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The Pacific Marine and Supply Company

Letter from Beth Ginsberg to Ray Sarasino, Re: Pacific Marine Project XL Application

BOGLE&GATES P.L.L.C.
A Professional Limited Liability Company

LAW OFFICES


BETH S. GINSBERG
The Warner Building
Suite 875
1299 Pennsylvania Avenue N.W.
Washington, D.C. 20004-2400

2) 293-3600
Facsimile: (202) 293-5825
Seattle
Anchorage
Bellevue
Portland
Tacoma
Vancouver, B.C.

20013/00005

February 20, 1996 VIA FACSIMILE

Ray Sarasino
U.S. Environmental Protection Agency
Region 9 - Mail Code H-3-1
75 Hawthorne St.
San Francisco,  CA   94105
Re:    Pacific Marine Project XL Application
Dear Ray:

I am writing to follow up on our phone conversation last Wednesday, February 14, 1996 and the specific information you and Joann Asami requested.  I am also writing to clarify the scope of the vitrification project, and to narrow the scope of relief sought in Pacific Marine's XL Application.

BACKGROUND  INFORMATION
As requested, I am enclosing with this letter copies of the following:

1)  technical documents concerning the vitrification process as applied at other sites around the country;

2)  a document providing technical and risk-related information associated with the vitrification project as planned for Pacific Marine's facility;

3)  a revised project schedule;

4)  a list of possible stakeholders;

5)  background information (including report language) concerning the Department of Defense Congressional Appropriation.



SCOPE OF THE PHASED TESTING
Based on questions that have arisen during the course of conversations with EPA staff, it is important to clarify and limit the scope of relief Pacific Marine is seeking through this XL Application.  First, Pacific Marine does not intend to process radioactive wastes either as part of the demonstration project or at any time thereafter.  Phase I of the demonstration project will solely involve clean soils with no additives, followed by soils spiked with surrogate heavy metals up to 5,000 ppm.

The Phase II testing will involve up to 100 tons of actual contaminated soils, followed by ten 55 gallon drums of remediation wastes containing heavy metals and non-flammable material.  Phase II will conclude with testing soils mixed with bagged asbestos waste.  Phase III testing will include a broader range of materials as specified in attached documentation, including hazardous organic materials, pesticide contaminants, and fly ash.

Confusion arose about the company's planned use or construction of a municipal waste incinerator for energy recovery.  Pacific Marine has no intention to build such an incinerator on its property, nor does it intend to include use of such an incinerator within the scope of this demonstration project.

USE OF THE TREATABILITY STUDY EXEMPTION
FOUND AT 40 C.F.R.  261.4(e) AND (f) Through conversations with both Region 9 and Headquarters staff, Pacific Marine has successfully explored ways to narrow the scope of regulatory relief sought in this XL Application.  As you know, the goal of the project is to successfully demonstrate the viability of this vitrification technology for the commercial and military wastes generated in Hawaii and the South Pacific.  The impediments to a successful demonstration project include the RCRA landban prohibitions and testing requirements potentially applicable to the glass end- product, and the protracted nature of any permitting process required for implementation of the vitrification technology.

The parties have been diligently exploring ways to expedite any requisite permitting for the demonstration project and have discussed using XL to further expedite the process.  In particular, use of an expedited Research, Development and Demonstration permit under 40 C.F.R. 270.65 has been discussed in several lengthy conference calls.  The benefit of the R, D & D route is that the "XL relief" necessary to successfully complete this project is narrowed.

However, in lieu of the R, D & D permit -- which carries with it the stigma of "hazardous waste" association -- a preferable alternative exists under 40 C.F.R.  261.4 (e) and (f).  Pacific Marine proposes to utilize the treatability study exemption found under 40 C.F.R. _261.4(e) and (f) as the legal authority for conducting the phased demonstration project outside of the rigors of the RCRA program.

The obvious benefit of employing this exemption is that it may more readily qualify Pacific Marine for a "recycling" determination for the glass end-product.  Logically, if the treatability study exemption affords the input materials with a hazardous wastes exemption, and similarly affords the actual vitrification process with a regulatory exemption, then the inert g1ass end-product will -- as both a legal as well as a policy matter -- be more amenable to an exemption from hazardous waste regulations.

However, to utilize this exemption, Pacific Marine would need as part of the XL relief sought, a variance from the quantity limitations.  The limits specified in the regulations will accommodate approximately 15,000 kilograms of material on a daily basis; Pacific Marine's melter will physically require processing of approximately 100,000 kilograms on a daily basis.

The vitrification melter will be built, stored and used at Pacific Marine's facility.  Pacific Marine currently possesses a RCRA storage permit, has submitted a revised Part B application, and is thus awaiting hazardous waste treatment and disposal authority from Region 9. Use of the treatability exemption in this context will not, therefore, constitute a material departure from the spirit of the governing regulations because Pacific Marine is fully equipped and safely configured to conduct the proposed demonstration project on site.

