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# Alabama Court Reporting of Mobile**Reg~tered** Pr o fe:lslonsl Reporters P

. 0

. Box 1 61183 Mo b il e , Alabama 366 1 6 (205 ) 443

- 5290

2 3

5 

### IN TilE CIRCUIT COURT FOR THE THIRTEE NTH JUDICIAL CIRCUIT OF ALABAMA, MOBILE COUNTY

6 • • • •••• • • • 7 VERA 

### CURRY MATHENY, etc. , Plaintiff , Page 1

8 9 

### CIVIL ACTION NUMBER 10 VS. 

### 11 12 INTERNATIONAL PAPER COHPANX,

et al., 13 Defendants. 

# . . . . . 

# . . . . . . .. . CV-99-804

14 15 The testimony of TIMSAYLOR , ta ken at the 16 offices of Finkbohner ' Lawler, 169 Dauphin Street, 17 Suite 300, Mobil e , Alabama, on the 24th day of N ovember, 18 1999 , commencing at approximately 9:15 o'clock , A. H

. 19 20 21 22 

### 23 ALABAMA 

### COURT REPORTING 

### OF MOB! LE 

### P. 0. 

### Box 161183 Mobile, Alabama 36616 (334) 478-0068 A P P E A R A N C E S 2 FOR TilE PLAINTIFF: IIESSRS. FINKOOHNER, LAWLER At t or n eys a t Lav 3 Suite 300 169 Dauphin Street Mobile , Alabama 366J2 Page 2



### 5 BY: GEORGE W

. f'INKOOHNER , III , ESQ. 

### 6 FOR TilE DEFENDANT: MESSRS

. FRAZER , GR£6NE , UPCHURCH ' BAKER Atto rn eys at La v 2206 F iest N at ' l. 

### Bldg. Mobile, Alabama 9 

### BY: D. BRENT BAKER. ESQ. 

### 10 II 

### 12 13 14 

### 15 16 17 

### 18 19 20 21 22 23

2 

### EXAHIMATIO N: 3 By Hr. F inkbohner 4 

### EXHIBITS: 5 Exhibit 101

Exhibit 102 6 

### Exhibit 103

8 9 

### 10 II 

### 12 13 H 

### 15 16 17 

### 18 19 20 21 22 23 Virginia P. Sims, RPR, CSR Cou rt Reporter

I N 0 E X P AGE:

6 

### PAGE: 6 

### 68 76 

### Page 3 

## ! 

# I ! 

# I

### Page 4 

### S T I I' 

### U L A T I 0 N

3 

### It is s tipulated by and betveen the parties 4 

### hereto and their respecti ve attorneys at lav that the 5 

### deposition on oral examination of the vitness, TIH 

### 6 SAYLOR, may be ta ken before Virginia 1'. Sims ,

Commissioner , Notary Public for the State at Large, and that the said deposition shall be 

### ta ken in ac corda nce 9 

### vith the provisions of the applicable sections of the 10 Alabama Rul e s o f Civil Procedure. II 

### 12 It is further stipu lated that all notices 1 3 provided for by s aid applicable sections of the Alabama 1 4 

### Rules of C ivil P rocedure are valved , except the reading 15 

### over of said deposition to or by the vitne ss , the 16 signing the re of by him; and the signing and 17 

### certification of said Virginia 1'. Sims , and all other 18 

### requi rements and technicalities of every sort regarding 19 

### the ta k ing and filing of the depo sition, except as 20 hereinafte r set out : 2 1 22 All o bje c tions save as to the fom of 23 questions as ked are reserved until the time of trial in

Pa ge 5
1 accordance w ith the appli cable provi s ions of the said 2 Alabama Rules of Ci vil Procedure. 3 It 

### is further stipulated that the original of 5 this transcript will be de l ivered to George W

. 6 Finkbohner , Ill, Esq. , as custodian, for filing, s hould

the Court so direct. 8 9 

### 10 II 

### 12 13 14 15 

### 16 I , Virginia 1'. Sims, Commissio n er and Court 17 

### Reporter, certify that on th i s date, as provided by the 18 Alabama Rules of Civ il Procedure , and the forego ing 19 stipulation of counsel , there came before me at the 20 offices of Finkbohner, La w ler, 16 0 Dau ph in Street , S ui te 21 300 , M obile , Alabama , TIM S AYLOR , wi tness in the above 22 cause, fo r oral examination, vhereupon the follow ing 23 proceedings vere had: Page 6
TIM SAYLOR , the v ltness , afte r ha ving first been duly 

### 3 svorn to tell the truth , the w hole truth , and nothing 4 

### b ut the truth, wa s examined and testified as follow s: 5 

### EXAMINATION 6 

### BY HR. 

### FINKBOHNER: 7 

### 0 8 A 9 0 

### State your name, please. Tim Saylor. And , 

### Hr. Saylor, vho do you v ork for? International Paper Co< tpany. Hov long have you w orked fo r 1.1'.? 20 years. And is this your card right here? 

### res, it 

### is. 10 A 

### 11 0 

### 12 A 130 

### l4A 15 

### 16 17 

### HR. FINKBOHNER:
as Exhibit 101. am going to mark it
(EXJIIBIT 101 RECEIVED AN ri 

### 18 HARKED FOR IDENTIFICATION.) 19 BY HR

. 

### FINKBOHNER : 2 0 0 

### You are a Program Manager,**Enviro~ntal** 

### ' 21 Product Regulatory A ffairs? 22 A 

### 23 0 

### Correct. And vhat is that?

Page

1 A 

### act as a company expert in the areas tha t I 2 clll 

### assigned

. 3 0 All right. What are as are you assi1ned that 4 you are a company expert in? 5 A Currently, solid and h azard ous wa ste; F.D.A. 6

- - that ' s Food and Drug A dministration regulations; 7 chemica l regulations under the Toxic Substances Control 8 Act; and right-to- knov issues under the Right T o Know 9 lavs. 10 0 11 Tennessee? 12 A 

### 130 14A 

### All r ight. And you ace in M emphis,

Correct. Nov, what' s your educational background? I have a Bachelor ' s of Science from Allegneny IS College; Ma ster's in Envi ronmental Eng ineering from 16 Drexler and a Master ' s in Public Health Adminis tration 17 fr om Pitt. 18 0 Master's in Environmental Engineerlng? 19 A Engineering. 20 0 Where? 21 A Drexler Universi ty, P hiladelphi a . 22 0 And a Ph.D. in 

### v h at? 23 A No, 

### no, no . Has tee' s in Publi c Health

### Page 8

I 

### Adnti ni stra tion from Pitt. University of Pittsburgh. 2 Q 

### All right

. When did you get your B.S.? 3 A 

### '69. 4 Q 

### And what did you get your B

. S. in? 5 A 

### It was in

-- well, it was actually 6 pre-medicine. It was biology and**ch~stry.** 

### It wa s a 1 

### dua l major. 8 

### 0 All right. And when did you get your 9 

### Kaster's in**Envir o~enta** **l** 

### Bngineering? 10 A '72. II 0 

### And when did you get your Kaster's in Public 12 Health Administration? 13 

### A 14 

### 0 '74. 

### And when did you go to w ork for I.P.? 15 A 1 actually worked for International Paper in 16 1987, but pr ior to that worked for Hammermill Paper 17 Company. Hammermill Paper Company w as purchased by I.P. 18 in 1987. Prior to 1987 I worked for Hammermlll Paper 19 Company. 20 0 

### For ho w long? 21 A 

### Since 1979. Between 1970 and 1979 I worked 22 for the State of Pennsylvania in their regulatory

-- 23 Environmental Regulatory Agenc y of the Oepartment of

1 Environmental Resources. 2 0 

### All right

. Did you ever have an y 3 conve r satio ns with anyone involved in the ABT tank Page 9

4 

### clean-out job here in South Alabama**abo~t** 

### that job or 5 

### about management of the black liquor or black liquor 6 s ludge ? 7 A Not that I can reca ll specifically

. 8 

### Q Do 

### you generally or in any way vaguely recall 9 having any conversation with anyone w here they sought 10 any technical advice or expertis e? II A 

### Part of my job is to answer technical 12 questions in my areas of expertise for anyon e in the 13 compa ny. They may not tell me -- you know, give me the 14 compl ete background, I should say , of what they are 15 calling about. I may get a telephone call that asks the 16 question, you know, how do you define this or how does 17 the law trea t that, or whatever, and I wi ll ans wer the 18 question and that's that. 19 

### 0 Did that ever happen with respect to the tank 20 clea n - out job? 21 A Not specifically. I don ' t remember of anyone 22 explaining in detail vhat was going on and what

-- 23 Q 

### Did you ever have any discussion with anyone Page 10
I during that job about wha t ;.ests , if any, neede-: :o be 2 run? 3 

### A Not that I reme:tber specifically. 4 Q 

### All right.**Ha~e** 

### you had black liquor .ank 5 clean-out jobs in the past w here you were consul:ed 6 

### w ith? Either tanks or ponjs? 7 A Our pulp and pa?er facilities do this all the 8 time. 9 0 

### All right. And when you say •an the tiJIIe•, 1 0 you mean -- 11 

### A At one time or**~noth~r** 

### every faciliti· · ;oes 12 through t ank clean outs on a routine basis. It**~ght** 

### be 13 semi-annual , annual , biesut.:.al, · •heneve r it needs :o be 14 

### done. 15 

### 0 How many I.P. f:3nts**~re** 

### there in**Nor~ ~**  

### 16 America? 17 A I 

### believe curre::;Jy · •e have 27 pulp ra..:.:ls. I 18 think that ' s the correct n:;!uber. 19 Q 

### Did you partici?ate in preparing the**~~teria1** 

### 20 Safety Data Sheet on blac k liquo:? 21 A The original sheets, [es. The current sheets 22 are prepared by our industrial hygiene section

. 23 Q

1 A 2 Q 

### Have you seen theiR 

### before today?

Oh , yes . Do 

### you disagree vith the information 3 contained in those sheets? 4 A 

### No. 5 

### 0 All right. Where are some of the othe: Page II



### 6 locations where I.P. has**do~e** 

### pond clean outs or tank 7 cl ean outs that come to mind to )"OU 

### where the jobs are 8 similar to the ABT job? 9 HR

. 

### BAllER: Object to the form of the 10 llA question. You ca n ans ver, though, if you**c~.** 

### As I 

### sta t ed earlier, e very facility that 1 2 generates liquor w ould have liquor storage tanks**~~at** 

### 13 w ould occasionally need to**~** 

### cleaned out. We**ha7~** 

### 14 pulping facilities at Andro;coggin, Maine; Corint:, 15 New York; Ticonderoga , New**~ork;** 

### orle, Pennsylvan:3; 16 Riegelwood, North Carolina; Georgetown, South Carolina; 17 Selma , Alabama; M o bi le; H ess Point, Mississippi; 18 Natchez, Mi ssiss ippi; Mansfield, •Louisiana;**Pinev~lle,** 

### 19 Louhiana, and others. 20 BY HR. 

### FINKBOHNER: 21 

### 0 All right. 22 A 

### 23 0 

### They are scattered all ove r . Have there been any occasions when either aPage 12
tank w as of f-s ite**fr~** the J.P. plant and had been 

### 2 rented for the purpose of storing black liquor? Do you 3 understand that's what happened w lU• the ABT tank? 4 A Yes , I understand. I at• aware that Natchez 5 and believe Moss Point both stor•• liquor off-site. 6 0 7 A 8 0 9 A That's Natchez, Mi ssissippi? Coccec t. And Moss Point,**Hissis ~i;p** **i?** Co erect. Do they sto re it in tan! , or in ponds? Tanks

. Do you know who owns tli " tan ks tha t

-- No. --Natchez , M ississippi l.P. stores? No. 10 

### 0 11 A 12 

### 0 l)A 14 0 15 A 16 

### 0 Has I.P. ever had to**cl~**.• n the tanks out foe 17 the N at che z, Mississippi black li • (' Jo r? do n't know. 18 A 19 0 

### 20 A How about for the Mo ss !'l) lnt black liquor? I don ' t know, either. 21 

### 0 What is it in black liquor that makes it 22 ca ust ic? Let me back up before I ask you that. 23 Do you have any ex!"'ctis e in chemistry?

