1 1 2 3 PCB REMEDIATION WASTE PUBLIC MEETING 4 Monday, July 18th, 2005 9: 00 a. m. to noon 5 Room 1153, EPA East 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2 1 MS. CLELAND HAMNETT: Good morning, everybody.

2 Just a little volume check. I'm Wendy 3 Cleland Hamnett. I'm the deputy office director in 4 the Office of Pollution Prevention and Toxics and I 5 want to welcome you to EPA's public meeting on PCB 6 remediation waste and related issues under the Toxic 7 Substances Control Act. 8 As you know, as a result of OMB's Thompson 9 Report to Congress the PCB remediation waste 10 regulations have been nominated by USWAG as 11 regulations needing revision. And in addition to 12 assessing the issues that were raised by USWAG, EPA 13 is assessing the PCB remediation waste regulations 14 more broadly to see how they can be improved and 15 there are a number of questions that we'd like to 16 hear your comments on this morning.

17 One is whether the PCB remediation waste 18 regs need to be clarified and, if so, how that 19 should be done, how the regs could be better 20 organized to better clarify the disposal 21 requirements for cleanups under Section 761.61( a)

22 and ( b), whether there are other regulations that 3 1 should be changed to improve the regulations that 2 relate to PCB remediation waste, whether the 3 regulations can be modified or organized in other 4 ways that would make them easier to use and more 5 transparent, whether there are comments on USWAG's 6 interpretation of the disposal requirements in their 7 comments to OMB on Section 761.61( b), and finally,

8 whether there are self implementing cleanups and 9 disposals that need not be subject to EPA review 10 and, if so, your thoughts on what the 11 characteristics of those cleanups or those sites 12 are.

13 We, the EPA folk, are here to listen to 14 you this morning. We won't be commenting on the 15 oral presentations except to provided clarification 16 of the regulatory requirements where appropriate.

17 We welcome and will respond to written questions on 18 regulatory interpretation but we won't be able to 19 provide those kinds of responses orally today.

20 What we hear from you today will be an 21 important component of our effort to compose a 22 response to OMB on the Thompson Report issues and we 4 1 plan to make the official transcript of this meeting 2 available in about a month by posting to the public 3 docket. And then we will respond to OMB this fall,

4 early this fall.

5 I think we all have a common interest and 6 a desire for an efficient and effective regulatory 7 framework to safely manage PCB remediation waste and 8 I look forward to a productive meeting and now I'll 9 turn it over to Maria Doa who's the Director of our 10 National Program Chemicals Division in the Office of 11 Pollution Prevention and Toxics and Maria will take 12 the lead in facilitating our meeting this morning.

13 MS. DOA: Good morning everyone, and thank you 14 so much for coming. We have six people now signed 15 up to talk. I'll go through  I'll tell you the 16 order. Jim Roewer, followed by Larry Liden,

17 followed by Elizabeth Watson, followed by Jonathan 18 Gledhill, followed by Stephen Nadeau followed by 19 Theresa Pugh and if anyone else would like to make a 20 presentation after that we will certainly provide 21 time for that. Please give a copy of your 22 presentation to Ms. Peggy Reynolds in the blue.

5 1 We'd like folks to come up to the podium 2 to make their presentation and I think we have 3 enough time for everyone to have about 15 minutes 4 for the presentation. So shall we start off with 5 Mr. Roewer  I'm sorry, I left out a very important 6 thing. Tony Baney is going to go over very briefly 7 a presentation of the issue.

8 MR. BANEY: Good morning. Your agenda says 9 that John Smith is going to give this presentation 10 but he couldn't be here today, so I'm his understudy 11 and my name is Tony Baney. I'm Chief of the Fibers 12 and Organics Branch and I work for Maria Doa.

13 First I want to start off with the 14 overview of why we're here today. EPA would like 15 public input regarding the nomination for reform of 16 the disposal requirements for less than 50 part per 17 million PCB remediation waste. The Utility Solid 18 Waste Activities Group in response to requests for 19 comments from the Office of Management and Budget 20 has concerns that different sections of the disposal 21 requirements treat less than 50 ppm PCB remediation 22 waste differently. EPA is required to respond to 6 1 OMB by September 30, 2005 regarding the Agency's 2 intention for addressing these concerns. We would 3 like to hear your ideas regarding USWAG's nomination 4 for reform of certain PCB remediation waste disposal 5 requirements. Copies of USWAG's comments and 6 background paper were distributed to you as you 7 entered the room. And they're still back there on 8 the table. We are also interested in getting your 9 input on remediation waste disposal provisions 10 whether the Agency should consider changing the 11 requirements and, if so, how. To that end, we will 12 now briefly describe the regulatory requirements,

13 then provide presenters the opportunity to share 14 their views, and finally, solicit your input 15 concerning the set of questions in the background 16 paper identified as " Issues for EPA and 17 Stakeholders," which I will go over later.

18 Now, PCB remediation waste regulations,

19 just a quick review. The EPA regulations and policy 20 under review include Section 761.61 PCB Remediation 21 Waste, Section 761 Subpart G, PCB Spill Cleanup 22 Policy, Section ( 761.50( b)( 3)( ii)) Applicability of 7 1 the Disposal Requirements for PCB Remediation Waste.

2 In general, PCB remediation waste is waste 3 containing PCBs as a result of a spill, release or 4 other unauthorized disposal.

5 To continue, the regulations at Section 6 761.61 address the management of PCB remediation 7 wastes in three ways. First, self implementing 8 on site cleanup and disposal, Section 761.61 9 paragraph ( a) is limited in application and requires 10 compliance with very prescriptive procedures.

11 Performance based disposal, Section 761.61( b), this 12 is just disposal, no cleanup component is specified 13 under this provision of the regulations. And 14 lastly, the risk based disposal approval at Section 15 761.61, paragraph ( c), provides for alternative 16 sampling, cleanup, storage and disposal options 17 based on risk. 18 Code of Federal Regulations also contain a 19 1987 enforcement policy to encourage speedy cleanup 20 of fresh PCB spills. That's the PCB Spill Cleanup 21 Policy at Section 761 Subpart G. The applicability 22 section at 761.50 specifies disposal requirements for 8 1 PCB waste at as found concentrations, specifically 2 that's paragraph 761.50( b)( 3)( i). The cleanup of PCB 3 remediation waste is also associated with the future 4 use of the site, the use of contaminated equipment 5 structures or other non liquid and liquid materials 6 is required to be in conformance with the use 7 authorization at Section 761.30( u).

8 Now, the issues identified by USWAG.

9 USWAG contends that in two different paragraphs of 10 the PCB regulations at Section 761.61 EPA treats 11 identical PCB remediation waste at concentrations 12 less than 50 ppm differently. Further, USWAG 13 contends that the regulations at Section 761.61 and 14 Section 761.50( b)( 3)( ii) state that all PCB 15 remediation waste containing less than 50 ppm PCBs 16 can be disposed of based on its as found 17 concentration in municipal solid waste landfills.

18 Now, the issues for EPA and stakeholders 19 which I alluded to earlier. First, do the 20 regulations pertaining to PCB remediation waste need 21 to be clarified? Secondly, how should the 22 regulations be organized to better clarify the 9 1 requirements for cleanups and disposal of PCB 2 remediation waste in accordance with Section 761.61 3 paragraph ( a) and the disposal of PCB remediation 4 waste under Section 761.61 paragraph ( b)? Third,

5 are there other regulations other than those 6 discussed above that should be changed to improve 7 the regulations that relate to PCB remediation 8 waste? Fourth, can the regulations be modified or 9 organized in other ways that would make them easier 10 to use and more transparent? Fifth, are there 11 comments on USWAG's interpretation of the disposal 12 requirements under Section 761.61 paragraph ( b)?

13 This refers to Comment I, pages 3 through 6 of the 14 May 20th, 2004 letter to Ms. Lorraine Hunt at OMB.

15 And sixth, and finally, are there self implementing 16 cleanups and disposals that need not be subject to 17 EPA review, if so, what are the characteristics of 18 these sites? That's the end of my presentation.

19 Now back to Marie Doa.

20 MS. DOA: Thank you, Tony. Mr. Roewer.

21 MR. ROEWER: Good morning. My name is Jim 22 Roewer and I'm the Executive Director of the Utility 10 1 Solid Waste Activities Group, or USWAG. We're an 2 association of electric and gas utilities that are 3 dedicated to, among other things, advising our 4 members with respect to EPA's PCB program. We've 5 been working closely with EPA since the inception of 6 the PCB program 25 years ago and I'm very pleased 7 today to have the opportunity to discuss some of our 8 recommendations for clarifying and improving the 9 regulations applicable to PCB remediation waste.

