This document provided by: 

Alabama Court Reporting of Mobile Reg~tered Profe:lslonsl Reporters 

P. 0 . Box 161183 

Mobile, Alabama 36616 

(205) 443-5290 

2 

3 

5 

IN TilE CIRCUIT COURT FOR THE 

THIRTEENTH 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 TIM SAYLOR, ta ken at the 

16 offices of Finkbohner ' Lawler, 169 Dauphin Street, 

17 Suite 300, Mobile, Alabama, on the 24th day of November, 

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 

Attorneys at 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 Attorneys at Lav 2206 Fiest Nat' 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 EXAHIMATION: 

3 By Hr. Finkbohner 

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 

PAGE: 

6 

PAGE: 

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68 

76 

Page 3 ! 

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S T I I' U L A T I 0 N 

3 It is stipulated by and betveen the parties 

4 hereto and their respective 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 taken in accordance 

9 vith the provisions of the applicable sections of the 

10 Alabama Rules of Civil Procedure. 

II 

12 It is further stipulated that all notices 

13 provided for by said applicable sections of the Alabama 

14 Rules of Civil Procedure are valved, except the reading 

15 over of said deposition to or by the vitness, the 

16 signing thereof by him; and the signing and 

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

18 requirements and technicalities of every sort regarding 

19 the taking and filing of the deposition, except as 

20 hereinafter set out: 

21 

22 All objections save as to the fom of 

23 questions asked are reserved until the time of trial in 

Page 5 

1 accordance with the applicable provisions of the said 

2 Alabama Rules of Civil Procedure. 

3 

It is further stipulated that the original of 

5 this transcript will be del ivered to George W. 

6 Finkbohner, Ill, Esq. , as custodian, for filing, should 

the Court so direct. 

8 

9 

10 

II 

12 

13 

14 

15 

16 I, Virginia 1'. Sims, Commissioner and Court 

17 Reporter, certify that on this date, as provided by the 

18 Alabama Rules of Civil Procedure, and the foregoing 

19 stipulation of counsel, there came before me at the 

20 offices of Finkbohner, Lawler, 160 Dauphin Street, Suite 

21 300, Mobile, Alabama , TIM SAYLOR, witness in the above 

22 cause, for oral examination, vhereupon the following 

23 proceedings vere had: 

Page 6 

TIM SAYLOR, 

the vltness, after having first been duly 

3 svorn to tell the truth, the whole truth, and nothing 

4 but the truth, was examined and testified as follows: 

5 EXAMINATION 

6 BY HR. FINKBOHNER: 

7 0 

8 A 

9 0 

State your name, please. 

Tim Saylor. 

And, Hr. Saylor, vho do you vork for? 

International Paper Co<tpany. 

Hov long have you worked for 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 ANri 

18 HARKED FOR IDENTIFICATION.) 

19 BY HR. FINKBOHNER: 

20 0 You are a Program Manager, Enviro~ntal ' 

21 Product Regulatory Affairs? 

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 areas are you assi1ned that 

4 you are a company expert in? 

5 A Currently, solid and hazardous wa ste; F.D.A. 

6 -- that' s Food and Drug Administration regulations; 

7 chemical regulations under the Toxic Substances Control 

8 Act; and right-to-knov issues under the Right To Know 

9 lavs. 

10 0 

11 Tennessee? 

12 A 

130 

14A 

All right. And you ace in Memphis, 

Correct. 

Nov, what's your educational background? 

I have a Bachelor' s of Science from Allegneny 

IS College; Master's in Envi ronmental Engineering from 

16 Drexler and a Master' s in Public Health Administration 

17 from Pitt. 

18 0 Master's in Environmental Engineerlng? 

19 A Engineering. 

20 0 Where? 

21 A Drexler University, Philadelphi a. 

22 0 And a Ph.D. in vhat? 

23 A No, no, no . Has tee's in Public 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 was a 

1 dua l major. 

8 0 All right. And when did you get your 

9 Kaster's in Enviro~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 work for I.P.? 

15 A 1 actually worked for International Paper in 

16 1987, but prior to that worked for Hammermill Paper 

17 Company. Hammermill Paper Company was purchased by I.P. 

18 in 1987. Prior to 1987 I worked for Hammermlll Paper 

19 Company. 

20 0 For how long? 

21 A Since 1979. Between 1970 and 1979 I worked 

22 for the State of Pennsylvania in their regulatory --

23 Environmental Regulatory Agency of the Oepartment of 

1 Environmental Resources. 

2 0 All right. Did you ever have any 

3 conve rsations 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 sludge? 

7 A Not that I can recall specifically. 

8 Q Do you generally or in any way vaguely recall 

9 having any conversation with anyone where they sought 

10 any technical advice or expertise? 

II A Part of my job is to answer technical 

12 questions in my areas of expertise for anyone in the 

13 company. 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 will answer the 

18 question and that's that. 

19 0 Did that ever happen with respect to the tank 

20 clean-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 where you were consul:ed 

6 with? 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•, 

10 you mean --

11 A At one time or ~noth~r every faciliti· ·;oes 

12 through tank clean outs on a routine basis. It ~ght be 

13 semi-annual , annual, biesut.:.al, ·•henever 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 black 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 vi th 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 can ansver, though, if you c~. 

As I stat ed earlier, every facility that 

12 generates liquor would have liquor storage tanks ~~at 

13 would 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; Mobile; Hess Point, Mississippi; 

18 Natchez, Mississippi; Mansfield, •Louisiana; Pinev~lle, 

19 Louhiana, and others. 

20 BY HR. FINKBOHNER: 

21 0 All right. 

22 A 

23 0 

They are scattered all over. 

Have there been any occasions when either a 
Page 12 

tank was off-site 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 wlU• 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, Mississippi? 

Coccect. 

And Moss Point, Hissis~i;pi? 

Co erect. 

Do they store it in tan! , or in ponds? 

Tanks. 

Do you know who owns tli" tanks that --

No. 

--Natchez, Mississippi 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 Nat chez, Mississippi black li•('Jor? 

18 A don't know. 

19 0 

20 A 

How about for the Moss !'l)lnt black liquor? 

I don' t know, either. 

21 0 What is it in black liquor that makes it 

22 caustic? Let me back up before I ask you that. 

23 Do you have any ex!"'ctise in chemistry? 

1 I know you majored in chemistry, Li·Jht? 

2 A 

3 0 

4 A 

Yes. 

You deal with chemistry on a daily basis? 

Yes . 

Page 13 

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

6 area? 

1 A 

8 0 

9 A 

Within the pulp and pa~r industry --

Right. 

-- chemistry, yes. 

10 Q And would you consider yourself an expect 

11 within 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 pulp and paper industry with respect. to OSHA? 

15 A No. 

16 0 All right. And by OSHA I mean not only 

!7 hazard communication but HAZWOPER ce~ulations or rules? 

!8 A I am not the company exp~rt in those areas, 

!9 no. 

0 0 So, you ace an expert in chemistry as it 

1 relates to the pulp and paper industry? 

!2 A (Nodding head affirmatively) . 

3 Q And you are an expect in RCRA as it relates 

Page 14 

I :o pulp and paper industry? 

2 A Correct. 

3 0 All right. Are you an expect in any other 

4 !rea that may have a bearing upon or touch upon any 

5 issue 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 know how to be. 

Okay. 

I really dcn't know how to be. 

For instance, TSCA, the Toxic Substances 

12 Control Act, I know quite a lot about that law and how 

13 it works. TSCA deals with chemicals. 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 Corrosive 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 ls removed are subject to TSCA. 

22 Q And what is TSCA? The --

23 A Toxic Substances Control Act. 

Page 15 

1 0 Was black liquor sludge tox.ic? 