1 I know you majored in chemistry, Li·Jht? 2 A 3 0 4 A Yes. You dea l with chemistry o n a daily basi s? Yes

. Page 13

5 Q Would you consider**your "~** **1f** an expert in that 

### 6 area? 1 A 

### 8 0 

### 9 A W ithin the pulp and**pa~r** industry

-- Right.

-- chemistry , ye s . 10 Q And would you con sider yourself an expect 11 with in the pulp and paper industry with respect to RCRA? 12 A Yes. 13 0 Would you consider**you rs** **lf** an expert in the 14 p ulp and paper industry wi th re spec t

. to OSHA? 15 A No. 16 0 All right

. And by OSHA I mean not only ! 7 hazard commu nication but HAZWOPER**ce~ulations** or rules? ! 8 A I am not the compan y**exp~rt** in those areas, ! 9 no.**0** 

### 0 So , you ace an expert in chemis try as it**1** rel ates to the pulp and paper indus try? ! 2 A (Nodding head affirmatively)

.**3** Q And you are an expect in RCRA as it relates Page 14
I 

### :o pulp and pape r industry? 2 A Correct. 3 0 All right. Are you an expe ct in an y other 4 !rea that may have a bearing upon or touch upon any 5 iss ue in this case? 6 A Well , that's pretty broad.

-- maybe you 7 could be more specific

. 8 0 9 A I 10 ') 

# lu; I don 't kno w how to be. Okay. I really dcn 't kno w ho w t o be. For instance, TSCA, the Toxic Substances 12 Co ntrol Act , I know quite a lot about that law and ho w 13 it works. TSCA deals with chemica ls. Of course, these 14 are chemical processes we are talking about so TSCA 15 could conceivably be an area. Does TSCA deal with corrosives? Yes. 16 0 17A 18 0 Co rrosive chemicals? And what in TSCA would 19**~pp ly,**  if anything, to the black liquor tank clean-out 

### 20 job at 

### ABT? 21 A The materia l s removed are subject to TSCA. 

### 22 Q And what is TSCA? The

-- 23 A Toxic Subs tances Control Act

.

Page 15
Wa s black liquor sludge tox.ic? 1 0 2 A 3 

## c Wlthln the broadest 11eanlng of the word, yes. Why is black liquor sludge toxic within the 4 broadest meaning of the word? 5 A 

### 6 0 It can be caustic. All right. 1 A It' s not, to my knowledge, carcinogenic or 

### 8 mut agenic or -- 

### 9 Q All right. What, if anything, does TSCA say 10 about how you deal with caustics? llA TSCA has several sections . The one that 12 w ould deal most directly with black liquor and black 13 li quor s olids is an inventory requirement. You have to 14 tell the federal government that you manufacture these 15 materials , and as such w e -- we are subject to TSCA 16 because ve manufacture pulping liquor. Specifically , 17 black liquor. 18 Q Does TSCA deal with dispo s al issues? 19 A No. 

### 20 Q Does it deal with worker safety issues? 21 A No. 

### 22 0 All right. Nov, I v as going to ask you this 23 earlier. What is the caustic or what is it about blackPage 16 1 liquor or black liquor s ludge th at ma k es it caustic? 2 A The ma terial contains

- - sodium hydro xide 13 3 the primary ca us tic agent , if you will. There are 4 others. There is some sodium sulfide. There are other 5 things that contr i bute to that. But the principal 6 caustic agent, using that in a rather loose se nse , is 7 sodium hydroxide. 8 0 And what's the chemical symbol for sodium 9 hydroxide? 10 A It ' s capital N sma ll 

### a capital 0 capital II. II Na O II. 12 

### 0 All right. 13A Na being sodium

. OH being the neg ative 14 hydroxide. 15 

### 0 And wh at holds the sodium and the hydroxide 16 togethe r ? 17 

### A W ell , these materials exist in a mixture of 18 othe r materials

. The y have an affinity for each other. 19 The y will bond to each other and this creates the 20 mate r ia l. 21 

### 0 I mea n, I remember from high s chool chenlstry 22 some , I guess , elements have a positive electrical 23 charge and some have a negative electrical ch arge.



### 1 A 2 0 3 A R ight. How does that w ork with sodium hydroxide? Sodi um has t w o positive c harges

. T he 4 hydroxyl 

### io n, the OH ion, contai ns t wo negatives. 5 0 All right. 6 

### A T w o positives, two negatives , the y stic k 7 together like magnets. Page 17

8 

### 0 All right

. Now, if you had sodium hydroxide, 9 Na OH and it was comple tely dry, would that burn a 10 pe r son? 11 A Not it it we re kept completel y dry

. The 12 material would have to come in to contact w ith moisture 13 i n some way. M oisture o n your s kin perhaps. 14 

### 0 But it w ou l d have to be wate r ? O r w ould it 15 have to be a ny kind of m oi st ure? 16 

### A Cou ld be any H20. 17 

### 0 O h. Anything w ith H20 i n it? 18 A 19 0 Yes

. So, if sodium hydroxi d e, which is NaOH, came 20 into contact with some thing that had in part w ate r in 21 it, w hat would happen ? 22 A Well, it w ould express a caustic 23 characteristic. 1 0 2 some thing that would bu:n y ou? 3 A It's**corrosi~e.** 4 0 It would**tur~** it into a corrosive

. 5 A 

### 6 0 Yes. How doe s tha:**ha~~en ~rom**  a chemica l Pa.;e 18

7 standpoint? What is it about the t w o comi ng toqether 8 that makes the sod i 1.1111 h:;droxide caustic , because if it ' s 9 totally dry it's not caustic but when it**~s** v et 10 w ith w ater it becomes :!;s t ::? .:an you expl a: n tl:at t = II m e ? 12 A I t ' s probabl;· not**ap~ op** **riate** to sa y it ' s not 13 caustic. Th ere are otl:er th:ngs that ca n cr eate a 14 corrosive. A sol v e nt, fo r**i~sta nce.**  Methanol, or 15 wha lever. There are ma::y tt.:ngs that ca n make the 16 material become corrosi·•e. 17 0 All ri ght. 18 

### A Basically,**L~e** cc :. cept of corros iv ! ty i s**tha~** 19 there are extra i ons that**ar~** al w ays present in a -- 20 e spec ially a li quid

.**A.~d th~**  caus tic material creates a 21 strong affinity for thos e and it can cause destruction 22 of other less str o ngly bound materials and break them 23 apart.

Pa<;'! 19
1 0 Do you mean when ::he caustic ge ts on the 2 material it breaks them apart or are you talking about 3 w hen the water gets o n t:e dry ca ustic it breaks it 4 apa rt ? 5 A Well, both. 5oth. The wa ter vil l dis s olve 6 the dry sodium hyd roxide , for insta nce, and cr eate a 7 very strong caustic solc:ion J f material. 

### 8 0 

### 9 A 10 0 11 A T he sodium , 

### is it !Cidic or is it alkaline? It ' s alkaline

. The sod i1.1111 i s or**~1e** hydroxide is ? W

ell , it can 

### =>e bccll. It can be both

. B ut 12 th e sodium hydroxide materia l is strongly a lkaline. 13 Alkalini t y being based o.J a s:dle of 1 to 14, froo 7 to 14 14. 15 

### 0 All right. Now, w ater is H 20, I gue ss , 16 right? 17A 18 0 Correct. It' s t w c hydrogens and one oxygen . What hol ds**wa:~r qethe** **r?** 19 A Again , it's a bond. You have an oxygen atom, 20 whi ch basically is two pcsiti · ;e charge s and t wo hydcoqen 21 atoms, which are a negative e!ch

. S o it takes 2 H ' s to 22 bond to the 2 0 oxygen a taa and this creates H20. 23 0 You say the hydrogens are positive orPage 20
I negative? 2 A They are negative. The oxygen atoo is 3 positive. 4 0 Does the positive and n•:· J· •tive c harge have 5 a nything t o do with alkalinity or idity? 6 A No. 1 0 Or that ' s just how it' s i• '!ld together? 8 A It' s just the bonding o . Lhe atoms. 9 0 I mean, I knov va ter, li 'IO U put your hand in 10 w a t er , w ate r w o n't burn you. I I A C orrec t. 1 2 0 It ' s not acidic and it '

. uot alkaline. 

### IJA 14 0 

### 1S A Correct

. Why is that? Water is conside red on . :: ') sca le that you 16 mea sure corro s ivity with--**that ~·**  · l eis called pH. 1 7 The pH scale. W ater is considered

. , be neutral , having 1 8 a pH of 7. Anything ac id i s a pH

.. , 7 to l. Anything 1 9 alkaline , or caustic , is from a pll · f 7 to 14. 20 That's how a c hemi

. measu res the 2 1 rela t ive acidity or alkalinity of ., liquid llixture

. 22 0 Say you have got a sodh ·• hydroxide a nd it's 

### 23 dr y?

Page 2 1
Ye s. 1 A 2 0 What is it about puttiJl " Lhe wa ter in there 3 tha t ma kes it where it becomes a lk ·' i ne , o r cau stic , and 4 w i ll bur n you ? 

### 5 A When you add the sodiuru ; droxide to va tee, 6 o r a solvent of s ome sor t, it**bre~ ·**  the material apart

i n t hat t he so di um and the hydroxi• s tay linked but nov the mixture contains a liquid for111 · •l the sodium 9 hy dr oxi de

. It di s solves the sodiu1.

. •t ydroxide. 10 0 It does n't break the 

### bo • " • between the sodium 11 a nd the hydr oxyl? 12 A W e ll, it's very difficu l

. c hemi c ally to sa y 

### 13 th at t hos e bonds always stay stron :. ·; attached beca us e 

### 14 the y don 't. They do di s sociate an• •oove around in the 15 li qui d s oluti on. And you can s hov, using chemica l 1 6 equ a t i ons, you kno w, how much s od i hydroxide exists 1 7 a nd how m uch wa ter exists , wh e n al: '

. · tlly all you have 18 g o t is a mixture . Do you understa

.. 1! It' s not that the 19 th i ng s come all apart and create**·** •'! nev chemica l. ?0 I t' s so dium hydroxide dissolved in •.J t e w ater. ?1 0 All right. ! 2 A Rather tha n some nev e li" ' " leal that's bee n ! 3 formed by water and sodium hydroxl d'!

. Paqe 22

I 0 All right. Based on what you have to l1 me , 2 is it right that sodium hydroxide, in terms of being a 3 burn hazard, doesn't rea lly become a hazard until there 

### 4 is water, or something for it to dissolve in? 5 A l don't know. It would be ve ry diffiC'Jlt to 6 make the statement that flake sodium hydroxide, dry

sodium hydroxide, is not a very stro ng caustic substance, becau se it is. 

### 9 0 All right. 10 A You know, it you purchase 

### a bag of**tl ~~d**  11 sodium hydroxide it must be handl e d very care fu ll ;·. 12 

### 0 All right. Now, bl ack liquor sludge , is it a 13 hazardous wa st e o r a nonhazardous wa s te ? 

### 14 A Within the meaning o f 

### a RCRA? IS 0 Yes. It' s a nonhazardous waste. And vhy is that? 16 A 110 18 A Within RCRA there are five way s that a solid 19 va s te can become a hazardous wa ste. 20 0 All right. 21 A Tho s e fi ve ways are , one, it can be listed by 22 the Envirorunental P rotection Agency, or an approved 23 state , as being a listed h aza rdous va ste.

