Weyerhaeuser Company

Letter from Gary Risner to Michelle Glenn

Weyerhaeuser
115 Primeter Center Place, Suite 950
Atlanta, Georgia 30346
Tel (770) 668 1210
Fax (770) 668 1252

April 23, 1996

Michelle Glenn
EPA Region 4, Project XL Leader
345 Courtland Street, N.E.
Atlanta, Georgia 30365

RE: Response to March 28, 1996 comments on draft FPA - Project XL

Dear Ms. Glenn:

Enclosed pleased find Weyerhaeuser's formal response to the March 28, 1996 written comments from EPA, Region 4, the Georgia Environmental Protection Division, and the Georgia Pollution Prevention Assistance Division.

Since these comments were written, Weyerhaeuser understands that additional comments have been made by EPA Headquarters and Region 4. When we have received and reviewed the EPA's position/comments from the Weyerhaeuser/EPA meetings on April 18 & 19, 1996, we will respond to all additional comments accordingly.

If you have any questions please call me at 770-668-1210. Thank you.

Sincerely,

Gary Risner
Area Environmental Manager

Enclosure

CC: David Word - GAEPD
Robert Kerr - GAPPAD

WEYERHAEUSER RESPONSE TO MARCH 28, 1996 GOVERNMENTAL
COMMENTS ON THE DRAFT FINAL PROJECT AGREEMENT (FPA)

