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New York State Department of Environmental Conservation

Letter from Lawrence Nadler to Phil Flax

December 5, 1996



Mr. Phil Flax
RCRA Compliance Branch
U.S. Environmental Protection Agency Region II
290 Broadway
New York, NY 10007-1866

Dear Mr. Flax:

With regard to New York State's Project XL for public utilities, enclosed are the following documents:.

1. Our response to your compilation of the comments from EPA Headquarters on the previous draft of the Public Participation and Outreach Plan (PPOP). This is intended for your information and not for any formal review.
2. The revised draft PPOP. This will be the final plan, unless we are advised of significant objections. Changes have been made in accordance with the comments from EPA Headquarters.
3. A draft public notice for EPA's review and concurrence. This draft also reflects the comments from EPA Headquarters on the draft PPOP.

As we receive final concurrence on each document that must be prepared for this project, we will send that document to you on disk in a suitable format so that EPA can place these documents on its web site and, of course, reproduce them at will whenever needed. If there are any questions, please contact me at (518) 485-8988.


Lawrence J. Nadler, P.E. Supervisor Technical Determination Section Bureau of Hazardous Waste Management Division of Solid & Hazardous Materials Enclosure


Project XL for Public Utilities Responses to EPA Headquarters Comments on Draft Public Participation and Outreach Plan

1. Paragraph 1(B): Agree with the comment, but this would be addressed in the notice. The plan is really an outline.

2. Paragraph 1(C): This has been changed to include a description of the proposed stakeholder process alone. However, it should be noted that the previous language was based on previous guidance from EPA, namely that we could either provide a description of the stakeholder involvement process, or an explanation that a process is being developed.

3. Paragraph 1 (E): There is a clear need to send both the original acceptance letter and the clarification letter to interested parties because the clarification letter provides more specific information on the requirement for reinvestment of savings by participants.

4. Paragraph 1 (F): Agree with the comment. In fact, the public notice had been drafted in a manner consistent with the comment. The language of the plan has been changed accordingly.

5. Paragraph 2: Agree with the comment that the plan should indicate the preliminary draft FPA is being developed under EPA review. With regard to the other comments, the draft FPA is a "strawman" and is now described as such. Indeed, how could it be otherwise, since neither the environmental nor industrial stakeholders will have seen it previously and there is no "standard" format for an FPA in the XL program?

6. Paragraph 3: The wording is not ambiguous and is simply included to note that we cannot, at this time, make a blanket commitment to allow any one to be a participating stakeholder who wants to be, since we can only guess at the response to the public notice. Once the public notice period is over, we may very well find that everyone who requested to be a participating stakeholder can be included. However, the language has been amended so as not to create an inaccurate impression. As for the FACA concerns, since DEC and EPA will be the joint signatories to the Agreement, who else would make these determinations? With regard to the comment about who the "stakeholders" are, there is nothing in the plan to indicate that stakeholder status will be limited to public utilities. The public notice will make it clear that anyone can request participating stakeholder status.

7. Paragraph 5: These comments have been addressed.

8. Paragraph 6: It is more common to express comments verbally at the meeting and then follow them up in writing. However, the paragraph was changed to include submitting written comments at the meeting. There will be a transcript of the meeting and the plan was revised to say so.

9. Paragraph 8: We realize that EPA arranges for the public comment period for the final FPA. This is a different comment period that relates to a site-specific public notice given by a prospective industrial participant in order to participate in the project, after the FPA is signed. The reference to a "15-day public notice" was meant to refer to a public notice with a 15-day comment period, based on the fact that general, statewide notices would have already been given for the project as a whole. However, this has been changed to a 30-day notice. Utilities will be encouraged to post their notices on a WWW Home Page, if they have one.

10. Paragraph 9: We agree that it makes sense for EPA to post each utility's Annual Project XL Progress Report on EPA's WWW Home Page. Since this also appears to be a feature of the general comments, we can also agree with the use of the WWW Home Page being used generally for making documents available to interested parties.