Page 23 

### 1 0 All right. 2 A That's one vay. The rna t e rial ca n be toxic , 3 using a test called the ' t oxi city Characteristic t.eaching**~** Procedure. TCLP

. If a material is t e sted and fails S th.is t e st, it is a hazardous waste. 6 0 7 A All right. You can have a solid waste that has**or.~** sort 8 of a reactive c ha ra cte risti c to it. Again , this is a 9 specific definition i n RCRA, and you can have a r e 3ctlve 10 ha zardous vaste

. You ca n have an ignitable hazarcous 11 wa s te

. There is a specific definition for ignitabl e 1 2 s olid wa stes. If you fail that definition you are a n 13 ignitable h azardous waste, and there is a**ha racte~istic**  

### 14 for corro s ivity . Specific definition in the IS regulations. And if you fail that defi niti o n it then 16 would be considered to be a RCRA corrosive hazardcus 11 wa ste. 18 0 What w as done to a scertai n whether'or Jo t the 19 black liquor sludge coming out of the ABT tank that was 20 being taken to the pad passed or failed the co r ro s ivity 2 1 haz ardou s vaste re gulation or rule or standard , or 22 whatever you w ant to ca ll it? In RCRA? 23 A Ye s. The RCRA regulation for corrosivityPage 24

I rP.quires, A , that the material first be a so lid w aste. 2 Bas i ca l ly , y ou a re going to throw it aw ay. The second 3 thing it requi r es is that the**~~~aterial** be aqueous . Be a 4 liqu id

. And the third thing is that the liquid be or 5 have a pH of less than or equal to 2 pH or greater than 6 or equal to 12.5 pH. 1 So, the regu l atio ns requi re that any 8 material that you ace going to be disposing of, a solid 

### 9 w aste , be characteri zed to see if it's a h azardous 10 w aste. II 0 And who se respo nsibility is it to 12 characterize it? The wa ste generato r ? 13 A The genera toe of w aste. 14 0 And that would be I. P. in the case of the 15 Alabama B ulk Terminal? 16 A There w ou ld be a jo in t because w e w ere doing 17 this through contractors. There w o uld be sort of a 18 joint responsibility. But ultimately it w oul d be I.P

. 's 19 responsibility to ma ke sure the materiai vas n ot a 

### RCRA 20 h azardous wa ste. 2 1 

### 0 I mean , you are not testifying that Clark 22 Environmental ' s oblig a tion vas to characte rize this 23 stuff as hazardous or nonh aza rdous , ace you?

I A No. No. U ltimately it ' s l.P.'s 2 respo nsibility through its contrac tor. 3 0 So you said the steps you go through is , 4 Number I , it has to be a sol id w aste? 5 A 6 Q 1 waste? Correct. N ov, w as the black liquor sludge a solid Page 25



### 8 A It's m y understanding that it was. It wa s 

### 9 going to be disposed

. 10 Q Al l right. And wha t does a<!1/e o us me an? 11 A There is a speci fic test that the State and 12 EPA use to determi ne whethe r a mate rial i s aqueous o r 13 not. T his test is called the paint fil ter test. T he 14 method is set forth in a standard method manual issued 15 by the Environmental P r otection Agency . It' s short

- term 16 is S W

-846. Solid W aste 846

. 11 S W

-846 is the**~~~anua l**  that sets fo r th 18 tes t methods for s olid w aste. so , one can go t o S W

-846 19 and look up the paint filte r test, find out bow to run 20 the t es t, and then that ' s the f irst s t ep t o determine if 21 a material w ould be corrosive. 22 

### Q We ll , does that tell you whe ther or not it' s 23 corrosive or does that jus t tell you whether or not

-- Page 26
I A :**~·** s the first step

. It' s a t w o-part step. 2 0 T ell me what the other part is. 3 A Fiest is it has to be aqueous and, second , it 4 h as to hav e a pH of gre ate r tha n -- equa l to or greater 5 than 12.5. 6 Q All eight. W e ll , is it po ssi ble for a sludge 1 to pass -- or a gel to pass the paint filter test but 8 you ca n s till take a pH r eading on it? 9 HR. BAKER: O b jec t to the form , but you 10 c an an:•er . II A : ·ou cou l d take a pH using pH methods other 12 than thos e -- 13 BY HR. FINKEOHNER: 1 4 

### 0 W ell , but I am -- 15 A

-- requi red by 

### RCRA

. 16 Q**n~at** I am asking abo ut is can you take a 17 field meter and a glass elec trode and put it in a w aste 

### 18 stream or a sam pl e that ' s sludge that w ould otherw ise 19 pass the paint fil ter test and get a pH re adi ng o n it? 20 A Yes. 21 

### 0 All right

. S o there cou ld be occasions where 22 a material passes the pa i nt filte r te s t but if you w ere 23 to take a field meter , a pH meter with a glass

Page 27

1 electrode , and insert it into the material it w ould come 2 up w ith a p H lover tha n 2 or highe r than 12 .5 ? 3 A Fossib1e , yes . 4 

### Q All right. W ould a s ludge or a ge l that ha s 5 a pH ot less tha n 2 o r greater than 12.5 , and that 6 otherw ise passes the paint filt er tes t i n that the re is 7 n o free liquids dripping on the ground, w o uld that 

### 8 mater ia l pose burn hazards j ust li ke it would if it w ere 9 in liquid form or -- 10 A Poss ibly. 110 W ould there be an y substa ntial dHfe re nce -- 12 I guess my question i s w ou ld there be any substantial 13 difference bP.tveen the danger of chemical burn , whe ther 14 you w ere dealing with just a liqu id that y o u could pour 15 o n the ground, pour through a paint filter, versus a 16 sludge that passed the pa i nt filte r but, s ay , the pH was 11 above 12.5? 18 HR. BAKER : O b jett to the form , bu t you 19 can ans w er, Tint. 20 A The materi al could s till present a hazard

. 2 1 BY HR

. FINKBOHNER : 22 

### 0 All ri g ht. I g u ess what my question i s, i s 2 3 the hazard that's p re se nted by the**~teria l** Page 28
1 substantially different or subs t a ni i

.Jlly the same as 2 betveen in its liquid form and it s • Je l or sludge fom? 3 HR. BAKER: Objecl 1 :.1 the fom. 4 A don't knov. 5 BY HR. f!NKBOHNER : 6 

### 0 All right. Now, you sa; : the first thing you 1 do is you do this paint filter te 3t ·tnd if the material 8 passes the paint filter test in th I guess nothing 9 drips out of it? 10 A Correct. 110 Then you do n't even do .,H test. Is that 12 right? 

### 13A Co rre c t

. 140 Who told you that w as l 1 , way to go about 15 this? 16 A 170 It's the way the**regulal <~** **n** is written . No v, w hat regulation i s ·:tat? Is that the 18 RCRA reg? 19 

### A 40 

## ern 261, which is th · · lefinitions for 20 hazardous wa ste

. I 2 1 0 And it says to use the ! • i nt filter test to

22 determine corrosivity; as the fir 3 1 ;te p in detemining 23 corrosivit y?



### I A 2 0 Y es. That's you r interpretal • · • 1 of the Page 29

3 regulati ons , o r is that some thing

. ' re you have talked

to the EPA or gotten an opinion ft · • theno? 5 A Again , that is the regu l.ion. It's any 6 State agency , a ny federal EPA pers . • w ho is fartiliar 7 wi th RCRA, that 's the rule. 8 0 All right. I mean, ha v · ; ou had a discussion 9 vi th someone where they told you I : i

. w as the rule fr011 10 the EPA? 11 A Enumerable times. 12 0 Real ly? 

### lJA 14 Q O h, yes. Who did you talk to vi 1'

. t he EPA that told 15 you that w as the rule? 16 A Everyone , from the peor in Washington who 11 wrote the rule itself, to the fieJ inspecto rs who are 18 responsible for inspecting our fa c • i ties and making 19 su re that w e are doing it right. 20 0 And so they told you Ut·> • if a s ludge or a 21 gel passed the paint filter test y1 ·1, didn ' t have to even 22 try to ta ke a pH? 23 A Co rrect. It' s a two-pa ! 1 test. I 0 

### 2 A All right. If you look at the vay the regulation is Page 30

3 written, you know, it starts out it is aqueous and has a 4 pH of 2

- - you know , and goes on. So , the first part i s 5 it is aqu eous and. 6 

### Q How aqueous would it have to be? I mean, how 

### 7 much water w ould there have to be before it w ould drip 8 through the paint filte r? 9 A The way the test is designed is this: You 10 ta ke a kn own quantity of the materiai to be tested. 100 11 milliliters , fo r instance. You might t a k e 100 12 milliliters and put it in a little beaker. You then 13 take this hundred milliliter mixture and you pour it 14 into the paint fil t er. T he paint filter is s upported by 15 a gla s s funnel, because the pain t filter is just a paper 16 filter. And then you take your 100 milliliter beaker 17 and you place it underneath the glass funnel and it will 18 then catch any liquid that falls through the filter , 19 through the glass funnel. You wait five minutes. 20 That's the time of the test. If mo r e than 20 2 1 rtilli lit ers of li quid expresses from the material , it is 22 then deenoed to be aqueous . Y ou then take the liquid , 23 pour it back in the mixed material , mix it up and take a

Paqe 31
1 pH of it. That' s ho w the paint filter test is run . 2 So, it is possible to have free liquids 3 expressed from the material, but if it doesn't exceed 20 4 percent by volume , 20 milliliters in thi s particular 5 case , then the material does n' t fail the paint filter 6 test. And that test was designed and, y ou know , it' s 

### 1 pl ac ed in S W

-8 46 as being a rather easy field test to 8 run.**Hln~l** amount of material. It's a very pass fail 9 kind of thing. You ei the r are or you aren ' t

. 10 

### 0 And this is something that's in the RCRA? Is 11 that right? 12 A Correc t

. This test method is fou nd in 13 S W

-8 46, which is the test methods for the ev aluatio n of 14 solid and hazardous wastes. It's available from the IS EPA, on the Interne t. It ' s a four-vol ume set. Great 16 big thing. 17 0 All right. And these folks at the EPA told 18 you that if it passed the paint filter test ;nd didn ' t 19 drip , then you didn't have to do a pH on it for 20 corrosivity? Is that in sum and substa nce your 21 testimony? 22 A Yes

. The regulation says that it Must be 23 aqueous and have a pH

. So it has to pass both of the

### I pieces of the definition in order to be.deemed a 2 

### corrosive hazardous waste. J 0 

### All right. Old you ever have any 4 

### correspondence with the EPA about this subject? 5 A 

### 6 0 1 A 

### This specific subject? Yes. No

. Faqe**~**

8 0 

### And by "this specifi c subject• , I mean using 9 

### the paint filter test as one of a t w o- part test to 10 

### de termi ne whether or not a material is corrosive under 11 

### t he RCRA hazardous waste definition. 12 13 14 

### 15 16 17 18 19 

### MR. BAKER: What va s the question, Skip?
am so rry. I missed the first part of it. MR. FINKBOHNER: Can you read it back? (Requested question read by the Court Reporter). HR. 

### BAKER: Is the question did he talk to somebody about that? That's what I vas missing. MR. FINKBOHNER: What v as the question before that one? 20 (Requested question read by the Court Reporter). 21 BY MR. FINKBOHNER: 22 

### 0 So the answer is no , you have never had any 

### 23 correspondence about that specific subject?

Page 33
1 A 

### have never asked EPA in writing w hether you 2 

### must first run the paint filter test before running a pH 3 

### te s t. 4 0 

### All right. Other than using , say, a paint 

### 5 fi l te r tes t like th e proce dure that y o u ju s t talked 6 

### about, is there another way to detemine the percent of 7 

### w ater in a sample? 8 A 

### 9 0 10 A 11 

### aliquot. 12 

### 0 IJA I suppose. How w ould you do that as a chemist? Well, for instance,**~ou** 

### might take a known

What's an aliquot? Portion. A known portion of·material. A 14 

### hundred milliliters of something. 15 0 All right. Let's use black liquor sludge as 16 an example. 17 A All right. You might take a hundred 18 milliliters of black liquor sludge , put it in a beaker 19 and let it sit for a period of time and if there were 20 enough liquids in the material y o u might have heavier 21 material settling out and a liquid portion o n top. And 22 you might w ai t five minutes, five hours, fi v e days. rou 23 could ma ke up your o w n test in 

### effect. And you could I**th~n** 

### see that, you know, it contains X 

### mateclals of 2 

### heavier and X of 

### lighter. 3 0 

### The reason I am 

### asking this is because I sav 4 

### a test : esuit , and I ca n show it to you it 

### you want, 5 

### where sometime in the sunrner -- I think the Slllmler of 6 1998,**T~~** 

### Grace, or somebody from I.P. , sent a sample of 7 

### black liquor sludge to some lab up in Georgia and it 8 

### came**bac~** 

### a certai n percent vas wa te r , a certain percent 9 

### vas oil and a ce rtain percent vas so lid. 10 

### Do you know what the pr otocol is f or II 

### d et ermb i ng that? 12 A No. I w ou ld have to know what test methods 13 

### w ere used by the laboratory to determine that. 140 

### Ail right. have also seen reference in 15 some of the test results that w ere produced in discove::; 16 

### about percent solids

. Take a sam ple and then run some 17 tests on it and at the bottom says percent solids and it 18 wi ll have 50 or 58 or 60 or 62. Wha t does that mea n? 19 

