(Delivered electronically via e-mail: lesser.ben@epa.gov )
September 22, 2009
Mr. Ben Lesser US Environmental Protection Agency Office of Resource Conservation and Recovery Mail Code 5302P 1200 Pennsylvania Avenue, NW Washington, DC 20460 Re: Docket ID No. EPA-HQ-SFUND-2009-0265 Identification of Priority Classes of Facilities for Development of CERCLA Section 108 (b) Financial Responsibility Requirements, 74 Fed. Reg. 37213 (July 28, 2009) Dear Mr. Lesser: The Treated Wood Council (TWC) is pl eased to submit these comments in response to the U.S. Environmental Protection Agency’s July 28, 2009 Federal Register notice regarding the Identification of Priority Classe s of Facilities for Development of CERCLA Section 108(b) Financial Responsibility Re quirements (Docket ID No. EPA-HQ-SFUND-2009- 0265). We thank you for your presentati on at the Small Business Administration Environmental Roundtable Meeting on September 11 th , and please extend our appreciation to Jim Berlow, Elaine Eby, Barbara Foster and Dale Ruhter for meeting with us on Aug. 27 th

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TWC is an international tr ade association serving the treated wood industry with more than 400 member organizations, includi ng 191 companies that trea t various wood products with EPA-registered wood preservatives. 1111 19 th Street, NW Suite 800 Washington, DC 20036 Phone: (202) 463-2045 Fax: (202) 463-2059Mr. Ben Lesser September 22, 2009 Page 2 of 6
The purpose of the notice is to identify cl asses of facilities for which financial responsibility requirements will be first devel oped. The notice adds that the Agency will examine a number of classes of facilities, including wood treatm ent facilities, to see whether financial responsibility requirements under CERCL A Section 108(b) would be appropriate. TWC’s comments explain why it is unnecessary and inappropriate to identify wood treatment facilities as a priority class for the developmen t of financial assurance requirements, based on Section 108(b)’s risk criteria and the analysis and factors set forth in the Agency’s notice. These comments provide information a bout the current scope of envi ronmental regulation of this sector, its small and declining Toxics Release Inventory (TRI) releases, and the low risk it represents under CERCLA Section 108(b).
The Modern Wood Treatment Industry Today’s wood preserving industry is very di fferent from its historical counterpart of 25 or 30 years ago. Comprehensive environm ental regulatory regimes, discussed further below, have transformed the industry, and sin ce the late 1970s, it has shrunk by one third to roughly 400 facilities today. Facilities opera ting today are subject to thorough, strict requirements governing ongoing operations as well as plant closure and post-closure phases. Even though current TRI information may include data from the remediation of legacy issues being managed under RCRA at operating faciliti es, the wood preservation industry’s TRI releases are low both in overall terms (less than 0.017% of total TR I releases) and on a toxicityweighted basis (approximately 0.0085% of total TR I releases), and they are trending downward. Further underscoring the lack of need for a fina ncial assurance requirem ent for this sector, no wood preserving facility has been added to the National Priority List (NPL) since the industryMr. Ben Lesser September 22, 2009 Page 3 of 6
came into compliance with the new regulatory re gime. The industry is composed mostly of small businesses located in rural areas in the sout heast and northwest. The industry average for an operating facility is 35 employees, with appr oximately 40 percent of the facilities having less than 20 employees.
Section 108(b) Bases the Need for Financial Requirements on Risk CERCLA section 108(b) identifies two kinds of risks in determining whether the imposition of financial assurance requirements is warranted. Subsection 108(b)(1) focuses on the risk of injury “associated w ith the production, transp ortation, treatment, storage, or disposal of hazardous substances.” Subsect ion 108(b)(2) speaks in terms of ri sk relating to the ability to pay for cleanups that are likely to become nece ssary. Section 108(b) is forward looking, seeking to assess the likelihood that mandatory financial assurance mechanism will be needed to ensure that future cleanups are responsibly handled. An alyzing the statutory lang uage and the Agency’s suggested factors with respect to the wood treatment industry, the risk level is very low.

