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
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