### A Again, it vould be specific to the test 20 method that v as described. Normally, when you send a 21 sample to be ana lyzed , it ' s done to certain standard 22 protocols and you h ave to know what the protocol

-- what 23 particular protocol vas used in order to comp letely**Pac;~** 35

1 

### describe. Probabl y the best thing w ould be to ask the 2 

### chemis t what protocol he used. 3 0 

### So, if it came back and said 5 8 

### percent 4 

### solid, you know that 42 

### percent is something other than 

### 5 solid, wne ther it' s water or some other kind of

- - 6 A 

### Whatever. A normal test is an ignition test. 7 

### Loss o n i gn i t ion. And the solid ma t erial is what's lef : 8 

### over afte r you put the sample in an oven and bake it. 9 0 

### Let me ask you something. When you do this 10 

### paint filter test, do you have to put any type of 11 

### pressu re or squee ze 12 A 130 

### No.

-- the solid? You take the sludge , or 14 w hatever it is, and you lay it on top of a paint filter 15 and you w ait for it to drip , and if it doesn ' t drip 16 after five minutes -- l7A five minutes

. 18 0

-- then it passes the 'pai nt filter test? 19 A Correct. 20 0 Then there is no pH test done on it? 21 A 

### Correct. 22 0 All right. In terms of utilizing th.is 23 protocol , are you the go-to guy i n I.P.? I mea n, arePage 36
I you the guy that people ca ll to fir

.. ! out how do we go 2 about detemini ng whether or not tl• J is hazardous fr011 3 a corrosivit y standpoint? Or is tJ ·· . te s0111ebody above 4 you or more knowledgeable than you. 5 A There is nobody more kn.:. Ledgeable than me. 6 I ha v e supe riors. 7 

### 0 Well, people that you •l" .;e r t o obviously. 

### 8 But in terms of technical experti•• , if tha t question 9**can~e** up even you r superiors would 1 •1 ne to you and ask 10 you the question , right? Correct. 11 A 12 0 And have you instructed

. 1 these other nU.lls 13 that I.P. has around the country l·**>~se** this same 14 protocol? 15 A Yes. 16 0 All right. And by " san> ·· :•rotocol ", I**mea~** if 17 they got black liquor sludge , the;· ot the sludge on a 18 paint filter. Oon' t put any pres ;, .. , on it. Walt for 19 five minutes. If less than 20 pe1 ut of the volume 20 drips through, then you do n' t have · ·• ru n a pH on it? 21 A Correct. To determine · , rosivity. 22 0 Hazardous-- to determi

. whether or no t the 23 sludge is a hazardous waste for tlo · .:orrosivity

I characteristic under RCRA? 2 A 3 

### 0

5 6 Correct. That' s correl ·· All right. HR. FINKBOilNER: 1. 's go off the record. (Br ea k) 7 BY MR. FI NKBOHNER: Page 37

8 0 Let me ask you somethi

. u , Have you ever · 9 considered that aqueous , in terms • how it's used in 10 the corrosivity de finition in RCR/1 o r hazardous waste, 11 may mean amenable to pH testi ng a s**posed** to going 12 through this paint filter test fiL · . , 13 MR. BAKER: I just

. .>jec t to the form 14 because I didn ' t understand i

. ut , Tim, if you do , 15 1 6 A you a ns wer it. I think understood. 17 BY HR. FINKBOHNER: 18 0 It means you can sUck ,>robe

- - you don't 19 do the paint filter test as a seer.· . ing method. You 2 0 just take a pH probe with a gl ass ·**.~ ctrode**  and put it ! 1 in the samp l e and if it comes abov· 12.5 or higher then ! 2 that's the end of inquiry. It's h

. J

.. · ordous. ! 3 HR. BAKER: 1 sUl L • >bject to the fom 2 3 A but, Tim, if you kno w wha t he is asking

-- THE WITNESS: I think that I do. There vas a lot of question around this Page 38

4 particular point in the develo!X'lent of the regulation 

### 5 and ho w the regulatory**agencie~** interpret what it really 

### 6 means and there is wr itten guicance provided by EPA on 7 what is aqueous for the purpose of doing the corrosivity 8 test. It's available to anybody. And that, in effect, 9 expands the rule to point you to what you must do. 10 It is true tha: you can take a pH probe 11**~nd** :·ou on measure the pH of**~ny** liquid materia l. It's 12 got co 

### be a liquid. You can ' t do it with a solid. But 13 for purposes of RCRA, and determining what is or is not 14 a hazardous w aste , the first thing you do is make 15 ceruin that it is aqueous. That is, greater than 20 16 percent liquids by volume. That's the first thing you 17 do. 18 It is true that you can use your process 19 knowledge to detecnU.ne whether a material is a hazardous 20 w aste or no t. 2 1 BY HR. FINi<BOHN£R: 22 0 What does that mean? I don ' t understand. 23 A What that me ans is that if you ace familiae

Page 39
1 with the process that generated the w astes, that you can 2 use that, rather than do testing. But normally

-- 3 0 To c haracterize it as 4 A To c haracterize it as a hazardous wa ste. 

### 50 6 A**~1** right. But normally we suggest to our facilities 7 that if there is any doubt you co what the rules tells 8 you to do and do the te st. The reaso n being that 9 disposal of hazardous waste is very expensive. 10 Therefore, ve would not want a facility, for simple 11 econcaUcs, to just assume that a material is hazardou s 12 waste a nd pay huge sums of money to di spose of it when, 13 indeed , it is not a haz ardous w a3te

. Therefore

-- 14 0 3y definition? 15 A Yes. Therefore, our guidance to our 16 facilities is if you have any doubt at all, you test the 17 material according to the rules to determine whether it 18 is or is not a hazardous waste. 19 0 Back to this questio n about whether or not 20 aqueous means amenable to getting a p H reading on a 21 probe. It ' s your testimony that that is or is not wbat 22 aqueous means in the definition of corrosive? 23 A In the definition of corrosive, aqueous is

### Page 40
I 

### greater than 20 percent by volume liquids. 2 Want me to find it? 3 

### 0 I found it. 4 A What are the first three word s? It 

### is 5 aqueous. 6 HR. BAKER: 

### W ait a minute. Le t him ask 1 8 

### you a question. He**~Y** 

### w ant to as k you some thing different. 9 BY HR. FINKBOHNER: 10 0 

### S W-846, is that the paint filter test? 1I 

### A That's the publication that contains all of 12 the test methods. 13 0 14 A 15 S W-846. 16 0 17 right? 18 A All right. Yes. The paint filt er test is 

### part of

It has a whole bunch of tests in S W-846,

Dozens. Dozens. 19 0 All right. Let me ask you this. You have 20 got a background in scie nce and chemistry

. Front the 21 standpoint of hazards, whether it's environmental hazard 22 or a hazard to health and human safety , as to a degree 23 they are kind of mutual. What is the difference i n the

Page 41
I magnitude of hazard on a material that has a pH of 13 2 that passes the paint filter versus a material that has 3 a p H of 1 3 that drips through the paint filter and is a 4 liquid? 5 HR. BAKER: O bject to the form. You can 6 ans we r. 1 A 

### Hazard means lots of different things

. You 8 can have a hazardous material and it can be 

### hazardous 9 fr001 many different things. If you w ant to talk about 10 corros ivi ty

-- 11 BY HR. FINKBOIINER: 12 0 Corrosivity. Yes

. Let's co nfine ourself to 

### 13 that. 14 A For instance, agriculture fe rtilizer, it' s 15 very corrosive. 16 

### 0 Why don't we confine ourself to black liquor 17 sludge, and I w ill re-ask the question. 18 From a scientific and chemistry 19 sta ndpoint, which is apparentl y your background? 20 A Correct. 21 0 In terms of the danger or the hazard 22 presented to human h ealth and safety , and to the 23 environment, by the caustic properties of black liquor cage**~2** 

### 1 and/or black liquor sludge, if 

### black lie;-;:" 

### sludge 2 passes the paint filte r test but it's got a pH of 13.0, 3 and you have got a sample of black liquor that drips 4 

### through the paint filter and it's got a**~o f**  

### 13.0, is 5 there a scientific or chemical reason for treating the 6 two differently fr001 the stand point of he!l th and human 1 

### safety? 8 A 

### No. 9 0 

### Front the standpoint of enviromental 10**prot~ction?** 

### 11 A 

### 12 

### 0 No. I w as jus t looking bac k at th: s 40 CFR 13 26 1. 22 , Characteristic of Corrosivity. l: 

### doesn't 14 itself say you use the paint filter test; is that right? 15 A No. 16 0 All right. That's one of the tests that's in 17 S W

-846? 18 A Correct. 19 0 Do you know wh at happened to my cli ent? He 20 got into this stuff on the pad

-- 21 A Yes. 22 

### 0

-- and it burned him up? 23 A Yes. Yes.

Page 43
I 0 Would black liquor sludge be 

### considered a 2 hazardous material for transportation purposes? 3 A (No response)

. 4 0 And to be fair to you, if 

### you · • ,nt to look at 5 the PS DS before you ans wer the quest:on , : don' t h ave 6 any problem w ith that. I am not trying to keep that 1 

### from you. 8 A 9 0 

### 10 A 110 

### 12 A I understand. Do you w ant to see it? No. It's not necessary. All eight. I am not sure I understand wha t you mea n by 13 •tran s portation•. 14 0 DOT. Department of Trans;:ortation. 15 A Does the material meet the definition of a 16 DOT hazardous material? 110 

### 18 A 19 0 Hazardous material, right? I don ' t kno w . I am not ce r tain. The HSOS sa y s that black liquo r has to be 

### 2 0 placarded as a ha zardous material uncer the DOT regs, 21 and you don ' t disagree with that if that ' s what the HSOS 22 says , do you? 23 HR. BAKER: Objec t to the tom.

### I A N o . I assume Ule MSDS • · correct. 2 BY HR. f!NKOOIINER: 3 

### 0 Is it fair to say that ; , 's your opinion, 4 based on your s cientific bac kgroun: 1f worting with 5 I

. P., that black liquor and black ; . · tuor sludge are 6 hazardous materi als but not hazardv ·• 1 wastes? No. All right. Page 44

7 A 8 0 

### 9 A Black liquor passes th'! J ·· •int filter test and 10 it

-- 11 0 You mean it fails the · ' t goes through the 12 paint filter? I) A That's right. It will press more than 20 14 percent liquid. 15 

### 0 All right. So black liquor may be

. . hazardous waste. If you are disposing ol • .? If you want to dispose it. All right. 1 6 A 170 18 A 19 

### 0 20 A Black liquor solids is •lightly different 2 1 fo rm of black liquor. It would h J the same general 22 characte ri stic s except for percen t · : s of solids and, 23 you know, those other kinds of thi ; . And black liquor

Page 45
1 solids could or could not be hazat · 1 s wastes. 

