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Crompton Corporation (Formerly Witco Corporation)

Minutes for Meetings Used to Develop the Final Project Agreement

OSi Specialties - Project XL Minutes September 10, 1996 Conference Call

I. Conference Call Participants

Dennis Heintzman Witco-OSi
Okey Tucker Witco-OSi
Tony Vandenberg Witco-OSi
Dale Koontz Witco-OSi
Jesse Barnhart Witco-OSi
Brenda Gotanda Witco-Manko, Gold & Katcher
Tim Malloy Witco-Manko, Gold & Katcher
Jim Cashel EPA Region III
Beth Termini EPA Region III
Michele Aston EPA Headquarters
Jonathan McClung WV DEP
Lucy Pontiveros WV DEP
Chris van Löben Sels NRDC

II. No Action Assurance

EPA informed the Workgroup that EPA will issue a Consent Order under RCRA Section 3008(a) to address OSi's request for a no action assurance. The Consent Order will set forth a compliance schedule for OSi's replacement of its surface impoundments with tanks and will provide OSi with such time as may be necessary for OSi to achieve compliance in the event that FPA negotiations are terminated and the Project is not implemented. The Order will become effective as of the RCRA Subpart CC compliance date. It will contain stipulated penalties in the event the compliance schedule is not met. Beth stated that the compliance period will probably be a set period of months with a provision for modification if the need arises. EPA will generate a draft and share it with OSi for its review. OSi requested that the state also follow EPA's approach. Beth stated that she is willing to work with Britt on this.

III. Final Project Agreement
Members of the Workgroup provided comments on the draft FPA, continuing the discussion held at the September 5-6 meeting in Philadelphia. The comments are reflected in the revised FPA draft, which is appended hereto as Attachment 1. Specific topics discussed with respect to the FPA are set forth below.

A. Project Implementation - RCRA Subpart CC

1. OSi reported on its discussion with two state senators regarding the possibility of obtaining an amendment to West Virginia Regulation 25 as part of legislative review of the regulation. The senators informed OSi that such a change would be possible if proposed changes were submitted before the end of this calendar year. Okey noted that the rulemaking could be the same language that EPA drafts for its direct final rule, and that no public comment would be required as this state rulemaking would be done as part of a legislative process. It may not be necessary for the EPA rule to actually have been promulgated as final prior to the time the language is submitted to the state.

2. Michele noted that the site-specific rulemaking under RCRA Subpart CC had been based on the assumption that the MON effective date would be the termination date of the Project. Thus, the rule would simply be a deferral of the compliance date. She noted that if the FPA provides for an indefinite end date, EPA may need to go back and reevaluate whether a rulemaking is the appropriate mechanism. The group discussed whether the rule could actually have a default termination date of the MON effective date, with a recognition that the rule could be extended if the parties agree to extend the Project as part of the reevaluation. EPA will consider whether changes to the expected termination date of the Project will have an impact on the site-specific rulemaking or not.

B. Project Duration
1. The Workgroup discussed the concept in the FPA of a minimum project term. Michele pointed out that if the Project terminates as a result of the MON, there would be no need for a grace period following termination for OSi to come into compliance with CAA Subpart YYY or RCRA Subpart CC, to the extent that those regulations are more stringent than the MON. She noted that by the promulgation date of the final MON in 1999 or 2000, the parties should know whether the MON will require more or less than RCRA Subpart CC or CAA Subpart YYY. OSi will consider this point.
2. The Workgroup then discussed the concept of the effective date of the Project. The draft FPA made a distinction between a performance goal and a performance commitment for start-up of emission controls and the methanol recovery operation. EPA suggested that such distinction may be unnecessary so long as the FPA simply identifies the effective date of the Project. Michele believes that the effective date would be December of 1997, the compliance date for RCRA Subpart CC. OSi pointed out that, if approved, it currently would expect to begin constructing the capper unit in the second or third quarter of 1997, with start-up occurring in the first or second quarter of 1998. In that event, it might be possible that the capper unit (and the controls) would not be operational until after the December 1997 compliance date for RCRA Subpart CC.
3. The Workgroup also discussed whether the old capper unit would ever run at the same time as the new capper unit. Dennis explained that OSi's intent would be to not run the old capper unit after the new capper unit is in operation. However, he noted that for a short period of time, OSi may want to retain the ability to run the old capper unit in the event that there are unanticipated problems with operation of the new capper unit. OSi does not intend to run the old capper unit simultaneously with the new capper unit.

4. The Workgroup agreed that the performance criteria should probably include provisions relating to shutdown, start-up and maintenance as well as expected excursions and as how to deal with those issues. Jim Cashel suggested that there should be specific recognition that OSi will be netting out of certain regulatory requirements as a result of shutting down the prior capper unit. The Workgroup will consider addressing this point as part of the performance standards.

C. Termination of FPA
OSi noted that the provisions concerning termination of FPA should be roughly parallel to that which will appear in the legal mechanisms. OSi also noted that it will want to include an additional expectation of termination to reflect the fact that business concerns may lead to an OSi decision to terminate the Project during the Project life. The Workgroup agreed that this was a reasonable concern, but recognized that it is difficult to capture these concerns and the concerns of the agencies in narrow enough language. Chris suggested that the FPA might track more closely the concerns related to the Project (i.e., if some outside influence would require OSi to implement measures equivalent to RCRA Subpart CC or CAA Subpart YYY, OSi could terminate its involvement).

IV. Scheduling

The Workgroup agreed that there should be a conference call September 17 at 1:30 p.m., during which the group will discuss performance measures and milestones. In addition, the Workgroup will discuss the draft MON evaluation language during that meeting. A subsequent conference call is scheduled for September 24 at 1:30 p.m., and a face-to-face meeting of the Workgroup is currently scheduled for October 3, with a place to be determined.

Attachment 1
[To be inserted]

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