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 mutagenic 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 would deal most directly with black liquor and black 

13 liquor solids is an inventory requirement. You have to 

14 tell the federal government that you manufacture these 

15 materials, and as such we -- we are subject to TSCA 

16 because ve manufacture pulping liquor. Specifically, 

17 black liquor. 

18 Q Does TSCA deal with disposal issues? 

19 A No. 

20 Q Does it deal with worker safety issues? 

21 A No. 

22 0 All right. Nov, I vas going to ask you this 

23 earlier. What is the caustic or what is it about black 
Page 16 

1 liquor or black liquor sludge that makes it caustic? 

2 A The ma terial contains -- sodium hydroxide 13 

3 the primary caustic agent, if you will. There are 

4 others. There is some sodium sulfide. There are other 

5 things that contri bute to that. But the principal 

6 caustic agent, using that in a rather loose sense, 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 NaOII. 

12 0 All right. 

13A Na being sodium. OH being the negative 

14 hydroxide. 

15 0 And what holds the sodium and the hydroxide 

16 together? 

17 A Well, these materials exist in a mixture of 

18 other materials. They have an affinity for each other. 

19 They will bond to each other and this creates the 

20 material. 

21 0 I mean, I remember from high school chenlstry 

22 some, I guess, elements have a positive electrical 

23 charge and some have a negative electrical charge. 

1 A 

2 0 

3 A 

Right. 

How does that work with sodium hydroxide? 

Sodi um has two positive charges. The 

4 hydroxyl ion, the OH ion, contains two negatives. 

5 0 All right. 

6 A Two positives, two negatives, they stick 

7 together like magnets. 

Page 17 

8 0 All right. Now, if you had sodium hydroxide, 

9 NaOH and it was completely dry, would that burn a 

10 person? 

11 A Not it it we re kept completely dry. The 

12 material would have to come into contact with moisture 

13 i n some way. Moisture on your skin perhaps. 

14 0 But it woul d have to be water? Or would it 

15 have to be any kind of moisture? 

16 A Could be any H20. 

17 0 Oh. Anything with H20 in it? 

18 A 

19 0 

Yes. 

So, if sodium hydroxide, which is NaOH, came 

20 into contact with something that had in part water in 

21 it, what would happen? 

22 A Well, it would express a caustic 

23 characteristic. 

1 0 

2 something that would bu:n you? 

3 A It's corrosi~e. 

4 0 It would tur~ it into a corrosive. 

5 A 

6 0 

Yes. 

How does tha: ha~~en ~rom a chemical 

Pa.;e 18 

7 standpoint? What is it about the two coming toqether 

8 that makes the sodi 1.1111 h:;droxide caustic, because if it' s 

9 totally dry it's not caustic but when it ~s vet 

10 with water it becomes :!;st ::? .:an you expla:n tl:at t= 

II me? 

12 A It' s probabl;· not ap~ opriate to say it' s not 

13 caustic. There are otl:er th:ngs that can create a 

14 corrosive. A solvent, for i~sta nce. Methanol, or 

15 wha lever. There are ma::y tt.:ngs that can make the 

16 material become corrosi·•e. 

17 0 All right. 

18 A Basically, L~e cc:.cept of corrosiv! ty is tha~ 

19 there are extra ions that ar~ always present in a --

20 especially a liquid. A.~d th~ caustic material creates a 

21 strong affinity for thos e and it can cause destruction 

22 of other less strongly bound materials and break them 

23 apart. 

Pa<;'! 19 

1 0 Do you mean when ::he caustic gets on the 

2 material it breaks them apart or are you talking about 

3 when the water gets on t:e dry caustic it breaks it 

4 apart? 

5 A Well, both. 5oth. The wa ter vill dissolve 

6 the dry sodium hydroxide , for instance, and create a 

7 very strong caustic solc:ion Jf material. 

8 0 

9 A 

10 0 

11 A 

The sodium, is it !Cidic or is it alkaline? 

It's alkaline . 

The sodi1.1111 is or ~1e hydroxide is? 

Well, it can =>e bccll. It can be both . But 

12 the sodium hydroxide material is strongly alkaline. 

13 Alkalinit y being based o.J a s:dle of 1 to 14, froo 7 to 

14 14. 

15 0 All right. Now, water is H20, I guess, 

16 right? 

17A 

18 0 

Correct. It' s twc hydrogens and one oxygen. 

What hol ds wa:~r qethe r? 

19 A Again, it's a bond. You have an oxygen atom, 

20 which basically is two pcsiti·;e charges and two hydcoqen 

21 atoms, which are a negative e!ch . So 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 or 
Page 20 

I negative? 

2 A They are negative. The oxygen atoo is 

3 positive. 

4 0 Does the positive and n•:·J·•tive charge 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 vater, li 'IOU put your hand in 

10 wa t er, water won't burn you. 

I I A Correct. 

12 0 It' s not acidic and it' . uot alkaline. 

IJA 

14 0 

1S A 

Correct. 

Why is that? 

Water is considered on . ::') scale that you 

16 mea sure corrosivity with-- that ~· · leis called pH. 

17 The pH scale. Water is considered ., be neutral, having 

18 a pH of 7. Anything acid i s a pH .. , 7 to l. Anything 

19 alkaline , or caustic, is from a pll ·f 7 to 14. 

20 That's how a chemi . measures the 

21 rela t ive acidity or alkalinity of ., liquid llixture . 

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

23 dry? 

Page 21 

1 A Yes. 

2 0 What is it about puttiJl" Lhe wa ter in there 

3 tha t makes it where it becomes alk ·' i ne, or caustic, and 

4 wi ll burn you? 

5 A When you add the sodiuru ;droxide to va tee, 

6 or a solvent of some sort, it bre~ · the material apart 

i n that the sodi um and the hydroxi• s tay linked but nov 

the mixture contains a liquid for111 ·•l the sodium 

9 hydroxide . It dissolves the sodiu1.. •tydroxide. 

10 0 It doesn't break the bo•"• between the sodium 

11 and the hydroxyl? 

12 A Well, it's very difficu l . chemically to say 

13 that those bonds always stay stron :. ·; attached becaus e 

14 they don 't. They do dissociate an• •oove around in the 

15 liqui d solution. And you can shov, using chemical 

16 equa ti ons, you know, how much sodi hydroxide exists 

17 and how much wa ter exists, when al:'. · tlly all you have 

18 got is a mixture . Do you understa .. 1! It's not that the 

19 thi ngs come all apart and create · •'! nev chemical. 

?0 I t's sodium hydroxide dissolved in •.Jte water. 

?1 0 All right. 

!2 A Rather than some nev eli"'" leal that's been 

!3 formed by water and sodium hydroxld'! . 

Paqe 22 

I 0 All right. Based on what you have tol1 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 very diffiC'Jlt to 

6 make the statement that flake sodium hydroxide, dry 

sodium hydroxide, is not a very strong caustic 

substance, because it is. 

9 0 All right. 

10 A You know, it you purchase a bag of tl ~~d 

11 sodium hydroxide it must be handled very care full;·. 

12 0 All right. Now, black liquor sludge, is it a 

13 hazardous waste or a nonhazardous waste? 

14 A Within the meaning of a RCRA? 

IS 0 Yes. 

It' s a nonhazardous waste. 

And vhy is that? 

16 A 

110 

18 A Within RCRA there are five ways that a solid 

19 va ste can become a hazardous waste. 

20 0 All right. 

21 A Thos e five ways are , one, it can be listed by 

22 the Envirorunental Protection Agency, or an approved 

23 state, as being a listed hazardous vaste. 

Page 23 

1 0 All right. 