### 2 0 Depending on wh ether 01 • .It it passed the 3 paint filter tes t ? 4 A Correct. 5 

### 0 I mean , does the paint I ter test really 6 te ll you whe ther or not somethi ng hazardous? 7 A The paint filter tes t 1 •. s you whethe r the 8 material could be a hazardous wa sl 1 r not withi n the 9 meaning of the rules. And as I Sil ·. earlier , that's an 10 impo rtant distinction fo r**economi ~**  if for no other 11 reason. 12 0 Why is it an important •tinction for 13 economics? Explain that t o me , i! • U w ould

. 14 A If you have a 50-gallo u rum of material and 15 you determine that material is a h ·•rdous w aste, and 16 you have to dispose of it as a ha;. · lous waste, it's 17 going to cost a lot mo re money to ; pose of it as a 18 hazardous w aste as oppo sed to a n v .zardous waste . 1 9 0 I s ee wh ere you are coon · · 1 from. How much 20 w ould it cos t to dispose of black · · · 1uor sludge as a 

### n nonhal:ardous waste versus how 11uch · ''uld it cost on the ! 2 average t o dispose of it as a hal: ul · luus waste? And you !3 can use a gallon or a ton, or whal r vP. r 11ethod you want. Page 46
I I am just curious. 2 A Lots of things c001e into how much it ' s going 3 to cost. For insta

. nce, if you have a 50-gallon drlll1l of 4 s001ething and they ha·:e to send a truck to pick it up 5 and that material has to be inci nerated in a hazardou s 6 waste incinerator , et cetera, it may cost upwards to 7 five, $600 a d

. nn. 8 

### 0 A drum or**~** ton? 9 A A dCUI1l. 55-gallon drum. Whe reas that saJJe 10 55-ga ll on drum o f**mat~rial,** if all you are going to do 11 is take it to the coc:;>any landfill, what? I don 't 12**~ow.** Probably less :han 

### SS. And wh en you are talking 13 about huge quantities of material that are ha • ardous 14 wastes, lots of times y ou can get a price break because 15 it is so much

. 16 Let' s say that you have a tank full of 17 product that has gone bad and you have got t o dispose of 18 the entire tank as a hazardous w aste, maybe 20 , 000 1 9 gallo ns, or whatever, you can then work a deal with the 20 disposer that's going to save you some money. 21 So, it ' s sort of case specific as to 22 exactly bow much i t's going t o cost. But there is a 23 s trong econOIIic incentive to 1!14ke su re that if you are

Page 47
1 going to di spose of it as hazardous waste, that it is , 2 indeed , a hazardous waste. 3 

### 0 So you don' t incur that expense? 4 A Correct. 5 0 In this RCFA is the re a def ini tion secti on i n 6 here? 7 A There are several definition sections. There 8 is a definition section in part 260, 260.10 , that are 9 general definitions for the enti re part. And then there 10 are individual definitions scattered throughout the 11 rules that would deal**ith** individual sub parts. F or 12 instance, there are special definitions in par t 261 that 13 dea l just with the cha!acterization of a ha•ardous 14 wa s te. 15 0 Is there a reference to the pa i nt filter test 16 in part 261? I don ' t know w he ther there is or not. Can 17 you -- 18 A 19 0 20 A 21 0 22 A 23 

### 0 No. Here it is. No. There is not? No. So, part 261, is that R CRA?

### Paqe 48
I A 

### Yes

. 2 0 

### Ooesn' t eve n use the w ords pain t fil t er. Is 

### 3 that right? 4 A 

### No. It refers to SW-846, w hich is the test 

### 5 methods document. Tha t test method document then has 6 

### its own set of de finitions and tes t**pro~ocols,** 

### and 7 what ever, and that is where you look to s ee w hat the 8 agency means by aqueous. 9 0 

### Of course , you could just as k the agen cy w h4t 10 it mea ns by aqueous? II A 

### Correc t. And there are memos and letters 12 tha t have been w ritten by the ag en c y, you know, 13 defining, if you will, what aqueou s mea n s w ithin the 14 meaning of part 26 1

. 15 

### 0 Have you read those? 16 A 

### Yes. 

### 170 Do 

### you have copies of them? 18 A Yes

. 19 

### 0 

### ttl as k you to produce them, ca n you give 2 0 those to your la w yer ? S ure. Be 

### glad to. 2 1 A 22 

### 0 23 A 

### How w ould I d escribe them

. They w ould be

-- They are agency memoranda.

What agency now ? EPA

-- 

### EPA

--

-- memoranda.

-- memoranda. 1 0 2 A 

### 3 0 4 A 5 0 

### 6 A
7 0 

### O n wh at is mea nt by aqueous .
8 s tanda rd

-- 9 A 

### 10 

### 0 Is that specifi c to this corrosivity

Correct.

- - or is it to hazardous wa ste 11 charac t er i zati o n ? Page 49

12 A 

### I believe it's s pecific to the characteristic 13 for corrosivity. I w ould have to l ook at it again. 14 

### 0 S o if I asked I.P. to produce EP A memoranda, 15 that would include le tters obviously, on what is mean t 16 by aqueous under the corrosivity an d hazardous w aste 1 7 cha r acterizatio n of RCRA , w o uld that sufficiently 18 describe the documents? 19 A 20 0 

### 2 1 A Yes. Do 

### you keep them in 

### a book somewh ere? They are available onl ine. W e also h ave them 22 as w ritten, you kno w, guidance that I ca n, fo r instance , 23 you kno w, fax to 

### a facility that as ks the questio n .**Pa.;~** 

### 50
I 

### 0 All 

### ri ght.**;..-.~y** 

### don 't you do th is.**Wh ~:.**  

### you 2 

### produce the se , ca n you ces ig na te w hich are copies ot 

### 3 hard copies that you ha>e already go t an d which

-- 4 

### mean , do you intend to**;~** 

### onto u1e In te rne t , or 5 someth ing, and get**extr~** 

### copies of these things? 

### 6 A 

### I can, but I 

### believe I 

### have the particu lar 7 memorandUM that you are i nterested i n in a hard copy 8 fom tha t ' s been i ssued ::.y EPA. 9 0 

### Is there one that you faxed around to 10 different pla nts Yes.

-- that h ad :.:::i s Yes. II A 

### 12 0 

### 13A 14 0 

### 15 u p? -- cl ea n out o lack liquor sludge issue :orne
16 A W ell, it doe: not dea l specifically wit: 17 

### c lean ou t of black liqucr sludge

. It is how you test 18 for co rros i vity

. 19 0 

### All right. 20 A 

### Any material. Any solid w aste. So , it's 

### a 21 general memorandum where EPA 

### sets ou t that this 

### is**hat** 

### 22 you do; this is what we**~eant** 

### b y this. 23 

### 0 What w as the :ate of it? Do 

### you**i:.~ow?**



### Page 51
I 

### A No t specifically. It v as wri tten by Dav i d 2 Bussard

. ( Spelli n g ) B

- u- s-s -a- r - d

. He is the chief of 3 the ch aracteriza tion sec:ion. 4 0 

### 5 A ( Spelling) B-:J-s-s ( Spelling )

-- a-r-:i. And he is the chie: of 6 the characterization sectio n fo r EP A' s Office of Solid 7 W aste and Emergency Response. 

### 8 0 9 A C hief of**har~cter iz** **ation** 

### section for

-- for the Of fi c e of So lid Wa ste and Eaerg eJcy 10 Response , U.S

. EPA ,**as~~gtcn .**  

### He is the person t:at 11 is responsible for h o w ycu -- h o w the a g en

c y vievs 12 characte rizing hazardous w astes. 13 

### 0 So , he puts i: 

### in**citing** 

### it's got :he 14 agen cy -- that's the age::y's interpretation a=d ha s 15 basically the fo rc e of la w ? Yes

. 16 A 

### 17 HR. 

### fi NK30HNErt : Let ' s take a break. I 18 may 

### be fini shed. 19 ( 2 reakl 20 BY HR. 

### f! NKBOHNER : 2 1 

### 0 Has the EPA ever publi shed documents or sent 22 o ut o n o ne of these l etters -- o r w hat did you call 23 them? An 

### advisory? What do y ou call tho se thillgs? 

# ! 

# I

I

### --- - -·- ------- Page 52 1 A 

### Yeah. Interpreta tio n l r. •. ers. They ha ve 2 lots of

- - 3 Q 

### I do n't want to call it**·I ~**  

### wr o ng name. 4 A Guida nce. 5 Q 

### Ha s the EPA ever issued = ty written guidance 6 that s aid the paint filter test WJ : 

### tot intended to 1 

### determine whether or not a waste i:=

- tqueous for 8 corrosivi ty purposes? 9 A Not that I all aware of

. 10 Q 

### Have they eve r issu ed u 11 that t he paint filter tes t w as no L • idance that said !s igned or intenqed 12 to be used in 

### charac t erizing w aste .; hazardous or 13 nonhazardous under the corrosi vity 14 s tandards ? 15 A Ask agai n? ignitability

16 HR

. flNKBOHNER: C

. you read it back? 17 (Reques t ed question read by · t rt Reporter). 18 A Not that I am aware of. 19 BY HR. r!NKBOHNER : 20 Q 

### Ha v e you ever done a hv ·· • : dous waste 21 r emedia t ion or cleanup, or had an1 J le with respect to 22 one? 23 A 

### Yes

.

Page 53
I 

### Q 

### All right. And what n · 

### did you have with 2 respec t to a hazardous wa ste remedi t

. .ion or cleanup? 3 A T w o spec ific roles.

. as a technical · 4 resource for cleanups being condu c : I 

### by the company , 5 and also have in the pa st acted a:· . · o ject manager for 6**r~ediations.** 7 Q 

### What ' s the dif ference IJ·**~en** 

### being the 8 technical resource and the project •nager? 9 A T h e pr oject manager**ta~·** 

### overall charge of 10 making sure the cleanup is done in technically 11 co rrect , cost- effective manner. 11. :tormally entails 12 g u iding one or more consultants a:: · : :onstruction 13 compa n ies. 14 Acting as a t echn i · · resource is simply 15 ans we ri n g questio ns as they come n; . Jnd you are n ot 16 involved in the day-to- day flow of :**<~ e**  

### project. 17 Q 

### Have you ever had a ha ;:, . · lous waste 18 remediat i o n or cleanup where the "' :.e was black liquor 19 or black liquor s ludge? 20 A B la ck liquor, yes. I C ·• · 't offhand think of 21 o ne dealing with black liquor sluo

. hJ "

. 22 Q 

### Where was the black li• !'J

. c 

### hazardous waste 23 remediation or cleanup? P age 54


### I A We will occ as i o n ally have c: Jck liqu or 2 spilled at one of the facilities, or more. Ove r the 3 years I don't know how ma ny , but these do occu r and when 4 they occu r the material is consi dered t o be wa s t e and 5 could easily be a co rrosive, h azardous**vast~** 

### and you 6 w o ul d have to do this. 1 

### Q 

### What do you mean "do this"? Handle it as a 8 hazardous wa s te cl eanup? 9 A Yes. You would have to do the remediation

. 10 Q 

### Would y ou have to do the re::edia tio n as a 1 1 hazardous w as te cleanup if it happened

-- w hat I am 12 trying to find out

-- I guess I don't know ho w to ask 13 the question. Whether it happe ned inside the plant 14 where there is a concrete floor versus outside, does 15 that make a difference h o w it's handled? 16 A No. If 

### it's a h a zardous w aste it h as to be 17 handled i n a certain manner. 18 Q 

### The reason I ask the question is, o bviously, 19 if 

### black liquor falls o n to a concrete floor or 20 somethi ng inside of a plant, it's not going to seep down 21 into the ground and into the dirt. 22 A Not normally. 23 Q 

### Whereas, if it's outside , it can be absorbed

Page 55
1 into the dirt. Once it's absorbed into the dirt does it 2 then become nonaqueous and not subject to hazardous 3 waste cleanup rules or what? 4 A That can be the case or it ca n just sit as a 5 pool and , you know, remain liquid and would be a 6 hazardous vas te. 1 0 

### When you clean the pool up and get the black 8 liquor liqui d, if it's in a pool outside, you say you 9 would treat it as a hazardous wa st e but when you got to 10 the ground you wouldn't treat it as a hazardous waste? 11 A That might be possible, yes. 1 2 

### 0 Have you done that in retention ponds or 13 black w ater ho lding ponds arou nd the country. 14 A Yes. 15 16 MR

. BAKER: Black liquor holding ponds? MR. FINKBOHNER: What did I sa y? 17 HR

. BAKER: B lack water. 18 BY HR. FINKBOHNER: 19 

### 0 Have you done that at black liquor retention 20 ponds or holding ponds around the country? 21 A We have cleaned up liquor ponds , yes. 22 

### 0 Actually, what I all saying is when you 23 clealled the liquor ponds up, the black liquor ponds, you

### ?age 56
1 handled the bla c k liquor liquid dS a hazdrdous materi a l, 2 

### or if it w as disposed of , a hazardous w a ste , an d the 3 

### blac k l iquor sludge or mud you handled as a n o nhazardo us 4 WdSte? 5 A 

### Normal closure of a liquor pond w ould entail 6 removing and keeping in the liquor process dS much 7 liquids as possible. S o the firs t s t ep w oul d be to ta ke B that material and place it into the process. Pu t it 9 into a t ank or whatever . At s ane poi nt · the material 10 then becomes o ne could say dirty enough tha t you**ca~** 

### no 1 1 l onge r use the material. At tha t point then you wou ld IZ 

### go into a disposal scenario where you w ould

-- you kno w , 13 you wou l d have to ta k e liquids and dispose of them as 14 hazardous w aste. And then at some poin t you probabl y 15 wi l l hit a case whe re the material is no longer a 16 liquid, aqueous, and

-- 17 0 It passes the pai nt filte r test and you don ' t 18 have to handle it as a hazardous waste? 19 A That's right. And at that poi nt the n yo u may 20 be able to take the residual soi l, or whateve r is left 2 1 over , and place it i n a nonhazardous facility

. 22 0 Or landfill? 23 A It could be a landfill.

