Document GKQk0doZgGV70DD90z9ZYw7On

I , .rftjrt- interoffice MEMORANDUM DISTRIBUTION To ----------------------------- From A. 0. DIGLIO DISTRIBUTION: A. R. Adams J. 0. Baiiker C. E. Blades P. T. L. Brian J. 0. Bungs C. E. Callicott T. L. Carey M. R. Chmura J. L. Cost . L. Donley F. H. Fernengel R. FIeming H. L. Harwell W. Hoge Date FEBRUARY 20, 1976 Subject PROPOSED EPA HAZARDOUS SUBSTANCE REGULATIONS (LSiiuon, O'5<nijt.on, or Oeprtmnt) VALLEY FORGE_________________ (UO:*tion, Orginuitton, or Department] H. L. Oaffe R. E. Jones J. D. Kramer J. B. Maerker A. K. McMillan T. J. Kedovich J. C. Novak H. A. Quigley R. J. Ryan J. A. Saner W. J. Scharl e R. M. Vozar H. L. Watson J. T. Wharton Attached for your information are the comments prepared by the Joint MCA Trans portation Water Resources Committee Task Force on the proposed EPA Hazardous Substances Regulations. The proposed (Section 311) regulation In the Federal Register of December 30, 1975 Is concerned with hazardous substance designation, removability, harmful quantities, and penalty rates. There has been some improvement since first written in late 1974, but their are some serious concerns with the recent proposal. These are addressed in the MCA viewpoints. Air Products Chemicals Group Is also preparing comments on the subject. /mjv Attachment cc: R. H. Schenck A.XJ. DIGLIO o {320) AP00037054 Manufacturing Chemists Association RECEIVES FEB 19 1976 TASK GROUP ON HAZARDOUS SU3STANCES JOINT TASK GROUP ON SECTION 311 REGULATIONS A. J. DiGLIO Minutes of Meeting January 30, 1976 MCA Offices - Room 404 Washington/ D, C. MEMBERS PRESENT M, M. Anderson Grant Arnold E. G. DeWitt (for J. Huguet) J. P. Flynn (for E. L. Simons) G. J. Hanks, Jr. J. G. Knott M. L. Lewis (for J. G. McLoughlin) M. L. Mullins (for J. T. Garrett) C, Brock Neely (for R. K. Gregg) M. T. Newton (for Ross Austin) L. W. Roznoy Howard Schwartzman C. H. Vescelius j. Wilkenfeld, Acting Chairman C, A. Gosline S. L. Watts MEMBERS ABSENT E. H. Bellows W. C. Brittain G. A. Coffenberg E. L. Conant J, J. Delaney J. T. Garrett W. C . Gaskill R . K. Gregg W, L. Hammond J. T. Ling J. S. McLoughlin P. S. Park R* N. Simonsen W . E . Winans Jack Woolley Union Carbide Corporation Ethyl Corporation Ethyl Corporation General Electric company Union Carbide Corporation PPG Industries, Inc. Celanese Corporation Monsanto Company The Dow Chemical Company E. I. du Pont de Nemours & Company Olin Corporation The Procter & Gamble Company Olm Corporation Hooker Chemical Corporation MCA Staff MCA Staff Olin Corporation Koppers Company, Inc. Stauffer Chemical Company Stauffer Chemical Company Olm Corporation. Monsanto Company E. I. du Pont de Nemours & Company The Dow Chemical Company PPG industries, Inc. 3>1 Company Celanese Corporation Monsanto Company The Standard Oil Company (Ohio) Stauffer Chemical company PPG Industries, Inc. AP00037055 2 Chairman J. Wilkenfeld opened the meeting at 8:30 a.m. by reviewing the background and previous work done by individuals with regard to HR 9560 and the Notice of Proposed Rulemaking Concerning Hazardous Substances -- their designation, removability, harmful quantities, and penalty rates as set forth in Federal Register, December 30, 1975. It was stated that the regulations, in general, were an endurable set of rules even though there were some serious reservations. It was stated further that the MCA should not seek a delay in view of the long history of opportunities to express its views, which had been exercised. Mr. Gosline reported on the general situation in Congress with regard to HR 9560, its prospects for passage, and its other important features, i.e., interim funding, providing that ad valorem taxes can be deemed user charges, extending Section 208 planning, and allowing additional time for Publicly Owned Treatment Works installations. Considerable discussion ensued with particular regard to: tox icological selection criteria, definitions of harmful quantities (HQ) and the HQs chosen, "removability" and its meaning, units of measurement, adjustment factors, rates of penalty, and possible con flicts with NPDES requirements. TO bring the issues into* focus, Chairman- tfilteeafeld recessed the plenary session and assigned separate small work groups to immediate ly prepare handwritten comments for consolidating viewpoints concerning the above. This was done; the handwritten notes were distributed. A temporary task group of Messrs. Newton, Knott, Schwartzman and Neely was then appointed to consolidate the foregoing and develop a draft