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Berry Corporation

Letter from David Gardiner to Virginia Wetherell
Virginia B. Wetherell, Secretary
Florida Department of Environmental Protection
2295 Victoria Avenue, Suite 364
Fort Myers, FL 33901-3881

Dear Ms. Wetherell:

The Project XL selection committee has completed the review of the Florida Department of Environmental Protection/Berry Corporation (FL DEP) proposal and has decided to defer making a decision at this time. We ask that you help us to make an informed decision by providing supplemental information in several specific areas identified in EPA's technical review of the FL DEP proposal.

EPA has defined eight selection criteria to be considered in selecting XL projects for further development. These criteria are contained in the Project XL Federal Register notice of May 23, 1995. A project may be deferred if it appears to have the potential to meet the criteria, but contains insufficient information for an informed judgment. In such cases, it is our intention to work with the applicant to improve the proposal as expeditiously as possible.

Agency-wide technical review uncovered three areas where supplemental information would improve the FL DEP proposal.

(1) Environmental Performance. Project XL is premised on regulatory flexibility in exchange for superior environmental performance. In choosing among potential projects, the issue of overall environmental performance is of paramount importance. I know this is an interest that you share. However, the extent to which the FL DEP proposal would achieve environmental results beyond what would be achieved through otherwise applicable rules is unclear from the proposal.

(2) Feasibility/Permit Issues. The proposal contemplates the extension of permits for a twenty year period. While EPA is willing to explore with you ways to make this work, we generally believe that projects should contain interim points (e.g., every several years) at which the project sponsor, EPA, and the state agency can make adjustments based on experience and changed circumstances. For example, changes in the science or the otherwise applicable regulations might argue for an adjustment to the XL project's permit content. More information on how FL DEP envisions this process working would be helpful to EPA.

Also on the question of permit feasibility, a listing of the permits presently issued to the facility, along with the name of the issuing authority and the length of the permit term and renewal date, would be useful to our assessment of the feasibility of the project. It is not now clear whether or how many of the permits are issued by EPA or FL DEP, as opposed to other appropriate agencies. Would other authorities need to be brought into the project for it to be viable?

(3) Stakeholder Support. In order to ensure increased accountability along with superior environmental results, XL projects must include a local stakeholder component. Berry Corporation has garnered support from many regulatory authorities. However, supplemental information on how local community, private, and public interest groups that would be impacted by the environmental results of the project are to be brought in would be useful in further evaluation of the proposal.

I have asked our contacts in EPA Region IV and Headquarters to work with you to develop supplemental application information addressing these issues and any others you feel are important. The EPA contacts designated for the FL DEP proposal are: Bill Patton in EPA Region IV (404-347-3555 x 6898), and Lisa Hunter here in the Headquarters Office of Policy, Planning and Evaluation (202-260-4744). Both Bill and Lisa are knowledgeable about the FL DEP proposal itself and the comments of techincal reviewers.

Supplemental application information should be submitted to the docket in the same manner as the original FL DEP proposal. The docket address is: Regulatory Reinvention Pilot Projects; EPA Water Docket; mail code 4101; 401 M Street, S.W.; Washington, DC 20460.

Once again, thank you for your interest in Project XL. We look forward to working with Florida DEP and the Berry Corporation to create building blocks for environmental protection in the 21st century.


David Gardiner
Assistant Administrator

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