HAZARDOUS WASTE MANAGEMENT ADVISORY COUNCIL MEETING
OCTOBER 14, 1999 MINUTES
This meeting was convened in accordance with the requirements for regularly scheduled meetings required by the Open Meetings Act, Section 311 of Title 25 of the Oklahoma Statutes. The agenda for this meeting was posted on the main entrance door and the southwest entrance door of the Department of Environmental Quality Building, 707 North Robinson in Oklahoma City, a minimum of 24 hours prior to the meeting in accordance with Section 311 of the Open Meetings Act.
Agenda Items 1 and 2
Mr. David Bradshaw called the meeting to order at approximately 2:05 p.m. and asked Mary Johnson, secretary, for a roll call of members present. Members present included (in addition to Chairman Bradshaw) Mr. Blake Champlin, Mr. Bruce Elwell, Mr. Michael Graves, Mr. Wesley Anderson, Ms. Jody Reinhart, and Mr. Steve Tomberlin. Absent were Mr. Gerald Ihler and Mr. Bob Kennedy. It was determined that a quorum was present.
Agenda Item 3 - DISCUSSION, AMENDMENT AND ROLL CALL VOTE TO APPROVE OFFICIAL MINUTES OF MAY 13, 1999:
Mr. Bradshaw asked if anyone had changes for the minutes of the May 13, 1999 meeting. Ms. Claire Newsom, from the audience, noted a change on page 5 where Ms. Newsom had mentioned "that the State of California had initiated a lawsuit against Safety-Kleen." Instead of the "State of California" the name of the company "Toxic Injuries Corporations" should be inserted. Mr. Graves expressed his appreciation for detailed minutes which helped him be prepared for this meeting since he had missed the May 13 meeting. Ms. Reinhart offered a motion to approve the minutes with this one change and Mr. Tomberlin seconded the motion. A roll call vote was taken and the motion passed unanimously.
In addition to the council, the following individuals were present:
|Claire Newsom, Enid||Robert Rabatine, EMI|
|Bob Kellogg, Shipley, Jennings & Champlin||Catherine Sharp, DEQ|
|Jerry Davenport, Shipley, Jennings & Champlin||Jerry Sanger, DEQ|
|Paul Hodge, OWRB||Martha Penisten, DEQ|
|Pamela Green, DEQ||Mary Johnson, DEQ|
|H. A. Caves, DEQ||Linda Cole, DEQ|
|Tammi Johnson, DEQ|
Agenda Item 4 - DIVISION DIRECTOR'S REPORT
H.A. Caves, Director of the Waste Management Division, noted that the members of the council present today had been photographed just before the meeting began. He expressed his appreciation to the council for the completion of the Re-Right/De-Wrong process and the giving of their time. Mr. Caves called attention to the Brownfields rules (252:220 in today's packet) that are written because of a state law that was passed in the past legislative session. If the council chooses to approve them and send them on to the Board, they will enable the DEQ to help speed up the clean-up of Brownfield sites in Oklahoma. He encouraged the council to set them forth as both emergency and permanent rules. He also mentioned that the council will be scheduling their meetings for next year. There must be at least two meetings per year but the council usually schedules four meetings. He reminded the council that during the first meeting after the beginning of the calendar year the council will need to elect a chairman and vice chairman. Mr. Caves also noted that any rules approved at today's meeting are scheduled to go to the Environmental Quality Board Meeting which will meet Tuesday, November 16, 1999 at McAlester.
Agenda Item 5 - CHAIRMAN'S REPORT:
Mr. David Bradshaw reported on the Environmental Federation Meeting, held yesterday and today (October 13-14, 1999). He was impressed by the presentation of Mr. Larry Gales, Division Director of Administrative Services at DEQ, relative to the response to the May 3rd tornadoes. He was aware that Mr. Cave's group was handling debris and it had to be done very quickly. He understands that several 'hoops' had to be jumped through by the municipalities to get funding from FEMA, and DEQ was instrumental in making sure that happened.