2 A That's one vay. The rna t erial can be toxic, 

3 using a test called the 't oxicity Characteristic t.eaching 

~ Procedure. TCLP . If a material is t ested and fails 

S th.is t est, 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 cha racteristic to it. Again, this is a 

9 specific definition i n RCRA, and you can have a re3ctlve 

10 hazardous vaste . You can have an ignitable hazarcous 

11 waste . There is a specific definition for ignitabl e 

12 solid wa stes. If you fail that definition you are an 

13 ignitable hazardous waste, and there is a ha racte~istic 

14 for corrosivity. Specific definition in the 

IS regulations. And if you fail that definition it then 

16 would be considered to be a RCRA corrosive hazardcus 

11 wa ste. 

18 0 What was done to a scertain whether'or Jot the 

19 black liquor sludge coming out of the ABT tank that was 

20 being taken to the pad passed or failed the cor rosivity 

21 hazardous vaste regulation or rule or standard, or 

22 whatever you want to call it? In RCRA? 

23 A Yes. The RCRA regulation for corrosivity 
Page 24 

I rP.quires, A, that the material first be a solid waste. 

2 Basi cal ly, you are going to throw it away. The second 

3 thing it requires is that the ~~~aterial be aqueous. Be a 

4 liquid . 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 regul ations require that any 

8 material that you ace going to be disposing of, a solid 

9 waste, be characterized to see if it's a hazardous 

10 waste. 

II 0 And whose responsibility is it to 

12 characterize it? The waste generator? 

13 A The genera toe of waste. 

14 0 And that would be I. P. in the case of the 

15 Alabama Bulk Terminal? 

16 A There would be a joint because we were doing 

17 this through contractors. There would be sort of a 

18 joint responsibility. But ultimately it woul d be I.P. 's 

19 responsibility to make sure the materiai vas not a RCRA 

20 hazardous waste. 

21 0 I mean, you are not testifying that Clark 

22 Environmental ' s obligation vas to characterize this 

23 stuff as hazardous or nonhaza rdous, ace you? 

I A No. No. Ultimately it's l.P.'s 

2 responsibility through its contrac tor. 

3 0 So you said the steps you go through is, 

4 Number I , it has to be a solid waste? 

5 A 

6 Q 

1 waste? 

Correct. 

Nov, was the black liquor sludge a solid 

Page 25 

8 A It's my understanding that it was. It was 

9 going to be disposed . 

10 Q All right. And what does a<!1/eous mean? 

11 A There is a specific test that the State and 

12 EPA use to determine whether a material is aqueous or 

13 not. This test is called the paint fil ter test. The 

14 method is set forth in a standard method manual issued 

15 by the Environmental Protection Agency. It' s short-term 

16 is SW-846. Solid Waste 846. 

11 SW-846 is the ~~~anua l that sets forth 

18 test methods for solid waste. so, one can go to SW-846 

19 and look up the paint filter test, find out bow to run 

20 the t est, and then that' s the first st ep to determine if 

21 a material would be corrosive. 

22 Q We ll, does that tell you whether or not it's 

23 corrosive or does that just tell you whether or not --

Page 26 

I A : ~· s the first step . It' s a two-part step. 

2 0 Tell me what the other part is. 

3 A Fiest is it has to be aqueous and, second, it 

4 has to have a pH of greate r than -- equal to or greater 

5 than 12.5. 

6 Q All eight. Well, is it possible for a sludge 

1 to pass -- or a gel to pass the paint filter test but 

8 you ca n still take a pH reading on it? 

9 HR. BAKER: Object to the form, but you 

10 can an:•er. 

II A :·ou could take a pH using pH methods other 

12 than those --

13 BY HR. FINKEOHNER: 

14 0 Well, but I am --

15 A -- required by RCRA . 

16 Q n~at I am asking about is can you take a 

17 field meter and a glass electrode and put it in a waste 

18 stream or a sample that' s sludge that would otherwise 

19 pass the paint fil ter test and get a pH reading on it? 

20 A Yes. 

21 0 All right. So there could be occasions where 

22 a material passes the pa int filter test but if you were 

23 to take a field meter, a pH meter with a glass 

Page 27 

1 electrode, and insert it into the material it would come 

2 up with a pH lover than 2 or higher than 12 .5? 

3 A Fossib1e, yes . 

4 Q All right. Would a sludge or a gel that has 

5 a pH ot less than 2 or greater than 12.5, and that 

6 otherwise passes the paint filter test i n that there is 

7 no free liquids dripping on the ground, would that 

8 materia l pose burn hazards j ust like it would if it were 

9 in liquid form or --

10 A Possibly. 

110 Would there be any substantial dHference --

12 I guess my question is would there be any substantial 

13 difference bP.tveen the danger of chemical burn, whether 

14 you were dealing with just a liquid that you could pour 

15 on the ground, pour through a paint filter, versus a 

16 sludge that passed the pa i nt filter but, say, the pH was 

11 above 12.5? 

18 HR. BAKER: Objett to the form, bu t you 

19 can answer, Tint. 

20 A The material could still present a hazard. 

21 BY HR. FINKBOHNER: 

22 0 All right. I guess what my question is, is 

23 the hazard that's presented by the ~teria l 
Page 28 

1 substantially different or substa ni i.Jlly the same as 

2 betveen in its liquid form and its •Jel 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 te3t ·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 don't even do .,H test. Is that 

12 right? 

13A Correc t . 

140 Who told you that was l1, way to go about 

15 this? 

16 A 

170 

It's the way the regulal <~ n is written . 

Nov, what regulation i s ·:tat? Is that the 

18 RCRA reg? 

19 A 40 ern 261, which is th· ·lefinitions for 

20 hazardous waste . 

I 21 0 And it says to use the ! • int filter test to 

22 determine corrosivity; as the fir31 ;tep in detemining 

23 corrosivity? 

I A 

2 0 

Yes. 

That's your interpretal• ·•1 of the 

Page 29 

3 regulations, or 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, any federal EPA pers. • who is fartiliar 

7 wi th RCRA, that's the rule. 

8 0 All right. I mean, hav ·;ou had a discussion 

9 vi th someone where they told you I: i. was the rule fr011 

10 the EPA? 

11 A Enumerable times. 

12 0 Really? 

lJA 

14 Q 

Oh, yes. 

Who did you talk to vi 1'. the EPA that told 

15 you that was the rule? 

16 A Everyone, from the peor in Washington who 

11 wrote the rule itself, to the fieJ inspectors who are 

18 responsible for inspecting our fa c • i ties and making 

19 sure that we are doing it right. 

20 0 And so they told you Ut·> • if a sludge or a 

21 gel passed the paint filter test y1·1, didn' t have to even 

22 try to take a pH? 

23 A Correct. 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 is 

5 it is aqueous and. 

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

7 much water would there have to be before it would drip 

8 through the paint filter? 

9 A The way the test is designed is this: You 

10 take a known quantity of the materiai to be tested. 100 

11 milliliters, for instance. You might t ake 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 filt er. The paint filter is supported by 

15 a gla ss funnel, because the paint 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 more than 20 

21 rtilliliters of liquid expresses from the material, it is 

22 then deenoed to be aqueous . You 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 how 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 this particular 

5 case, then the material doesn' t fail the paint filter 

6 test. And that test was designed and, you know, it' s 

1 placed in SW-846 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 either are or you aren' t . 

10 0 And this is something that's in the RCRA? Is 

11 that right? 

12 A Correct . This test method is found in 

13 SW-8 46, which is the test methods for the evaluation of 

14 solid and hazardous wastes. It's available from the 

IS EPA, on the Internet. It' s a four-volume 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 substance 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 two-part test to 

10 determi ne whether or not a material is corrosive under 

11 the RCRA hazardous waste definition. 

12 

13 

14 

15 

16 

17 

18 

19 

MR. BAKER: What vas the question, Skip? 

am sorry. 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 vas 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 whether you 

2 must first run the paint filter test before running a pH 

3 test. 