for review. A timetable was established to ensure adequate lead time for finalizing the MCA views and presenting them to the EPA before February 26, 1976. The schedule was established to be: February 9 - Consolidation of views and initial draft review {Newton leading)* February 12 - Circulate initial draft for comment among joint task group (Gosline)* * completed on schedule AP00037056 3 February 20 - Cut-off date for comment February 26 - Complete Internal MCA review and forward to EPA, distribute copies as appropriate (Gosline) The meeting adjourned at 12:45 p.m. Minutes subject to approval February 13, 1976 C CL C. A. Gosline, Secretary water Resources Committee AP00037057 DRAFT - by C. A. Gos. .ie February 12, 1976 Dr. C. Hugh Thompson WH-595 Environmental Protection Agency 401 M Street, S.W. Washington, D. C. 20460 Subject; Proposed Regulations; Hazardous Substances Designation, Removability, Harmful Quantities, Penalty Rates, 40 CFR Parts 116, 117, 118, 119 Dear Dr. Thompson: Herewith are three copies of our views concerning the proposed regulations as published in The Federal Register of December 30, 1975. The Manufacturing Chemists Association (MCA) is a non-profit trade association having 186 United States Company Members represen ting more than ninety percent of the production capacity of basic industry chemicals within this country. The members operate nearly 1600 plants located in almost every state of the nation. Their plants use every mode of transportation to receive their raw materials and to distribute their products. Thus, our members have a direct and critical interest in regulations which could result in the im position of major penalties for hazardous material discharges. In weighing our comments please note that we have omitted reference to any of the 'specific compounds or elements that have been listed because individual member companies will deal separately with those items that are of explicit concern to them. You and others at the agency have sought to produce regulations that are equitable, practical in application and technically sound. We note with pleasure that the regulations, for the most part, meet those desirable criteria. Our overriding concerns with earlier versions AP000J7058 Draf-c - by C.A- Gosline Page 2 February 12, 1976 of the regulations had been that the handling of Section 311 b (2) (B) iii-bb would result in gross dislocations in the modes of chemical transportation because of punitive penalties. Our present general satisfaction is predicated on Section 119.4a, Guidelines for Discretionary Choice of Rate of Penalty, and that the current draft appears to satify the gross negligence test while still meeting the environmental needs of preventing, reporting, controlling and taking counter-measures for mitigating effects of hazardous substance dis charges. However, we are aware that some regulated carriers still are apprehensive about the issue of gross negligence. In that regard, there have been reported instances where finding reliable carriers has been difficult enough to interfere with new plant siting plans. In addition to the views forwarded herewith, we are appending for your convenience copies of earlier comments transmitted to the agency and to the House Subcommittee on Water Resources. These have been marked Appendix A, B, and C for convenient reference. In closing please note that the Development Document has not been available to us. Consequently, we may wish to forward additional comments after we have had an opportunity to examine it in some depth and to re-study the regulations based on the better understanding that would ensue. Sincerely AP00037059 DRAFT February 12, 1976 VIEWS of the MANUFACTURING CHEMISTS ASSOCIATION Concerning PROPOSED REGULATIONS FOR HAZARDOUS SUBSTANCES DESIGNATION, REMOVEABILITY, HARMFUL QUANTITIES, PENALTY RATES (40 CFR PARTS 116, 117, 118, 119? FEDERAL REGISTER, DECEMBER 30, 1975) AP00037060 DRAFT February 12, 1976 PREAMBLE In. evolving the views presented herewith, the MCA has proceeded on the premise that the proposed regulations are intended to deal with unforeseen or unforeseeable events that occur from time to time in even the most carefully conducted business operations. Thus, it is fundamental to our views that the proposed regulations do not con stitute a duplication vis-a-vis permitted discharges nor new source permits. The appendices have been referenced as follows: Appendix A: W. J. Driver (MCA) (EPA), October 15, 40 CFR Part 116. to P. 1974 B. Wisman regarding Appendix B: H. B. Brown (MCA) to A. Jennings (EPA) December 20, 1974 regarding the EPA Stra-ff Paper" distributed October 21-23, 1974. Appendix C: Statement of the MCA to the Subcommittee on Water Resources ,, Committee on Public WorXs and Transportation, U. S. House of Representatives, regarding HR 9560; September 23, 1975. Comments.are arranged sequentially according to the Part number, i.e. *M 1 116, 117, 118, il9. A. 40 CFR PART 116 - DESIGNATION OF HAZARDOUS SUBSTANCES 1. Toxicological Selection Criteria a) Aquatic Testing. The MCA has previously supported a lowering of the 96-hour LC 50 from -100 ppm to 100 ppm. We still support the 100 ppm as the upper criterion for aquatic toxicity for the pre viously stated reasons (see Appendix A). b) Designation of Species. The regulations should AP00037061 DRAFT . 'aaA Page 2 February 2, 197* identify the fish species to be tested in determining aquatic toxicity. This proposal reflects the recommendation made in the Executive Summary, "Determination of Harmful Quantities and Rates of Penalty for Hazardous Substances" {EPA - 440/9-75-005-1, Jan. 1975), that a 96-hour LC50 to media-sensitive receptors (such as bluegill and fat head minnows) should be included in this regulation. In addition it is recommended that toxicity to a representative salt water species be included. In many cases this will provide two classifications for many chemicals However, it will provide a scheme that will more truly measure the potential harm that may follow a discharge into either of those aquatic en vironments. The point is illustrated by the following: in examining fresh water toxicity for Datapan, it is readily seen that 96-hour LC50 is greater than 100 ppm and hence should be in Category D. However, the material is more toxic to salt water species and might be included, therefore, in Category A. It is classified in Category B, which provides too little or too much protection. c) Phytotoxicity. Since it is conceded that there AP00037062 DRAFT February 12, 197'. Page 3 are few data on this selection criterion/ and since no substances were included based on this criterion. We urge the omission of this criterion at the present time. If the Agency wishes to include substances based on phytofcoxicity at a later date, after data are developed# suitable appropriate phytotoxicity criterion can be included at that time. 2. Spill Potential Criteria We support the proposal that once a candidate material has passed the toxicological criteria# it must have a reasonable potential for being discharged prior to its being designated as a hazardous material. Such factors include 1) past spill history, 2) production quantity, 3) use of distribution patterns, and 4) value of the substance1 : Wherr appropriate docomentatlorr reasonably establishes that a material should be deleted fe>m the list. We note favorably that the Agency has applied such judgement and deleted some materials. 3. Applicability As noted in the Preamble# we submit that EPA's approach on Section 311 regulations should include only those discharges not otherwise controlled or regulated under other provisions AP00037063 DRAFT February 12, 1976 Page 4 Of the Act. Accordingly, while we were not in agreement with the language used in the Advance Notice, we agreed with the effort to limit the application of Section 311. We still feel that the limitation on the applicability of Section 311 should be contained in the "Designation" regulation. Notwithstanding our position that the designation of hazardous substances should be applicable only to discharges which should cone under Section 311, we understand the Agency's desire to be able to proceed under Section 311(k) to prevent "imminent and substantial endangerment to the public health and welfare". Our use of the quoted terminology is to emphasize that we wish to deal with actual effects of"a discharge, as opposed to a presumption of endanger ment simply as the consequence of a listing of sub stances by the Agency. Inasmuch as the Agency has adopted the approach of listing an extensive number of substances which be come hazardous to a waterway only above certain con centration levels, we believe that the proposed applicability language should be changed. The Agency should address its statement to the effect that many AP00037064 T-l U. RAFT ebruary 12, 1976 Page 5 of the substances are hazardous at levels above "any quantity". We recommend that the Agency do this by changing the applicability language 40 CFR Part 116.1 to read: "The regulation of this part designates hazardous substances under Section 311 (b) (2) (A) of the Act. The proposed regulation applies to discharges of substances designated herein if. discharged in excess of quantities specified in 40 CFR 118 into navigable waters or adjoining shorelines or the waters of the contiguous zone from vessels and onshore facilities {note that the underscored phrase is the additive language to the proposed language). This modified applicability statement would ensure that the listing of designated substances would not be interpreted to mean that a discharge of even the smallest quantity of certain substances constituted a hazard. 