Jerry Sanger, DEQ, pointed out that in the past, the council had attempted to schedule meetings six weeks prior (and no less than three weeks) to the Board meetings. Since the Board hasnt scheduled their meetings yet, it will be difficult to set a time. The council decided that they would work with DEQ staff on the dates and they set the location of the meetings, as follows:
January - Tulsa
May - Northwest Oklahoma
August - Oklahoma City
October - Oklahoma City (not to conflict with EFO)
Agenda Item 6 - PUBLIC FORUM - Open Discussion:
Ms. Claire Newsom addressed the council and noted that some of her previous remarks at a prior meeting may have been out of line. She also expressed her appreciation to the council for listening. She noted that she had checked with a source in California to find an update regarding litigation involving Safety-Kleen and there was no new information available. She said, in reference to a rule that the council was about to consider, that Safety-Kleen is up for sale. She stated that she felt that a company in Oklahoma which is acquired by another entity is an argument for ensuring adequate hazardous waste regulations. She called to the councils attention the proposed changes regarding waste identification and noted that the language under consideration is not limited to waste that is difficult to identify but could conceivably apply to other wastes. Ms. Newsom also described her understanding that rulemaking requests should be submitted by a petition. She asked if the entity proposing the changes regarding waste identification had prepared such a petition, and other questions regarding the rule impact statement. Ms. Penisten of the DEQ clarified that councils are allowed to initiate rulemaking without utilizing the petition process, and citizens are not required to use a petition, but may use that mechanism. The council discussed the various mechanisms by which issues could be brought to their attention for possible rulemaking.
Agenda Item 7 - FORMAL RULEMAKING HEARING AND VOTE ON PROPOSED CHANGES TO OAC 252:205:
Ms. Jody Reinhart stated that an audience member at the last council meeting suggested that language from 252:205-5-5(b) should be moved to 252:205-5-3(b)(5). In addition, Ms. Reinhart recommended the deletion of the phrase, "on at least a quarterly basis" in paragraph 252:205-5-3(b)(5). Ms. Reinhart raised the question whether the rule should specify a "calendar" quarter to clarify the quarterly term of reports. Mr. Bradshaw suggested that this later change should be left for a subsequent meeting.
With this change 252:205-5-3(b)(5) will read:
"Oklahoma large quantity generators shall submit copies of manifests signed by receiving facilities for wastes transported outside the United States."
Mr. Elwell offered a motion to approve this change and Mr. Graves seconded the motion. A roll call vote indicated that the motion passed unanimously.
Ms. Reinhart described the addition of the following language to 252:205-9-6:
"Alternatively, the owner/operator must obtain supporting technical documentation (e.g. Material Safety Data Sheets, laboratory analyses, process description, etc.) from the original generator (or other source which has actual knowledge of waste characteristics) which adequately identifies the waste for the purpose of appropriately treating, storing, disposing or recycling the waste. If the alternative information is clear and convincing, laboratory analysis will not be required."
Ms. Reinhart stated that due to the difficulty in getting a representative sample to do a waste analysis testing, this change would be very helpful to the TSD's to identify the waste that is being handled, especially when handling debris. Mr. Champlin noted that this rule would clarify that one could do the analysis or alternatively could identify waste by knowledge of the process, because this not only applies to debris but to any hazardous waste.
Mr. Champlin offered a motion to enact the change as written and as described. Mr. Graves seconded the motion. The motion was open for discussion by members of the council. Mr. Graves questioned the term "clear and convincing" as related to the previously stated term "adequately". After discussion, Mr. Champlin amended his motion to change the last sentence to:
"If the alternative information is adequate, laboratory analysis will not be required."
Mr. Tomberlin stated that he preferred "clear and convincing". Mr. Graves stated that "clear and convincing" is somewhere between a preponderance of evidence and beyond reasonable doubt, which is really a higher standard than the term "adequate".
Mr. Tomberlin offered an amendment to return the language to "clear and convincing". There was no second and the motion died.
Mr. Bradshaw opened the floor for comments from the audience. Ms. Newsom asked if "etc." could mean verbal communication. It was pointed out that verbal communication was not documentation. Ms. Newsom stated that this opens it up to all waste, rather than stating "true debris". Mr. Champlin explained that when waste is brought in to a landfill it has to be part of a disposal plan and the analysis or documentation would be attached to the disposal plan. The DEQ could review and decide whether or not it would be approved.
Ms. Reinhart noted that they are required to provide documentation that they are adhering to the waste analysis plan. Nothing comes into the facility without being checked thoroughly.
Jerry Sanger stated that from the standpoint of enforcement actions before a judge or hearing examiner, the language "clear and convincing" is something which they would better understand. If the council removes "clear and convincing" they might want to consider adding: "which DEQ determines adequate".
Catherine Sharp indicated that this had come up in the past year in enforcement actions and DEQ feels that saying "clear and convincing" is an objective standard. What this rule does is emphasize the responsibility that the TSD has to check the waste, to know what the waste analysis plan says and to make sure that they do not co-mingle the wrong waste.
Mr. Bradshaw read the last sentence with this suggested change:
"If the alternative information is adequate, as determined by the DEQ, laboratory analysis will not be required."
The consensus of the council was to leave the language at "adequate". Discussion was opened to the audience.