The Amounts of Hazardous Substances Released to the Environment are Small and Declining Using the Agency’s preferred metric, TRI releases, the attached tables illustrate clearly that the wood preservation industry’s releases of hazardous substances are low, both as a share of total releases -- less th an one-tenth of 1% -- and on a t oxicity-weighted ba sis -- less than one hundredth of 1% (see Attachment: TRI 2007 Weighted Toxicity Data for Financial Assurance 9 22 09 ). Looking beyond these low numbers, trend data shows a decline over time (see Attachment: TRI 2001-7 Wood Preserving Trend Data for Financial Assurance 9 22 09 ), further indicating a minimal level of risk.Mr. Ben Lesser September 22, 2009 Page 4 of 6
Changes to the Industry – Particularly the Gr owth of Comprehensive Regulations – Have Reduced Risk to a Very Low Level Since the 1970s, major changes have tran sformed the wood preservation industry. As part of a regulatory overhaul, the industr y eliminated surface impoundments, reduced the quantity and duration of onsite storage, became subject to strict drip pad regulations, and complied with CERCLA and RCRA requirements fo r closed facilities, and RCRA corrective action for prior releases at curr ently operating plants. These cha nges have resulted in a much smaller, tightly regulated industry. The following requirements are now in place:

• RCRA Hazardous Waste Listings (40 CFR Part 261), which in 1990 listed all process residuals from the us e of the three dominant wood preservatives as hazardous waste, ensuring their environmentally sound management and disposal.

• RCRA Subpart W (40 CFR Part 265, Subpart W), which imposes specific technical requirements on the use of drip pads, including design, operation, clean up, closure, reco rd-keeping, certifications, and inspections. Subpart W also specif ies response actions to infrequent and incidental drippage in storage yards.

• RCRA Subpart G, which governs closure and post-closure efforts that fall outside Subpart W; it includes a fina ncial assurance mechanism (FAM).

• RCRA Subpart J, which mandates st andards for design, operation and maintenance, and closure of tanks and also covers equipment contaminated with hazardous materials.

• RCRA FAM requirements for post-cl osure and corrective action, under Subparts G and J, which include co rrective action for releases that occurred prior to the imposition of the current stringent regulatory requirements.

• Clean Water Act NPDES programs, which set requirements under that statute; each facility has either a NPDES or stormwater permit.

• Clean Air Act; two years ago the wood preserving industry completed an area source MACT proceeding.Mr. Ben Lesser September 22, 2009 Page 5 of 6

• FIFRA labeling requirements; re-registration of the major pesticide agents was completed within the last two years. RCRA and CERCLA Already A ddress Historic Operations RCRA corrective action and post-closure requirements, including FAMs, ensure cleanup of currently operating plan ts with historic contaminati on. Current operating practices require compliance with the RCRA regulations no ted above, to prevent future contamination. CERCLA consent decrees and orders that cover closed plants provide FAMs as part of cleanup obligations.
Toxicity Concerns are Decreasing While the statute requires consideration of risk, not mere toxicity, the treatment chemicals used in wood preserving have grown steadily less toxic. Under current operations, approximately 70% of the volume of wood tr eated today is treated with water-based preservatives. In 2003, the industr y voluntarily agreed to withdraw the pesticide registration for chromate copper arsenate (CCA) for residential uses, which has further lowered toxic releases.

Other Factors Also Reflect Low Risk Other factors suggested in the Agency’s not ice also indicate low risk for the wood treatment sector. The existence a nd proximity of potential receptors is limited, as most of these facilities are small and in less populated areas of the country. Projected future costs of federal cleanup programs are low for this industry sector, given the high degree of protections in place for wood treatment operations.Mr. Ben Lesser September 22, 2009 Page 6 of 6

Conclusion CERCLA section 108(b) is forward looking in examining the need for financial responsibility requirements. On all key indices, the wood treatment sector is low-risk. Its facilities are subject to comprehe nsive, stringent regulation, its re leases are small and declining, and no facilities have been added to the NPL since the new era of regulations came into effect. On the basis of the statutory language and th e factors the Agency has put forward, the wood treatment sector should not be id entified as a priority class fo r development of CERCLA section 108(b) requirements.
Again, the Treated Wood Council appreci ates the opportunity to submit these comments to the Environmental Protection Agency. We are available to meet and discuss these issues with you at any time. Please contact me if you have any questions.
Respectfully,
Jeffrey T. Miller President & Executive Director