P age 57
1 

### 0 Let me ask you this

. The people th at are 2 working ou t there , o r have w ork ed arou nd these pon ds , 3 and the liquid's out and they are do w n to the stuff tha t 4 w on't drip through the paint filte r by 2 0 percent and 5 so --but it ' s black liquor mud or black liquor sludge , 6 do they still h ave to use the chemical protecti on suits 1 

### that you would use working with**ac~** 

### liquor? 8 A I w ould assume so . I am not the safety 9 spe ciali st that would be helpi ng them decide what PPE 10 that they would need to w ear. II wou l d take normal precautions

. 12 Material Safety Data Sheet. But I would assume you Yo u w oul d fo l low the

13 0 Have you been a project ma nager o n a bl ack 14 liquor pond c l eanup? 15 A Not on a liquor pon d cleanup , no. O n other 16 remediations that the company has had. 17 0 All right. When I

. P. has had bl ack liquo r 18 pon d c le an outs or rernediations , do they use a buddy 19 system on those or do you know ? 20 A I have no idea. 21 0 All right. Do 

### you know is tb ere somebody in 22 you r office that has handl ed s ome bla ck liquor pon d 23 cl osu res or remediatio n s? I A 

### 2 0 

### The corporate staff office? Yes

. 3 A No t tha t I am aw are of

. 4 0 Tha t have been tech n ical advisors fo r it? Page 58



### 5 A Yea h

. M ys elf. You know , if a qu estion w oul d 6 come up. But norma l ly , these remediation s are do n e a t 1 

### the faci l i ty by th e facilit y E H S people

. B 0 All right. 

### Do they usually subcontrac t th i s 9 ou t or cont rac t it out for peopl e to come in and do thi s 10 or do**~e y**  

### use mill personnel? 11 A Norma ll y, it ' s a combination. But there are , 12 you k now, contracts let for like consulting engineer s to 13 help design the cleanu p , and whateve r , and also 14 construction . Hauling firms , you know , to be 15 subco ntracts. 16 0 When I.P

. has done b lack liquor pond clea n 11 

### outs, ha ve you always had S i te Specific Health ' Safety 18 Plans written up for that job? 19 A I would assume so. I h ave not seen them

. I 20 have no t appro v ed them. It w ou l d not be par t of m y -- 21 

### 0 You r job ? 22 A My job to do that. 23 0 I guess I am asking you something that ' s

Page 59
I outs i de of w hat you re al l y w ork o n? 2 A Yea h

. Basicall y . 3 

### 0 We ma y have covered this

. If w e did , plea se 4 be patient with me. 5 Can you give me a -- fr om the sta n dpoint 6 that y ou come from, like as a scientis t o r a c h emi s t , 1 

### vi th that type of chemical expertise and background, can 8 you explain why the RCRA regu lations w o uld trea t bl ack 9 liquor l iquid as a haz ardou s waste if it w ere going to 10 be disposed of but would not treat b l ack liquor sludge 11 as a hazardou s waste i f i t w as goi n g to be d i sposed of? 12 A The regulations were written t o set apart 13 cer tain materials fo r special handlin g . You kno w , the y 14 wanted to carve out a su bse t of solid wastes and they 15 ca ll those ha zardous w astes. Almost any mate r ia l w ill 16 presen t a hazard under some exposure scenario . 11 

### EP A tried to carve o ut this subse t of 18 mate r ials i n such a way tha t it ;ade sense tha t th is 1 9 material v as indeed

-- or not

-- let me back u p . T he 20 mate ri als that w ere handl ed under the h az ardou s w as t e 21 rules had some u n i que char acteri sti c . Tha t 's w h y the 22 rules are w ritte n the way th ey are w ritten

. Some things 23 are. Some thing s aren't , recogn i zing that all materi al s 

# IPage 60**h~ ve**  some hazards associated with**~.** So the agency tr ied to make a cut as to what vas .,nd what va sn' t. 3 In the characterbl 

### ·c of corrosivity ,

t.1e agenc y knew full well that a lc-' of solid materials 

### 5 are co rro s ive but didn ' t feel tllal · : ,ose materials 6 necessitated the handling and the I · ceaucracy, if you 7 w ill , that's a ssoci ated with a haz ., · lous waste

. So they 8 r..ade the cut that only aqueous mal · lals having highs or 9 l o w pH ' s would have to be handled

.. hazardous wa s t es. 10 There wa s a l ot ol mtroversy as the II rules w ere being developed**~bout** w : •:e the pH number vas 

### 12 se t. Why 

### 2 o r less than 

### 2 and 

### 12

. 1 greater

-- or 

### 13 greater than 

### 12 and a half? Why n ten? Or 

### 11? Or 

### 14 ten and a half? The agency , you ' • decided that i t 15 vas this particular group of mate• 16 trying to catch that presented ha?. ·**s** that they were Is that could be 17 addressed by the hazardous waste 1 · •lations. 1 8 So, you may have a •queous material 

### 19 that has a pH of 

### 12.3 that is not · •aza rdou s w aste , and 20 a companio n material contai!'ling th · 1a me constituents 2 1 that has a pH of 12.8 that is. Th

-- you know, they 22 we re forc ed to draw this line and •t's how the rules 

### 23 are administered

.

Page 61

1 

### 0 Let me ask you , you ex1 · ined to me how they 2 dre w the rules and ho w they are ad• • •istered, and I 

### 3 ap re c iate your answer. My questi · . reall y was a little 4 bit differen t than that

. My ques l n was, given your 5 ba c kqround as a scientist and a Cl · ls t is there any 6 scientific r eason or chemical rea " · or safety reason

fo r classifying black liquor as a :a rdous w aste if i t ' s going to be disposed of but , . ;sifying black 9 liquor sludge as a nonhazardous w . , : if it's going to 10 be disposed of, given that both ha the same burn II hazards or corrosivity**character! '**  :s ? 12 MR. BAKER: Obje · · .o the fom. You 

### 13 ca n ans w er , Tim. 1 4 A The material might be 15 ha·1ing the same safety hazards, tl • 16 you will , to the

- - you know, the 17 but not be required to be handled ·. ecia bly the same , :arne corrosivity, if

· rker or whatever,

· · ler the hazardous 18 waste regulations at the attendant ·· •sts and i 9 what-have-you. 

## :o I do n' t kno w how c · ·: to answer the**I** question

. They can be very simila ·.**2** BY MR. FINKBOHNER:**3** 0 I mean, does that seera ., , IJitrary to you as a Paqe 62
scie nt ist and a chemist? 2 MR. BAKER: Object to the fo 01. 

### 3 BY MR. FINKBOHNER: 

### 4 0 Not as a regulator but a; a**scie n~st?**  5 MR. BAKER: The same**obj ec** **tic~.** 6 A The material presents safety h aza:)s, 

### as do 7 many other materials , maybe even**~re** so for other 8 materials , that are not r equired to be pl acec intc the 

### 9 hazardous w aste system and i t s attendant bureaucracy

. 10 As a chemist , as a**~erso:1** w hc X.Oov ; 11 some thing about intrin s ic hazards of**mat~ria:; ,** **t~** i'le 12 it's a different question. Does a material Fe sent a 13 hazard to safety, as opposed to does a ma t erhl fall 

### 14 into the hazardous w aste r egulations? 15 We routinely handle**hazardou~ ma** **~rials** 16 that may pre sent much greater hazard than bla:k li'jllor 17 sludge. You can qo to Wal

- Hart and purchase 

### :hem. 18 BY MR. FINKBOHNER: 

### 19 

### 0 Drano? 20 A That ' s one. The re are much simple= 21 examples. Fertilize r. Agricultural lime. You buy lime 22 to put on your yard. That material is**~u h** **~re** 23 corrosive than is black liquor.

Page 63

1 0 Let**~e** ask you this. If you, as the head 

### 2 tecnnical advisor fo r the**c~pany** on hazardous w aste, 3 decided because of its burn

-- co rrosive char!:ter:;tics 4 and burn hazard I think ve should hand l e olac:< licr;or 5 sludge when we are disposing of it just**li ~e** **·~** w ould 6 handle black liquor wh en ve are disposing o f i:.**~e** 7 ought to handle**th ~**  both as haza rdous**wa ~t** **e.** W ou:1 you 8 have the authority to do that? 9 A No, not by myself. 10 

### 0 Who w ould have authority to do th a:? llA Where a policy of the company 7oes !>eyo::d 12 regulatory requirements, that has to be a;:pro·;ed by an 13 organization called the Environment Heal th**Co~cil.** 14 It 's made up of senio r management

. 15 0 Is it an I.P. connlttee or I.P. coll:lciE 

### 16 A Yes. Yes. 17 0 Earlier you had said something**~bou~** 18 knowledge of the process. 

### 19 A Process knowledge, yes. 20 0 What are you talking about there? 21 A 22 0 23 A The regulations give you the option What regulations are the y? I aJI sorr y . The hazardous wa ste reqolatlon.

### Page 64 The RCRA? I 

### 0 2 A 

### Yes. The RCRA hazardous waste regulations 

### 3 give you the option of how you decide whether a material 4 is ha zardous wa ste or not. The two options you are 5 given is you can, A, test

. You can run the tests that 6 are s pecified by the hazardous wa ste regulations that 7 are -- and th ese tests are in S W

-846 or, as an 8 alternative, you can use your process knowledge to 9 determine if a material is o r is not a haza rdous w aste. 10 EPA ga v e industry this fl exibility II 

### because industry w as conce rned about the costs of the 12 testing. So EPA said: Okay. We will give you y o ur 13 choi ce. You ca n either test or you ca n u se your process 14 knowledge, knowing full well that if us ing y o ur process 15 knowledge y ou g ues sed wrong and the agency foun d tha t 16 the material wa s indeed hazardous , that t hat would 17 co ns ti tute a viola ti o n of R CRA. 18 So , when w e have to deci de whethe r a 1 9 solid wa ste is a hazardous waste or not , we can use ou r 20 process know led g e. 2I Q 

### I see. 22 A And if we, knowing something about ho w the 23 material was generated, would kno w f ull well that, for

Page 65 1 instance , the pH i s going to be 13 and a half and it's 2 w a tery , you know, it ' s obviously a liquid an d we know 3 full w ell that it ' s got a pH above 12 and a half, we 4 do n't have to run the test. We can dispos e of that 5 material as hazardous w aste w ithout ever going throug h 6 the pai nt filter tes t and the probe and the other 7 things

. 8 Q 

### You have an obl igation to dispose of it as a 9 hazardous w aste then , won't you? 10 A A bsolutel y. But where there is a questi on w e 11 will test, primarily because of econootics. 12 Q Le t me as k you some thing. Ha ve you had 13 occas i o ns where you test to see i f something meets the 14 def inition of a hazardous wa ste and maybe the test 15 sam ple it sel f did not , but using your pr ocess know ledge, 16 and your obligation to u s e proces s kno w ledge, I

. P. w ent 17 ahead and said: Look , we u ndersta nd that the test on 18 this sample sa i d s uch-and-such but we are going to 19 classify this as hazardous waste and deal with it 20 acc ordingly? 21 A Yes

. 22 HR

. BAKER: 