10 As an initial point I'd like to note that 11 we've had a very short time period for interested 12 parties to prepare testimony and comments in 13 response to EPA's notice in the Federal Register.

14 That notice was published just a little over two 15 weeks ago. The Agency, as we just heard, has 16 identified six areas, six issues, or posed six 17 questions to the regulated community. Given the 18 complexity of those questions, the complexity of the 19 PCB regulations in general and the importance of 20 these regulations to the regulated community I would 21 respectfully ask that EPA continue to accept written 22 comments on this notice for another 60 days.

11 1 As EPA is aware, this public meeting is 2 being held at least in part to respond to USWAG's 3 comments to OMB's request for ideas on ways to 4 improve the federal regulations by, among other 5 things, reducing unnecessary costs, increasing 6 effectiveness and enhancing competitiveness. One of 7 our recommendations to OMB for improving the TSCA 8 PCB regulations was a need for EPA to clarify or, if 9 necessary, to amend its regulations to make clear 10 that all PCB remediation waste that contain 11 concentrations of PCBs at less than 50 parts per 12 million can be disposed of in a municipal solid 13 waste landfill. We raised this idea with OMB 14 because we are concerned that EPA has taken the 15 position that only a subset of waste containing PCBs 16 at less than 50 parts per million can actually be 17 managed in this manner, while other wastes that also 18 contain less than 50 parts per million PCBs must be 19 disposed of in a much more expensive TSCA regulated 20 landfill.

21 Regulating identical waste differently 22 makes no sense from an environmental or risk 12 1 perspective and certainly doesn't increase 2 competitiveness, rather it's resulted in only 3 regulated entities, which include federal, state 4 and local governments, spending large sums on tight 5 operating budgets to dispose of waste with extremely 6 low levels of PCBs in TSCA landfills, even though 7 the Agency has already determined that such waste 8 can be safely disposed of in municipal solid waste 9 landfills.

10 It is our position that extending the 11 municipal solid waste landfill disposal option to 12 all categories of less than 50 parts per million 13 PCBs remediation waste will not only be fully 14 protective of human health and the environment but 15 it will actually help promote the cleanup of PCB 16 contaminated sites by allowing for an 17 environmentally sound and cost effective disposal 18 option for all less than 50 parts per million PCB 19 remediation waste generated during the cleanup of 20 any site.

21 In the notice announcing this meeting the 22 Agency stated it does not necessarily believe that 13 1 the exact same PCB remediation waste is treated 2 differently. If we have interpreted the Agency's 3 regulations, and it is in fact EPA's position that 4 all less than 50 part per million PCB remediation 5 waste can be disposed of in municipal solid waste 6 landfills, we would like nothing better than to be 7 corrected on this point. To date, however, EPA has 8 not provided such clarification and we will,

9 therefore, continue to press the Agency to either 10 clarify this point or amend its regulations to allow 11 for this result.

12 A little background on the regulations 13 helps define the problem and the need for 14 clarification or correction. In the 1998 amendments 15 to the PCBs regulations EPA promulgated 40 CFR 16 Section 761.761 dedicated solely to the cleanup and 17 disposal of PCB remediation waste. The opening 18 paragraph of that section states that " any person 19 cleaning up and disposing of PCBs managed under this 20 section shall do so based on the concentration at 21 which the PCBs are found." There are no exceptions 22 or caveats to the statement.

14 1 The new section is comprised of three 2 remediation disposal options for addressing PCB 3 spill sites set forth in subparagraphs ( a), ( b) and 4 ( c). The PCB regulations also contain a spill 5 cleanup policy which sets forth yet another option 6 for cleaning up and disposing of PCB remediation 7 waste. Of these four options only one, subparagraph 8 ( a), explicitly authorizes the disposal of 9 remediation waste containing less than 50 parts per 10 million in a municipal solid waste landfill. This 11 subparagraph is referred to as a self implementing 12 option and requires parties to follow specific 13 notification and certification procedures and allows 14 for PCBs to be left in place above background levels 15 including up to 100 parts per million PCBs in some 16 circumstances.

17 In contrast, if a person remediates a PCB 18 spill under subparagraph ( b)  the so called 19 performance based option  EPA takes the 20 position that all remediation waste generated 21 under this option even that containing less than 50 22 parts per million, must be disposed of in a TSCA 15 1 related facility. Thus the identical PCB 2 remediation waste that can go to a municipal solid 3 waste landfill if generated under the 4 self implementing option must go to a TSCA landfill 5 if generated under the performance based option.

6 Neither common sense nor environmental risk 7 objectives justify this perverse result. This is 8 especially true given the fact that to avoid this 9 regulation the PCB concentration levels at the spill 10 site under the performance based option must be 11 cleaned to less than one part per million while PCB 12 concentrations of 100 parts per million can be left 13 behind under the self implementing option.

14 The same inconsistency arises in cases of 15 disposal requirements for less than 50 parts per 16 million PCB remediation wastes managed under EPA's 17 PCB spill policy. EPA interprets the policy as 18 requiring such waste to be disposed of in a TSCA 19 landfill, when the identical waste if generated 20 under the self implementing option can go to an 21 environmentally protective and much less expensive 22 municipal solid waste landfill. This makes 16 1 absolutely no sense.

2 The chart up there, I apologize, it is a 3 little small, illustrates the situation we're 4 talking about. The first column is the 5 self implementing option. We lay out the notice and 6 characterization requirements in very general terms.

7 We identify the spill cleanup levels at the bottom 8 and, again, this is the bottom line: PCB remediation 9 waste generated under 761.61 ( a) can go to a 10 municipal solid waste landfill if it's less than 50 11 parts per million.

12 The next column is the performance based 13 761.61( b). There's no notice or characterization 14 data provided to the Agency but the cleanup levels 15 must be much lower, as I said earlier, but the waste 16 that contained 50 parts per million, the identical 17 waste generated under ( a) that can go to a municipal 18 solid waste landfill, now has to go to a TSCA 19 landfill. Perhaps we're wrong and we'd like to be 20 told we're wrong by the Agency. This might be the 21 first time we've ever wanted and invited being told 22 we're wrong by the EPA. The third column is the 17 1 requirements of the spill policy. Again, we refer 2 to the spills, requirements to respond to those 3 spills when found, the spill cleanup levels 4 specified here, but we see that the remediation 5 wastes that contain less than 50 parts per 6 million generated under the spill policy have to go 7 to a TSCA landfill. This makes absolutely no sense 8 at all.

9 Our proposed solution is very simple. EPA 10 should clarify that all PCB remediation waste that 11 contains less than 50 parts per million PCBs can be 12 disposed of based on the as found concentration in a 13 municipal solid waste landfill. Further, EPA should 14 clarify that the disposal options under the 15 self implementing option for porous and non porous 16 surfaces should also be available for porous and 17 non porous surfaces generated under any other 18 cleanup option.

19 The bottom line is if EPA's determined 20 that a particular PCB remediation waste can be 21 safely managed in a municipal solid waste landfill 22 when generated under the self implementing cleanup 18 1 option, there's no reason why waste of identical 2 chemical composition generated under different 3 cleanup scenarios cannot be managed in the same 4 manner. Off site disposal options and related costs 5 should depend on the nature of the waste being 6 disposed, not on the cleanup option chosen for 7 remediating a site. Thank you for your attention to 8 this issue. If we need to, we will follow up with a 9 formal request for extension of comment deadline.

10 MS. DOA: Thank you. Next Larry Liden,

11 Constellation Energy.

12 MR. LIDEN: Good morning. My name is Larry 13 Liden. I serve as the chair of USWAG's low volume 14 waste committee. Although my company, Constellation 15 Energy, is a member of USWAG and we echo USWAG's 16 comments, I'm speaking here on behalf of 17 Constellation Energy in my role as senior 18 environmental scientist for the Constellation 19 Generation Group located in Baltimore, Maryland.

20 Constellation Energy, just as a little 21 background, is the nation's leading competitive 22 supplier of electricity to large commercial and 19 1 industrial customers and it's one of the nation's 2 largest wholesale power sellers. Constellation also 3 manages fuels and energy services on behalf of 4 energy intensive industries and utilities. We own 5 or co own a diversified fleet of 35 power plants in 6 a total of eleven states. We market energy 7 throughout North America, and also deliver 8 electricity and natural gas through a regulated 9 utility in central Maryland, the Baltimore Gas &

10 Electric Company.

11 By way of background, at Constellation 12 Energy I deal with many types of PCB containing 13 electric equipment and am actively involved in PCB 14 remediation projects and frequently must make 15 cost effective decisions to manage PCB cleanup and 16 decontamination wastes.