4 0 All right. Other than using, say, a paint 

5 fi l ter test like the procedure that you just talked 

6 about, is there another way to detemine the percent of 

7 water in a sample? 

8 A 

9 0 

10 A 

11 aliquot. 

12 0 

IJA 

I suppose. 

How would 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 you might have heavier 

21 material settling out and a liquid portion on top. And 

22 you might wait five minutes, five hours, five days. rou 

23 could make up your own 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 can 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 certain percent vas wa ter, a certain percent 

9 vas oil and a certain percent vas solid. 

10 Do you know what the protocol is for 

II determbi ng that? 

12 A No. I would have to know what test methods 

13 were used by the laboratory to determine that. 

140 Ail right. have also seen reference in 

15 some of the test results that were produced in discove::; 

16 about percent solids. Take a sample and then run some 

17 tests on it and at the bottom says percent solids and it 

18 will have 50 or 58 or 60 or 62. Wha t does that mean? 

19 A Again, it vould be specific to the test 

20 method that vas described. Normally, when you send a 

21 sample to be ana lyzed, it' s done to certain standard 

22 protocols and you have to know what the protocol -- what 

23 particular protocol vas used in order to completely 

Pac;~ 35 

1 describe. Probably the best thing would be to ask the 

2 chemist what protocol he used. 

3 0 So, if it came back and said 58 percent 

4 solid, you know that 42 percent is something other than 

5 solid, wnether it's water or some other kind of --

6 A Whatever. A normal test is an ignition test. 

7 Loss on igni t ion. And the solid ma terial 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 pressure or squeeze 

12 A 

130 

No. 

-- the solid? You take the sludge, or 

14 whatever it is, and you lay it on top of a paint filter 

15 and you wait for it to drip, and if it doesn' t drip 

16 after five minutes --

l7A five minutes. 

18 0 -- then it passes the 'paint 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 mean, are 
Page 36 

I you the guy that people call to fir .. ! out how do we go 

2 about detemining whether or not tl• J is hazardous fr011 

3 a corrosivity 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 ve supe riors. 

7 0 Well, people that you •l" .;er to obviously. 

8 But in terms of technical experti•• , if that question 

9 can~e up even your superiors would 1 •1ne to you and ask 

10 you the question, right? 

11 A Correct. 

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 don' t have · ·• run 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. 

(Break) 

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 definition in RCR/1 or hazardous waste, 

11 may mean amenable to pH testing as posed to going 

12 through this paint filter test fiL · ., 

13 MR. BAKER: I just. .>ject to the form 

14 because I didn' t understand i .ut, Tim, if you do, 

15 

16 A 

you answer 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 

20 just take a pH probe with a gl ass · .~ctrode and put it 

!1 in the sampl 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 know 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 how the regulatory agencie~ interpret what it really 

6 means and there is written 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 waste, 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 waste or not. 

21 BY HR. FINi<BOHN£R: 

22 0 What does that mean? I don ' t understand. 

23 A What that means is that if you ace familiae 

Page 39 

1 with the process that generated the wastes, that you can 

2 use that, rather than do testing. But normally --

3 0 To characterize it as 

4 A To characterize 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 test. The reason 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 hazardous 

12 waste and pay huge sums of money to dispose of it when, 

13 indeed, it is not a hazardous wa3te . 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 question about whether or not 

20 aqueous means amenable to getting a pH 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 words? It is 

5 aqueous. 

6 HR. BAKER: Wait a minute. Let him ask 

1 

8 

you a question. He ~Y want to ask you something 

different. 

9 BY HR. FINKBOHNER: 

10 0 SW-846, is that the paint filter test? 

1 I A That's the publication that contains all of 

12 the test methods. 

13 0 

14 A 

15 SW-846. 

16 0 

17 right? 

18 A 

All right. 

Yes. The paint filter test is part of 

It has a whole bunch of tests in SW-846, 

Dozens. Dozens. 

19 0 All right. Let me ask you this. You have 

20 got a background in science 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 in 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 pH of 13 that drips through the paint filter and is a 

4 liquid? 

5 HR. BAKER: Object to the form. You can 

6 answer. 

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 want to talk about 

10 corrosivity --

11 BY HR. FINKBOIINER: 

12 0 Corrosivity. Yes. Let's confine 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 will re-ask the question. 

18 From a scientific and chemistry 

19 standpoint, which is apparently your background? 

20 A Correct. 

21 0 In terms of the danger or the hazard 

22 presented to human health 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 filter 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 ~of 13.0, is 

5 there a scientific or chemical reason for treating the 

6 two differently f r001 the standpoint 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 was just looking back at th:s 40 CFR 

13 261. 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 SW-846? 

18 A Correct. 

19 0 Do you know what happened to my client? 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 PSDS before you answer the quest:on, : don' t have 

6 any problem with that. I am not trying to keep that 

1 from you. 

8 A 

9 0 

10 A 

110 

12 A 

I understand. 

Do you want to see it? 

No. It's not necessary. 

All eight. 

I am not sure I understand wha t you mean by 

13 •transportation•. 

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 know. I am not certain. 

The HSOS says that black liquor has to be 

20 placarded as a hazardous 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: Object to the tom. 
I A No . 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 scientific backgroun: 1f worting with 

5 I . P., that black liquor and black ; . ·tuor sludge are 

6 hazardous materials 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. 

16 A 

170 

18 A 

19 0 

20 A Black liquor solids is •lightly different 

21 form of black liquor. It would hJ the same general 

22 characteristics 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 · 1s wastes. 

2 0 Depending on whether 01 •.It it passed the 

3 paint filter test ? 

4 A Correct. 

5 0 I mean, does the paint Iter test really 

6 tell you whe ther or not something hazardous? 

7 A The paint filter test 1 •.s you whether the 

8 material could be a hazardous wasl 1r not withi n the 

9 meaning of the rules. And as I Sil ·. earlier, that's an 

10 important distinction for 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 would. 

14 A If you have a 50-gallou rum of material and 

15 you determine that material is a h ·•rdous waste, and 

16 you have to dispose of it as a ha;. ·lous waste, it's 

17 going to cost a lot more money to ; pose of it as a 

18 hazardous waste as opposed to a nv .zardous waste . 

19 0 I see where you are coon · ·1 from. How much 

20 would it cost to dispose of black · · ·1uor sludge as a 

n nonhal:ardous waste versus how 11uch · ''uld it cost on the 

!2 average to dispose of it as a hal:ul ·luus waste? And you 

!3 can use a gallon or a ton, or whalr 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 incinerated in a hazardous 

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-gallon drum of 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 when you are talking 

13 about huge quantities of material that are ha•ardous 

14 wastes, lots of times you 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 to dispose of 

18 the entire tank as a hazardous waste, maybe 20, 000 

19 gallons, 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 to cost. But there is a 

23 strong econOIIic incentive to 1!14ke sure that if you are 

Page 47 

1 going to dispose 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 there a definition 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 entire part. And then there 

10 are individual definitions scattered throughout the 

11 rules that would deal ith individual sub parts. For 

12 instance, there are special definitions in part 261 that 

13 dea l just with the cha!acterization of a ha•ardous 

14 waste. 

15 0 Is there a reference to the pa i nt filter test 

16 in part 261? I don' t know whether 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 RCRA? 
Paqe 48 

I A Yes . 

2 0 Ooesn' t even use the words paint filt er. Is 

3 that right? 

4 A No. It refers to SW-846, which is the test 

5 methods document. That test method document then has 

6 its own set of definitions and test pro~ocols, and 

7 whatever, and that is where you look to see what the 

8 agency means by aqueous. 

9 0 Of course, you could just ask the agency wh4t 

10 it mea ns by aqueous? 

II A Correc t. And there are memos and letters 

12 tha t have been written by the agency, you know, 

13 defining, if you will, what aqueous means within the 

14 meaning of part 261. 

