MEMORANDUM

Date:  December 1, 1998

To: Eric Hauxthausen, Office of Management and Budget (OMB)
Jackie Tenusak, Environmental Protection Agency (EPA)
Michael Shapiro, EPA
Richard Kinch, EPA

Cc: Kevin Bromberg, Office of Advocacy, Small Business
Administration (SBA)

From: Damon Dozier, Advocacy, SBA

Subject: Hazardous Waste Listing and the Management of
Cement Kiln Dust; Response to EPA Reply to SBA Memo of
November 12

This memorandum is a reply to the response given by EPA to
our memorandum of November 12, 1998. Several of SBA's
initial questions were of a general nature; in this
correspondence, I will endeavor to be as specific as
possible.

Also, issues addressed in this memorandum reflect
outstanding concerns with the draft proposal; however, any
issue not addressed herein (stigma effects) may be revisited
in an additional memorandum tomorrow. We are still looking
at this issue internally.

1. In its response to Advocacy's prior memo EPA indicates
that "for some of the small plants, new shed or hoppers for
temporary storage prior to recycle, off-site shipment or on-
site land disposal might be necessary as a means of
controlling wind blown dust. If required as part of a
compliance plan, compared to other costs of dust handling or
disposal.temporary storage would be a relatively small
component of dust management cost."       It must be
possible to quantify "dust management cost" in both the
aggregate and a component-by-component basis. If these cost
are highlighted somewhere in all of the background
materials, we would appreciate being forwarded the citation
to the material. I can not find where these costs are broken
out, and if they are included in the agency's SBREFA
analysis. It seems reasonable if an entity has to build
temporary bins, purchase "protective covers" for their
vehicles, etc., to control windblown CKD, then there is a
cost associated with these actions. We would like to see
what these costs look like.

2. Advocacy would like to see the instances of these
groundwater damage cases broken out by date, firm and damage
case (i.e., how the damage occurred and remedial action
taken). While the agency asserts that the management
practices that led to these cases continue, it has no
evidence of such. The agency admits that did not complete a
census. Therefore, it is not unreasonable that these damages
may have been either caused by one or several "rogue firms,"
or most of these cases occurred around ten to fifteen years
ago. Industry representatives suggest that most of these
damage cases involve CKD deposited in floodplains or
quarries before 1980. While EPA asserts that these
management practices occur today, it has no hard data to
substantiate this claim. Surely, if these practices were
going on to the present day, all sorts of enforcement
questions and issue would be raised (the agency cites no
OECA data). Thus, the agency can not rely on this evidence
to issue a proposed rule. One solution is a partnership with
industry to develop best management practices or a similar
partnership approach with the regulated community.

3. Perhaps Advocacy should have been clearer about this
issue, as the "correct" answer supplied is not adequate.
Since the agency has not addressed the costs of sampling or
the frequency for the 10 or so constituents of concern, it
simply cannot dismiss the associated costs as minimal.
Advocacy would like to see these cost for those firms who do
not recycle all of their CKD. In addition, other problems
arise. For example, if a firm exceeds the level for a
particular constituent (or constituents) and falls under the
rules requirements, is there a way it can "test out" of the
rule? Perhaps the exceedance is a one-time occurrence.
Additionally, if this type of testing is required weekly,
and a firm always "passes the test," shouldn't there be an
option to relax testing requirements to a monthly or even
annual basis?