40 CFR 117- DETERMINATION OF REMOVEA3ILITY OF HAZARDOUS SUBSTANCES We believe biodegradability should be a factor in assessing whether a material is "actually removeable"/ but in so saying recognize the technical complexity of adding that to the other defining factors used, i.e., solubility, density, physical state, dispersion characteristics, aquatic stress potential, acute lethality, potential for leaving a residue, and detectability in the water body. AP00037065 DRAFT February 12, 1976 Page 6 We also note that civil penalties are viev/ed as economic incen tives to reduce discharges and merely suggest that the efficacy of that premise be scrutinized in light of normal operating considerations that induce prevention of discharges. C. 40 CFR PART 118 - DETERMINATION? OF HARMFUL QUANTITIES FOR HAZARDOUS SUBSTANCES________________________ 1. Harmful Quantities Determinations This regulation implements that part of Section 311 (b)(4) which states "those quantities of oil and any hazardous substance the discharge of which, at such times, locations, circumstances, and conditions, will be harmful to the public health or welfare of the United States." A full and literal implementation of that pro vision in any workable system is highly improbable. Therefore, we support the Agency's approach in establishing numerical limits for the harmful quantities determination. While this approach we feel, is a compromise to insure workability in the system, we believe that the levels specified are inappropriate and low. As EPA stated in the preamble to this regulation, "the harm produced by the introduction of any pollutant to water is dependent upon the resulting concentration of that material in the water and upon the receiving water char acteristics" (40 F.R. 59985). Accordingly, the harmful quantity values should be those which protect the nation's AP00037066 D?Ar T February 12, 1976 Page 7 waters from a harmful discharge of hazardous substances. in applying that rationale it must be recognized that using unqualified simple numerical values will work only if the numerical values are set at levels which provide maximum protection without becoming unreasonable. In examining the contractor's document (EPA-440/9-75-005-b) it is seen that contractor arrived at levels of harmful quantities which would protect both fresh and salt waters. It is our recommendation that the table (under the heading of Unit of Measure) as outlined in EPA-440/ 9-75-005-c be used for specifying separate harmful quantities for salt and fresh waters. It appears that these will be created on excessively burdensome administrative structures and snowstorms of paperwork because of the reporting procedures. This seems to be related to using low EQ levels (e.g., for chlorine- . : one pound v-e fifty pounds in the- contractor** report) to obtain an inventory of hazardous discharges rather than dealing with realistic probabilities of a significant environmental insult. If, after the program has advanced to a smooth operation, there is need to set lower levels, then it can be done with the benefit of meaningful experience. 2. Special waters We do not object per se to the EPA setting up different levels for the special waters as defined in Part 118. We do object to the decision to specify that "any quantity" of a listed substance constitutes a harm ful quantity when discharged into those special waters. AP00037067 DRAFT February 12, 1976 Page 8 We feel that levels should be sec for the special ' waters which may be more stringer." than harmful quantities set for other waters if particular substances can and will cause additional harm if discharged into these unique waters. There should be, however, a cau sative relationship between the more stringent levels and the potential harm that may arise due to discharges to the special waters. If that relationship is estab lished, then more stringent levels may and should be set. However, at the present time we see no basis for establishing harmful quantities at the "any quantity" level. 