15 0 Have you read those? 

16 A Yes. 

170 Do you have copies of them? 

18 A Yes. 

19 0 ttl ask you to produce them, can you give 

20 those to your lawyer? 

21 A Sure. Be glad to. 

22 0 

23 A 

How would I describe them. They would 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 

On what is meant by aqueous . 

8 standard --

9 A 

10 0 

Is that specifi c to this corrosivity 

Correct. 

-- or is it to hazardous waste 

11 characteri zation? 

Page 49 

12 A I believe it's specific to the characteristic 

13 for corrosivity. I would have to l ook at it again. 

14 0 So if I asked I.P. to produce EPA memoranda, 

15 that would include letters obviously, on what is mean t 

16 by aqueous under the corrosivity and hazardous waste 

17 characterization of RCRA, would that sufficiently 

18 describe the documents? 

19 A 

20 0 

21 A 

Yes. 

Do you keep them in a book somewhere? 

They are available onl ine. We also have them 

22 as written, you know, guidance that I can, for instance, 

23 you know, fax to a facility that asks the question. 

Pa.;~ 50 

I 0 All right. ;..-.~y don 't you do this. Wh~:. you 

2 produce these, ca n you cesigna te which are copies ot 

3 hard copies that you ha>e already go t and which --

4 mean, do you intend to ;~ onto u1e Interne t, or 

5 something, and get extr~ copies of these things? 

6 A I can, but I believe I have the particular 

7 memorandUM that you are i nterested i n in a hard copy 

8 fom tha t ' s been issued ::.y EPA. 

9 0 Is there one that you faxed around to 

10 different plants 

Yes. 

-- that had :.:::i s 

Yes. 

II A 

12 0 

13A 

14 0 

15 up? 

-- cl ean out olack liquor sludge issue :orne 

16 A Well, it doe: not deal specifically wit: 

17 clean out of black liqucr sludge . It is how you test 

18 for corrosi vity . 

19 0 All right. 

20 A Any material. Any solid waste. So, it's a 

21 general memorandum where EPA sets ou t that this is hat 

22 you do; this is what we ~eant by this. 

23 0 What was the :ate of it? Do you i:.~ow? 

Page 51 

I A Not specifically. It vas written by David 

2 Bussard. (Spelling) B-u-s-s-a-r-d. He is the chief of 

3 the characteriza 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 section for EPA's Office of Solid 

7 Waste and Emergency Response. 

8 0 

9 A 

Chief of har~cteriz ation section for --

for the Office of Solid Waste and EaergeJcy 

10 Response, U.S. EPA, as~~gtcn . He is the person t:at 

11 is responsible for how ycu -- how the agency vievs 

12 characterizing hazardous wastes. 

13 0 So, he puts i: in citing it's got :he 

14 agency -- that's the age::y's interpretation a=d has 

15 basically the force of law? 

16 A Yes. 

17 HR. fiNK30HNErt : Let's take a break. I 

18 may be finished. 

19 (2reakl 

20 BY HR. f! NKBOHNER: 

21 0 Has the EPA ever published documents or sent 

22 out on one of these l etters -- or what did you call 

23 them? An advisory? What do you call those thillgs? 

! 

I I 
---- -·-------- Page 52 

1 A Yeah. Interpreta tion l r. •.ers. They have 

2 lots of --

3 Q I don't want to call it ·I ~ wrong name. 

4 A Guidance. 

5 Q Ha s the EPA ever issued =ty written guidance 

6 that said 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 ever issued u 

11 that the paint filter test was noL 

•idance that said 

!signed or intenqed 

12 to be used in charact erizing waste .; hazardous or 

13 nonhazardous under the corrosivity 

14 standards? 

15 A Ask agai n? 

ignitability 

16 HR. flNKBOHNER: C. you read it back? 

17 (Requested question read by · trt Reporter). 

18 A Not that I am aware of. 

19 BY HR. r!NKBOHNER: 

20 Q Have you ever done a hv·· •:dous waste 

21 remedia t ion or cleanup, or had an1 Jle 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 waste remedi t ..ion or cleanup? 

3 A Two specific roles. . as a technical · 

4 resource for cleanups being conduc: I by the company, 

5 and also have in the past acted a:· . · oject manager for 

6 r~ediations. 

7 Q What' s the difference IJ· ~en being the 

8 technical resource and the project •nager? 

9 A The project manager ta~· overall charge of 

10 making sure the cleanup is done in technically 

11 correct, cost-effective manner. 11. :tormally entails 

12 guiding one or more consultants a:: · ::onstruction 

13 compa nies. 

14 Acting as a techni ·· resource is simply 

15 answering questions as they come n; .Jnd you are not 

16 involved in the day-to-day flow of : <~ e project. 

17 Q Have you ever had a ha;:,. · lous waste 

18 remediation or cleanup where the "' :.e was black liquor 

19 or black liquor sludge? 

20 A Black liquor, yes. I C·•· 't offhand think of 

21 one dealing with black liquor sluo.hJ" . 

22 Q Where was the black li•!'J .c hazardous waste 

23 remediation or cleanup? 

Page 54 

I A We will occasi onally have c:Jck liquor 

2 spilled at one of the facilities, or more. Over the 

3 years I don't know how many, but these do occur and when 

4 they occur the material is considered to be wast e and 

5 could easily be a corrosive, hazardous vast~ and you 

6 would have to do this. 

1 Q What do you mean "do this"? Handle it as a 

8 hazardous wa ste cleanup? 

9 A Yes. You would have to do the remediation. 

10 Q Would you have to do the re::edia tion as a 

11 hazardous waste cleanup if it happened -- what I am 

12 trying to find out -- I guess I don't know how to ask 

13 the question. Whether it happened inside the plant 

14 where there is a concrete floor versus outside, does 

15 that make a difference how it's handled? 

16 A No. If it's a hazardous waste it has to be 

17 handled in a certain manner. 

18 Q The reason I ask the question is, obviously, 

19 if black liquor falls on to a concrete floor or 

20 something 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 can 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 liquid, if it's in a pool outside, you say you 

9 would treat it as a hazardous wa ste but when you got to 

10 the ground you wouldn't treat it as a hazardous waste? 

11 A That might be possible, yes. 

12 0 Have you done that in retention ponds or 

13 black water holding ponds around the country. 

14 A Yes. 

15 

16 

MR . BAKER: Black liquor holding ponds? 

MR. FINKBOHNER: What did I say? 

17 HR. BAKER: Black 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 black liquor liquid dS a hazdrdous material, 

2 or if it was disposed of, a hazardous waste, and the 

3 black l iquor sludge or mud you handled as a nonhazardous 

4 WdSte? 

5 A Normal closure of a liquor pond would entail 

6 removing and keeping in the liquor process dS much 

7 liquids as possible. So the first step woul d be to take 

B that material and place it into the process. Pu t it 

9 into a tank or whatever . At sane point ·the material 

10 then becomes one could say dirty enough tha t you ca~ no 

11 longer use the material. At that point then you would 

IZ go into a disposal scenario where you would -- you know, 

13 you woul d have to take liquids and dispose of them as 

14 hazardous waste. And then at some point you probably 

15 wil l hit a case where the material is no longer a 

16 liquid, aqueous, and --

17 0 It passes the paint filter test and you don' t 

18 have to handle it as a hazardous waste? 

19 A That's right. And at that point then you may 

20 be able to take the residual soil, or whatever is left 

21 over, and place it i n a nonhazardous facility . 

22 0 Or landfill? 

23 A It could be a landfill. 

Page 57 

1 0 Let me ask you this. The people that are 

2 working out there, or have worked around these ponds, 

3 and the liquid's out and they are down to the stuff that 

4 won't drip through the paint filter by 20 percent and 

5 so --but it' s black liquor mud or black liquor sludge, 

6 do they still have to use the chemical protecti on suits 

1 that you would use working with ac~ liquor? 