17 For a company like mine that has both 18 residential and non residential customers with 19 electricity rates set by a state public services 20 commission as well as a large commercial and 21 industrial customer base, there are extremely 22 intense pressures to keep all costs associated with 20 1 the generation and distribution of electricity and 2 gas to a minimum. Given this operating environment 3 where all expenses are scrutinized and every dollar 4 matters, especially when you have to go to the Board 5 of Directors for extra money, there are intense 6 pressures. It is very frustrating to be forced to 7 incur costs for the remediation of PCB waste that 8 are neither justified from a health or from an 9 environmental perspective nor are deemed necessary 10 by EPA in an identical context.

11 However, rather than reiterate USWAG's 12 comments presented by Mr. Roewer, which 13 Constellation Energy fully supports, on the 14 inconsistent standards applicable to the disposal 15 of identical PCB remediation waste I would like to 16 address several other problems with the PCB 17 remediation regulations.

18 On a preliminary note, my company is in 19 favor of reorganizing TSCA's PCB regulations to 20 consolidate and add needed clarity to the PCB rules.

21 Simpler is always better. However, one remediation 22 option which should not be changed is the PCB Spill 21 1 Cleanup Policy which as the Agency knows was a 2 result of a consensus position reached after 3 extensive expensive negotiations by regulators,

4 industry and environmental groups that culminated in 5 1987. This policy has been extremely effective for 6 close to 20 years in providing a cost effective and 7 environmentally sound option to remediate PCB spill 8 sites and it is essential that EPA retain all 9 aspects of this policy in the PCB regulations.

10 The first specific item is risk based 11 cleanup options. One issue of concern to our 12 company is that for a variety of reasons certain PCB 13 remediation waste cleanup scenarios cannot be 14 adequately addressed by the PCB Spill Cleanup Policy 15 or by the self implementing or performance based 16 options. Although these types of cleanup scenarios 17 were intended to be addressed through written 18 requests to the EPA under the risk based cleanup 19 option at Section 761.61( c) it has been in our 20 experience and that of others in my industry that 21 EPA is often slow to act on risk based cleanup 22 requests. Often times there are compelling reasons 22 1 to pursue these risk based cleanups in an accelerated 2 manner such as in real estate transactions.

3 Unfortunately, the current system cannot accommodate 4 such scenarios. In order to make this cleanup option 5 a viable and meaningful remediation strategy, we 6 recommend that EPA detail either in the regulations 7 or through guidance memoranda what specifically is 8 required for applicants to receive approval for a 9 risk based cleanup. Such an explanation should 10 provide regulated entities with the site conditions,

11 allowable remaining PCB concentrations and the risks 12 that are acceptable to EPA for this type of spill 13 cleanup. This will provide an opportunity for 14 applicants to understand whether they should 15 consider this cleanup strategy and will limit the 16 Agency's cost in reviewing inadequate and 17 unacceptable applications. It will also help ensure 18 a more prompt response by the Agency to the 19 respondents or the requesters and will provide 20 expanded opportunities for PCB site cleanup where 21 other cleanup options are not practical 22 alternatives.

23 1 Second point is the sampling of PCB 2 remediation waste. One area of the PCB regulations 3 where clarity is needed relates to the sampling 4 requirements for PCB remediation waste. Currently 5 PCB sampling requirements are spread out in various 6 portions of the regulations including subparagraphs 7 761.60 and 761.130 and Subparts N, O, P and R of 8 Section 761. Needless to say there's a few of those 9 floating around.

10 Notwithstanding the number of regulations 11 that detail these sampling requirements, it is often 12 extraordinarily difficult to understand the quantity 13 and locations from which these samples should be 14 taken at the remediation site and how those samples 15 are to be collected especially from porous surfaces.

16 We recommend that EPA clarify the PCB sampling 17 requirements and consolidate the regulations in a 18 single location to rectify this issue.

19 Thirdly, cleanup standards for groundwater 20 and concrete. Another area where clarity and/ or 21 improvement is needed in the PCB provisions relates 22 to the cleanup options for groundwater remediation 24 1 and historic spills onto porous surfaces such as 2 concrete. Turning first to groundwater remediation.

3 The regulations are clear that the self implementing 4 option is not available for these types of 5 cleanups, but they provide no guidance or direction 6 under the other cleanup options for how to remediate 7 these site spills such as when PCB contaminated oil 8 is released directly to surface or groundwater.

9 EPA should define the cleanup requirements 10 and parameters or identify what a risk based 11 groundwater cleanup application should contain to 12 provide a way to appropriately remediate such sites 13 in a timely fashion. The cleanup and decontamination 14 requirements or lack thereof for historic spills 15 onto porous surfaces such as concrete also remains a 16 perplexing problem for Constellation and I believe 17 many others in our regulated community. Although 18 the regulations contain provisions authorizing the 19 continued use of porous surfaces, if certain 20 conditions are complied with under Section 21 761.30( p), this option is not always practical.

22 For example, we are aware of a situation where a 25 1 large concrete basin has been contaminated with 2 residual levels of PCBs from the grout that was 3 historically used in the manufacture of the basin.

4 The grout has been removed and disposed of as a PCB 5 bulk product waste but the residual PCB 6 contamination remains within the concrete basin. 7 Employing the double wash and use of 8 contrasting coats of paint as contemplated under 9 Section 761.30( p) is not quite practical in this 10 scenario. Therefore we urge EPA to continue working 11 with the regulated community to identify a practical 12 and risk based decontamination option for historic 13 PCB spills onto contaminated porous surfaces.

14 I have one other issue which relates to 15 the provision for continued use of porous surfaces 16 just mentioned. This provision authorizes the 17 continued use of these surfaces if regulated 18 entities comply with specific conditions including 19 those described earlier. While we appreciate the 20 availability of this option and utilize this 21 provision for certain porous surfaces, we encourage 22 EPA to extend this provision to nonporous surfaces 26 1 where the concentration limits applicable to 2 remediation cannot be achieved. For example, with 3 the remediation of steel grading or plates or a 4 rusted surface. The rationale that is currently 5 applicable to the continued use of porous surfaces 6 applies identically to the types of non porous 7 materials and is equally protective of the 8 environment.

9 Batch testing requirements. Finally,

10 another area of the PCB regulations related to 11 remediation waste that needs clarification are the 12 rules applicable to batch testing under 40 CFR 13 761.60( g). This is another example where the 14 regulatory text does not provide clear direction to 15 the regulated community including precisely when and 16 how such batch testing operations may occur. I 17 believe it is EPA's intention that batch testing is 18 appropriate in circumstances involving dielectric 19 fluids from different pieces of electrical equipment 20 when they are included in the same assumption 21 category, for example, any dielectric fluids from 22 equipment assumed to be PCB contaminated can be 27 1 batched for purposes of testing and eventual 2 disposal. If this is EPA's intent, then I 3 believe that the regulations can be written more 4 clearly to reflect this point.

5 Further, the batch testing rules lay out 6 two different sets of batch testing procedures.

7 There is one set of procedures for batch testing 8 " mineral oil dielectric fluid" which is an undefined 9 term. There is another separate set of procedures 10 for batch testing " waste oil" which is defined 11 within the regulations, in part, as " used products 12 primarily derived from petroleum" including 13 dielectric fluids. It is unclear why EPA has 14 different batch testing provisions for these two 15 categories of fluids when the second category can be 16 interpreted to include the first.

17 On behalf Constellation Energy, thank you 18 again for the opportunity to participate and present 19 some of our views.

20 MS. DOA: Thank you very much. Elizabeth 21 Watson.

22 MS. WATSON: Good morning. I'm Elizabeth Festa 28 1 Watson. I'm the manager of the PCB Panel, a 2 CHEMSTAR Panel of the American Chemistry Council.

3 The PCB Panel appreciates the opportunity to respond 4 to EPA's request to comment on the PCB remediation 5 waste rules.

6 The PCB Panel has worked with EPA and 7 other stakeholders on PCB regulations since 1980.

8 My comments today are focused on the Utility Solid 9 Waste Activities Group's ( USWAG's) interpretation of 10 the disposal requirements for PCB remediation wastes 11 and only briefly touch upon other issues. The PCB 12 Panel also requests additional time to respond to the 13 other questions raised in the Background Document.