The format of the Response to the Comments on Weyerhaeuser's Draft FPA will be organized in the same format as they were received in the March 28, 1996 letter from Michelle Glenn to Gary Risner.
GENERAL COMMENTS
EPA-AIR
Response. Weyerhaeuser disagrees that the FPA failed to support the primary underlying objective of Project XL by failing to achieve an overall environmental benefit. Weyerhaeuser's superior environmental performance was sufficient to justify the Company's proposal being accepted by EPA initially. Moreover, Weyerhaeuser has made it clear throughout the discussions of the FPA that it was fully willing and ready to discuss all data necessary to satisfy EPA and EPD that there was environmental benefit with respect to the control and reduction of hazardous air pollutants under the Clean Air Act provisions regarding MACT. Weyerhaeuser has continued to supply additional information to EPA and EPD including the most recent meeting between the parties on April 10, 1996 at the Flint River facility with EPA, EPD and NCASI.
EPA-WATER
Response. Weyerhaeuser will include a section in the FPA that describes the role of the Agencies who are signatories to the FPA.
POLLUTION PREVENTION ASSISTANCE DIVISION (P2AD)
1. Response. Weyerhaeuser will revise the FPA to include a larger section describing the pollution prevention efforts at the facility and how those efforts tie-in with the Company's Minimum Impact Manufacturing Vision. Weyerhaeuser agrees that a document that is more readable and understandable by the public and the stakeholders will make the public recognize that the FPA is beneficial to the public.
2. Response. With respect to the MIM Process Optimization Approach, Weyerhaeuser will provide a better description of the pollution prevention and waste production measures at the facility that are integral to the introduction and implementation of MIM at the facility.
EPD-AIR
Response. Weyerhaeuser agrees that the FPA should more consistently address the continuance of existing permit and rule requirements not covered by the FPA. Weyerhaeuser also agrees that any existing permits not replaced in whole or in part by the FPA should be incorporated by reference and can be attached to the FPA is necessary.
SPECIFIC COMMENTS
1. Response. Weyerhaeuser will agree to substitute P2AD for PPAD at all places in the FPA.
2. Response. Purpose--Weyerhaeuser agrees to clarify that the term proposal means the Project XL proposal submitted by Weyerhaeuser to EPA for the purpose of negotiating an FPA to embody the commitments made by Weyerhaeuser in that proposal. Also, Weyerhaeuser can agree to change the third bullet of part II to read as provided in the comment.
3. Response. Weyerhaeuser understands the comment to request that rather than putting our pollution reduction MIM requirements in bullet form that we provide them in narrative form and describe them with some degree of quantification. Weyerhaeuser will revise the FPA to make it more explicit that its goals for reduction of pollution in Tables 1 and 2 reflect the MIM Phase IV targets. Regarding land application as a disposal method Weyerhaeuser Flint River is already working with the University of Georgia and the Georgia Institute of Technology on a voluntary land application agreement as it investigates and researches the appropriate land disposal of materials generated at the facility.
4. Response. This comment suggest a specific insert concerning oxygen delignification as a pollution prevention technology that reduces the amount of bleaching chemicals needed for pulping process. While the specific words are not completely acceptable, Weyerhaeuser will work this concept into the FPA.
5. Response. This comment calls for an insert describing Weyerhaeuser's MIM program as a comprehensive pollution prevention program. Again, Weyerhaeuser doesn't find the specific words completely satisfactory but will incorporate a description similar to the insert into the next draft of the FPA.
6. Response. This comment request that the 30 key parameters that Weyerhaeuser will use to track MIM progress be listed and described in the agreement and Weyerhaeuser is amenable to providing that information.
7. Response. This comment request a more detailed description of the MIM activities in Appendix A to the FPA. Weyerhaeuser agrees that it will expand on the description of MIM activities, process and schedule and include it in the next draft of the FPA.
8. Response. This comment calls for a broader description of ISO 14001 in the MIM Phase IV activities and asks that Weyerhaeuser describe how that will be implemented at the facility. Again, Weyerhaeuser will endeavor to fully respond to this comment by including a description along the lines of the one provided for in the comment.
9. Response. Is a comment concerning Weyerhaeuser's reservations of rights on copyright, patent and license issues relating to MIM and asks the question of how Weyerhaeuser is going to protect the information and be able to make it transferable to other similar facilities. Weyerhaeuser will fully examine this comment in the context of trying to find the right balance between protecting information that is proprietary and at the same time making the appropriate amount of information necessary for transferability available to EPA and EPD and P2AD for use in the pulp paper industry and other appropriate industry groups.
10. Response. Weyerhaeuser will include a greater description of the MIM Phase V activities in the next draft of the FPA and agrees with the suggestion that the FPA can be amended in the future should Weyerhaeuser, after performing its feasibility study, decide to implement MIM Phase V.
11. Response. Weyerhaeuser agrees that it will share concepts, generic solutions and tools as a way of transferring the environmental and waste reduction achievements that will be accomplished at the Flint River facility.
12. Response. This comment suggest inclusion of language under the heading VII implementing Project XL for Flint River operations. Weyerhaeuser cannot agree with the suggested insert for the FPA in this paragraph. While Weyerhaeuser recognizes that it will seek regulatory language changes that are subject to notice and comment rulemaking, Weyerhaeuser is nevertheless concerned that EPA needs to make a strong commitment to change whatever rules are being proposed and to endeavor to keep those changes in place through the final rulemaking process. Weyerhaeuser is concerned that this insert will provide too much flexibility to the EPA to alter its commitment to Weyerhaeuser after Weyerhaeuser has already made detrimental reliance on the agreement from the Agencies. This comment is addressed further in the context of the comment on the enforceability of the FPA. Weyerhaeuser can agree with a portion of that comment, which is that the FPA cannot affect future statutory or regulatory obligations that are not now effective or reasonably anticipated to be effective, other than the regulatory features that have been identified in the context of the FPA.
13. Response. This comment relates to the Project XL acceptance criteria and contains specific comments regarding each one of the eight criteria. In general, Weyerhaeuser agrees that more language concerning the Project XL acceptance criteria than was in the initial draft FPA should be added to the next version of the FPA.
Environmental Results. Weyerhaeuser agrees with the comment that this section should be expanded consistant with an earlier comment regarding a greater discussion of the pollution prevention and waste reduction benefits associated with Weyerhaeuser's MIM program. Weyerhaeuser will probably add some language concerning environmental results from its proposal into this section of FPA.

Stakeholder Results.

Weyerhaeuser will expand the stakeholder section particularly in light of the several public meetings that have been held to include a more detailed discussion of the stakeholder involvement and participation.

Innovation/Multi-Media Pollution Prevention.

Weyerhaeuser will expand this section and cross-reference it to some of the pollution prevention language discussed previously in response to the comments made by P2AD.

Transferability.

Weyerhaeuser will expand this portion of the FPA and will bring in the notion of transferability as set forth in the May 23, 1995 Federal Register notice concerning Project XL proposals.

Feasibility.

