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Berry Corporation

EPA Response to NRDC Comments

August 9, 1996


SUBJECT: Response to Comments from Linda Greer of NRDC on Draft Final Project Agreement (FPA) for the Jack M. Berry, Inc. XL Project

FROM: Lisa Hunter
Emerging Sectors and Strategies Division
Project XL Headquarters Contact for Berry Project

During a meeting with Deputy Administrator Fred Hansen on July 16, 1996, Ms. Linda Greer of the Natural Resources Defense Council (NRDC) handed Mr. Hansen a copy of the May 31, 1996, Draft FPA with the Berry facility in LaBelle, Florida, with her comments written in the margin. Because the comments were received more than two weeks after the close of the 30-day public comment period ending on June 30, 1996, the Agency did not have the benefit of addressing Ms. Greer's comments in the final FPA, which was signed by all parties on July 8. Nevertheless, given the importance to the Agency of NRDC as a supporter of XL and the concepts we are testing, I thought it valuable to consider and respond to Ms. Greer's comments so that we might be informed by her perspective as we implement the Berry project.

In this note, sections of the May 31, 1996, draft FPA are written in bold and underlined text. Ms. Greer's comments are written in bold text only. EPA responses to Ms. Greer's comments are written in normal text.

Section I.A. Objectives
Does facility have a bad compliance record? - p. 2
No. EPA's Office of Enforcement and Compliance Assurance completed their compliance screen of Jack M. Berry Corp. on 9/6/95. The LaBelle facility has no history of significant environmental violations. Of three evaluations conducted in 1995, only one RCRA Notice of Violation (NOV) was issued in November and, in that case, the Agency decided that an enforcement action was not warranted.

Section I.C. Roles and Responsibilities of FPA Signatories
What happens if it is not implemented? - p.3
The FPA was signed and the project implemented on July 8, 1996. Had it not been implemented, or if the FPA is terminated during implementation pursuant to the termination clause under Part I.F. of the FPA, the facility would again be required to obtain the standard permits.

An expedited permit even if they failed to improve? Not much of a consequence to bad behavior ... - p.5
'Cause' has a high threshold. - p.5
The Agency's first response to "bad behavior" need not be termination of the COP, since the COP provides for enforcement remedies consistent with those available under standard permits. However, in the case that termination of the COP is desirable, the parties to the FPA do not view expedited permits after termination of the FPA as a "reward" for bad behavior. Rather, the intent is to revert to the original underlying statutory/requirements as quickly as possible in order to insure adequate protection of human health and the environment. If it becomes desirable to terminate the COP or portions thereof, it is in the best interest of the environment and all parties to return to a set of standard permits as quickly as possible, since the COP remains in effect until the original permits are re-issued. Further, the parties do not believe that termination is necessarily equated with a "failure to improve." XL projects are pilot projects, and it is fully recognized that it may in the future be desirable to terminate a project regardless of whether it meets its intended objectives. If however, the commenter means that the facility's "failure to improve" is detrimental to the environment, we agree that expedited permits would not be prudent. The FPA states that expedited or reissued permits may be "deemed appropriate for cause, such as presenting an imminent and substantial endangerment to the health of persons, the public health ... or the environment." (p.5.)

While we agree that the term "cause" might imply a particular standard of proof that must be met, the agreement states that this action will be taken "in accordance with existing regulations." Thus the standard that must be met will be no less or no more stringent than the standard that would apply in refusing an expedited permit for any other facility.

Section I.G. Severability
Strong area can be deleted without ramification? What if they decide to withdraw all the environmental improvement and just go with the flexibility? - p.6

The prior Section I.E., Modification, states that modifications can be made with the concurrence of all signatories. Thus, portions of the agreement will not be unilaterally withdrawn by any one party. This Severability clause simply states that other portions of the agreement are not automatically affected once mutually acceptable modifications to the FPA are made. Although outside parties may be concerned that the signatories could work together to diminish the effectiveness of the agreement, EPA has committed to ensuring superior environmental benefits, stakeholder involvement, and all other XL criteria, and thus would not approve a modification that diminished the agreement in any of these areas.

Section I.H. Transfer of FPA and COP
EPA/State has no role in determining suitability of new operator? What if he's under indictment elsewhere? - p.6
EPA fully agrees that the compliance history and other attributes of a new operator are just as important when transferring the FPA as when approving the original owner/operator for participation in Project XL. As such, EPA will rely upon the termination clause of the FPA to withdraw from the agreement rather than continuing with an unacceptable new operator.

Air emissions reduction strategy: Very weak. - p.16
Berry is committed to complying with all regulations, including the submission of a Title V application, with respect to air requirements. However, with respect to air emissions, the citrus industry today is in some ways in the place the wood products industry was in the recent past. Air emissions from the industry have not, in general, been well quantified or analyzed, nor have they been substantially regulated. Berry, through this FPA, has taken the initiative to quantify, develop, and implement a strategy for controlling air emissions. EPA supports Berry's initiative and lead with respect to collecting information regarding citrus plant air emissions data, as well as developing and implementing a strategy for controlling emissions. Several options which may be included in that strategy are the use of cleaner fuels, installation of an SO2 scrubber, and VOC reductions through process improvements such as d-limonene recovery.

VOC Graph
Trivial reduction - p.19
This repesents a targeted reduction based on minimal existing data for VOC emissions in the nation-wide citrus industry.

Figure 3. Industrial Wastewater Treatment and Wetland Conservation
Rows 2 and 3 -- what is the change [resulting from certification of wetland system and location]? - p.20
EPA believes that a certification that the wetland treatment system is in operation is an important component of the FPA. The wetland treatment system will provide treatment of process waste water and will allow this treated waste water to be re-used as irrigation water. This will result in reduced water consumption as well as the closure of a land application site. The installation of this system will also result in a dramatic decrease in odor from the land application of the high BOD5 process waste water. As an additional benefit, wildlife in the area, including 'gators, have taken up residence in the wetland treatment system, perpetuating the existence of a wetland ecosystem.

Figure 4. Solid Waste
No quant. reduction commitment. - p.21
Berry has taken initiative and leadership in the examination of waste streams from their facility and has made a concrete commitment to recycle scrap metal, reduce the number and types of solvents and lubricants used on-site and replace with a set of environmentally friendly products, as well as recycle, to the best extent possible paper, glass and plastic. The graphs on page 22 and 23 of the FPA represent quantifiable target values for these commitments.

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