14 These remarks are a summary of written comments 15 submitted to the docket on Friday.

16 The Panel supports USWAG's request that 17 EPA clarify that all remediation waste containing 18 less than 50 parts per million PCBs can be managed 19 in the same manner regardless of the method being 20 used to cleanup the PCBs or when they were disposed 21 of. This would encourage cleanup by eliminating the 22 need to determine when PCBs were disposed of, and 29 1 what their concentration was at the time of 2 disposal. That exercise is increasingly difficult,

3 if not impossible, at sites where PCBs were used 4 more than 25 years ago before Section 6( e) of TSCA 5 took effect. The requested clarification also would 6 encourage cleanups by reducing the cost of disposing 7 of wastes that EPA has determined do not present an 8 unreasonable risk. 9 The requested clarification would fully 10 implement the intent that EPA expressed when it 11 revised the disposal rules in 1978. At that time 12 EPA announced that the revised regulations would 13 allow certain wastes to be disposed of at their 14 current concentrations, as opposed to the 15 concentrations of the original materials, noting 16 that EPA was expanding ( quote) " the options for 17 off site disposal; for example, PCB remediation 18 waste containing less than 50 parts per million PCBs 19 may be sent off site for disposal in State approved 20 land disposal facilities for the management of solid 21 waste, landfills permitted by EPA under Section 3004 22 under RCRA, or by a State authorized under Section 30 1 3006 of RCRA; or disposal facilities approved 2 under 40 CFR part 761." ( end of quote) EPA adopted 3 this approach in order to encourage cleanups at sites 4 contaminated with PCBs.

5 There's no risk based reason for EPA to 6 interpret Section 761.61 in a manner that limits 7 the available alternatives for disposing of 8 materials that is currently less than 50 parts per 9 million PCBs based on either the source of the PCBs 10 or the nature of the cleanup that generated the waste.

11 For example, soil containing less than 50 parts per 12 million PCBs that is disposed of at a municipal or 13 industrial landfill poses the same level of risk 14 regardless of the concentration of the PCBs when 15 they were spilled onto the soil or whether the 16 cleanup followed the requirements of 761.61( a), 17 for self implementing remediation.

18 Any concern that an across the board 19 approach to PCB remediation wastes will prompt 20 entities to intentionally release PCBs into the 21 environment in order to dilute their concentration 22 so that they can be disposed of in municipal 31 1 landfills is unwarranted. Such an act would violate 2 multiple provisions of the regulations including 3 Section 761.20( c)( 1) and 761.50( a) which authorize 4 disposal in accordance with the rules, and Section 5 761.1( b)( 5) which explicitly prohibits dilution of 6 PCBs to avoid regulatory obligations. Such 7 violations can lead to severe enforcement 8 consequences including imprisonment. Those who are 9 not deterred by the threat of civil and criminal 10 enforcement actions for improper disposal and 11 dilution will not be deterred by restrictions on 12 disposal options.

13 Moving beyond USWAG's request, other 14 aspects of the PCB rules unnecessarily impede 15 cleanups and redevelopment of brownfields sites.

16 For example, TSCA explicitly prohibits most uses of 17 PCBs except to the extent authorized by EPA.

18 Pursuant to that authority, EPA has promulgated 19 extensive PCB use authorizations in Section 761.30 20 that, for the most part encompass actual uses of PCBs 21 such as transformers using PCB containing dielectric 22 fluid. However, the background document 32 1 accompanying the June 30th, 2005 Federal Register 2 notice equates the use of property contaminated by 3 spills of PCBs with the use of PCBs. Using a 4 building that is contaminated with PCBs is no more a 5 use of PCBs than using a wet floor is use of the 6 water.

7 EPA's interpretation of the word disposal 8 has similar adverse effects. As defined in Section 9 761.3 " disposal means intentionally or accidentally 10 to discard, throw away, or otherwise complete or 11 terminate the useful life of PCBs and PCBs items.

12 Disposal includes spills, leaks and other 13 uncontrolled discharges of PCBs as well as actions 14 relating to containing, transporting, destroying,

15 degrading, decontaminating or confining PCBs."

16 Under this definition only activities that 17 " complete or terminate the useful life of PCBs"

18 qualify as " disposal." Recently, however, two EPA 19 Regions have asserted that the post 1978 migration 20 of PCBs that were spilled or otherwise released into 21 the environment before 1978 constitutes " illegal 22 disposal." The Regions have taken that position even 33 1 though the rules presume that sites that contained 2 such contamination do not present an unreasonable 3 risk, and require the regional administrator to find 4 that migration or other circumstances give rise to 5 an unreasonable risk. The Region's interpretation 6 is inconsistent with the rule, the preamble and the 7 definition of disposal. It also subjects every 8 owner of property that has pre 1978 PCB contamination 9 to potential enforcement actions for " illegal 10 disposal." These interpretations of " use" and 11 " disposal" will subject thousands of property 12 owners and their tenants to potential enforcement 13 actions. As such, these interpretations will impede 14 redevelopment of brownfields properties. Neither 15 interpretation is necessary given EPA's extensive 16 risk based cleanup authority under CERCLA and 17 numerous state cleanup programs.

18 The PCB Panel thanks the EPA for the 19 opportunity to provide comments on these important 20 issues and requests additional time to submit 21 supplemental comments to the EPA on the other issues 22 raised in the background document and looks forward 34 1 to working with EPA on these issues. Thank you.

2 MS. DOA: Thank you very much. Jonathan 3 Gledhill, Policy Navigation Group.

4 MR. GLEDHILL: Thank you, the EPA, for the 5 opportunity to speak. Policy Navigation doesn't 6 represent anyone on this matter. This is purely a 7 historical interest having served at the time when 8 these rules were being  these options were first 9 being formulated. It's rare to get a chance, almost 10 15 years later, to come back and try to promote good 11 policy and good public policy analysis.

12 Finally, it's very gratifying for me at 13 OLYRA to see Lorraine Hunt's name being linked to 14 this. Lorraine is a long standing secretary for our 15 branch that was back there and she's worked for 16 many, many years to keep OLYRA functioning. Whether 17 it's really an honor to have your name associated 18 with PCB remediation waste is probably something 19 Lorraine's not to desire.

20 I wanted to mostly touch on three things.

21 Number one, what was striking in EPA's notice was 22 how it fails to ask the crucial public policy 35 1 question. Do the benefits of any reform justify the 2 costs. This is a rare chance to go back and look at 3 the performance of a program that was designed to 4 produce reform now 10, 15 years after 5 implementation. The way I would look at that 6 question is that the petitioners basically talk 7 about two situations. One, about the PCB 8 remediation waste disposal method. And, second,

9 about whether PCB material can be left in place and 10 what are the risks about that. Why is this 11 important? The reason this is important is that 12 these reforms or the answers to these questions 13 could easily save society over a hundred million 14 dollars a year. And, finally, my recommendation is 15 EPA should perform an economic analysis to evaluate 16 the options and choose the ones that maximize social 17 benefits.

18 Going to the first point, the major public 19 policy question. Would reforms improve social 20 welfare? Why should EPA consider this question?

21 Number one, it's required under executive order 22 12866 and related ones and especially it's a 36 1 statutory basis of policy. Unfortunately, this 2 question wasn't included in EPA's notice. It's 3 important because if you look back at the 1998 rule 4 the 55 percent of the 146 million benefit dollars in 5 annual benefits that EPA claimed were from this 6 provision of remediation waste reform. So clearly 7 this was an important part of the rule and still is 8 important today.

9 So what I'd like to do is suggest a 10 framework to talk about the two issues raised by 11 petitioners. There were two issues raised by 12 petitioners and I have a toddler at home, so I think 13 of things as ( a) and ( b) not 761. Petitioners 14 suggest that the remediation waste with the same 15 concentration must be managed differently in ( a)

16 versus ( b). So the question is did the risks 17 justify this extra cost to management.

18 Secondly, the petitioners suggest that 19 waste  different waste with different 20 concentration that you left in place in ( a) than 21 they can be in ( b). So, again, the question is do 22 the risks justify this different treatment?

37 1 Let's turn to the waste disposal issue 2 which is always near and dear to my heart from my 3 background. The current regulations mirror the 4 flaws in the current hazardous waste regulations 5 system in this country, basically regulate material 6 based on its history not its hazard. If you want to 7 make a showing that you should treat these things 8 differently you need to show that there's some 9 physical difference between the waste in ( a) than in 10 ( b) that would affect their risk to human health in 11 the environment, i. e., for example, are they in 12 physical forms that affect landfill stability, that 13 affect their dilution attenuation in the unsaturated 14 zones or their bio availability once they reach a 15 potential receptor.