Weyerhaeuser will expand on the resources available to it to implement the MIM program. With respect to the second portion of that comment relating to EPA's commitment that it is feasible to implement the FPA subject to a final rulemaking will be discussed in a subsequent response to a later occurring comment.

Monitoring, Reporting and Evaluation.

Weyerhaeuser understands the comments made in this section by EPA and will endeavor to accommodate the specifics of the monitoring and reporting aspects of Weyerhaeuser's operations as envisioned subsequent to the FPA. Weyerhaeuser acknowledges the comment concerning permit modifications to be made by Georgia EPD and EPA's support of those modification and will endeavor to include that language or a specific reference to it in the FPA.

14. Response. Final Project Agreement Implementation--Weyerhaeuser acknowledges that certain items of proposed relief were to be accomplished through permit modifications and Weyerhaeuser will identify those more specifically in the next version of the FPA. Weyerhaeuser does not necessarily agree with EPA's comments that proposed rulemaking issues and their relationship with the FPA should be worded as EPA has suggested. Weyerhaeuser agrees with respect to the reporting of noncompliance that there needs to be a specific reference to what kind of actions would constitute noncompliance as part of the FPA.
15. Response. Weyerhaeuser agrees that it will modify the reporting section of the agreement to specify a semi-annual rather than quarterly reporting and then provide an annual report that will summarize and provide greater detail than the two semi-annual reports.
16. Response. With respect to the changes to Tables 1 and 2 that are suggested by EPA, subject to recalculation and verification of the numbers, Weyerhaeuser can agree with the format of Tables 1 and Table 2.
17. Response. Weyerhaeuser agrees that there needs to be a standard reference as between air dried metric tons (ADMT) and air dried short tons (ADST) with respect to measurement of effluent limitations and emissions limitations in the FPA. Weyerhaeuser does note that current regulations applicable to some of the permits do require that the units of production be specified as different units and Weyerhaeuser will try to accommodate EPA's comments in the next draft of the FPA.
18. Response. Force Majeure--Weyerhaeuser understands the comment to require a description of specific types of force majeure events. Weyerhaeuser will attempt to describe those in the context of the discussion at the April 4, 1996 meeting regarding the FPA comments.
19. Response. Dispute Resolution--Weyerhaeuser cannot agree with EPA's approach that dispute resolution will be contingent on EPA being able to find dispute resolution and that a failure to resolve all disputes will resort to the termination at will provision. It appears from the discussion at the April 4, 1996 meeting that EPA and Weyerhaeuser can reach some accommodation on the exact language of the dispute resolution provision and in the next version of the FPA. Weyerhaeuser will attempt to resolve that concern.
20. Response. The Duration of the FPA and Termination--EPA did not accept Weyerhaeuser's proposal for a 15-year period for the FPA. Weyerhaeuser does not accept EPA's concept that the time period for the FPA should be tied to any Clean Water Act permit time periods or to any time periods for implementation of MIM Phase IV. The period of time Weyerhaeuser is seeking is one sufficient to protect the asset provided to the company by the FPA and to provide certainty to the business manages that operations will not be affected unless a significant noncompliance with the FPA or its permits should occur. Weyerhaeuser can accept EPA's comments with respect to the termination for cause section of this portion of the FPA and will make that change in the next draft.
21. Response. This comment addresses the procedure for public notice and other procedural issues concerning amendments to the FPA and any permits that are incorporated by reference or referred to in the FPA. Weyerhaeuser's position in the first paragraph of the amendment provision was to make it clear that the FPA would not be superseded or contradicted by existing oral or written agreements which were in place prior to the execution of the FPA nor by any subsequent oral agreements between any of the Agencies and Weyerhaeuser. The Company's position that amendments to the FPA shall be effective only if in writing and only if signed by the parties is an effort to prevent unilateral changes to the FPA without all parties coming to agreement that is something that should be done.
Regarding any permits that are not specifically governed in the FPA, Weyerhaeuser agrees to follow the proper process for the handling of any such amendments, modifications or reissuance procedures for those permits. However, to the extent that there are provisions in the FPA governing that process, for example the provision in the pathway appendix concerning the process for reissuance of the NPDES permit upon expiration, Weyerhaeuser wants to follow that process. Weyerhaeuser does not object to the position taken by EPA and EPD that the Agencies retain authorities to modify permits listed in the appendices to the FPA after discussion with Weyerhaeuser and adequate consideration of the company's position and then subsequent public comment.