3. Applicability As : stated in the comments on Part 116, we see a legitimate concern, of. the. Agency in. .being able to use Section 311 (k) to respond to actual imminent and sub stantial endangerment situations caused by discharges of hazardous substances whatever the source of such .discharges. Therefore, we do not object to the change in approach on the applicability statement under Part 116. We feel that Parts 118 and 119 should not be applicable to to discharges which are regulated and controlled under Section 402 of the Act. There are two aspects that are covered by Parts 118 and 119. The first is reporting? AP00037068 DRAFT February 12, 1976 Page 9 the second is penalties. Reporting can be adequately addressed by the requirements that can be imposed under Section 311 (j), Penalties are more than adequately addressed by provisions of Section. 309 of the Act. in support of our position that discharges regulated under Section 402 should not be covered by Parts 118 and 119, we make the following points: . Section 309 (b) provides SPA with authority to obtain injunctive relief? . Section 309 (d) provides the EPA with authority to obtain up to $10,000 per day of violation; . . Section 309 (c) provides EPA with the authority to obtain, in cases of willful or gross negligence, to seek criminal sanctions of up to $25,000 per day per violation, and/or imprisonment for up to one year. For second offenses, this section provides EPA with authority to seek criminal sanctions of up to $50,000 per day of violation and/or imprison ment of up to two years. Superimposing another set of regulatory controls dealing with the same dis charges would cause difficulties and complexities to arise in both the Section 402 and Section 311 programs, and can seriously affect the workable nature of each. Under the present wording of the AP00037069 DRAFT February 12, 1976 Page 10 applicability statement contained in the two parts and, assuming that a discharge has beer, permitted with hazardous substances allowed in greater quantities than harmful quantities specified in Part 118, a few of the more difficult questions are: a} Would a violation of a permit completely un related to the hazardous substances require the permittee to report the discharge of hazar dous substances? b) Would a violation of a 30-day average require the permittee to comply with the reporting require ments of Section 311? c) Would a violation of a permit condition, within the analytical error of the test used to deter mine the violation, require permittee to ooiiipriy with the reporting requirements of Section 311? d) Would the permittee be liable if he could dem onstrate that there was no environmental damage nor even any impact upon the receiving water caused by the discharge of the "hazardous sub stance"? e) For the types of violations cited in a, b, and what. c^ould be the obligation of the permittee under the cleanup and mitigation requirements of Section 311 <f)? AP00037070 DRAFT February 12, 1976 Page 11 Other situations that can arise could be listed, but we believe the foregoing point to the difficulty in not excluding discharges regulated under Section 402. If, after the 311 program is operational and we have all had experience with its operation, the Agency still feels that discharges regulated by 402 should be brought within the ambit of Parts 118 and 119, then the Agency can amend the regulations. We would then be better able to determine the appropriate roles and the interrelationship of Section 311 and Section 402. In the absence of experience, there is no clear way to establish requirements under Parts 118 and 119 which, will do otherwise than create an unworkable program both under those parts and jeopardize the operation of the regulatory program now im posed on discharges subject to Section 402. D. 40 CFR PART 119 - DETERMINING RATES OF PENALTIES 1. Mixtures In dealing with mixtures, the additive principle is an appropriate method of handling unknown inter actions. However, if the mixture spilled is known to have synergistic or antagonistic effects, these known .effects should be used in determining penalties. For example, a spill of HC1 and NaOH will neutralize each other and the rate of `penalty should be applied only to the unneutralized quantity. 