11. General

A. All of the documents referenced can be provided to EPA on disk or in an electronic format appropriate for EPA's use. Once the public notice is agreed upon and appears for publication, an electronic copy will be provided for placement on EPA's web site. We can also provide minutes of FPA negotiation meetings in a format suitable for posting on a web site, as long as it is understood that these are going to be meeting summaries, rather than detailed minutes.

B. The Environmental Notice Bulletin reaches those citizens who have the most active, continuing interest in environmental matters. There is no newspaper of general circulation that is appropriate for this purpose. Once again, it must be noted that this is a Statewide project. However, the plan does provide for area-specific public notices when participants are prepared to identify the facilities that will be used as central collection points. This is the most effective way to make use of newspaper advertising. DEC presently does not have a web site. One is presently planned for the spring of 1997, but does not yet exist.

C. We do not understand the comment about reaching out to national NGOs. We are already tentatively planning to include at least one national environmental organization as a stakeholder and we know of no national industrial trade organization that represents public utilities. Also, copies of the public notice will be mailed directly to the Department's list of environmental organizations, both intra-state and national.


Project XL for Public Utilities Public Participation and Outreach Plan The following steps are designed to ensure open and inclusive public participation in developing and implementing the Final Project Agreement (FPA) for this project:

1. As soon as practicable, DEC will place public notices in New York State's Environmental Notice Bulletin and the New York State Register, announcing the initiation of an FPA development process. The announcement will include:

A. A basic description of the project, including intended targets, problem areas to be addressed, relevant State and federal environmental statutes/regulations, the proposed solution, and prospective environmental benefits.

B. Notice that DEC is the sponsor of this project and will have lead responsibility for its implementation and administration, but EPA will also be an active participant in all stages of the project.

C. A description of the proposed stakeholder involvement process.

D. The name and telephone number of DEC and EPA contact persons from whom the public and other interested parties can obtain information about the project or the FPA process, or to whom they may provide input to the process.

E. For interested parties, notice of availability of the EPA-accepted project proposal, EPA's acceptance letter and EPA's letter clarifying the conditions of acceptance.

F. Provision for a 30-day public comment period, during which time interested parties may request and receive the available documents, comment on the project or express an interest in being informed of the continuing progress of the FPA process. All such interested parties will be placed on the project mailing list. Any interested party may also request to participate directly in the FPA development process. Direct mailing of the notice will be made to all potential utility participants and to DEC's list of intra-state and national environmental organizations.

2. Parallel with the public notice process, DEC will develop a "strawman" FPA which, after EPA review and concurrence, will be shared with stakeholders prior to the first stakeholders meeting.

3. At the conclusion of the 30-day comment period, EPA and DEC will jointly review and consider requests by stakeholders to participate directly in negotiating the FPA.

4. The public utilities will be represented by at least three stakeholders (one for electric power companies, one for telephone companies, and one for oil and gas transmission pipelines).

5. Within 60 days of the close of the public comment period, the initial meeting of the stakeholders will take place. At this point, all stakeholders will have received copies of the documents, referenced in paragraph 1 (E) and the "strawman" FPA, referenced in paragraph 2. These documents will be used for initiating discussion toward final FPA development, with assurances from both agencies that all relevant issues remain fully open to discussion and resolution.

6. At the conclusion of the FPA negotiation process, a second public notice will be given, of an open, informational meeting to be held to discuss the draft final FPA, with copies being available to all interested parties, upon request, prior to the meeting. All interested parties will be encouraged to provide written or verbal comments at the meeting and/or comment subsequently in writing.

7. After the public meeting, the stakeholders will meet, as necessary, to resolve any substantive comments generated as a result of the second public notice and informational meeting and to develop a proposed final FPA for submission to EPA Headquarters.

