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Lucent Technologies

Letter from Polakowski to Lund

July 22, 1997

Lisa Lund
Deputy Assistant Administrator for Project XL
Office of Policy, Planning and Evaluation
United States Environmental Protection Agency
401 M St. SW
Washington, DC 20460

Dear Lisa:

Following up as we promised on our June 30, 1997, correspondence, this letter adds information about our expanded project and begins providing all the detailed information requested since June 30 by Al Morris regarding certain old and new elements of our XL project. We are extremely excited about the expanded scope of this project and what it can mean to a new environmental paradigm, as well as to solving many of the issues that have been present in all previous XL projects. We very much look forward to your comments and questions at our July 29 meeting, and to working productively and cooperatively with EPA.

Project XL offers businesses, environmentalists and communities several important benefits that are not available and/or are far more difficult to achieve in other demonstration programs or through the normal system of environmental regulation:

In a project's use of these benefits, you have said that each XL project must advance the "state-of-the-art", that is, for example, demonstrate a new management tool, process improvement, or SEP capability. Past XL projects have achieved superior performance in specific media at individual facilities. They have tested limited flexibilities in these facilities as a way to contribute to the march toward a new environmental management paradigm. The Microelectronics project seeks to move far beyond these limited models to test a business-wide continuous improvement approach that is more holistic (dealing with regulated and non-regulated processes and substances), more transparent and more inclusive. It operates on both the business-wide (Microelectronics) level and the facility specific level, which allows the immediate transferability of SEP programs across all facilities. Additionally, it encourages more ambitious goals, set at the business-wide level in conjunction with regulators and the community, than would be achieved under a facility-by-facility approach. It then allows Microelectronics to find the most efficient methods, across all facilities, to achieve these goals.

In our June 30 letter, the Lucent Technologies Microelectronics Division ("Microelectronics") proposed an enhanced and expanded project that uses all XL's benefits, would not be workable without XL and substantially advances the "state-of-the-art" while testing a number of concepts critical to a new environmental management paradigm. Specifically, the Microelectronics XL project would:
We have worked very hard with EPA, the states and stakeholders over the past two years and in recent weeks to achieve our 1997 Objectives & Targets as promised and enhance and expand our project based upon feedback from all participants and the knowledge gained from successful XL projects. Because we have a great deal to cover in the time allotted to our meeting, and because we wish to use valuable time as efficiently as possible, we will be providing you all the meeting documents in draft form as they are completed over the next week. They will include:
Note that the expanded scope has been developed because of feedback from EPA, state regulators and stakeholders during our FPA development process, our review of potential efficiencies and flexibilities, and as the result of your important challenge to "take the XL process one step forward toward a new paradigm." So you will be aware now of a few of the elements of the expanded project, they include:
Please note that in the expanded project, Microelectronics is working with the states to include state level elements that mirror the broader national elements. For example, a system for consolidating local and state permits will be proposed.

Beyond the major programmatic expansions, which are the elements that truly advance the goals of XL, Microelectronics, working with the states and the LEAGs, will propose certain specific flexibilities and SEP opportunities. Among many are:

Finally, EPA representatives indicated some confusion regarding our position on certain legal issues related to the Interim Participation Agreement. We had hoped these issues were clarified in our June 30 letter. We will restate our position here since we do not wish to let anything interfere with the discussion of the precedent setting expansion to be proposed on the 29th or the substantive benefits to the environment and Microelectronics that this proposal clearly provides.

It is our continuing belief that, except in the case of criminal actions, a new environmental management paradigm, particularly one that involves regulators in the operations of an EMS and development of its Objectives and Targets and Environmental Protection Plans, should develop enforcement models that are restorative in nature, and focus on enhanced environmental progress, not punishment. We believe such a system will dramatically increase compliance, encourage beyond compliance actions and reduce the need for enforcement actions at both large and small businesses. These are goals we all seek.

That said, let us be crystal clear. The Interim Participation Agreement with EPA has expired and we are wiping the slate on this issue clean. As noted in our June 30 letter, our enhanced and expanded program deals structurally rather than legally with our concerns.

Civil enforcement will need to be considered, most likely during FPA finalization, as it pertains to the concept of the proposed continuous improvement permit (e.g., the "enforceability" of FPAs). We believe there will be opportunities to significantly advance the environmental protection goals that civil enforcement actions are intended to support, and set precedents that will improve compliance throughout industry.

We would urge EPA to consider creative options. However, if EPA wishes to continue under the precedent established in XL to date, EPA has determined that FPAs are non-enforceable. Even in XL, enforcement of violations that would otherwise be violations under an existing law or regulation are enforced using traditional methods. that is your decision and we will accept it.

It is our view that we must move forward on a project whose benefits and challenges are clearly significant and we should not allow any peripheral issue to get in the way of that effort.

We appreciate very much the opportunity to meet with you on the 29th and look forward to providing the meeting materials in advance. We sincerely hope that we can move forward creatively with you after the 29th on what we believe is the most exciting, creative and comprehensive of any XL project to come forward to date.


Debra Sabatini Hennelly
Corporate Counsel

Ted Polakowski
E&S Officer & Manager

cc: Chuck Fox, Office of Reinvention
Tom Maslany, Region III
Bob Barkanic, State of Pennsylvania
Andrew Neblett, State of Texas
Erik Meyers, Environmental Law Institute


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