Eastman Chemical

Letter from Jon Kessler and John Fogarty to Harry Holliman

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460

Harry Holliman, President
Tennessee Eastman Division
Eastman Chemical Company
P.O. Box 511
Kingsport, Tennessee 37662

Re: Project XL Compliance Screening Status

Dear Mr. Holliman:

Thank you for your March 11, 1996, letter requesting additional guidance regarding Administrator Browner's directive that a Project XL proposal is to be held in abeyance where it includes a facility involved in a pending enforcement matter. This policy is reflected in OECA Assistant Administrator Steven Herman's October 31, 1995, memorandum to OPPE Assistant Administrator David Gardiner outlining the "Compliance Screening process for Project XL."

As described in your letter, Eastman Chemical is currently subject to a 1993 administrative enforcement order for violations of the combustion standards for boilers and industrial furnaces which burn hazardous wastes. Your letter states that Eastman Chemical has not acknowledged liability for the violations which were the basis for the enforcement action, and that there still remain unfulfilled obligations under the order. Because the proposal would "obviate" the need for Eastman Chemical to comply with much of the enforcement order, your letter requested that the order be amended to suspend the remaining obligations under the enforcement order while Eastman Chemical contemplates developing and submitting a Project XL proposal.

In essence, you have asked that the policy of holding XL proposals in abeyance pending resolution of the enforcement action be reversed: specifically, you requested that the enforcement action be held in abeyance pending a determination on a potential XL project. Further, you requested that the policy be construed not to apply to Eastman Chemical because the "enforcement provisions" of the compliance order have been "completed," even though there remains the matter of "meeting and implementing a compliance schedule."

Unfortunately, under these circumstances we cannot agree. The basic thrust of the Administrator's policy on this point is to prevent the collision of enforcement actions an XL Projects. Where, as here, the nature of the project would expressly undermine the relief required to resolve an enforcement action, the admonition contained in the policy is at its most compelling: neither the Agency's purposes nor those of the potential XL participant are served where a project would conflict directly with an enforcement action. Additionally, and perhaps more importantly, where obligations under a consent order remain unfulfilled, there is still an adversarial relationship between the Agency and the potential XL participant. Because the requirements of the compliance order have not been fully completed, the enforcement matter is and remains pending and uncompleted.

At the same time, we also want to encourage and support Eastman Chemical's efforts to create a cleaner and more healthful environment. The description in your letter of the XL project you are contemplating indicates that the component of the project which would produce superior environmental results is an unspecified "environmentally beneficial project." There are means apart from Project XL which would be available to implement an environmentally beneficial project. For example, the Agency is always open to incorporating a "supplemental environmental project" as part of the resolution of an enforcement action. The Agency's Environmental Leadership Program is another vehicle for testing innovative management techniques to improve environmental quality. We have every confidence that the Region IV staff would be open to discussing how an environmental project could be implemented at Eastman Chemical's Kingsport facility under one of the various programs offered by the Agency to create a cleaner environment.

Sincerely,

Jon Kessler, Director John Fogarty, Associate Director
Emerging Sectors and Strategies Division RCRA Enforcement Division, ORE
Office of Policy, Planning and Evaluation, Office of Enforcement and Compliance Assurance

cc: Steven Herman, OECA
David Gardiner, OPPE
Bill Patton, Region IV

Eastman Chemical

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