8 A I would assume so . I am not the safety 

9 specialist that would be helping them decide what PPE 

10 that they would need to wear. 

II woul d take normal precautions. 

12 Material Safety Data Sheet. 

But I would assume you 

Yo u woul d fol low the 

13 0 Have you been a project manager on a black 

14 liquor pond cl eanup? 

15 A Not on a liquor pond cleanup, no. On other 

16 remediations that the company has had. 

17 0 All right. When I .P. has had bl ack liquor 

18 pond clean 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 tbere somebody in 

22 your office that has handl ed some black liquor pond 

23 cl osures or remediations? 

I A 

2 0 

The corporate staff office? 

Yes. 

3 A Not that I am aware of . 

4 0 Tha t have been technical advisors for it? 

Page 58 

5 A Yeah. Myself. You know, if a question would 

6 come up. But normal ly, these remediations are done at 

1 the facil i ty by the facility EHS people . 

B 0 All right. Do they usually subcontract this 

9 ou t or contract it out for peopl e to come in and do this 

10 or do ~ey use mill personnel? 

11 A Normally, it' s a combination. But there are, 

12 you know, contracts let for like consulting engineers to 

13 help design the cleanup, and whatever, and also 

14 construction. Hauling firms, you know, to be 

15 subcontracts. 

16 0 When I.P. has done black liquor pond clean 

11 outs, have you always had Si te Specific Health ' Safety 

18 Plans written up for that job? 

19 A I would assume so. I have not seen them. I 

20 have not approved them. It woul d not be par t of my --

21 0 Your job? 

22 A My job to do that. 

23 0 I guess I am asking you something that's 

Page 59 

I outsi de of what you real l y work on? 

2 A Yeah. Basically. 

3 0 We may have covered this. If we did, please 

4 be patient with me. 

5 Can you give me a -- from the standpoint 

6 that you come from, like as a scientist or a chemist , 

1 vi th that type of chemical expertise and background, can 

8 you explain why the RCRA regulations would treat black 

9 liquor l iquid as a hazardous waste if it were going to 

10 be disposed of but would not treat bl ack liquor sludge 

11 as a hazardous waste if i t was going to be di sposed of? 

12 A The regulations were written to set apart 

13 certain materials for special handling. You know, they 

14 wanted to carve out a subset of solid wastes and they 

15 ca ll those hazardous wastes. Almost any material will 

16 present a hazard under some exposure scenario. 

11 EPA tried to carve out this subse t of 

18 materials in such a way that it ;ade sense that this 

19 material vas indeed -- or not -- let me back up. The 

20 materials that were handl ed under the hazardous wast e 

21 rules had some uni que characteristic. That 's why the 

22 rules are written the way they are written . Some things 

23 are. Some things aren't, recogni zing that all materi als 

I 
Page 60 

h~ ve some hazards associated with ~. So the agency 

tried to make a cut as to what vas .,nd what va sn' t. 

3 In the characterbl ·c of corrosivity, 

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

5 are corrosive but didn ' t feel tllal · :,ose materials 

6 necessitated the handling and the I · ceaucracy, if you 

7 will, that's associated with a haz., ·lous waste . So they 

8 r..ade the cut that only aqueous mal · lals having highs or 

9 l ow pH' s would have to be handled .. hazardous wastes. 

10 There was a l ot ol mtroversy as the 

II rules were being developed ~bout w: •:e the pH number vas 

12 se t. Why 2 or 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. 

18 So, you may have a •queous material 

19 that has a pH of 12.3 that is not ·•azardous waste, and 

20 a companion material contai!'ling th· 1ame constituents 

21 that has a pH of 12.8 that is. Th -- you know, they 

22 we re forced 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 drew the rules and how they are ad• ••istered, and I 

3 aprec iate your answer. My questi· . really was a little 

4 bit differen t than that. My quesl n was, given your 

5 ba ckqround as a scientist and a Cl· lst is there any 

6 scientific reason or chemical rea"· or safety reason 

fo r classifying black liquor as a :a rdous waste 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 can answer, Tim. 

14 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 

·.eciably the same, 

:arne corrosivity, if 

·rker or whatever, 

··ler the hazardous 

18 waste regulations at the attendant ··•sts and 

i9 what-have-you. 

:o I don' t know 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 

scient ist and a chemist? 

2 MR. BAKER: Object to the fo01. 

3 BY MR. FINKBOHNER: 

4 0 Not as a regulator but a; a scien~st? 

5 MR. BAKER: The same obj ec tic~. 

6 A The material presents safety haza:)s, as do 

7 many other materials, maybe even ~re so for other 

8 materials, that are not required to be placec intc the 

9 hazardous waste system and i t s attendant bureaucracy. 

10 As a chemist, as a ~erso:1 whc X.Oov; 

11 some thing about intrinsic hazards of mat~ria:; , t~ i'le 

12 it's a different question. Does a material Fesent a 

13 hazard to safety, as opposed to does a ma t erhl fall 

14 into the hazardous waste regulations? 

15 We routinely handle hazardou~ ma ~rials 

16 that may present 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. There are much simple= 

21 examples. Fertilizer. 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 for the c~pany on hazardous waste, 

3 decided because of its burn -- corrosive char!:ter:;tics 

4 and burn hazard I think ve should handl e olac:< licr;or 

5 sludge when we are disposing of it just li ~e ·~ would 

6 handle black liquor when ve are disposing of i:. ~e 

7 ought to handle th~ both as haza rdous wa ~te. Wou:1 you 

8 have the authority to do that? 

9 A No, not by myself. 

10 0 Who would have authority to do tha:? 

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 Health Co~cil. 

14 It's made up of senior 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 they? 

I aJI sorry. The hazardous waste reqolatlon. 
Page 64 

I 0 The RCRA? 

2 A Yes. The RCRA hazardous waste regulations 

3 give you the option of how you decide whether a material 

4 is hazardous waste or not. The two options you are 

5 given is you can, A, test. You can run the tests that 

6 are specified by the hazardous waste regulations that 

7 are -- and these tests are in SW-846 or, as an 

8 alternative, you can use your process knowledge to 

9 determine if a material is or is not a hazardous waste. 

10 EPA ga ve industry this flexibility 

II because industry was concerned about the costs of the 

12 testing. So EPA said: Okay. We will give you your 

13 choice. You can either test or you can use your process 

14 knowledge, knowing full well that if using your process 

15 knowledge you guessed wrong and the agency found tha t 

16 the material was indeed hazardous, that that would 

17 constitute a violation of RCRA. 

18 So, when we have to decide whether a 

19 solid waste is a hazardous waste or not, we can use our 

20 process knowledge. 

2I Q I see. 

22 A And if we, knowing something about how the 

23 material was generated, would know full well that, for 

Page 65 

1 instance, the pH is going to be 13 and a half and it's 

2 watery, you know, it's obviously a liquid and we know 

3 full well that it' s got a pH above 12 and a half, we 

4 don't have to run the test. We can dispose of that 

5 material as hazardous waste without ever going through 

6 the paint filter test and the probe and the other 

7 things. 

8 Q You have an obligation to dispose of it as a 

9 hazardous waste then, won't you? 

10 A Absolutely. But where there is a question we 

11 will test, primarily because of econootics. 

12 Q Le t me ask you some thing. Have you had 

13 occasi ons where you test to see i f something meets the 

14 definition of a hazardous waste and maybe the test 

15 sample itself did not, but using your process knowledge, 

16 and your obligation to use process knowledge, I .P. went 

17 ahead and said: Look, we understand that the test on 

18 this sample said such-and-such but we are going to 

19 classify this as hazardous waste and deal with it 

20 accordingly? 