### O bject to the tom

. 23 A We have done that.**F~qe** 

### 66 I BY HR. FJNKBOHNER: 2 

### 0 Wh en have you done that? Let me ask you 

### 3 this. 

### Do you hav e an obligation to do that? 4 A 

### No. 5 0 

### So if 

### a test on a sample comes back an d it 

### 6 doesn ' t meet the definition of how y ou read d efinition 7 of corro si v ity, or, say, ignitability, but I

. P.'s 8 process kno wl edge indicates that it ' s got substantial 9 hazards to the environment and to human heal th then - - 10 A 

### W e wi ll dispose of it as hazardous w aste

. 11 Q Do 

### you have an obliga tion to d o that? 12 A 

### No. 13 0 

### All ri gh t. In other w ords , y o u can use the 14 test as kind of a safe harbor? Is that

- - 15 A Partially , y es . 16 

### 0 Wher e is this thing on process knowl edge? Is 17 it in here? Can you find it for me? 18 A Su re. 40 CFR 26 2.10 --no . 11. l 

### am so re ;· . 19 Is the section of the rule s that deals w ith hazardous 20 wa s te determinations

. 262.11 (C ) says ( Reading ): For 21 purposes of compliance w ith 40 CFR part 268, or it 

### the 22 wa ste is not l isted in su bpart 

### D

. 23 0 Wh at ' s su bpart 0? Is that the list of

1 hazar dous wastes? 2 A 3 0 

### That ' s nonhazardous waste. B la ck liquor -- neither black liquor nor Page 67

4 

### b lack liquor sludge are listed as n on

hazardous wastes , 5 are they? 6 

### A Co rrect. ( Reading ) : the generator must then 7 determine w hethe r the wa s te i s i dentified in subpart C 

### 8 of 40 CFR part 26 1

-- 9 Q 

### And that's w h at you t o ld me about before? 10 A 110 

### -- is the hazardou s waste regs. Okay. That' s either the list or the 12 hazardous waste cha racterization? 

### lJA Yes. Identified in s ubpart C of 40 CFR part 14 26 1 by eithe r colon, 1, Testing the w a s te acco rding to 15 the method se t forth in su bpart C of 40 CFR par t 261, or 16 according to an equivalent alte rnative method, et 17 ce tera. 2, Applying know ledge of the hazard 18 charac teri st ic of the waste in 11ght of the materials or 19 the processes used. 2 0 Q 

### All right. Ca n I 

### see it fo r a second ? 21 HR. FINKBOHNER : I guess w e w ill just 22 mark that as E x hibit 102. 

### 2 3 HR

. BAKER: I don' t think y ou marked

### --- ·- 

# ----- -- ---

2 3 that

. HR. FINKBOtiN ER : 01 the record. (Of f the Record Di o ssian)

. (EXIIIBIT 1 02**~** :IVED AND HARKED F O R IDE' l f!CAT! O N.) 6 BY HR. f!NKBOHNER : raqe 68

1 Q Under this , I guess it' JOi ng to be Exhibit 8 102 , Section 262 .11, one o f thew.- i t can be 

### 9 classified as hazardous waste is J

.**~e** generator 10 appli'!s**k~c ledqe**  of the hazard cl • octe ristic o f the 1 1 · •a st'! In I iqht of the mate ri als oo 12 N ow,**~hat** does it : ocesses used.

. n to apply the 13 knowledge of the hazard c haracteri l cs of t he w aste? 1 4 A SPA sets ou t cer tain ell •Cter i stics th at 15 define hazardous w aste. 16 Q This is o n process**kno~** lge , though. This 1 7 is different f rom the other. 18 A 19 Q 20 A iie ll

-- Are w e on the same pag t Yeah

. That ' s the bencl •**k.** You have to 2 1 determine if a process wa ste m eet3 n y o f those f ive 22 requir'!ments

. If it does , it's a : ardous waste

. 23 Q Oh , all r ight.

Page 69

I A So ! , by knowing my pn ;s , can i n effect 2 declare the m ateri a l a ha z ardous 

### w 3 full w ell that it w ill fail the i •o 4 corrosivity tes t, or wh ate ve r.**~e** because I kno w
•. abilit'l test or the

5 l t ' s just basical ,. . n acconvnodat 1on 6 that the**rul~s** give you to keep Y •· ( rom having to te5t

. A gen'! r ato r of a wa ste ca n •. erm ine the**~st e**  i s 8 a hazard w ithout doin g any tests ' ·'1 you r proce s s 

### ? knollledqe

. 1 0 Q So , l.P. could have tal

. the position that: 11 Look, we know black liquo r liquid,

. l we are di sposing 12 of it , is a hazardou s w a s t e . W ith· I. regard to the 13 paint filter test o n black liquor · odge , w e are qoillq 1 4 to handle the black liquor sludg e haz ardous waste as 15 w ell because it e xhibits the same -: a rd 16 characteristics? 17 A Sure , we could have do• ·.hat. We could do 18 it for bar k piles. We could do il

..,r wood c hip s. W e 19 c an 20 Q We ll , I am asking you s: dfi c ally about H black liquor a nd black liquor s lu •! • !2 A Su r e. D Q Have you looked at anyt n g t o get ready for Paqe 70
I your deposit i on t oJ ay? 2 A I looked at

-- w ell, to get r e ady for this 3 deposition t oda y - - TH£ WIT NESS: Other th an the lists that 5 you show ed me. 6 HR

. BAKER: The N otice

. 1 BY HR. flNKBOHNER: 8 

### Q D id you have a ny documents respo n sive to the 

### 9 Noti ce? ilo , not reall y . 10 A II HR. BAKER: He has a CV tha t we talked 12 13A abo ut.Yes , I ha ve a resume ' that

-- 14 BY H !L flNKBOHNER: I S Q C an I qe t a re s ume ' from you and I'll mark it 16 as Exhibit 103? 11 A That' s fine , although it's just going to 18 cover what you asked

. 19 Q I woul d like to get it a nyway. And then I' m 20 going t o as k yo u sepa r ate and apart from that I made a 21 no te to ask you fo r -- 22 A f or Dave Bussard's memo . 23 

### Q W el l, or any memo es that spea k t o the issue

Page 71
1 of aqueous and co rrosivi ty. 2 HR. BAKER: Well, you will w rite us a 3 letter on th at. HR

. FINKBOH N ER : I 'll wr ite you a 5 letter

. 6 A quess I have a que s tion there beca u se t here 7 may be dozens of them

. 

### 8 Q I just wa nt the ones that you hav e. 9 A Tha t ' s right

. 1 0 

### Q Just th e ones that you have. 11 A And w e us e the Bussard memo as our define r on 12 wha t is aqueous . 13 

### Q All riqht. Did you get that off of the w eb 14 site, the Internet, or did the y send i t d irectly to IS you ? How did you get that doc ument? 16 A Orig inally? 110 18 A 19 Q 20 A 21 Q 

### 22 A Yes

. I think Dave Bussard gave it to

### me~ All right. Perso n to perso n -- Yes.

-- or he ma il ed it to you? I th ink it w as part of

- - as I remember, it 23 va s par t of some meeting papers that we we re meeting

# ---- ------

• •i th the**J:~ :-.** **c-;** to talk about co rro sivity and thi s was oM of the :..1i ng s that Odve gave us. J Q 0\ hen did this meeting occur? l A ':'ears ago. I want to say '87. '88 perhaps. 

### 5 This is**lon~ st** **anding** EPA guidance that ' s used not only

t• by EPA, by**~:1** of the states that I am aw are of. 7 Q So this memora n dum , thoug h, th at you ace B talking about w as of 1980's vintage? 9 A I believe so. The re migh t have been an 

## :o1 updated , E < e 

## · n or '93. But this has been a : l**onqstandi~;** policy of EPA. 

## !: Q All right. Now, you ace talking about the 13 paint filte: test policy? i l A :he thing that sa ys that this is ho w EPA 15 defines aqueous foe purposes of the corrosivity test. 16 Q In othe r words , do the paint filter test an d i 7 if it passes the test, paint filter test, it not 

### !9**aqu~ous?** 19 A 20 Q 21 A LL Q Correct. And you don't have to do any p H testing? Co rrect. Were there any other documents that were 23 given to you in that meeting that you have retained?

guess if it' s that l ong ago-- 2 A No, I w ou ld not have retained them. Page 73

3 Q I guess one of the things that I can foresee

getting confused about if I ask for this s tuff i s I want to know what 'lOU have actually got and you are producing 6 in response -- you kno w , w hat you are in possessio n of
versus go ing o nto some Internet or calling some body and 8 getti ng copies of it

. How am I going to know that? I 9 mea n 10 A II 0 12 A 130 I ca n -- Designate?

-- produce the t hing that w e use. All r ig ht. 14 A Maybe I can clarify it by sa ying if we are 15 challenged by a state agency saying: You did not do it 16 right, I would produce that memo saying: Here is w hat 17 EPA says; here is how we do it; if you have go t other 18 information , please tell us. 19 0 Al l eight. Now, have you used that memo - - 20 A Many times. 21 0 22 A 23 Q -- with state agencies? Many times. Have you used it with Alabama? I A llot to-:-; ·**i<M>~ li::e** **reco::~c:_:~.** 

### 2 Q Have yoc Js ed it :n connectio: • ith whethe r J or not black liquo: ; ludge wculd be cla;;::ied as 4 hazardous or nonha:! :.lous · • a:te? No. 5 A ti Q W hat w ere )'OU usinq it for ?**i;. ~lt**  chemical or 7 sludge or w hatever? 8 A Our proce;s uses tighly**c~ us** **t: :** **ch~icals .**  

### 9 Hot just blac k liquor. iO 0 Right. 11 A 12 Very, very**cocrosi· ~.**  W e dis;oive**so~iu-:- ;ul** **id e**  and we 13 produce a t h ing cal:ed green liquor. We :..'len t ak e the 14 green liquor an d w e =dd this calc ium**oxi:~** to it 15 producing white li c;-:o r. 16 Thi; white liquor ha s**se>~cal** residuals 17 with it that ca n be ·:e ry cau stic.**t~** .,. t: :e Uquoc is 18 then placed into a**::~est er**  with the**hi";** !nd cooked 19 and it is the spent ! iquor, the liquor af:er you cook 20 the ch ips, that's 21 Q What' s tr.H called? 22 A 23 0 Black li<; J or. Oh , all r:ght.

Page 75
I A T hat's w t:ere black liquor come: from. This 2 material that black liquor is subsequent!;· concentrated

and is burned to reco ·,er the chemica ls

.**~is** is called the era ft pulping precess. 5 So · •e produce lots of**~at~:ial** that can 6 be ve r y corrosive in natu re , both liquids**~nd** so lids. 7 For instance

-- 8 0 But disposing of them , though , ;·ou aon ' t have 9 to dispo s e of a lot of corrosives? 10 A No. This material

-- 11 0 Because that's what the craft**~:ocess** means . 12 You recycle? 13 A Yes. 14 0 Let me**~** you this. Was it ur.usual to have 15 this volume of black liquor sludge having "o be disposed 16 of? This w as a very big tank. You understand tha t ? 17 A It w as a huge tank

. Probably one large r than 18 w e w ould norma l ly have at our**fa~ilities ,** **~d** the amount 19 of sludge th at w o uld be rema i ni n g as you .,. ere closi ng i t 20 w o uld be e nti rely dependent upon how often it w ere 21 clea n ed out in the past. 22 0 How lonq had it been since**thi~** tank had been 23 cl eaned out? Do you kno w ?**Pa~e** 7 6
I have no i de a. I A 

### 2 0 Do y ou kno w w ha t cond i L , .1 the in s ide of the 3 tank wa s in wh e n they got it all <.: -•ned out? 4 A No. 5 0 I just w ant t o -- v e p t ·b ly cove r ed this , 6 and this is the last thing 1 am g u. · I to ask yo u. I

just want to make s ure I have got eigh t guy, because there ace a lot of w itnesses who s'! .mes have come up in 9 the l a wsuit. 1 predictably want : .now w hat each one 10 of them is goi ng to sa y or if t he;· tow anything. But 1 1 w ith r espect to this s ubject of c !. •Ct ecizing something 12 as co rro sive o r not , a nd the tes t be used , and 13 s pec ifically

- the paint filter test , tnd if it pas ses the 14 paint filter tes t in tha t there**~** !S S than 20 pe rc ent 15 liquid coming out of it then you · • 't do a pH te s t, yo u 16 ace the technical expect fo e the •· J any on that? Correc t. And that's foe the whoj · ; ountry? The world. 17A 18 0 19 A 20 0 2 1 F o e the world. Okay.