16 So first of all you would have to 17 categorize these differences, if there are any.

18 Certainly from what we've heard this morning 19 petitioners at least suggest there aren't physical 20 differences. But if there are differences, what are 21 the social costs or the value of that incremental 22 risk of removing all remediation waste below 50 38 1 parts per million to a municipal solid waste 2 landfill and this is particularly interesting 3 because at the time these options were formed we 4 were just developing, it was just promulgating, the 5 municipal solid waste landfill design criteria so it 6 was an interesting new option. Again, now we have 7 10 years of experience with these landfills and know 8 a lot more about their performance.

9 And the third value we have is we have the 10 experience not so much maybe in the TSCA program but 11 certainly in the RCRA program that this type 12 modeling, this type of answering the risk question,

13 what's the risk of putting something in this solid 14 waste landfill versus a Subtitle C TSCA type 15 landfill. EPA models this all the time, in either 16 regulatory decisions on listing or as more likely in 17 the listing petitions. So EPA and the TSCA program 18 have the models and data available to answer this 19 analytic question. And we can compare the model 20 incremental risks shifting from Subtitle C to 21 municipal solid waste to the cost because as 22 commoners the marketplace tells us what the costs 39 1 difference are for those two types of waste disposal 2 systems.

3 So let me give an illustrative example.

4 Suppose we take the same volume of PCB remediation 5 waste and put it in a Subtitle C landfill and a 6 municipal solid waste landfill. I'm going to say 7 the volume's the same, call the volume X, it turns 8 out that most ground water models, EPA models 9 especially, violate the law of conservation and mass 10 so there really is no need to worry about volume or 11 mass. Assume PCBs leach out of these landfills and 12 reach a drinking water immediately, instantaneously,

13 once the respective post closure care periods are 14 over and in case you don't happen to remember right 15 off the top of your head what the respective 16 post closure care periods are for municipal solid 17 waste in a Subtitle C landfill, let me remind you 18 that municipal solid waste landfill it's 20 years 19 and for Subtitle C landfill it's usually 30 years.

20 So right after the landfill is closed you 21 have 20 years of close closure monitoring and then 22 you reach a receptor. So at that receptor let's 40 1 first assume that there actually is some. You 2 remember, probably don't, but if you would remember 3 the municipal solid waste landfill criteria found 4 that there actually are relatively few receptors 5 down gradiant of municipal solid waste landfills 6 that actually cause an exposure. Let's assume that 7 the concentration that reaches that person is 50 8 parts per million divided by 20. Why 20? Because 9 that's EPA's conservative assumption when it assumes 10 leaching and this can be found all over the EPA's 11 models.

12 Let's use OMB's recommended value of a 13 statistical life, let's assume unfortunately that 14 there is a fatality in this hypothetical situation 15 and let's use a seven percent discount rate to 16 discount that forward to say what is the value of 17 avoiding the incremental risk today and let's use 18 the cancer slope factor from EPA's 1997 risk 19 analysis on PCBs.

20 When you look at that, you look at that 21 situation which is very typical how EPA would model 22 this if it was under a RCRA situation, the real 41 1 difference is that 10 year period difference between 2 the expected when you're going to reach the 3 receptor. Basically in the one scenario you reach a 4 receptor 50 years out versus another situation you 5 reach a receptor 60 years out when you add up the 6 years.

7 What's the expected value today? The 8 expected value of avoiding that risk, i. e. what 9 society would want to pay today to avoid that risk 10 50, 60 years out is eight thousand dollars for 11 municipal. It's four thousand dollars for Subtitle 12 C. I. e., the incremental difference of moving the 13 incremental value to society for putting something 14 in a more stringent landfill is only four thousand 15 dollars.

16 Using today's value of disposal, that's 17 about 27 to 40 barrels of waste. Now we know we 18 dispose of hundreds more barrels of that typically 19 in a given year. If EPA extended this analysis,

20 again relaxed some these assumptions, actually they 21 would tend to be  would drive the risk values

22 the expected risk values down because PCBs aren't 42 1 very mobile. We don't typically find receptors and 2 even if you assumed a receptor you'd have to make 3 some adjustments there as EPA typically does in all 4 these analyses.

5 So even from this illustrative example it 6 appears that shifting PCB remediation waste to 7 municipal solid waste landfills is cost effective 8 for society. But, again, it is an illustrative 9 example. This just drives home the point that the 10 EPA should ask the question and perform a national 11 analysis given that it has the models and data 12 available.

13 Let me turn to the second issue, talk 14 briefly about that, about concentrations left in 15 place. Petitioners point out the differences in 16 concentration typically around where you place ( a)

17 versus ( b). So the question is why is 100 parts per 18 million safe in some areas and not others. If you 19 look at what is typically allowed or what types of 20 cleanups happen under the self implementing option 21 ( a) you're talking about schools. You're talking 22 about lots of places that have PCB materials in 43 1 place. There's real risks there, not hypothetical 2 risks.

3 It is interesting as I think Elizabeth 4 point out in her last comments that EPA suggests 5 that any relaxation of this would call into question 6 whether the property could be transferred under 7 other parts of the PCB regulations. That's 8 interesting because that seems to be at odds with 9 other key EPA policies, i. e. Brownfields, and 10 especially, for example, the Navy, the legal 11 decision that the EPA gave the Navy allowing BRAC 12 transfers when lots of PCB materials are left in 13 place on property. One would imagine our BRAC 14 process for the Navy and many other armed services 15 couldn't exist if EPA's prohibition on property 16 transfers existed. Fortunately it doesn't.

17 But instead of these regulatory 18 restrictions, again, what can analysis tell us.

19 First of all, I really recommended the Agency 20 approach it as a risk issue not as a process issue.

21 That these self implementing options seem to be take 22 places in cases in " and" or " a," where cases there 44 1 are real exposures, not hypothetical exposures to 2 ground water sediment.

3 And I'd also point out again since we have 4 the benefit of time we look back at these 5 self implementing option and it is by current 6 standards quite crude. It has a high exposure 7 option and a low exposure option. Well, that was 8 maybe all we knew or all we were comfortable with 9 back in the early 1990s when corrective action was 10 tight and we thought we were actually doing a lot of 11 cleanups but we've come a long way in risk 12 assessment since then and I recommend EPA should 13 consider self implementing options for soil, ground 14 water settlement and other remediation waste that 15 could provide the middle ground between ( a) and a 16 complete freeform in ( b). Many states in EPA 17 regions use detailed look up tables and calculations 18 to set self implementing cleanup levels for soil,

19 ground water and sediment for a whole host of other 20 contaminants, pretty much almost every other 21 contaminant except for PCBs because of the special 22 regulatory system that's set up for PCBs. It would 45 1 seem that we could learn a lot from the experience 2 of our fellow regulators as they've struggled to 3 accelerate cleanups to use the risk based cleanup 4 approaches adopted for others as we're looking at 5 what to do here.

6 So again, in conclusion, number one, I 7 think EPA should ask the right questions so that 8 society benefits from the reform action, that OMB 9 should continue to direct EPA to provide the public 10 with information on social benefits and cost of 11 various perform options under this approach and EPA 12 should take advantage of the experience and the 13 regulated community and states to use real data in 14 its analysis. Thank you very much.

15 MS. DOA: Thank you, Mr. Gledhill. Next 16 Steven Nadeau, Sediment Management Work Group.

17 MR. NADEAU: Good morning, my name is Steven C.

18 Nadeau and I am the Coordinating Director of the 19 Sediment Management Work Group. And correspondingly,

20 my focus today is going to be on the impact of these 21 rules on contaminated sediment.

22 As I mentioned, our focus is going to be 46 1 on contaminated sediments and in this situation this 2 is a very, very important issue. Quite frankly, I 3 don't think I've ever seen an issue quite like this 4 in the sense that really all the stars align in one 5 direction. Typically with the environmental 6 regulations you're balancing risk and you'll find 7 that this remedy may be very close on protectiveness 8 but maybe not quite as much or the other way around,

9 but in this case if you really look at the 10 consequences of what we're dealing with and look at 11 all the regulations there seems to be only one right 12 answer and the good news is that the tools are 13 available in our existing regs as long as we can 14 clarify them and apply them in a sound science,

15 practical manner.

16 When I say the stars are in alignment what 17 I mean by that is there's really no justification 18 for the more restrictive view or more restrictive 19 interpretation that we've heard applied to 20 contaminated sediment sites. The tension or tug of 21 war here is between whether you sample contaminated 22 sediments  take the data that have when the 47 1 sediments are in the water, in the water body 2 themselves, or whether you use the data that you 3 have to sample for characterization for disposal at 4 the end of the process when the sediments are out in 5 the staging area ready to go off to the landfill.

