273 June 29, 1983 FOR HAZARDOUS WASTE POLICY WASHINGTON IS THE REAL HAZARD INTRODUCTION The safe disposal of hazardous waste is now America's most critical environmental problem million t ons of hazardous waste each year to add to the several billion tons produced by earlier industrial growth. Industry and government currently spend close to 5 billion annually on the problem and according to government estimates, this could soar to $12 bil l ion (in constant 1981 dollars) by 1990 Americans generate over 250 Two issues must be confronted. First, priority hazardous waste dump sites, as recognized by EPA, threaten groundwater contamination and carcinogenic exposure, and must be cleaned up quickl y . Second, the U.S. must ensure that new waste is processed in a manner that minimizes environmental degradation. I Two principal federal laws deal with hazardous waste: the 1976 Resources Conservation.and Recovery Act (RCRA) and the 1980 Comprehensive Eme rgency Response, Compensation and Liability Act CERCLA known as Superfund.

Enacted as an amendment to the Solid Waste Disposal Act RCRA provides a regulatory framework for the disposal of'all solid and hazardous wastes. The law was designed to regulate all processing of hazardous waste. The House Energy and Commerce Committee recently approved a bill (H.R. 2867) to widen EPA regulation, by including small-quantity generaars. The measure would also prohibit landfiW dumping of liquid and dangerous toxic wast es, and outlaw underground injection of hazardous wastes near ground water supplies. The Senate began hearings on its reauthorization bill S. 757) on June 9th.

Superfund expires in September 19

85. The $1.6 billion program provides for the cleanup of haza rdous spills from old 2 dumpsites when no responsible party can be found. Superfund also imposes retroactive liability on any company found to be respon sible for a hazardous waste site It is in the interest of all Americans to resolve the hazard ous wast e situation as soon as possible. b Liberals generally favor a national environmental policy undertaken by strong centralized government agencies. The existing environmental legislation broadly reflects this view. Implicit in this philosophy, however, is th e assumption that the American people and their local representatives cannot be trusted to determine the appropriate level of environmental protection for their communities, given the tradeoff that exists between jobs and environmental quality.

Conservativ es, on the other hand, urge the decentralization of regulatory power, wherever possible, to state and local govern ments so that the responsibility for action lies with those closest to the scene, not with faraway bureaucrats In pressing for decentralizat ion, conservatives maintain that it will also mean the increased use of environmentally safe and cost-effective private sector solutions to environmental problems.

Congress should reform the law in a way that encourages local disposal and clean-up efforts using the most efficient means available. It should resist demands for tighter federal control.

Current Environmental Protection Agency regulations, for instance, exempt roughly 700,000 so-called small-quantity gener ators, such as gasoline stations. Congress should ignore at tempts to bring these under RCRA and leave regulation to state and local governments.

On the other hand, Congress should immediately ban the landfilling of all hazardous waste, since the evidence indicates that the practice is unsafe. Congress also needs to find a quick resolution to the Iftoxic tort" liability question. Businesses consumers, and potential third-party litigants need to know th eir rights and liabilities regarding toxic contamination.

Intrastate hazardous waste oversight responsibilities should be returned to the states, where they belong. Once the responsi bility for hazardous waste has been shifted to state officials these same officials can no longer blame Washington if dumpsites are operated negligently or ignored by local officials THE ISSUES Small-Quantity Generators One of the most controversial portions of this year's re authorization bill is a proposed amendment, authori z ing EPA 3 regulation of 'facilities that generate only hazardous wastes, such as gas stations, dry small quantities of cleaners and school science labs. Currently, these are not subject to EPA regula tions. About 90 percent of all hazardous waste generato rs fall into this category, producing approximately 5 percent of all toxic waste.l Under current law, small generators can dump waste at landfills or municipal dumps without monitoring.

The question is which level of government should regulate such generat ors. State and local governments should take the lead percent free of hazardous waste as possible then it should be the responsibility of state and local officials to make and enforce whatever laws are needed If a community decides that it should be as cl o se to 100 Proponents of direct federal regulation of small generators claim that EPA can ensure the health and safety of the waste service industry. Advocates also argue that since state and local governments often refuse to accept responsibility for com munity environmental health, including small quantity generators under RCRA is a necessary step.

