identified CAMU
as the preferred option for the management of
hazardous remediation wastes at Sandia.      
     
At that point we involved stakeholders.  Our
stakeholders included regulators and technical
staff from both the New Mexico Environment
Department and EPA Region 6 as well as concerned
community members.  We introduced those
stakeholders beginning in February of 1995 to the
CAMU concept through Sandia's quarterly public
meetings, a CAMU workshop, a citizen's advisory
board which meets regularly, and the organization
of a CAMU working group to specifically address
the designation of a CAMU at Sandia.  We, as a
result of these activities, have documented
stakeholders' support for the designation of a
CAMU at Sandia.     
     
Initially, Sandia pursued the designation of a
temporary unit (TU) and, although the TU
permitting process added time and cost to the
ultimate goal of CAMU designation at Sandia, we do
consider it to be a critical effort.  The TU
designation process afforded Sandia the
opportunities to acquaint stakeholders with the
environmental restoration project at Sandia and
the need for on-site remediation waste management
capabilities as well as establish effective,
cooperative and candid working relationships prior
to undertaking the additional rigors of
designating a CAMU.      
     
In May of 1996 EPA Region 6 did approve a permit
modification for a temporary unit at Sandia.  I
might point out that this temporary unit is
designed and intended for conversion to a CAMU. 
The TU provides remediation waste storage capacity
which enables Sandia to commence accelerated
remediation efforts pending the establishment of a
CAMU that will augment on-site waste management
capabilities to include remediation waste
treatment and containment.    
     
Largely due to the pursuit of a TU/CAMU as a cost
effective and protective option for the expedition
of site clean-up efforts, Sandia was granted small
site status by the Department of Energy.  Small
site status provides Sandia with the necessary
funds to expedite, and therefore complete,
remediation efforts by the year 2000.  A CAMU
designation at Sandia within the next year is
essential to complete the remediation efforts in
accordance with small site status requirements. 
     
     
The provision in the proposed HWIR-media Rule to
disallow approval of new CAMUs after publication
of the final HWIR-media Rule will result in the
following negative impacts at Sandia.        
     
We will have a reduction in waste management
flexibility and options.  For example, we will be
unable to convert the approved TU into a CAMU.  We
will have lost the investments, time and financial
to date, in CAMU designation efforts.  We will be
unable to complete remediation efforts by the year
2000 due to increased costs associated with
off-site transport and management of contaminated
media.  We will lose DOE small site status and the
associated funding.  There will be increased costs
associated with the management of contaminated
media and particularly debris.  There will be a
deterioration of relationships and a loss of trust
established with stakeholders which may affect
future Sandia activities.  And finally, there will
be increased costs and site remediation time
associated with the preparation and implementation
of a remediation management plan.  
     
Sandia, EPA and New Mexico Environment Department
staff and community members invested considerable
resources to perform feasibility assessments and
develop a proposal for a CAMU designation. 
Furthermore, Sandia made concerted efforts to
develop the proposed CAMU design and operating
requirements that are protective of human health
and the environment, provide the flexibility to
manage all remediation waste generated during
corrective action activities using innovative and
site specific technologies and address stakeholder
concerns.      
     
Sandia adhered in good faith to the intent and
principles of available environmental media
management regulations, and in June of 1994 those
were the Subpart S CAMU regulations. We request
that EPA recognize the efforts and commitment of
resources made at this and potentially other
sites.  Furthermore, Sandia believes the CAMU
design and permitting strategy adheres to tenets
of the proposed HWIR-media rule such as
stakeholder involvement and reliance on the
discretion of the regulatory agency to review and
approve innovative and site specific remediation
approaches.    
     
Therefore, Sandia respectfully requests that the
designation of new CAMUs for which facility
owners/operators have submitted class 3 permit
modification requests prior to the publication of
the final HWIR-media rule be left to the
discretion of the appropriate regulatory
authority.     
     
Sandia will submit additional written comments by
July 29th of 1996 but at this time want to
emphasize the concerns about the impact of the
proposed rule on CAMU regulations and the Sandia
Environment Restoration Project RCRA corrective
action activities.  Thank you for the opportunity
to comment, and I would be happy to answer any
questions.     
     
MR. HALL:  A question.
     
     
MR. PARR:  This is perhaps more by way of
commenting than question.  I suspect people can
hear me bellow.  There's no small irony that the
rulemaking, in effect its greatest impact is to do
away with the single most important element of
RCRA remediation waste reform that the agency has
put forth in the last decade, and I think the
limitations that this commenter just described of
the bright line approach versus what they would
get with a CAMU just served to further point out
the need for the unitary approach as the way
forward here.       
     
The commenter has made quite clear that the CAMU
gives them flexibility to do some rational cost
effective remediation that the bright line
approach would essentially thwart and return to
the current status quo of deadlock and overly
expensive remediation.   
     