6 Very simple question, but with huge consequences.

7 When you compare the two options, what you 8 see is the scale tips dramatically in favor of the 9 latter, that is, sampling after the sediments have 10 been removed and that's because there's more 11 accuracy in your results. You're more protective 12 because you're more accurate, you're actually going 13 to know what's going to the landfill based on what 14 is going out the door. And it's also significantly 15 more cost effective because of the way you have to 16 process sediments. The regulations are in place 17 that will allow this with some clarification but, if 18 not, then clearly some amendment or guidance should 19 be issued.

20 So the primary issue is whether the 21 language of 40 CFR 761.61, particularly the 22 reference to two simple words " as found," precludes 48 1 the existing environmentally sound procedure of 2 using the post dredging samples to govern. Two 3 things, number one, is this PCB remediation waste 4 because it may not be and, two, to govern the 5 appropriate disposal facility, whether it goes to a 6 municipal solid waste facility or a TSCA facility. 7 As a threshold matter then we first need 8 to determine whether this is PCB remediation waste 9 and in this situation it's really not in the case of 10 sediments determined to be PCB sediment waste until 11 it's dredged, based on the language in the 12 regulations that indicates that refers to in 761.3,

13 settled sediment finds an aqueos decantate from 14 sediment.

15 Sediments in essence do not become dredged 16 material or produce those sediment fines until 17 they're out of the water body and that's an 18 important distinction. Therefore, the definition 19 itself as a threshold matter means that the dredged 20 sediments become potentially PCB remedial waste only 21 after that material's been removed. So the 22 appropriate time to find out whether you're dealing 49 1 with that waste or not is in those waste disposal 2 piles.

3 The other important point is how the rules 4 already addressed phased PCB materials and the TSCA 5 regulations as written expressly recognized the need 6 to handle multi phasic materials and it specifically 7 authorized sampling for disposal of the separate 8 phases.

9 Now, when you're dealing with contaminated 10 sediment there's very little sophisticated 11 technology in the context of dredging, and I should 12 have noted it at the outset the Sediment Management 13 Work Group has been very active in national policy 14 issues on sediment remediation and there are of 15 course three options with respect to sediment 16 remediation. Today we're focussed on dredging 17 because that's the issue at hand.

18 When we're dealing with dredging as the 19 remediation option for sediments, however, basically 20 there's only a couple ways to get that water out,

21 using a clam bucket where there's still going to be 22 a pile of water in with the sediment, the PCB 50 1 material, or do hydraulic dredging when you're lucky 2 to get five to eight percent solid materials. So no 3 matter what you do you have a lot of water and you 4 have to eliminate it. This has been going on from 5 the very first dredging project, we've got fancier 6 equipment, but you have to separate out the phases.

7 So under the rules as they're written we can rely on 8 the phased approach which expressly provides that 9 after separation of the phases that's when you 10 should check each phase, solid phase and the liquid 11 phase, and that's what's been going on in the real 12 word for several years on dredging projects. And 13 that's expressly authorized in the 40 CFR 14 761.1( b)( 4)( iii).

15 In fact, EPA guidance points us in the 16 right direction, in the Q& A document on page 76, and 17 I quote, " separate the multi phasic waste and sample 18 each phase separately. You may either dispose of 19 each phase separately based on the as found 20 concentration in that phase or you can actually do 21 all phases with the sample results." But the key 22 here is the words " as found" are applied to after 51 1 the phases are separated which is exactly what 2 happens when you dredge and you de water. So once 3 again, the tools and the regulations are really all 4 there before us. It's a matter of a sound 5 interpretation.

6 Sediments in the aquatic environment can 7 be dynamic. There's some real implications that are 8 far different than when we're dealing with soils.

9 When you're dealing with soils they stay in place,

10 you're not chasing them around, you can see what 11 you're dealing with, you can see side walls, you can 12 see the bottom. When you're dealing with sediments 13 and you're dealing under water, you don't get them 14 all. They move around. You put silt curtains up 15 but there's absolutely no guarantee that if you had 16 a 55 or an 83 or a 590 in that water body that's 17 going to be in your sediment pile when it's going 18 out the door to the landfill.

19 So we also see changes over time and the 20 important thing here is we're about protectiveness 21 and sound science. We want to know what we're 22 getting and sending to the landfill. We're going to 52 1 sample that. We don't know whether the 500 or the 2 83 is even in our pile. We do know that we have a 3 precise measurement just like we do on land and soil 4 if we measure that pile. And once again, I think 5 the tools are existing right in the regulations.

6 There's some concern I suppose with the 7 policy of the anti dilution rule. But we're far 8 a field from the anti dilution situation here. This 9 isn't some sinister plot to add soil, mix it around 10 and get a lower number and save some money. In 11 fact, when you look at the anti dilution rule and how 12 the regulations were originally designed we saw some 13 real good common sense thinking because the choice 14 could have been even more difficult. In other 15 words, if you were required because the PCB 16 transformer had 100,000 parts per million when it 17 was working and it didn't leak, and your soil had 18 55, the regulations say you look at what the soil 19 has. We're not going to make you pretend that it's 20 really still a hundred thousand parts per million.

21 In this situation if you apply that same spirit and 22 philosophy and good common sense and sound science 53 1 you should be disposing with what you're really 2 dealing with, not the theory of what was out there 3 in an unspecified first step. It may have been 4 there, but you may not even have it in your pile.

5 We want to deal with the realities of the waste we 6 have to address in our post dredging dewatered 7 result. This is a tried and true method of 8 separation and dewatering and what we want to do is 9 make sure we comply with other policies. Certainly 10 not a method to cheat the system, to save money, the 11 reality is when you dredge the material it comes 12 completely mixed in the process of removing it and 13 pulling it out of the water.

14 In a typical project, you can look at,

15 say, Manistique Harbor which was conducted by the 16 EPA, five year project, 48 million dollars, and the 17 EPA in the project championed the idea of 18 hydrocycloning. So the water was hydraulically 19 drawn out with the sediment. 95 percent or so was 20 water, went through filter presses to try to get 21 some of the water, then through hydrocycloning to 22 separate out the solids into phases. EPA, running 54 1 the program, sampled those waste piles after the 2 fact and used that data to dispose of all that 3 sediment, 187,000 cubic yards were determined exactly 4 the way we believe the regulations are intended.

5 The other point is these sediment sites 6 even more so than land remedies are under the 7 watchful eye of EPA and the state agencies. These 8 are not going to back and dig a few scoops out.

9 These are  the smallest sediment site can be as 10 big as your largest land nightmare. So we're always 11 dealing with work plans and designs. EPA always is 12 fully aware and has fully approved of types of 13 programs we're working on.

14 In terms of other policies, this approach 15 of using either ex situ sampling to determine 16 whether it's remediation waste or not, under 50 or 17 not, whether it goes to a TSCA or non TSCA landfill,

18 is in compliance and consistent with other policies.

19 First of all, right in the TSCA policy in 761.1( a)

20 the phasic waste approach. Secondly, we know we 21 can't put liquids in landfills because of RCRA.

22 Third, we typically end up reducing the volume of 55 1 material requiring TSCA disposal just by the virtue 2 of how their material is consolidated in the process 3 of removing and dewatering. And we know that TSCA 4 landfills space is scarce as it is right now, so we 5 don't want to use up a lot of TSCA landfill space 6 with material that's really not TSCA material based 7 on actual sample results.

8 Lastly, we have CERCLA's 121 policy 9 favoring treatment. Right now the treatments are 10 not necessarily that sophisticated. We definitely 11 have to dewater but we want to encourage future 12 innovative approaches that may even have 13 opportunities to decrease the toxicity. Certainly 14 we're decreasing the volume by consolidating. We 15 want to foster that policy, not provide a 16 disincentive.

17 Substantial precedent already exists in 18 the field for using the post dredging,

19 post dewatered pile that's staged for disposal and 20 we did a quick check and came up with about six or 21 seven, five or six, just who I happened to catch on 22 a Thursday or Friday afternoon. I'm sure there's 56 1 dozens of others. I mentioned Manistique Harbor.

2 That was a EPA designed and implemented project from 3 start to finish and there are several others that 4 will be included in our comments on Exhibit B.

5 A couple of examples, Manistique Harbor is 6 one in Michigan, Cumberland Bay, New York was 7 implemented by the New York DEC in 1999 and 2000.