Ms. Newsom asked if a TSD has a waste disposal plan in place for everything it can or cannot receive, and they know how all that waste will be treated, why does this rule need to be added and instead why not revamp their waste disposal plan.
Mr. Champlin explained that the waste analysis plan is part of the permit document. It does not precisely discuss the type of waste that is coming in. The waste analysis is supplemented when information about the specific waste streams are submitted to the DEQ.
Mr. Tomberlin expressed concern for people in the field trying to come up with the definition of "adequate" between a DEQ person and a landfill person. He feels that "clear and convincing" is common layman's terms, disregarding going to court, and is better understood. Mr. Graves indicated that he disagreed and preferred "adequate".
Bob Kellogg, representing Shipley, Jennings and Champlin, asked if paragraph (a) indicates that every truck that comes in the gate of a TSD has to supply a detailed chemical and physical analysis of a representative sample or if the TSD, or if the facility itself must perform that. Ms. Reinhart stated that it was necessary to do a preacceptance screening at a facility of a waste stream before authorization is given to pick up the waste. When the waste comes into the facility, its identity is verified and waste is analyzed to determine whether it can be accepted. This is governed by the waste analysis plan that is part of the permitting process approved by the DEQ.
Ms. Newsom asked what the original rule was, RCRA (federal) or a state rule and was told that it was a state rule. She stated that she had called the Utah DEQ compliance office that monitors the Grassy Mountain site in Utah. She was told that all the debris waste is defined in their waste analysis plan and in the site permit. She also had some forms that she asked Ms. Reinhart to review.
A roll call vote was taken; all members except Mr. Tomberlin (voting no) voted in favor and the motion passed. Mr. Bradshaw clarified that this is a permanent and not an emergency rulemaking action. With this change, the last sentence of 252:205-9-6(a) will read:
"If the alternative information is adequate, laboratory analyses will not be required."
Agenda Item 8 - FORMAL RULEMAKING HEARING AND VOTE ON PROPOSED CHANGES TO 252:220:
Martha Penisten, DEQ Legal Division, presented the Brownfields rule, which is being proposed as the result of recent state legislation. She explained that the legislation amended the Brownfields Voluntary Redevelopment Act to require DEQ to develop rules for reviewing applications for loan money available through the Federal Clean Water Act for Brownfields projects. However, the funds that are allocated are actually administered through the Oklahoma Water Resources Board. Under this proposed rule, the DEQ will simply verify for the Water Resources Board that a particular project is, in fact, a Brownfields project and that it is likely to have a water quality impact. Ms. Penisten introduced Mr. Paul Hodge of the Oklahoma Water Resources Board to answer questions regarding how the funds will be administered and how the loan program works.
Mr. Hodge distributed a fact sheet that explained the loan program, which does not presently include Brownfields projects. He stated that the waste water facility construction revolving loan account that is mentioned in these rules is actually the state clean water revolving fund that was created under the Clean Water Act. It was amended in 1987 to include Title 6 which is a lending program. He went on to explain that when Oklahoma laws for this program were drafted, the funding was limited to municipal waste water facilities, waste water collection systems and drinking water systems. This rule amends the definition of eligible projects to include Brownfields projects. So, OWRB will be looking to DEQ to verify these Brownfields projects, in accordance with this rule.
Mr. Hodge further explained that OWRB was not as far along with their corresponding rules as DEQ but theirs will follow in November. The council requested that these be made available to them.
Mr. Bradshaw questioned the size of the remainder of the Brownfields Subchapter 9, and declared a short break in the meeting so that these could be reviewed.
Catherine Sharp explained that chapter 220, the Brownfields rules, presently goes to subchapter 7. The next subchapter is 9 - entirely new language.
Mr. Graves offered a motion that this new subchapter 9 of 252:220 be recommended by this council as a permanent rule. Ms. Reinhart seconded the motion; a roll call vote was taken and the motion carried unanimously.
Agenda Item 9 - CONSIDERATION AND VOTE ON FINDING OF EMERGENCY WITH RESPECT TO ITEM 8:
Ms. Penisten stated the if the rules were passed as emergency that individuals interested in utilizing the loan money could start the Brownfields process and get their approvals sooner, contingent upon the OWRB rules being acted upon. When OWRB get their rules in place they would be set to move into the water board application. Their rules should be effective July 1.
Mr. Champlin offered a motion to set forth 252:220-9 as an emergency rulemaking action. Ms. Reinhart seconded the motion. After a roll call vote the motion passed unanimously.
Agenda Item 10 - NEW BUSINESS: None
Agenda Item 11 - ADJOURNMENT:
Ms. Reinhart offered a motion to adjourn which was seconded by Mr. Graves; the motion passed unanimously and the meeting adjourned at approximately 4:05.