MR. HALL:  Thank you.  
     
     
Has Robert Phelan arrived?  No.  Okay.  That
concludes the comments by those people who were
preregistered to speak.  Is there anyone else in
the audience who would like to provide the panel
with comments at this time?   
     
MS. NAKAMURA:  My name is Lisa Nakamura and I am
the Manager of Regulatory Compliance for IT
Corporation's Pittsburgh, Pennsylvania office.  In
my current role, I provide RCRA support services
to many clients that are undergoing corrective
action and/or RCRA closure since often they seem
to overlap.  In my previous life with IT, I was
regulatory coordinator for closure of IT's former
treatment, storage, and disposal facilities in
northern California.  So I offer these comments
today both as a quote/unquote "darn consultant" as
well as an owner/operator since IT certainly fills
that role in terms of its former sites.      
     
While IT believes that EPA is to be commended for
the effort that they've taken upon themselves, it
is our impression that the bright line approach
does not reflect an accurate understanding of what
field conditions are like during a large scale
remediation project, particularly in terms of its
narrow definition of media in terms of remediation
waste.  The unitary approach is much more
realistic in terms of an actual operation and to
sort of demonstrate the type of operation that
could be encountered during a program such as
being discussed today, I'd like to talk about IT's
Pinochi facility located in northern California. 
     
     
The Pinochi facility was opened in the early 1960s
by a previous owner/operator and IT purchased the
site in 1975.  Pinochi is presently going through
simultaneous closure plant approval as well as the
corrective action program.  Depending upon the
final approved remedial clean-up scenario, there
could be as many as a million cubic yards of
remediation waste that will require management as
part of corrective action and closure.  
     
I specifically would like to talk about one area,
that being a drum barrel area at the Pinochi
facility in which 3,000 drums were disposed of
prior to promulgation of RCRA predominantly during
the mid '60s and early '70s.  Once these drums are
excavated and then treated and disposed of in an
on-site landfill, they will become subject to
RCRA.  The bright line concept, while perhaps
useful as a concept, does not reflect what would
happen at this site.     
     
In excavating these drums, we would be generating
the following waste types:  contaminated soil
which would clearly be media, debris, meaning
underlying geologic material that could exceed the
60 millimeter size restriction, and intact drums
with waste.  Some of those wastes are contaminated
soils that were generated during clean-ups from
the 1960s so would those clean-up soils that are
in the drums be considered a media or would those
be considered a waste stream?      
     
Drum carcasses.  Clearly, some of these drums
having been in the ground for 20 to 30 years have
disintegrated.  Drums that break during excavation
releasing waste to the underlying soils.  Would
those then be contaminated media or would they be
waste?  Impacted ground water and finally,
treatment residuals.  I shudder to think of trying
to explain or to oversee a project in the field
like this in terms of establishing bright lines,
particularly given the ever-changing conditions
that could be encountered.    
     
I also am concerned about trying to explain these
requirements to my clients.  While in the role of
the consultant, it's often perceived that we're
trying to generate work.  Our final objective is
to see a client through its remediation.  And I
find these bright line concepts very difficult to
understand and I'm sure my clients would have even
more difficulty.    
     
In turn, I wonder how EPA and the authorized
states would be explaining RMP with bright lines
to the public who, while certainly educated,
clearly do not have the legal background in RCRA
that many of the people in this room have.   
     
     
My final comments, which are informal at this
point, are meant to support Ms. Peters' comments
about CAMU.  IT has been helping Sandia apply for
a CAMU petition.  We also have successfully
received a CAMU designation for IT's Vine Hill
complex in Martinez, California, are in the
designation process for the Pinochi facility, are
in the process for an Ohio client of ours, and
also have been involved in several petitions that
are in the pipeline right now with EPA Region 5.  
     
     
I echo the sentiment that the CAMU regulations
were the one truly good set of regulations that
EPA issued to facilitate a cost- effective
remedial strategy.  It's very disappointing to the
regulated community to have these regulations
reversed and superseded.  If this is deemed
necessary, I would encourage EPA to fully
grandfather both CAMUs that are designated by the
time that the regulations are promulgated as well
as those that are in the process.  Ms. Peters
indicated that it's taken Sandia two years to get
to the point that they're at now.  For the Vine
Hill complex it took a year and a half from the
start of the process to final approval.      
     
Additionally, I would encourage EPA to accept
modification to approve CAMUs that are required
after HWIR-media promulgation.  Modifications that
may be necessary based on field conditions or
conditions encountered during the post-closure
monitoring period.  IT and its clients will be
submitting formal comments to EPA by the deadline
of July 29th.  I do appreciate the opportunity to
submit these initial comments.     
     