8 The Fox River there was a Deposit " N" pilot, one of 9 the first pilots, and Wisconsin DNR used the same 10 post dredging sampling timeframe approach. The 11 Shiawassee River in Wisconsin was also another 12 example. The New Bedford Harbor project has a small 13 segment where this has been authorized in the 14 desanding operation so you can separate out the sand 15 fraction and then sample in the pile to determine if 16 that's okay. And the St. Lawrence River Reynolds 17 Metal project in 2001.

18 The other important factor here is public 19 policy and the whole concept of cost beneficial 20 regulation. In this situation I think there's a 21 clear picture developing. We have a choice. We can 22 choose between relying on the in situ data which is 57 1 highly unlikely to be consistent with what's in the 2 pile. We know that time and time again from project 3 after project. We know that that's going to result 4 in significantly greater disposal costs. On a large 5 scale dredging project it could add 50 to a hundred 6 million dollars on a large scale project. You apply 7 that to medium and small projects across the country 8 and you're talking about an incredible change in the 9 cost component. This will be disruptive. This will 10 cause all kinds of heartburn. And it's not a 11 situation where we're getting any incremental 12 environmental benefit. We could be more protective 13 and cost effective at the same time and that's 14 really what our mandate is from Congress under the 15 regulations. So that's why it's here and we urge 16 consideration of that.

17 Couple final points. We believe that the 18 practice of allowing impacted dredge sediments like 19 their sisters on lands, the soils, containing less 20 than 50 parts per million should continue to be 21 considered non TSCA remediation waste and disposable 22 in municipal solid waste landfills. And we are 58 1 mostly dealing with water and sediment, we do 2 support the USWAG comment that relates to this issue 3 as it addresses soils and we strongly believe and 4 concur that sound science and policy dictate that 5 the characterization of the material should be what 6 governs the appropriate disposal, not whether you're 7 under sub( a) or sub( b). We want to apply it as it 8 really exists in the field.

9 So in conclusion, the Sediment Management 10 Work Group believes that TSCA regulations in 11 numerous places  I forgot one, the subsection 12 under TSCA that allows for a risk based approach, if 13 all else fails and if one is hung up on the as found 14 terminology, you have this fallback which is let's 15 take a step back, let's see if this is an 16 unreasonable risk and, if not, we have the 17 flexibility in our own program to make adjustments 18 and to bless this as a scientifically preferable 19 approach. That's an important point as well.

20 Underscoring the fact that we have the tools, we 21 have the words, we have to make sure that we clarify 22 that it's the ex situ location after dewatering 59 1 where the sampling should occur. Then we'll have a 2 protective, sound science and cost effective 3 approach.

4 So the Sediment Management Work Group 5 urges EPA to either clarify these existing 6 regulations in a way that parties dealing with 7 sediment and dredged sediment can deal with them as 8 they do now after the material's out of the water 9 and dewatered or if there's still a problematic 10 concern that an express guidance or clarification, a 11 change in the regulation, be made consistent with 12 that policy. Thank you.

13 MS. DOA: Thank you very much. Theresa Pugh,

14 American Public Power Association.

15 MS. PUGH: Thank you very much. Good morning.

16 My name is Theresa Pugh. I'm the director of 17 environmental services at American Public Power 18 Association, APPA. We're the trade association for 19 the 2000 state and municipal utilities, very much 20 like our colleagues sitting down here from USWAG,

21 except we're  the utilities are run by state and 22 local government. So everything that I say is 60 1 relevant to the issue of SBREFA.

2 Public power is the term for a 2000 state 3 municipal utilities owned by their local 4 governments. We service about 40 million people 5 across the U. S. in 49 states, all but Hawaii, and 6 these utilities are typically, most typically, have 7 less than 50 employees. That's another factor I'd 8 like you to consider, both for SBREFA because the 9 vast majority of our utility members both meet the 10 definitions of SBREFA but they have less than 50 11 municipal utility employees. There are exceptions 12 to that. But this is significant when you're trying 13 to deal with waste definition, and so many of the 14 commenters talked about some of the inconsistencies 15 in the definitions and how clarification would be 16 very helpful and that's especially true for state 17 and local government.

18 75 percent of our members are located in 19 communities with populations of 10,000 people or 20 less and those are the people who pay their electric 21 bills and that's how we pay for all capital and 22 operating expenses. Because of the diverse nature 61 1 of public power we are extremely interested in EPA's 2 effort here to look at this issue and highly 3 recommend the comments offered earlier this morning 4 by Jim Roewer, director of USWAG, and by Larry 5 Linden of Constellation. In fact, I haven't heard 6 anything yet this morning that I disagreed with from 7 the prior speakers. I don't know Mr. Gledhill ( who 8 spoke earlier) but I particularly appreciated the 9 comments that he offered and thought that some of 10 them were particularly sage because he addressed both 11 the risk issues and the economic issues and because 12 of his prior position as OMB.

13 I think what I'd like to do is to directly 14 go to the main points without reiterating all the 15 things that USWAG said so well. We endorse the USWAG 16 comments and think that they make a lot of sense.

17 We'd like it if you give some opportunity for 18 additional comment over the next month or so, 60 19 days would be really helpful.

20 One reason that APPA is really interested 21 in this is because these costs, these expenses, if 22 they were saved from our local and state government 62 1 entities would have a direct bottom line on the 2 taxpayer and it's not always you can say that, but 3 this is a case where you can because a number of our 4 utilities sent me notes and gave examples of what 5 the costs are doing it under the TSCA approach versus 6 going through the local municipal landfill and the 7 cost differences are pretty enormous. And, again,

8 I'd like to endorse what Larry said and what

9 certainly what Jim Roewer said, but let me give you 10 a couple real world examples that might be helpful.

11 I asked some of our members, what is the 12 most typical PCB problem now. Because to be honest 13 some of our members are moving away from PCBs,

14 they're using soy based products, trying to get away 15 from PCBs because that's what the local community 16 expects of them, but we can't get away from PCBs 17 everywhere. We still use them. They're still 18 necessary. But where possible we have seen the 19 moving away from PCB in a number of our large 20 utilities. A couple examples as small as Waverly,

21 Iowa, I think EPA is aware of because EPA has 22 endorsed some of the things that have been done in 63 1 Waverly, all the way up to utilities as large as 2 Sacramento Municipal Utility District in Sacramento,

3 California. 4 But expecting a total elimination of PCB 5 is really not the world in which all state and 6 municipal utilities operate in. A number of them 7 have PCB remediation, frankly, when somebody drives 8 into a utility pole in a car accident then the 9 utility must take steps to remediate that soil.

10 That is the most typical example of what a APPA 11 member has got to deal with. It's usually not a 12 on facility spill typically, it's a spill in the 13 community where somebody drives into a streetlight.

14 The car accident is the most typical cause that we 15 got back from our members when we asked them what's 16 the most typical reason you're having to do PCB 17 remediation now.

18 One of the things that we asked them were 19 some costs because we thought that might be helpful 20 to you all. And here's a couple of examples I got.

21 One of the members in the Southwest wrote me last 22 week that the difference in making the determination 64 1 on a TSCA permitted landfill remediation and a 2 municipal, which obviously since we're state and 3 local government we want to do the right thing like 4 everybody else, but we're also trying to keep our 5 costs down. The cost difference is enormous. The 6 TSCA permitted landfill is approximately $ 140 a ton,

7 but if we went to the state and local government or 8 municipal government which we're a part of landfill,

9 usually down the road, it's eight dollars a ton.

10 This represents an enormous cost difference to the 11 taxpayer. And I think the other speakers addressed 12 it far better than I ever could. The risk situation 13 is really not sufficient to drive these costs in most 14 cases.

15 I'd like to also add to the fact that this 16 doesn't consider the fact that our guys typically 17 don't have a full load for transporting the capacitor 18 or few hundred pounds of soil. So they're paying 19 the TSCA permitted transportation company and the 20 landfill company a full load cost when really they 21 may only have one barrel or even a half of a truck 22 load. This transportation cost issue is something 65 1 that I don't think the call for comments actually 2 address. There are a lot of incidental costs that 3 the program  what my members describe as the law 4 of unintended consequences. Our folks are having to 5 pay for a full load to get TSCA landfill companies 6 or their transporters to come out and pick up and 7 haul the waste, but we don't have a full load, we 8 may only have a couple hundred pounds in some 9 cases or a half ton but not a full truckload, which 10 is typically 1 ton to 2,000 pounds. And this is 11 something that our members have asked that 12 clarification here would be particularly helpful 13 since their most common soil remediation is a few 14 hundred pounds not even a full truck load.