21 A Yes. 

22 HR. BAKER: Object to the tom. 

23 A We have done that. 

F~qe 66 

I BY HR. FJNKBOHNER: 

2 0 When have you done that? Let me ask you 

3 this. Do you have an obligation to do that? 

4 A No. 

5 0 So if a test on a sample comes back and it 

6 doesn' t meet the definition of how you read definition 

7 of corrosivity, or, say, ignitability, but I. P.'s 

8 process knowl edge indicates that it' s got substantial 

9 hazards to the environment and to human health then --

10 A We will dispose of it as hazardous waste. 

11 Q Do you have an obligation to do that? 

12 A No. 

13 0 All right. In other words, you can use the 

14 test as kind of a safe harbor? Is that --

15 A Partially, yes. 

16 0 Where is this thing on process knowl edge? Is 

17 it in here? Can you find it for me? 

18 A Sure. 40 CFR 262.10 --no. 11. l am sore;· . 

19 Is the section of the rules that deals with hazardous 

20 wa ste determinations. 262.11 (C) says (Reading): For 

21 purposes of compliance with 40 CFR part 268, or it the 

22 waste is not listed in subpart D. 

23 0 Wh at' s subpart 0? Is that the list of 

1 hazardous wastes? 

2 A 

3 0 

That's nonhazardous waste. 

Black liquor -- neither black liquor nor 

Page 67 

4 black liquor sludge are listed as nonhazardous wastes, 

5 are they? 

6 A Correct. (Reading) : the generator must then 

7 determine whether the waste is i dentified in subpart C 

8 of 40 CFR part 261 --

9 Q And that's what you told me about before? 

10 A 

110 

-- is the hazardous waste regs. 

Okay. That' s either the list or the 

12 hazardous waste cha racterization? 

lJA Yes. Identified in subpart C of 40 CFR part 

14 261 by either colon, 1, Testing the waste according to 

15 the method set forth in subpart C of 40 CFR par t 261, or 

16 according to an equivalent alternative method, et 

17 cetera. 2, Applying knowledge of the hazard 

18 charac teristic of the waste in 11ght of the materials or 

19 the processes used. 

20 Q All right. Can I see it for a second? 

21 HR. FINKBOHNER: I guess we will just 

22 mark that as Exhibit 102. 

23 HR. BAKER: I don' t think you marked 
---·- ----------

2 

3 

that . 

HR. FINKBOtiNER: 01 the record. 

(Off the Record Di ossian) . 

(EXIIIBIT 102 ~ :IVED AND 

HARKED FOR IDE' lf!CAT!ON.) 

6 BY HR. f!NKBOHNER : 

raqe 68 

1 Q Under this, I guess it' JOing to be Exhibit 

8 102, Section 262 .11, one of thew.- i t can be 

9 classified as hazardous waste is J. ~e generator 

10 appli'!s k~c ledqe of the hazard cl• octeristic of the 

11 ·•a st'! In I iqht of the mate rials oo 

12 Now, ~hat does it 

: ocesses used. 

.n to apply the 

13 knowledge of the hazard characteri lcs of t he waste? 

14 A SPA sets ou t certain ell •Cteristics that 

15 define hazardous waste. 

16 Q This is on process kno~ lge , though. This 

17 is different f rom the other. 

18 A 

19 Q 

20 A 

iie ll --

Are we on the same pagt 

Yeah. That' s the bencl• k. You have to 

21 determine if a process wa ste meet3 ny of those f ive 

22 requir'!ments. If it does, it's a :ardous waste . 

23 Q Oh , all right. 

Page 69 

I A So ! , by knowing my pn ;s, can i n effect 

2 declare the materia l a hazardous w 

3 full well that it will fail the i•o 

4 corrosivity test, or whatever. 

~e because I know 

•.abilit'l test or the 

5 l t ' s just basical ,. .n acconvnodat1on 

6 that the rul~s give you to keep Y•· (rom having to 

te5t . A gen'!rator of a wa ste ca n •.ermine the ~ste i s 

8 a hazard without doing any tests ' ·'1 you r process 

? knollledqe . 

10 Q So, l.P. could have tal. the position that: 

11 Look, we know black liquor liquid, . l we are disposing 

12 of it, is a hazardous wa st e . With· I. regard to the 

13 paint filter test on black liquor · odge, we are qoillq 

14 to handle the black liquor sludge hazardous waste as 

15 well because it exhibits the same -:a rd 

16 characteristics? 

17 A Sure, we could have do• ·.hat. We could do 

18 it for bark piles. We could do il .. ,r wood chips. We 

19 can 

20 Q Well, I am asking you s: dfi cally about 

H black liquor and black liquor slu•! • 

!2 A Su re. 

D Q Have you looked at anyt ng to get ready for 

Paqe 70 

I your depositi on toJay? 

2 A I looked at -- well, to get ready for this 

3 deposition toda y - -

TH£ WITNESS: Other than the lists that 

5 you showed me. 

6 HR . BAKER: The Notice . 

1 BY HR. flNKBOHNER: 

8 Q Did you have a ny documents responsive to the 

9 Notice? 

10 A ilo , not reall y. 

II HR. BAKER: He has a CV tha t we talked 

12 

13A 

about. 

Yes, I have a resume' that --

14 BY H!L flNKBOHNER: 

IS Q Can I qe t a resume ' 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 would like to get it anyway. And then I'm 

20 going to ask you sepa rate 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 Well, or any memoes that speak to the issue 

Page 71 

1 of aqueous and corrosivity. 

2 HR. BAKER: Well, you will write us a 

3 letter on that. 

HR. FINKBOHNER: I'll write you a 

5 letter. 

6 A quess I have a ques tion there because there 

7 may be dozens of them. 

8 Q I just want the ones that you have. 

9 A Tha t ' s right. 

10 Q Just the ones that you have. 

11 A And we use the Bussard memo as our definer on 

12 wha t is aqueous. 

13 Q All riqht. Did you get that off of the web 

14 site, the Internet, or did they send i t directly to 

IS you? How did you get that document? 

16 A Originally? 

110 

18 A 

19 Q 

20 A 

21 Q 

22 A 

Yes. 

I think Dave Bussard gave it to me~ 

All right. Person to person --

Yes. 

-- or he ma iled it to you? 

I think it was part of - - as I remember, it 

23 vas part of some meeting papers that we we re meeting 
----------

••i th the J:~ :-. c-; to talk about corrosivity and this was 

oM of the :..1ings 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~ standing EPA guidance that's used not only 

t• by EPA, by ~:1 of the states that I am aware of. 

7 Q So this memorandum, though, that you ace 

B talking about was of 1980's vintage? 

9 A I believe so. There might 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 says that this is how EPA 

15 defines aqueous foe purposes of the corrosivity test. 

16 Q In othe r words, do the paint filter test and 

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 pH testing? 

Correct. 

Were there any other documents that were 

23 given to you in that meeting that you have retained? 

guess if it' s that long ago--

2 A No, I would 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 stuff is I want 

to know what 'lOU have actually got and you are producing 

6 in response -- you know, what you are in possession of 

versus going onto some Internet or calling somebody and 

8 getting copies of it. How am I going to know that? I 

9 mean 

10 A 

II 0 

12 A 

130 

I can --

Designate? 

-- produce the thing that we use. 

All right. 

14 A Maybe I can clarify it by saying 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 what 

17 EPA says; here is how we do it; if you have got other 

18 information, please tell us. 

19 0 All 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 Jsed it :n connectio: • ith whether 

J or not black liquo: ; ludge wculd be cla;;::ied as 

4 hazardous or nonha:!:.lous ·•a:te? 

5 A No. 

ti Q What were )'OU usinq it for ? i;.~lt chemical or 

7 sludge or whatever? 