MR. HALL:  Thank you.  Will you accept questions? 
No questions.  Thank you.     
     
Is there anyone else in the audience that would
like to make a presentation?  
     
Did anyone jot down any questions for the panel on
3 X 5 cards during the presentations this morning? 
Okay.  There's one over here.  From reading the
proposed regulations, it appears if it is
determined and all states along the route agree
that the media is nonhazardous contaminated media,
then a manifest would not be necessary during the
transportation of that media.  Is this correct? 
If a manifest would not be required from a
practical standpoint, how would the generator:  A)
ensure delivery and B) ensure Subtitle D facility
treats in accordance with alternative treatment
standards, 10 times UTS?  If nonhazardous
contaminated media is not treated correctly, does
media then resort back to Subtitle C regulation? 
Is the generator then potentially liable for legal
disposal of that media as the facility failed to
treat or dispose of properly?      
     
Probably it would be easier just to start over
with each of the questions and we'll see if we can
answer.  How's that, since yours is such a complex
question.  The first question is asking whether or
not this statement is correct.  From reading
proposed regulations, it appears if it is
determined and all states along the route agree
that the media is nonhazardous contaminated media,
then a manifest would not be necessary during the
transportation of that media.      
     
MS. HOSKINSON:  That is correct.
     
     
MR. HALL:  That's correct.  The next question.  If
a manifest would not be required from a practical
standpoint, how would the generator A) ensure
delivery and B) ensure Subtitle D facility treats
in accordance with alternative treatment
standards?     
     
All of these questions are being entered into the
record and for those that we can't respond to
right now, we will respond to in the response to
comments document, and that will be one of them. 
     
     
AUDIENCE PARTICIPANT:  -- state approved so that
the state gets to approve the plan.  That's why
I'm asking whether you use unitary approach or the
contained-in approach or whatever, there's a state
approved plan and that state approved plan will be
enforceable and that state approved plan will
prescribe that it goes to facility B.  I think
that's the same really, no matter what approach
you took.      
     
MR. HALL:  Okay.  Next question.  If nonhazardous
contaminated media is not treated correctly, does
media then resort back to Subtitle C regulation? 
     
     
MS. HOSKINSON:  If you don't comply the
requirements in your enforceable document, it can
be enforced under Subtitle C as a violation of
Subtitle C.    
     
MR. HALL:  The next part of that question.  Is the
generator then potentially liable for a legal
disposal of that media as the facility failed to
treat or dispose of properly?      
     
MS. HOSKINSON:  I don't know whether the liability
would fall on the generator or the disposal
facility.      
     
MR. HALL:  We'll check and get back in response. 
     
     
The next question.  If media is determined to be
nonhazardous contaminated media, what then are the
disposal requirements assuming LDRs are met? 
     
     
MS. HOSKINSON:  What was the question again?
     
     
MR. HALL:  If media is determined to be
nonhazardous contaminated media, what then are the
disposal requirements assuming LDRs are met? 
     
     
MS. HOSKINSON:  Those would be designated in the
remediation management plan on a site specific
basis.    
     
MR. HALL:  Can media go to Subtitle D facility?
     
     
MS. HOSKINSON:  If that's approved in the
remediation management plan, it could be.    
     
MR. HALL:  Can media be used as clean fill?
     
     
MS. HOSKINSON:  Again, same answer.
     
     
MR. HALL:  And finally, can it be put anywhere
because it is just dirt?      
     
(Laughter)
     
     
MS. HOSKINSON:  Again, that would be specified in
the remediation plan.  Any one of those options
would be available as alternatives to be
determined in the remediation management plan. 
But any of those would be alternatives that could
be chosen.     
     
MR. HALL:  Okay.  This has to do with what 40 CFR
269.30(a) and (b) really means.  It appears to say
that all hazardous and nonhazardous contaminated
media is subject to LDR treatment requirements
except if the generator can determine prior to
excavating the media from the ground that the
media is nonhazardous contaminated media and
concurrence is obtained from the director.  Is
this correct?  EPA should simplify the language in
the proposed regulation.      
     
     
     
MS. McMANUS:  What was the cite again?
     
     
MR. HALL:  269.30(a) and (b).
     
     
MS. HOSKINSON:  It's on 18852.
     
     
MS. McMANUS:  The question is just if you make a
contained-in determination before you excavate
your media, do all the LDRs attach.  I don't know
whose question it is, but is that what you're
asking?        
     
AUDIENCE PARTICIPANT:  The question is that what
that paragraph means?  Is that what that paragraph
actually means, that if you actually make the
determination prior to excavating the soil from
the ground that it's not hazardous media, then
that's the only way that LDRs do not attach. 
     
     
MS. McMANUS:  It's one way that LDRs could not
attach.   
     
AUDIENCE PARTICIPANT:  And that's what that
paragraph (a) means?     
     