8. Upon signing the final FPA by EPA and DEC, prospective industrial participants, as part of the registration process, will be required to identify all utility-owned facilities that are intended to serve as central collection facilities under this project. For each facility, as part of the registration process, the utility will be required to place a public notice in a newspaper of general circulation in the area of the facility, explaining the intended use of the facility and announcing a 30-day comment period. Upon consideration of any comments received as a result of such notices, EPA and DEC shall jointly determine whether there are grounds for a site-specific informational public meeting or not allowing a particular facility to be used for the indicated purpose. Based upon unique circumstances, additional requirements may also be placed on the facility as conditions of participation.

9. Each utility's Annual Project XL Progress Report will be made available to interested parties. 10. All documents pertaining to this project will be made available to EPA in suitable electronic format for placement on EPA's web site. These documents include, but are not limited to:

A. DEC's original proposal.

B. The draft and final Public Participation and Outreach Plans.

C. The Public Notice, announcing the project, as described in paragraph 1.

D. All drafts of the FPA.

E. All comments on FPA drafts received in electronic format or on disk. EPA will be provided with hard copies of all comments submitted in writing.

F. Summaries of each stakeholders meeting.

G. The Public Notice, announcing the open informational meeting on the proposed final draft of the FPA.

H. A summary of the informational meeting.

I. Each utility's Annual Project XL Progress Report.

J. Project contacts.

K. The list of stakeholders participating in negotiating the FPA.

Notice of Intent to Sponsor an XL Project Notice of a Public Participation Process and Notice of Availability of Documents

Notice is hereby given that the New York State Department of Environmental Conservation (DEC) intends to sponsor and administer a project under the United States Environmental Protection Agency's (EPA) National XL Program. DEC has applied and been accepted as a participant in EPA's Project XL, part of President Clinton's National Performance Review Regulatory Reinvention Initiative. Project XL provides flexibility for regulated entities when demonstrating excellence and leadership through the development of alternative regulatory strategies. These strategies will replace or modify specific environmental regulatory requirements on the condition that the strategies produce superior environmental performance.

DEC is proposing flexible implementation of specific regulations promulgated pursuant to the Resource Conservation and Recovery Act, as amended (RCRA), and pursuant to Title 9, of Article 27, of the New York State Environmental Conservation Law. This project will address the management of certain hazardous wastes generated by public utilities at remote or isolated locations in New York State. For the purposes of this project, the term "public utility" includes companies that provide electric power or telephone service, and are regulated by New York State's Public Service Commission, as well as companies that operate oil and gas pipelines.

Summary of Project and Projected Environmental Benefits

Public utilities maintain right-of-way networks, such as oil and gas pipelines, telephone lines, and electric power distribution systems. Frequently, hazardous waste will be generated at remote locations (e.g., manholes) along these rights-of-way where there are no actual or staffed, utility-owned facilities. It is, therefore, very difficult to secure such wastes at these locations against releases through accidents or vandalism. In order to protect public health and the environment, it is important to transport the wastes to a secure location as soon as the generation event has ended. Utilities may also face pressures for prompt removal from municipalities, anxious to reopen traffic lanes, and other property owners. The disruption of normal traffic patterns can create an endangerment to public safety, particularly in congested urban areas. These generation events are sometimes planned in advanced, but often are not, particularly in cases where there has been a sudden unexpected loss of interruption of service.

The present hazardous waste regulations cause these wastes to be handled in a less safe and more costly manner than is necessary. They also result in unnecessary paperwork and expenditure of time and staff resources by both utilities and environmental regulatory agencies. These concerns can be successfully addressed by allowing public utilities to utilize a modified definition of the term "on site" when collecting and transporting wastes from remote locations and to apply this modified definition to site identification. Specifically, these remote locations would be considered "on site" with respect to a utility-owned central collection facility to which they are connected by the utility's right-of-way. Hazardous waste, transferred quickly and safety from a remote location to a central collection facility, would be managed under the applicable rules for on-site hazardous waste generators. Transportation of RCRA hazardous waste to a central collection facility would still be required to meet the same transportation and manifesting requirements that presently would apply.