8 A Our proce;s uses tighly c~ us t: : ch~icals . 

9 Hot just black liquor. 

iO 0 Right. 

11 A 

12 Very, very cocrosi· ~. We dis;oive so~iu-:- ;ul id e and we 

13 produce a thing cal:ed green liquor. We :..'len take the 

14 green liquor and we =dd this calcium oxi:~ to it 

15 producing white lic;-:or. 

16 Thi; white liquor ha s se>~cal residuals 

17 with it that can be ·:ery caustic. t~ .,.t: :e Uquoc is 

18 then placed into a ::~ester with the hi"; !nd cooked 

19 and it is the spent !iquor, the liquor af:er you cook 

20 the chips, that's 

21 Q What's tr.H called? 

22 A 

23 0 

Black li<;Jor. 

Oh , all r:ght. 

Page 75 

I A That's wt:ere black liquor come: from. This 

2 material that black liquor is subsequent!;· concentrated 

and is burned to reco·,er the chemicals. ~is is called 

the era ft pulping precess. 

5 So ·•e produce lots of ~at~:ial that can 

6 be very corrosive in nature, both liquids ~nd solids. 

7 For instance --

8 0 But disposing of them, though, ;·ou aon' t have 

9 to dispose 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 was a very big tank. You understand that ? 

17 A It was a huge tank . Probably one larger than 

18 we would normal ly have at our fa~ilities , ~d the amount 

19 of sludge that would be remai ning as you .,.ere closing i t 

20 would be entirely dependent upon how often it were 

21 cleaned out in the past. 

22 0 How lonq had it been since thi~ tank had been 

23 cl eaned out? Do you know? 
Pa~e 76 

I A I have no idea. 

2 0 Do you know wha t condi L , .1 the inside of the 

3 tank was in when they got it all <.: -•ned out? 

4 A No. 

5 0 I just want t o -- ve p t ·bly covered this, 

6 and this is the last thing 1 am gu. · I to ask you. I 

just want to make sure I have got eight guy, because 

there ace a lot of witnesses whos'! .mes have come up in 

9 the l awsuit. 1 predictably want : .now what each one 

10 of them is goi ng to sa y or if the;· tow anything. But 

11 with respect to this subject of c !. •Ctecizing something 

12 as corrosive or not, and the test be used, and 

13 s pec ifically -the paint filter test , tnd if it passes the 

14 paint filter test in tha t there ~ !SS than 20 percent 

15 liquid coming out of it then you ·• 't do a pH test, you 

16 ace the technical expect foe the •· Jany on that? 

Correct. 

And that's foe the whoj · ;ountry? 

The world. 

17A 

18 0 

19 A 

20 0 

21 

Foe the world. Okay. .. further questions. 

(EXHIBIT 103 P. c:m:D AND 

22 

23 

2 

HARKED FOR 10£:. IFICATION.) 

CERTIFICATE OF WIT: .. ;s 

3 I, TIH SAYLOR, do hereby !Ctify that on 

this, the da y of _ , 1999/2000, 

Page 77 

5 have read the foregoing transccipL •td to the best of my 

6 knowledge it constitutes a true an ' ·•ccura te transcript 

7 of my testimony taken on oral dePQ:· t:ion on the 24th day 

8 of November, 1999 . 

9 

10 

11 ------------------

12 

13 

14 

15 

16 SUBSCRIBED AND SWORN TO BEFORE 

HE ON THIS, THE DAY OF 

17 ---- , 1999/200C. 

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 MOBILE: 

5 

6 1 do hereby cer tify that the above and 

foregoing t ranscript of proceedings in the ma t t ec 

8 aforementioned vas taken down by me in machine 

Page 78 

9 shorthand , and the questions and answers thereto were 

10 reduced tc writing unde r my personal supervision, and 

11 that the ~oregoing represents a true and correct 

12 transcript of the proceedings given by said wi tness upon 

13 said hearing. 

14 

15 I further certify that I am neither of counsel 

16 nor of ki n t o the parties to the action, nor ara I 

17 anywise interest ed in the result of said cause . 

18 

19 

20 

21 

22 

23 

viRGINIA P. SIRS, RPR, CSR 

Court Reporter 
EXHIBIT 

/o I 

INTERNATIONAL@ PAPER 

TIMOTHY C. SAYlOR 

PROCRAM MANACER 

fNVIRDNMfNlAl & I'ROOUCI 

ll.f\.Ul •\TORY Ari'AIRS 

&-1 00 POPlAR AVE 

MEMPHIS. TN ) 111 '!7 

PHONE <JOI 763 ?62 ! 

FAX '!01 7&3 &939 

ltm.saylor@tpaper.com 
-
EXHIBIT 

!L- z 7~~~<;·~~ ~~;%i~t~:;:~~~~~~ ::f~< . : . . ... : .··. . 

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§262.10 

262.88 Pre-approval for U.S. ~covery Ft.-

cl!!~les (Reserved). 

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:CTIO!'S (EPA 

FOR.\IS 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 regulations 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 ge nerator who treats. stores, or 

cUsposes of hazardous was

t e on-sl te 

must o nly comply with the following 

sections of this part with re:!pect to 

that waste: Section 262.11 for determinIng whether or not 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! reporting. and if applicable, 

§ 262.70 for farmers. (d ) Any person who exports or Imports hazardous wast.e subject to the 

Federal manifesting r equirements of 

part 262. or subject t.o the universal 

waste management s:.andards of 40 CFR 

Part 273, or subject to S tate requirements analogous to 40 CFR Part 273. to or from t he countries listed In 

§ 262.58{a){l) for r ecovery must comply 

with subpart H of this part. 

(e) Any person who imports hazardous waste into the Gnlted States must 

comply with the standards applicable 

to generators established in this part. 

(f) A farmer who generates waste pes-

ticides which are hazardous 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. or 268 with respect to such pesticides. 

(g) A person who generates a hazardous 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 the Act If he does not cotxtply wi th the requirements of this~ {h ) An owner or operator who lnJuates a shipment of hazardous wa.ate 

Cro:-:1 a treatment. storage, or dispoa.1 

faci lity must comply with the genera.-

to::- 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) or 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 the standards of t.hll 

pa.;'t. 

);OTE 1: The provisions of § 262.34 ~ 

applicable to the on-site accumulattOi 

of hazardous waste by generator; 

Therefore, the provisions of §~ 

only apply to owners or operators 1¥~ 

a::-e shipping hazardous 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. 

. -

[15 FR 33112, 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 

tioo . 

A person who generat es a solid w~ 

as defined In 40 CFR 261.2, must de~ 

mine If that waste Is a hazardous~.­

using the followin g method: ! 

(a) He should first determine I! t" 

waste Is excluded from regulaP, 

under 40 CFR 261.4. ~ {b) He must then determine 1! ~ 

waste Is listed as a hazardous was~ 

subpart D of 40 CFR part 261. ~ 

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

erator still has an opportunity under 40 C 

250.22 to demonstrate to t he Admln!Stf! 

r.!:lat tbe waste from b!s particular !t.clllg 

operation !s not a ba.zardou:~ waste. ~ 

(c) For purposes of 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 

128 
I . 
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 de termined to be 

a.rdous. the generator must refer to 

cs 261, 264. 265, 266, 268, and 273 of 

; chapter for possible exclusions or :rictions pertaining to management 

he specific waste. 

FR 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 transcation, 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- •ing the r equest the Administrator 

I assign an EPA identification num- to the generator. 

:) A generator must not offer his 

.a.rdous waste to transporters or to ~tment, storage, or disposal facili-

; that have 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 

the 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 instruct 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 shipments are specified 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 agreement. 

(f) The requirements of this subpart 

and §262.32(b) do not apply to the transport 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. 

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