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Weyerhaeuser Company

List of Questions Pertaining to EPA's Written Comments

TO: Gary Risner
FROM: Le DeHihns
DATE: June 11, 1996
RE: EPA Comments and Counter Proposal
Flint River XL Project


EPA's cover letter states that the letter and enclosure "focus on the primary issues that need to be resolved" and that EPA is looking forward to our consideration of the comments and discussing them with us. The obvious question - How much flexibility do the Agency representatives have to discuss the items set forth in the letter?

Heading Question
Environmental Performance In the opening paragraphs of this section, EPA says that it would like to see a commitment from Weyerhaeuser to achieve environmental results beyond those achieved through Phase IV alone and that they want a set of enforceable limits and commitments for the future that will foster technological innovation toward minimum impact manufacturing over the long term. Are they seeking a commitment to innovations without specific commitments to improvement or a commitment to specific long-term environmental improvement?
1) Safe Floor EPA says they would like Weyerhaeuser to agree to enforceable commitments that meet or exceed all state and federal substantive environmental standards, yet in Paragraph 1) Water, EPA says they would like Flint River to exceed BAT or the limits to be proposed in the upcoming tier 1 incentives program. Are we to simply meet or exceed specific standards?
1) Safe Floor In paragraph 1)2., EPA states that Flint River would need to achieve hazardous air pollutant emission levels equivalent to or better than those which would be achieved through application of MACT by a date not to exceed three years from the date MACT is promulgated. Why are we being forced to meet the MACT standard in three years when the rest of the industry will get eight years? Does EPA envision that the flexibility and trading arrangement regarding offsets and baselines be incorporated into the FPA, a new air permit, or a site-specific rule making?
1) Safe Floor Under paragraph 1)3., regarding criteria air pollutants, EPA says that it envisions separate PSD applicability caps for the power boiler and the rest of the facility. How does EPA intend to implement the rest of the facility cap if they are basing it on a program similar to something being contemplated in the proposed new source review reform rule making? The May 24, 1996, memo from Steven Herman clarifying EPA's Enforcement Policy Principles for Project XL suggests that Weyerhaeuser's protection from enforcement would be in the form of a site-specific rule making. Is that how EPA intends to implement this PSD approach? Regarding the power boiler, EPA states that changes in utilization of the power boiler that take place without a physical change would not be subject to PSD review. Assuming that a change in utilization is simply using unused capacity of the power boiler, that is not a change from current regulations. How does EPA believe this new flexibility is more than what we have under the current regulations? Why did EPA choose to reflect on the power boiler instead of the recovery boiler which is where Weyerhaeuser had focused and where the greater capacity opportunities lie?
1) Safe Floor In paragraph 1)5., under State and non-regulatory, EPA would like to see the attainment of "binding enforcement commitments," for plant-wide solid waste, odor control and energy conservation/steam use reduction. How will those commitments be made binding and to what enforcement mechanism will they be subject?
2) Flexibility for Experimentation To allow flexibility, EPA says that they will provide it directly or encourage Georgia to provide the flexibility. What will be the mechanism by which EPA will encourage Georgia and what commitments will Georgia make to follow EPA's encouragement?
2) Flexibility for Experimentation In paragraph 2)1., EPA says that it will recommend that Georgia insert certain effluent limitations in the NPDES permit issued by EPD. EPA then goes on the say it will require Flint River to meet a nondetect dioxin level at the bleach plant and that EPA will also negotiate less frequent monitoring requirements for dioxin, furan, and AOX. It is confusing as to what EPA will recommend that Georgia do versus how EPA will accomplish what it says it will do. Does EPA envision all of this will be done via a negotiated NPDES permit between EPA, Georgia, and Weyerhaeuser?
2) Flexibility for Experimentation In paragraph 2)2., concerning hazardous air pollutants, EPA says that it will allow the company to achieve MACT, within the source to be defined by MACT, by offsetting greater controls at some points not requiring control by the rule against less control of HAPs at points requiring control by the rule. That seems to be different than paragraph 1)2., which says that Flint River will need to achieve emissions levels equivalent to or better than those what will be achieved through the application of MACT. How are those two provisions consistent and how do they match up with the subsequent discussion of the MACT trading approach?
3) Commitment to Innovation beyond Phase IV Under paragraph 3)1., concerning bleach plant flow, EPA states that it would like the company to conduct feasibility studies to explore loop-closing technologies, yet at the same time, EPA wants the company to commit to an "enforceable, but reviewable, stretch goal" to be achieved by the year 2011. It is really uncertain as to what an enforceable but reviewable stretch goal is, particularly in light of the language from EPA that says - "It is EPA's hope that the bleach plant flow stretch goal can remain enforceable" What is a hopeful enforceable goal? That portion of the comments goes no to say, "If however, by completion of the feasibility study analysis, the signatories determine that the stretch goal is not feasible, then the parties can negotiate another commitment that would provide superior environmental performance." If we reduce our bleach plant flow to a lower number than the baseline in the FPA, is that going to be considered equivalent superior environmental performance or are they looking for something different yet to be discussed. We need to nail that down.
3) Commitment to Innovation beyond Phase IV Under paragraph 3)2., EPA states that it would like the company to commit to a feasibility study focusing on achieving "beyond MACT' emission reductions that would also lead to stretch goals and interim milestones. Assuming that this is an addition to the MACT commitment we will make vis a vis, the cluster rule--How will this be enforceable and what flexibility will the company receive for this commitment?
Nature of Final Project Agreement In paragraph 1), Legal Mechanisms, EPA states that it believes that final project agreements are documents that set forth the clear intent of the parties, but do not create legal obligations. EPA goes on to say that legally enforceable rights would be created through rule making or permit revisions as appropriate. If the EPA does not create a legal obligation -- What certainty does Weyerhaeuser have that EPA's commitments in the FPA will actually take place, particularly if it involves permits and rules which have to go through notice and public comment after the FPA is executed? Does EPA envision that all of the commitments and cluster rule comments and agreements be embraced in a site-specific rulemaking or in the cluster rule language itself? Also EPA states that the draft FPA and EPA's comments on the FPA suggest a variety of commitments where the commitments in a rule or permit being binding and other commitments resting only on good faith. What commitments does FPA envision would rest on good faith versus those that would have to be binding?
Nature of Final Project Agreement In paragraph 2), concerning periodic FPA review, EPA states that the signatories would develop a review schedule and define the terms under which the FPA is reopened, reviewed, modified, reaffirmed or terminated. EPA states it would use reopeners occurring biannually to examine air and water commitments. Does that mean that they will not reopen and review non-air and non-water commitments? Also, the Agency's could use a variety of options to make changes or revisions to commitments, including off-ramping if commitments are not achievable. How does EPA anticipate that those changes would be made? Under the mechanism under which they were established, or under some alternative new mechanism? EPA does say that it expects to further develop the basic elements of the process, but we need to get that detail from them as well.

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