The proposed solution, if implemented, will provide greater protection of public health and the environment by drastically reducing the possibility for releases of these materials at unsecured remote locations. Public safety will also be enhanced by the restoration of normal traffic patterns as quickly as possible, particularly in congested urban areas.

The reduced reporting and paperwork requirements that this project would lead to would also free up industry and environmental regulatory agency resources that could be redirected to other high priority environmental needs and activities.

Project Implementation

DEC is the sponsor of this project and will have lead responsibility for its implementation and administration, but EPA will also be an active participant in all stages of the project. To implement the project, it will be necessary for a Final Project Agreement (FPA) to be developed. Although only DEC and EPA will be signatories to the FPA, other stakeholders will participate in the development of the FPA. EPA must not only grant final project approval, but must also ensure a complete and open FPA development process with broad public participation and outreach. EPA must also monitor implementation of the FPA to ensure that its conditions and requirements are met and that the anticipated public health and safety and environmental benefits are attained.

Once the FPA has been signed and public notice has been given in the Federal Register, the project implementation period will begin.

Notice of 30-Day Public Comment Period

Notice is hereby given of a 30-day public comment period beginning on the date of publication of this notice. During the comment period, interested parties may request and receive available documents, comment on the project or on the FPA development process, or express an interest in either being informed of the continuing process of the FPA process or in actively participating in the FPA negotiations. All interested parties will be placed on the project mailing list and will receive copies of draft FPAs under discussion and copies of any future public notices relating to the development of the FPA.

Any party or organization wishing to participate in negotiating the FPA as a stakeholder must identify itself, the nature of its interest in the project, and the constituency or constituencies, if any, which the party alleges to represent. All parties requesting participating stakeholder status will receive a written response to their request.

Identification of Stakeholders to Participate in Negotiating the FPA ("Participating Stakeholders")

At the conclusion of the 30-day public notice period, representatives of DEC and EPA will review all requests for participating stakeholder status, make determinations with regard to those requests, and notify the requestors accordingly. Each interested party on the project mailing list will receive a list of the participating stakeholders.

FPA Negotiation Process

The participating stakeholders will meet, as necessary, to develop a proposed final draft FPA, with meetings to be arranged jointly by DEC and EPA. Such meetings will most likely alternate between Albany and New York City.

An open public meeting will then be held to discuss and receive comments on the proposed final draft FPA. A summary of the meeting will be provided to all parties on the project mailing list.

Thereafter, the participating stakeholders will meet, as necessary, to address comments received and appropriately revise the proposed final draft FPA. DEC and EPA will jointly determine if such revisions are sufficiently extensive to warrant an additional public meeting to discuss and receive comments on the revised draft FPA, with participating stakeholder review and resolution repeated again, as necessary.

Notice of Availability of Documents

Notice is hereby given of the availability of documents pertaining to this project, which may be requested by any interested party. These documents are:

1. The original May 8, 1996 project proposal by DEC to EPA.

2. EPA's original project acceptance letter, dated July 29, 1996.

3. EPA's letter of September 4, 1996, clarifying the conditions of project acceptance.

4. DEC's Public Participation and Outreach Plan.

DEC and EPA Contacts

All comments, questions, requests for documents, and requests for participating stakeholder status should be directed to one or both of the following designated contact persons:

Mr. Lawrence J. Nadler, P.E. Bureau of Hazardous Waste Management New York State Department of Environmental Conservation
50 Wolf Road Albany, New York 12233-7251
Telephone: (518) 485-8988 |
Fax: (518) 485-8769

Mr. Phil Flax
RCRA Compliance Branch
U.S. Environmental Protection Agency Region II
290 Broadway New York, New York 10007-1866
Telephone: (212) 637-4143
Fax: (212) 637-4949

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