PRIOR OSW RECYCLING DECISIONS SUPPORT THE RELIEF SOUGHT IN THIS XL APPLICATION
Support for treating the vitrification process in the streamlined manner proposed can be found in previous regulatory decisions made by the Office of Solid Waste ("OSW").  OSW has previously determined that the end-product generated from use of a similar glassification process is exempt from hazardous waste requirements.  See Jeff Denit letter dated December 1, 1992 (attached) (concluding that the commercial use of the end product produced from glassification of hazardous electric arc furnace dust is exempt from RCRA regulation).  More specifically, OSW concluded that the production of roofing granules, glass ceramic, and abrasive blast materials from the glassification of electric arc dust does not constitute disposal activity and is therefore subject to the regulatory exclusions found under 40 C.F.R. 261.2(e).

The Denit letter constitutes additional precedent for issuing the ultimate recycling exemption necessary for this demonstration project as well as the long-term viability of this innovative recycling technology.  According to the OSW determination, when hazardous substances are used to "make a product" those substances are not considered solid wastes under RCRA.  See letter at 2. Therefore, under this logic, the proposed vitrification process, much like the glassification process at issue in the Denit letter, does not require a permit and is therefore well suited for the type of XL relief contemplated.

However, if EPA decides in the alternative to require Pacific Marine to obtain an R, D & D permit under 40 C.F.R. _270.65, then the Agency should commit at the outset to ensuring that the use of the R, D & D permitting process in no way prohibits or prejudices the ability of Pacific Marine to qualify for a recycling exemption or the equivalent of a delisting determination for the inert glass end-product.  Pacific Marine will, of course, be required to demonstrate that its vitrification process merits such an exemption and is fully prepared to work with EPA, the Hawaii Department of Health and interested stakeholders to prove that the glass is inert and thus safe for commercial reuse and/or solid waste disposal.

POLLUTION PREVENTION OPPORTUNITIES ARE NOT PRECLUDED BY OR INCONSISTENT WITH INNOVATIVE RECYCLING TECHNOLOGIES
Region 9 has expressed reservations about granting XL status for this type of alternative technology demonstration project, believing it to be a disincentive for pollution prevention activities.  Although EPA Headquarters clearly supports use of the XL Initiative to promote innovative technologies like the terra-vit process (see May 23, 1995 Federal Register Notice), there remains strong concern in the Region that promotion of technological recycling innovation is somehow at odds with pollution prevention goals.

First, as a philosophical matter, Pacific Marine strongly disagrees with this premise.  Innovative recycling technologies such as the terra-vit process do not inherently undermine pollution prevention incentives for hazardous waste generators.  These generators will still have to incur a cost (albeit reduced) to vitrify their waste and will ultimately enhance their economic as well as their regulatory status by preventing the waste from forming in the first place.  Conversely, erecting barriers to alternative technology innovation which creates a safer and less expensive means for waste disposal, will not inspire generators to prevent pollution generation upstream in the production process.

Second, the vitrification process itself will result in recycling and thus the elimination of large volumes of hazardous waste.  Conversion of society's waste into the glass end-product yields huge gains in terms of waste reduction.

Third, Pacific Marine is committed to furthering its ongoing pollution prevention efforts to offset what may incorrectly be perceived to be a pollution prevention disincentive.  Steven Loui, the President of Pacific Marine, is personally committed to pursuing pollution prevention and recycling efforts as an inherent part of his business ventures.  In addition to Unitek Environmental Services, Mr. Loui is the owner of Solvent Services Co. of Hawaii which has been a leader in recycling efforts in Hawaii for the past 20 years.  Mr. Loui estimates that Solvent Services has recycled more than 15 million gallons of waste oil and solvents during his tenure.

In addition, Pacific Marine has very recently entered into a joint venture with Aloha Plastics Recyclers to recycle mixed plastics.  Most recently, Mr. Loui has entered into serious discussions with Biosyn Corp., regarding the possibility of developing a business relationship to expand "greenwaste" opportunities, including anaerobic digestion and mulching operations, in Hawaii.  In short, Mr. Loui and Pacific Marine, is extremely committed to developing and pursuing pollution prevention opportunities for businesses at every juncture, and is amenable to further discussions with EPA personnel on this subject.

CONCLUSION
Pacific Marine chose the "XL" route because of its promising and innovative tenor.  Given the time constraints associated with this project and the time lapse that has ensued to date, Pacific Marine is hopeful that the review and decision-making process applicable to both EPA Headquarters and Region 9 staff can be better coordinated and collapsed to facilitate the goals of the XL Initiative.

The company recognizes that this XL project proposal may be "bolder" than those which have previously received EPA approval.  Notwithstanding its complexity, this XL pilot proposal and the vitrification demonstration project itself, will afford Hawaii great environmental benefits.  The company remains committed to working closely with Agency staff to facilitate a successful demonstration project and ultimately to promote an economically viable and environmentally safe hazardous waste recycling technology for Hawaii.
Very truly yours,

BOGLE & GATES P.L.L.C.



Beth S. Ginsberg
Enclosure(s)

cc: Fred Gehrman (w/enc.)
Cynthia Cummis (w/enc.)
Jim Cummings (w/enc.)
Karen Burgan (w/enc.)
Joann Asami (w/enc.)

C:\DOCS\PACIFMAR\XL.1



BOGLE&GATES P.L.L.C. 


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