MS. McMANUS:  Yes.
     
     
MR. HALL:  Next question.  Is it EPA's intent to
require nonhazardous contaminated media to be
manifested when sent off site but disposed of
within the generating state?  
     
MS. HOSKINSON:  Nonhazardous contaminated?
     
     
MR. HALL:  Right.  Is it EPA's intent to require
nonhazardous contaminated media --      
     
MS. HOSKINSON:  Again, if it's nonhazardous
contaminated media, it's not subject to Subtitle C
requirements including it is not subject to
manifest requirements.   
     
MR. HALL:  And the second part of that question,
"Will requirements for manifesting differ if LDRs
have not been attained?"      
     
MS. HOSKINSON:  If LDRs have not been attained, it
can't be disposed of.  I don't understand the
question.      
     
MR. HALL:  Do you want to clarify that question? 
     
     
MS. HOSKINSON:  LDRs need to be obtained.  It's a
requirement, so I don't know how to answer the
question.      
     
AUDIENCE PARTICIPANT:  The question is, if you
have a nonhazardous contaminated media where you'd
had the agency basically say that it no longer
contains hazardous waste so it stops being subject
to manifesting but you've not attained LDR
treatment requirements --     
     
MS. HOSKINSON:  Yet.
     
     
AUDIENCE PARTICIPANT:  -- yet.  Then when you send
it off-site, would you have to be manifesting it
because even though it's not a hazardous waste, it
still has LDR requirements.   
     
MS. McMANUS:  I don't think we addressed whether
or not it would be subject to manifesting, but
depending on where you were sending it, it would
still have to be treated to LDR so even if you
wouldn't have to manifest it, it would have to -- 
     
     
AUDIENCE PARTICIPANT:  Well, I know it would need
to be treated by LDRs but would we have to fill
out a manifest to ship it was the question?  
     
MR. HALE:  I think the answer is right.  We didn't
specifically address that, but the ordinary way we
would say is it's not hazardous waste.  Manifest
applies to hazardous waste and, therefore, the
manifest doesn't apply.  There is a further issue
which maybe you're getting at.  Do the specific
LDR notification requirements apply?  Presumably
it would to make sure that it got treated, but the
manifest per se attaches to the material being a
hazardous waste.    
     
MS. McMANUS:  Right, but what we have to look at
is whether or not the LDR requirements are
cross-referenced with manifesting requirements.  
     
     
MS. HOSKINSON:  If you look at Section 269.10(b)
we talk about some of the Part 268 requirements
that continue to apply.  That might help.  I'm not
sure if that would clarify it for you.       
     
MR. HALL:  Okay.  Next question.  How does EPA
envision establishing the basis for the 90 percent
reduction?  Will generators be required to
ostensibly sample for multiple contaminants, then
average results to establish the baseline
concentrations that must be reduced 90 percent to
meet LDRs or will the 90 percent reduction be
measured against a highest known concentration or
some other method?       
     
MS. HOSKINSON:  We'll address that in response to
comments, but we do specify in the content of RMP
section somewhere in the 269.40s, 269.41, we
specify that your sampling an analysis ought to be
part of your remediation management plan and that,
I would imagine, would be included, but we can
address that further.    
     
MR. HALL:  The final written question.  How does
EPA see the integration of the BMP technology
guidance in the rule?    
     
MS. HOSKINSON:  The BMP, best management practices
for soils treatments technology guidance, is a
guidance intended to provide guidance on how to
avoid cross media contamination when treating
soils.  We do say in the remediation management
plan section that we require that people address
to the extent possible -- I forget the exact
language -- cross media contamination when writing
their plans and that guidance document would be
one avenue of guidance you could look to on how to
do that.  
     
MR. HALL:  Are there any additional questions from
anyone in the audience?  No additional questions. 
One thing before we close.  The agency has
received several requests to extend the comment
period and we will be making a decision on those
requests very soon and there will be a notice in
The Federal Register if the comment period is
extended.  Also, key players in the past on the
proposal will be notified either by phone call or
fax or e-mail message.   
     
MR. LUBEN:  My name is Lyn Luben, I'm from OSW,
and I brought 10 copies of the regulatory impact
analysis that was conducted in support of this
proposal.  I've placed them on the back table and
I think they're all gone now but if anybody would
like a copy of it, they're in the docket or you're
welcome to give me a call and we can send you one. 
But it covers a lot of information that was
touched on in the various presentations and
comments, and I'd certainly welcome and request
any data submissions to support any of your
comments.  Once again, my name is Lyn Luben. 
Phone is (703) 308-0508.      
     
MR. HALL:  Are there any other questions or
comments?      
     
This public hearing is closed.
     
     
(Whereupon, the hearing was closed at 10:43 a.m.)