With respect to the comment from the agencies concerning the enforcement section, Weyerhaeuser does not object to including language in the FPA acknowledging the agency's enforcement power over existing permit violations and will incorporate language to that effect in the next draft of the FPA.
22. Response. Weyerhaeuser agrees with the comment concerning when the periodic performance review conference would be held so that the conference is held a certain period of time after the submittal of the report rather than on the date the reports are due and Weyerhaeuser will accommodate that change into the draft of the FPA.
23. Response. This comment by EPA concerning the agency's authority to enter into the FPA is extremely troublesome to Weyerhaeuser. EPA's position is "that it does not have authority to enter into FPAs as binding contracts unless the underlying statutes provide for such authority. EPA's position is that FPAs are statements of intent and agreements in principle between the parties." That position is simply unacceptable. Weyerhaeuser is making too large of an internal commitment, too large of a capital and operation costs commitment, too much of a public commitment to the stakeholders and to the media and in its proposal to EPA to enter into a FPA with EPA, for EPA to not consider itself to be bound in terms of following through with its commitments and the FPA. An agreement in principle or a statement o f intent won't be satisfactory at the end of the day for Weyerhaeuser to walk away and feel bound and be able to base business decisions over a very long period of time on such a document. There is no language that we can provide as a substitute to this language because this issue is too important for Weyerhaeuser to agree to any change in language in our initial draft FPA.
While Weyerhaeuser understands that the authority issue underlying the FPA, the Company believes that EPA's statements and documents related to the XL Program should be taken into account as EPA decides exactly how to structure the enforceability of the agreement. In the May 23, 1995 Federal Register EPA said "Each final project agreement should clearly set forth objective, specific requirements that the subject facility or facilities have agreed to meet." (60 FR 27284.) The Notice talks about what kind of mechanism EPA will use to make a FPA commitment enforceable which EPA recognized may involve resolution to some other document referred to in the FPA or some other process. Likewise, the December 1, 1995 Principles for Development of Project XL Final Project Agreements and the companion OECA's Operating Principles for Project XL Participants make it clear that EPA wants the project participants to be bound by the terms of the FPA and that EPA wants to retain the ability to enforce violations of the commitments made in the FPA. Weyerhaeuser recognizes that in the context of the OECA guidance, that a statement of intent as to how the agency will exercise its enforcement discretion is obviously binding in the context in which the statement is made, but Weyerhaeuser believes that a statement of intent as to the whole FPA would be inappropriate.
24. Response. EPA's comments regarding severability simply refers back to EPA's comment on enforcement. Weyerhaeuser does not understand what that means and presumably if the enforcement provision is resolved, the severability provision will be worked out as well.
APPENDIX ONE
Response. Weyerhaeuser agrees with the comment to take the January 25, 1996 date from the top of the list of the Flint River MIM phases Appendix to the FPA.
APPENDIX TWO
General Comments on "Pathways" Document
Response. Both comments under Appendix Two relating to the 1993-1995 baseline for the average effluent data and the way the effluent data is reported were discussed during the meeting on April 4, 1996 and Weyerhaeuser's understanding is that the baseline issue is no longer a concern and that the average of 1993-1995 is acceptable and Weyerhaeuser will recalculate the information concerning how the effluent data is portrayed in the next draft of the FPA.
APPENDIX THREE-REGULATORY PATHWAYS
Response. Weyerhaeuser's response to the general comments on the Pathways documents are that we will move forward expeditiously to modify all permits where permit modifications are discussed in the Pathways' Appendix as soon as possible after the FPA is concluded and Weyerhaeuser is in the process of drafting language to accommodate those changes. With respect to language in the proposed rules, Weyerhaeuser's position remains that Weyerhaeuser will request that those changes be made to the proposed rules at this time consistent with Weyerhaeuser's belief that the rule changes should not be discussed further but simply implemented.
MEDIA-WATER
General Comments on Water and Water Use

Item 1. Response.