.. further questions. (EXHIB IT 103 P. c: m:D AND 22 23

2 HARKED FOR 10£:

. I FI CATI O N.)

C ERTIFICATE O F WIT : .. ;s

3 I, TI H SA YLOR , do here by ! Ctify that on this, the da y of

_ , 1999/2000, Page 77

5 have read the foregoin g transccipL • td to the be st o f my 6 knowl edge it co nstitutes a true an ' ·•ccu r a te tran script 7 of my testimon y take n on oral dePQ :· t: io n o n the 2 4th day 

### 8 of November , 1999

. 9 10
11

------ ------ ------ 12 13 1 4 15 16 SUBSCR IBED AND SWORN TO BEFORE



### HE O N THIS, THE D AY OF 17

---- , 1999/200 C.**8 9**  

# w ! I !2 State of

--- ------ at L-J

. 'je !3 Hy Coornission Expires

- - ----- C E R T I f I C A T E

3 STATE OF -'LA!lAMA: 4 COUNTY OF MOB ILE: 5 6 1 do hereb y ce r tify that the above and

foregoing t ran scri pt of proc eedings in the ma t t ec 8 aforeme ntio ned vas taken down by me in m ac hine P age 7 8

9 sho rthand , and the que s tion s a nd answers thereto were 1 0 reduced tc w riting unde r m y perso nal supervision , and 11 that the**~oregoing** repre se nt s a true and correct 12 transcript of the proc eedi ng s giv en by said wi tness upon 13 said hear ing. 14 1 5 I further certify that I am neither of cou nsel 16 nor of ki n t o the parties to the action, nor ara I 17 anywise interes t ed in the result of sa id cause . 18 19 20 21 22 23 

### viRGINIA P. SIRS, 

### RPR, CSR Court R epo rte r

### EXHIBIT 

# /o I

INTERNATIONAL@ PAPER

TIM O THY C. S AYlOR PROCRAM MANACER fNVIRDNMfNlAl & I'ROOUCI ll.f\.Ul • \TORY Ari'AIRS & -1 00 POPlAR AVE MEMPHIS

. TN ) 111 '!7 PHONE <JOI 763 ?62 ! FAX '!0 1 7&3 &939 ltm

. saylor@tp aper . com

# -

### E XHIBIT 

# !L- 

# z**7~~~<;·~~ ~~;%i~t~:;:~~~~~~** **::f~<** 

# . : . . . .. : .··. . . ·. . . .. .**:;::~if;**

·- 'I



### §262

. 10
262.88 Pre-approval for U.S

.**~covery** Ft.-**cl!!~les** ( Reserv ed )

. 262.89 OECD**Was~ L!s~** **.** APPE!'!:l!X TQ P.un 262-U!'lFOR.\1 H.UARDOUS W.\STI: :-.iA.-.: ::EST

.\..'< 0 L -.:STRl:CTI O !'S ( EPA F OR.\I S 8700-::::!

.\ !<::> 8:00-::ZA

. \..-.:0 Th"E:IR L-<- S7Rt:CTIO!'S ' ALI:!ORITY : 4:! li

. S

. C OW6

. 6&12. 0922-6925. 6937. S.:Jd 6938.

SOL""RCE : 15 FR 33142. :'>lay 19. 1980, unless otherwise**no~ec!.** 

### Subpart A-General § 

### 262.10 Purpose, scope, and applicability. 

### (a) These r e gulation s establish stand

- ards for generators of hazardous waste.

(b) 40 CFR 261.5(c ) and ( d) must be used to determi ne the applicability of provisions of this part that are dependent o n calculations of the quantity of hazardous waste generated per month.

(c) A 

### g e nerator who treats. stores , o r cUspos es of hazardous was t e on-slte must o nly comply with the follo wing sections of this part with re:!pect to that waste: Sectio n 262.11 fo r d eterminIng whether or n o t he has a hazardous waste, §262

. 12 for obtaining an EPA identification number. §262.34 for accumulation of hazardous waste, § 262.40 (c) and {d) for recordkeeplng, § 

### 262.43 for addi tiona! report in g. and i f 

### applicable, § 262.70 for farmers.

(d ) Any person who exports or Imports hazardous wast.e subject to the Federal manifes ti ng r equirements of part 262. or subj ect t.o th e universal waste managem e nt s:.andards of 40 C FR Part 273, or subjec t to S tate requirements analogous to 40 CFR Part 273

. to o r from t he co untrie s listed In § 

### 262.58{a ){l) for r eco very must comply with subpart H of this part.



### (e) Any person who imports hazardous waste into th e Gnlted States must comply with the standards applicable to generators establishe d in this part.

(f) 

### A farmer who generates waste pes - ticides which are hazard ous waste and who complies wit.h all of the requirements of §262

. 70 Is not required to comply with other standards in this part or 40 CFR parts 270. 264. 265. o r 268 with respect to such pesticides.

(g) A person who genera tes a hazardo us waste as defined by 40 CFR part 261 Is subject to the compliance require-

### ~ 

### '


### 40 CFR Ch. I (7-1-98 EciJtJoJ
menta and pen.a.ltles prescribed In**~** 

### tlo:J 3008 of th e Act If he does not cotxtpl y wi th the requirements of**this~**



### {h ) An 

### owner or operator who lnJuates a shipment of hazardous wa.ate Cro:-:1 a treatment. storage, o r dispo a.1 fa c i li ty must comply with the gene ra.- t o ::- standards established In this PIU't...

.

{I) 

### Persona responcUng to 

### a.n**exp1~** 

### sives or munitions emergency In**~** 

### co ::-dance wi th 40 CFR 264.l (g)( 8) {1)(D; o ::- (1•1) 

### o r 265

. l (c)( ll ){I)( D ) or {iv), t.lX 

### 2'70

. l (c){3 ){1){ D) or { 111 ) 

### are not**req~** 

### to comply with th e standards of t.hll pa.;'t.

); OTE 1: 

### The provis io ns of § 

### 262

. 34**~** 

### applicable to the on-s ite accumulattOi of hazardous waste b y generator; Therefore, the provisions o f**§~** 

### onl y apply to owners o r operators**1¥~** 

### a::-e shipping hazardo us waste whjd they generated at that facility. .- 

# "**~OTE** 

### 2 : A generator who**tr~** 

### scores , or cUsposes of hazardous wa.t o r.-s!te must comply with the**appl!c;;~** 

### b l e standards and permit requlreme:U set forth In 40 CFR parts 264, 265, ):l 

### 268. and 270

.



# . 

# - [ 1 5 FR 33 1 12, May 19, 1980

. as amended**-.~ ·**  FR 86970, 

### Dec. 31, 1980; i7 FR 1251,**J&I~,** I 1982: 48 FR 11294 , Apr

. 1. 1983; 53 FR**~** July 19. 1988; 56 FR 3877

. Jan

. 31, 1991; 6Q J 2.5M1. May 11. 1995; 61 FR 16309. Apr

. 12

. 1.S£ 62 FR 6651, Feb

. 12. 1997] · § 

### 262. 11 HazardotU waste deteru;Wa tio o . 

### A person who genera t es a solid**w~** 

### as defined In 40 CFR 261.2, m us t**de~** 

### mine If that waste Is a**hazardous~.­** 

### usin g the followi n g method: 

## !

(a) He should first determine I! t" 

### w aste Is excluded from regulaP, under 40 CFR 26 1.4

.**~**



### {b) He must then determine**1! ~**  

### waste Is listed as a hazardo us**was~** 

### subpart D of 40 CFR part 261.**~**

NOTE: Even 1! the**was~** Is listed, th11 

## i erator st ill has an opportunity under 40 C 250

. 22 to demonstrate to t he Admln!Stf! r.!:lat tbe waste from b!s parti cul ar !t.clllg operation ! s not a**ba.zardou:~** waste

.**~**



### ( c) For purposes o f compliance 

# i 40 CFR part 268, or If the waste**1~** 

### listed In subpart D of 40 CFR the generator must then whether the waste Is !den part 

## C or 40 CFR part 261 by ei 

## 128I

.

### ironmental Protection Agency l Testing the waste according to methods set forth in subpart C 

### of 40 t 

### part 261 , or according to an equivlt method approved by the Adminis-**r** 

### under 40 CFR 

### 260.21; or ) Applying knowledge of the hazard racteristic of the waste in light of materials or the processes used

. :) If 

### the waste is d e termined to be a.rdous. the generator must refer to cs 26 1, 264. 

### 265, 266 , 268, and 273 of ; chapter for possible ex c lusions or : r ictions pertaining to management he speci fic waste. F R 33142. May 19 , 1980. as amende d at 45 76624, Nov. 19, 1980; 51 FR 40637, Nov. 7 , : 55 FR 22684 , June 1. 1990; 56 FR 3877 , Jan

. 991: 60 FR 25541 , May 11, 1995) 2. 12 

### EPA identification numbers.**>** 

### A generator must not treat, store, JOse of, transport, or offer for transc ation, hazardous waste without

·ing received an EPA identification nber from the Administrator. 1) 

### A generator who has not received EPA identification number may ob- J 

### one by applying to the Administor using EPA form 8700-12. Upon re- •i ng the r e quest the Administrator I assign an EPA identification num- to the generator. : ) A 

### generator must not offer his

. a.rdous waste to transporters or to**~tme nt,**  

### storage, or disposal facili- ; t hat hav e not received an EPA otification number

. 

### Subpart B-The Manifest i2.20 General requirement&**~>** 

### A generator who transports , or of1 

### for transportation, hazardous ; te 

### for offsite treatment, storage, or vasal 

### must prepare a Manifest OMB :trol number 2050-0039 

### on EPA form >-22. and , if 

### necessary , EPA form }..22A, according to the instructions luded in the appendix to part 262

. l) 

### A generator must designate on ' manifest one fac111ty which is per-**~ted** 

### to handle the waste described t he manifest

. : ) A 

### generator may also designate the manifest one alternate fac111ty lch is permitted to handle his waste :he event an emergency prevents de- !fY 

### of the waste 

### to the prima.ry des- &ted facility. 

### § 

### 262.21 (d) If 

### the transporter is unable to deliver the hazardous waste to the designated facility or the alternate facility, the generator must either designate another facility or instru c t the transporter to return the waste

.

(e) The requirements of this subpart do not apply to hazardous waste produced by generators of greater than 100 kg but less than 1000 

### kg in a calendar month where:

(1) 

### The waste is reclaimed under a contractual agreement pursuant to which:

(1 ) 

### The type of waste and frequency of s hipments are spe cifi ed in the agreement ;

(11) 

### The vehicle used to transport the waste to the recycling facility and to deliver regenerated material back to the generator is owned and operated by the reclaimer of the waste; and

(2) The generator maintains a copy of the reclamation agreement in his flles for a period of at least three years after termination or expiration of the agreem e nt.

( f) 

### The requirements of this subpart and §262

. 32(b) do not apply to the t ransport of hazardous wastes on a public or private right-of-way within or along the border of contiguous property under the control of the same person, even if such contiguous property is divided by a public or private right-ofway . Notwithstanding 40 CFR 

### 263.10(a). the generator or transporter must com- ply with the requirements for transporters set forth in 40 CFR 

### 263

. 30 and 263.31 in the event of a discharge of hazardous waste on a public or private right

- of-way. [45 FR 33142

. May 19. 1980. as amended at 49 FR 10500. Mar

. 20 , 1984; 51 FR 10175, Mar

. 24, 1986; 53 FR 45090, Nov

. 8, 1988; 62 FR 6651, Feb. 12, 1997) § 

### 262.21 Acquisition of manifest&

(a) If 

### the State 

### to which the**shi~** 

### ment is manifested (consignment State) supplies the manifest and requires its use, then the generator must use that manifest

.

(b) If 

### the consignment State does not supply the manifest, but the State in which the generator is located (generator State) supplies the mani!est andrequires its use, then the generator must use that State's manifest

. 

## 129

# · .