15 One member recorded that the costs of 16 disposing the soil in the TSCA landfill where 17 there's a long distance of traveling involved is 18 about $ 1250 a ton. I had another member that 19 offered it was about $ 2200 a ton. So there's some 20 pretty wide variation in costs here. When I asked 21 why, it was really how close they were to the TSCA 22 permitted landfill. And even though we're all over 66 1 the country in 49 states except for Hawaii it looked 2 like a great number of our members were somewhere 3 between 600 and 900 miles away. And I have to tell 4 you that was a rough estimate. And that's not 5 necessarily our commercial transport carrier lines 6 and that sort of thing. But 600 to 800 miles away 7 is a pretty far stretch for a lot our members in 8 paying those transportation costs.

9 So really without reiterating all the 10 things that USWAG's Jim Roewer said so well and so 11 did all the other prior speakers, I'd just like to 12 encourage you to take a very pragmatic view. We're 13 state and local government, just like the industrial 14 folks and the investor utilities. We're trying to do 15 the right thing, but it sure would be helpful if we 16 could actually do something that's safe for the 17 environment and also save the taxpayers money.

18 Thank you all very much.

19 MS. DOA: Thank you very much. We have a 20 little bit more time. Is there anyone else who 21 would like to make comments who didn't sign up?

22 MR. CHOUDHURY: Good morning. My name is Raj 67 1 Choudhury and I am a manager in the Washington office 2 of General Motors Corporation. I would like to 3 voice our support for the preceding comments of the 4 American Chemistry Council's PCB Panel and USWAG 5 regarding the call for harmonization of less than 50 6 ppm PCB remediation wastes based on their as found 7 concentrations  namely, that all such waste may 8 safely be disposed of within municipal solid waste 9 landfills.

10 We believe that such harmonization is 11 justified from an environmental risk perspective,

12 which clearly should  from a public health and 13 safety perspective  be the determining factor for 14 disposal requirements.

15 By clarifying that PCB remediation waste 16 found at the less than 50 ppm level can be disposed 17 of in municipal solid waste landfills, EPA will free 18 up more limited TSCA regulated landfill space 19 which could then be better used for relatively higher 20 risk requisite disposals. This logic makes sense 21 to us from: environmental protection; cost;

22 efficiency; and social welfare perspectives.

68 1 Thank you.

2 MS. DOA: Thank you very much.

3 MR. RAPER: Good morning. My name's Stephen 4 Raper, I represent a solid waste facility who's 5 permitted to take PCBs less than 50. Unfortunately 6 I'm not a landfill, so the way that the current 7 regulations are written I am unable to receive TSCA 8 regulated waste that are under 50 parts per million.

9 I would like to see the regulatory changes made so 10 that all solid waste facilities permitted by a state 11 to receive PCBs can receive PCBs less than 50 ppm 12 regardless if they are generated from a site with 13 PCBs greater than 50 ppm. I believe this single 14 change will increase the amount of disposal options 15 for the generating facilities, reduce costs and in 16 the case of our facility reduce the future liability 17 for the generator, in that we're actually destroying 18 the PCBs as opposed to just burying it. A lot of the 19 comments I've seen and what I've heard today is that 20 everybody is focusing on landfills. There are other 21 technology out there. Thermal desorption which is 22 already commonly used in treating a lot of PCB type 69 1 waste whether at a fixed facility or brought in 2 specifically for the job specifically permitted for 3 and meets guidelines defined in the regulations for 4 TSCA waste. But here we are with a facility permitted 5 by the state to accept PCBs less than 50 ppm and we 6 would just like to see some regulatory change brought 7 in to allow us to help you with your problem.

8 Thank you very much.

9 MS. DOA: Thank you. Any additional.

10 MR. SLESINGER: My name is Scott Slesinger.

11 I'm with the Environmental Technology Council. I 12 represent, relevant for today's hearing, TSCA 13 landfills and treatment facilities in the United 14 States. I do not have a prepared statement.

15 First, I want to agree with a couple of 16 the statements that were said, first by Jim Roewer 17 of USWAG. Our council agrees with his comments 18 that we need additional time to comment. We think 19 that the request for comment, coming out at the end 20 of June, was a little late for us to get some of 21 the technical background that we think is necessary 22 to comment fairly. We also agree with one of the 70 1 recommendations of Lawrence Linden of Constellation 2 Energy about the risk based cleanup options. If 3 EPA did provide some guidance, better guidance, if 4 each cleanup did not require EPA case by case 5 approval that could help speed up the cleanups.

6 These delays are understandably a major concern.

7 One thing I would like to talk about in 8 general and we will go into more detail in our 9 written comments that we will submit later, and that 10 is the argument that if 50 ppm of PCBs can go to 11 municipal landfills in one case, it must be safe for 12 all PCBs under 50 ppm to be disposed in such 13 landfills. I'll give you an example in RCRA with 14 CAMU sites, Corrective Action Management Units. If 15 you're doing a cleanup on your site you're allowed 16 to put remediation waste in a single lined landfill 17 on your site. If you send it off site to one of 18 our facilities that are double lined Subtitle C 19 landfills that are built specifically to take 20 hazardous waste, you are required to pre treat the 21 waste before disposal. Why would EPA require more 22 pre treatment if the waste is going to a better,

71 1 more protective facility, then if it was disposed in 2 an inferior facility on site? Part of the reason has 3 to do with liability. The theory of EPA is that if 4 you're going to leave it on site you are liable if 5 there's any problems. If there's a leak, you are 6 the liable party. If it goes to one of our 7 facilities, your liability is not as clear. I 8 believe this is analogous to this situation when you 9 use the self implementing option, you can dispose of 10 low level of PCBs in a D landfill. If you use this 11 option you are required to tell people in advance 12 where you're going to put; you have a plan with very 13 detailed sampling and your plan must be approved by 14 regulators. In these cases it makes sense to send 15 some wastes to a D landfill. If cleanups are going 16 to be undertaken without all the protections of the 17 self implementing option, it makes more sense to 18 require the PCBs to be disposed in a more protective 19 TSCA landfill. I disagree with the argument that EPA 20 was arbitrary and just said if you go through option 21 ( a) you have an easy way to dispose of PCBs and if 22 you go through option ( b) it's a harder way. There 72 1 are logical reasons for treating cleanups under ( a)

2 and ( b) differently. I would note, despite the 3 excellent companies represented here today, improper 4 handling of PCBs wastes occurs all the time. For 5 instance, a lot of PCB wastes are theoretically 6 household exempt. All our companies do household 7 waste cleanups. It is not uncommon for one of the 8 paint cans that are brought to our site or that we 9 pick up says " Sherwin Williams" paint but there 10 will be one quarter inch of paint and the rest is 11 illegally filled with PCB dielectric fluids.

12 This is not a legal way to get rid of waste but 13 that is a very typical way that high levels of PCB 14 waste ends up at our household hazardous waste 15 cleanup activities. In fact we had one facility 16 that sent such waste to one of their facilities in 17 Canada and the Prime Minister and the President 18 of the United States were involved in getting the 19 waste back into the United States. There are people 20 out there who do get rid of PCB waste without the 21 protectiveness, the attorneys, the planning of 22 the sophisticated companies, such as those 73 1 represented by USWAG and ACC. I think a lot of 2 the requirements under 761.61( a) makes sense and 3 should be encouraged. One of the incentives is that 4 your cleanup will be less expensive because you can 5 send your PCBs below 50 parts per million in a 6 Subtitle D landfill. I would note that we will have 7 prepared remarks especially if the time is extended.

8 Thank you.

9 MS. DOA: Thank you. Would anyone else like to 10 make comments?

11 Well, first of all I would like to thank 12 everyone for taking the time to come, everyone

13 the presenters for taking the time to prepare the 14 comments, they were very informative and very 15 helpful. I think that they will be key in 16 developing a response to OMB. And there are really 17 a lot of issues that you guys thought long and hard 18 about and raised. On the extension of the comment 19 period for 60 days, we will get back to you by the 20 end of the week and we will contact folks, if not 21 sooner. And also we'll post something on the Web 22 for those that didn't specifically ask for it.

74 1 Q If you decide not to allow additional 2 comments, I know you have a schedule to respond to,

3 do you expect to allow some time for written 4 comments list? At this point the notice didn't 5 provide any provisions for submitting direct 6 comments at all.

7 MS. DOA: Yes, we'll post it on the Web.

8 Again, thank you very much. This was extremely 9 informative and helpful.

10 ( Meeting was adjourned at 11: 30 a. m.)

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