Weyerhaeuser agrees that it has not updated the FPA to reflect the changes discussed during the February 15 and February 28, 1996 meetings and will include those changes in the next draft of the FPA. Weyerhaeuser also agrees with the comment that the format of the Pathway relief concerning the NPDES permit should include an understanding of how Weyerhaeuser's Environmental Management System (EMS) will address or compensate the relief being requested and will modify the Pathway with respect to the color issue as specified in the comment. That includes comments in Item 1.

Item 2. Response.

Weyerhaeuser understands the BAT limits for color and dioxin are contingent upon final promulgation of the proposed now being considered by EPA. We understand that the proposed rules will, however, be changed consistent with the request of Weyerhaeuser and we will accept the change suggested at the end of Item 2.

Item 3. Response.

Regarding the BMPs for inclusion in the final rule, Weyerhaeuser agrees and will identify those proposed BMPs.

Item 4. Response.

With respect to effluent dioxin, Weyerhaeuser can agree that it will reexamine whether a reopener of the dioxin limit should occur but Weyerhaeuser is concerned that any testing ought to be done by governmental entities and not by Weyerhaeuser in the future. Weyerhaeuser would also like to reach an agreement that the dioxin limit being discussed in the FPA will govern both the permit and any BAT for dioxin.

Item 5.

Fish Tissue Sampling

Response.

Weyerhaeuser again does not think that any fish tissue sampling should be undertaken by Weyerhaeuser. The Company has demonstrated that our process does not result in any dioxin fish tissue contamination and see no need that Weyerhaeuser should undergo the cost of paying for additional fish tissue sampling.

Item 6. Response.

This comment is a recitation that Weyerhaeuser and EPD had previously agreed that item in our Pathway should be deleted and will be deleted in the subsequent FPA draft.

Item 7. Response.

Weyerhaeuser has reviewed the suggested EPD additional language and will rename the Pathway "Streamline NPDES Permit Renewal" and revise the FPA to address the language suggested by EPD.

Extend NPDES Permit Lift

--Weyerhaeuser agrees with the sense of EPA's comments, which are that the certification of compliant operations that would be required of Weyerhaeuser in order to get its NPDES permit renewed every five years would provide enough information to satisfy the application requirements and the public notice requirements. However, the Company wants to reiterate the point that the critical request that it is making is to get a streamlined permit application in place which is both faster, more efficient and less costly to Weyerhaeuser.

Item 8. Response.

This is specific language regarding some of the water relief items and Weyerhaeuser agrees with EPD's comment regarding the alternative language and changing the reference numbers within the items.

Item 9. Response.

Weyerhaeuser agrees to the language change that EPD and EPA want regarding water quality standards for Lake Blackshear. Regarding no nutrient limits in its NPDES permit, Weyerhaeuser's position remains that it should not commit to do any monitoring as part of the FPA until water quality standards are adopted for Lake Blackshear and EPD and Weyerhaeuser agree to a sharing of responsibility regarding any necessary monitoring for our affluence impact on Lake Blackshear. Weyerhaeuser recognizes that Section 301(b)(1)(C) of the Clean Water Act requires NPDES permits to take into account water quality standards, but also recognizes that the effluent limits need not be based on water quality standards if such a requirement is not proven to be technically sound.

Item 10 and Item 11. Response.

Weyerhaeuser agrees with EPD's position regarding no fees for effluent discharges and the exemption from laboratory analysis certification. Weyerhaeuser will include in the next draft of the FPA some modified language that continues to address its concerns regarding those two items.

MEDI-SOLID WASTE

Item 1. Response.

Weyerhaeuser wants to be sure it understands the comment and needs a clarification further concerning that comment. The liquid waste that Weyerhaeuser is talking about putting in the landfill would be material that would be allowed to be landfilled despite the fact that it does not pass the paint-filter test in light of the liner and lechate collection system in the landfill. Weyerhaeuser does not intend to change its current practice of not adding liquids that are essentially free liquid and will dewater the material. The limitations suggested in Item 1 is too restrictive as it is written.

Item 5. Response.

Weyerhaeuser will incorporate the prior alternative language that EPD had recommended concerning Item 5 of the solid waste pathway having to do with the land application of mill sludge and waste.

Item 6. Response.