2. Base Rates of Penalty We do not object to the basic approach used by EPA AP00037071 DRAFT February 12, 1976 Page 12 * in the setting of the base rates^ We do feel however that these base rates should be re-evaluated in terms of our comments on the harmful quantities of Part 118. Enormous penalties may be assessable for trivial quantities. Additionally, we point out that Section 311(b)(2)(B) (iv) indicates that toxicity, degradability and dispersal characteristics should be taken into account in establish ing the rates of penalty. It does not appear that the physical/chemical/dispersal factors take into account the degradability of a substance. It is suggested that degradability be used in the determination of base rates of penalty. 3. Exercise of Discretion We strongly support the proposed provision on the discretionary choice of panalty system. The Fart IIS' expression of the discretionary use of Section 311(b) (2) (B) (iii) penalties is basic to the approach that EPA has taken on the Section 311 regulations. AP00037072 INTEROFFICE MEMORANDUM To From DISTRIBUTION A. J. Diqlio DISTRIBUTION: J. H. ARNOLD p. F. BAKER J. J. &ALIKER J. T- BARR C. E. BLADES $. p. 9RADD G. F. BRESTOVANSKY P,L.T. BRIAN C. 6. CAUICOTT T. L. CAREY d, P, CASEY M, R. CHMURA d. L< COST A, P. DYER C. DONLEY P. N. FERNENGEL Y.i.HQEKSCMA Siihiect Date May 17, 1978 Appointments of members to the MCA Environmental Manaqement Committee Air, Water & Solids (Cocatlon, Or9*nu4tion, or D*C4rtm>rit) Trexlertown R. FLEMING C. E. FRYMAN G. D. GRAB A. E. GREENE P. R. HARTTER M. HOGE H. L. JAFFE R. E. JONES D. C. KEEHNS d. D. KRAMER R. G. KUNE R. LOMICKY d. R. LOVETT J. 3. MAERKER R, MARCHIANDO d. E. MCEVOY R, L. IAZZETTI G. G. HANDLEY C. MCKINLEY A. K. MCMILLAN T. J. MEDOVICH H. A. QUIGLEY W. RECTOR F. J. RYAN J.A. SANER W. J. SCHARLE R. H. SCHENCK d. M. SCIGLIANO W. M. SMITH J. A. SYKES H. L. WATSON J. T. WHARTON 0. WRBA E. D. ZARYTKIEWICZ H. ZORMAN 0, MC MAKIN (320) AP00037073 MANUFACTURING CHEMISTS ASSOCIATION 132t> CONNECTICUT AVENUE, N.W. WASHINGTON, D. C. 20009 (202) 483-6126 GEORGE c. BEST VICS PRESIDENT SECRETART-TREASURES May 10, 1978 \ To Members of the Environmental Management Committee It is my pleasant duty to inform you of your appointment by the Executive Committee, ratified by the Board of Directors, to membership on the Environmental Management Committee in accord ance with the attached list, under the reorganization plan effective June 1, 1978. Carl A. Gosline will be assigned.as the staff representative to serve as secretary to the committee. Mr. Gosline functions under the supervision of John G. Tritsch as manager of the Environ mental Division of the Technical Department, under the direction of Albert C. Clark, Vice President and Technical Director. Early this summer when it issues, a copy of the MCA Directory listing, all com mittees, officers, and other personnel of the Association will be sent to you. Meanwhile the staff secretary will be communicating with you in regard to meetings as well as policies and practices of the Association governing your committee activities. We welcome you to this-important responsibility. Sincerely, cc: Mr. A. C. Clark Mr. J. G. Tritsch Mr. C. A. Gosline AP00037074 Manufacturing Chemists Association Environmental Management Committee Effective June 1, 1978 Term ending May 31, 1979 E. McIntosh Cover, Olin Corporation, 120 Long Ridge Rd., Stamford, CT 06904 J. L. Gray, Chemical Products Corporation, P. O. Box 449, Cartersville, GA 30120 L. P. Haxby, Shell Oil Company, P. O. Box 2463, Houston, TX 77Q01 E. Neil Helmers, E. I. du Pont de Nemours & Company, 1352 Louviers Bldg., Newark, DE 19711 Jack D. Underwood, Celanese Corporation, 1211 Avenue of the Americas, New York, NY 10036 Term ending May 31, 1980 Jackson B. Browning, Union Carbide Corporation, 270 Park Ave., New York, NY 10017 J. F. Byrd, The Procter & Gamble Company, 7162 Reading Rd. , Cincinnati, OH 45222 Lynn D. Johnson, Rohm and Haas Company, P. O. Box 584, Bristol, PA 19007 Ernest C. Ladd, FMC Corporation, 2000 Market St. , Philadelphia, PA 19103 J. Richard Sayers, Monsanto Company, 800 N. Lindbergh Blvd., St. Louis, MO 63166 Term ending May 31, 1981 * E. W Callahan, Allied Chemical Corporation, P. O. Box 2245R, Morristown, NJ 07960 Anthony J. Diglio, Air Products and Chemicals, Inc., P. O. Box 538, Allentown, PA 18105 Richard J. Samelson, PPG Industries, Inc. , Chemicals Group, One Gateway Center, Pittsburgh, PA 15222 Charles L. Sercu, Dow Chemical U. S.A., 2030 Dow Center, Midland, MI 48640 J. P. Thorn, Exxon Chemical Company U. S. A. , P. O. Box 3272, Houston, TX 77001 Chairman - through May 31, 1979 AP00037075