Land application activities by Weyerhaeuser would certainly only be limited to projects where environmental benefits would be derived and results measured and achieved. Moreover, Weyerhaeuser would land apply material pursuant to the necessary permit which we assume would carry all the safeguards mentioned in the comment. Weyerhaeuser will also change the rule date referred to in the pathway to the October 25, 1995 date.

EMERGENCY PLANNING AND SPILL CONTROL

Response.

With respect to both Items 1 and 2, Weyerhaeuser is still concerned about EPA's comments regarding its requirement to have an SPCC plan under 40 C.F.R. Part 112. What Weyerhaeuser is looking for is not a relief from the requirement to have a plan, but flexibility on what that plan contains and how frequently it needs to be updated. The comments of EPA seem to be inconsistent with that approach and we need to resolve that matter in subsequent discussions on a redrafted FPA.

MEDIA-HAZARDOUS WASTE
General Comment
Response. In response to the only comment under this heading, Weyerhaeuser agrees that the elementary neutralization system's physical integrity should be periodically maintained and in fact that information is already available in company records. Weyerhaeuser also agrees if newly regulated waste become subject to management in the elementary neutralization system that a case-by-case determination will be necessary pursuant to the applicability of the FPA to those wastes. However, Weyerhaeuser would be of the belief that if the new waste is also hazardous only because of a characteristic of corrosivity, that the elementary neutralization system would not need any further review by EPA or EPD.
MEDIA-AIR
Specific comments - EPD Air

Response.

The specific comments are contained in the below bullets and Weyerhaeuser will respond to each bullet referring them in the sequence in which they were provided to Weyerhaeuser.

· Bullet One. Response. This comment reiterates the point concerning the demonstration by Weyerhaeuser that it is justifiable to control hazardous air pollutants at the Flint River facility consistent with the MACT I requirements. Weyerhaeuser has previously responded that its superior environmental performance has shown the environmental benefit necessary to justify the change to the proposed rules and have hazardous air pollutants controlled under the FPA.
· Bullet Two. Response. This comment relates to the allowable and baseline columns of Table 1 concerning the MIM Phase IV emissions. Weyerhaeuser will need to examine the calculations but believes, as they are presented in the comments, that they are accurate and consistent with the discussions on March 25 and April 4, 1996.
· Bullet Three. Response. This comment relates to a discussion of the air permit review process discussed at the March 25, 1996 meeting. With respect to all three items listed under that bullet, Weyerhaeuser agrees with the discussion of the reaction to modifications by EPD and EPA.
· Bullet Four. Response. Weyerhaeuser agrees with the Title V modification process as stated in the second sentence of that comment. With respect to the first sentence of the comment, Weyerhaeuser would like to continue discussions with the State to reach some accord in the FPA regarding a streamlined Title V process.

ITEM-SPECIFIC COMMENTS-EPA AND EPD AIR

1. Response. Again this comment from EPA and EPD challenges the support for the hazardous air pollutants control mechanism suggested by Weyerhaeuser concerning the proposed pulp and paper MACT standard. Weyerhaeuser has already made its position known regarding its disagreement with this comment from EPA and EPD.
2. Response. Weyerhaeuser agrees to add a reference to the terms and condition of it current air quality permit as specified in the comment.
3. Response. Includes specific word changes for pathways. Here there are three specific relief comments and Weyerhaeuser agrees with all those comments and will modify the FPA accordingly.
4. Response. This comment labeled "Streamline Construction/Operating Permit for Facility" is a comment by EPA that was written before the March 25, 1996 meeting. It is our understanding that EPA has withdrawn this comment and defers to the EPD comments under the prior numbers under this item.
5. Response. Weyerhaeuser can agree with the comment concerning experimental trials without permitting and will modify the FPA accordingly.
6. Response. Concerning start-up flexibility and other emission events. Again, the comment agrees with the FPA language and we understand that EPD agrees. OTHER COMMENTS Response. This comment relates to any reduction in emissions due to steam savings at the power boiler and the concern that those emissions not be added back by selling the electricity to Georgia Power. The FPA will be modified to reflect a reduction of the stream emissions which will be an actual savings which will not be resulting in power being sold to Georgia Power. APPENDIX FIVE The FPA will be modified to reflect EPD's non-participation in the specific stakeholders meetings referred to in that Appendix.

Weyerhaeuser Company

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