Opponents counter that additional controls would not result in any appreciable health benefits, while they would prove costly to small firms already overburdened with regulation. Non-com pliance and a marked increase in "midnight dumping would result.

Non-compliance is also possible of course, under state and local regulation, but the closer the regulators are to the regulated the more comprehensive and appropriate will be the oversight.

Secondly, claim opponents, inclusion under RCRA of hundreds of thousands of scattered small quantity generators means that EPA would be swamped with paperwork, and totally unable to comply with its statutory assignment.

A comp romise is possible, however. Congress should declare that if a state or locality decides that a generator is dangerous enough to warrant oversight it is up to that government, and ultimately its electors, to determine what action should be undertaken, and what costs should be imposed on local firms and taxpayers, to achieve a desired environmental standard. .There is no reason why the federal government should be raiding a com munity's local service station to see if waste oil has been dumped in the backya rd.

Landfills A second controversial issue involved in the pending reauthor ization concerns landfills. Incidents of'groundwater contamination Technologies and Management Strategies for Hazardous Waste Control. A report by the Office of Technology Assessme nt, U.S. Congress, March 1983 p. 5 4 due to leaking hazardous waste landfills have been increasing at an alarming rate.

Scientific evidence supports EPA's current view that land fills can be unsafe repositories for liquid and solid hazardous wastes.2 prog ram, for instance, conducted a study in 1982 on four New Jersey landfills that employed "state of the art1' techniques to prevent leakage. Based on the study, the program administrator declared that 'Ithe conclusion is inescapable that all landfills with t oday's technology] will ultimately leak and fail The Princeton University hazardous waste research There are alternatives to landfill. Private sector hazardous waste management techniques have progressed at a remarkable rate in recent years. They could so o n replace government-funded cleanup projects and landfills. Not only do alternatives exist, but they are applicable to almost every form of hazardous waste. The sooner EPA bans the use of landfills for hazardous waste, the sooner the risk of groundwater c ontamination and carcinogenic exposure will be reduced.

Toxic Torts Liability The Superfund Legislation (CERCLA) makes no explicit provision for the recovery of damages in'a case of toxic waste exposure.

This omission, combined with wide variations in state tort and workmen's compensation laws, has left consumers, industry, govern ment and third-party litigants ignorant of their rights and responsibilities.

Bills designed to rationalize the 32 existing state tort laws with a coherent federal law have been proposed by Senators Robert Kasten (R.-Wisc George Mitchell (D.-Me.) and Robert Stafford R.-Vt and by Representative John LaFalce (D.-NY The Reagan this ar e a Administration has also come down in favor of a federal law in By taking the proper action in this issue, Congress can reduce the chances of further legal nightmares like those at Times Beach and Love Canal with a means of redress which is equitable to b oth the consumer and industry forthcoming Heritage Foundation study In addition, it can provide victims This complex issue will be discussed further in a PRIVATIZATION The best hope for cleaning up Americals waste problem is to encourage private sector so l utions to previously government-funded clean up projects, since these offer the best hope for effective 2 EPA Still Doesn't Know the Dimensions of Nation's Hazardous Waste Problems The National Journal, April 16, 1983, p. 796 5 and economical hazardou,s.w a ste disposal. Companies and jurisdic tions across the country are discovering innovative methods of treating hazardous wastes. The technologies now available include Bugs: Sybron Biochemical, of Salem, 'Virginia, has developed a mutant strain of bacterial bugs which eat some of the most dangerous organic chemicals, breaking them down into their harm less component the bacteria fall victim to competition with natural bacteria and die. According to the American Association for the Advancement of Science, oth e r strains have been isolated that can turn even PCBs (polychlorinated biphenyls) into carbon and energy source Once the toxic food source,has disappeared Toxiflex: The Woxiflexll method, developed by Columbia University, facilitates the conversion of toxi c heavy metal slag into high-value building material Coal and municipal wastes can be combined into a fuel for boilers. The toxiflex method adds toxic heavy metals, such as chromium, cadmium and lead to this process, trapping the metals in the residual sla g, which can be used safely in road building or construction.

Radiation: Invented by the Envirokinetics Corporation of New Rochelle, New York, this process uses gamma radiation from nuclear waste to break down other hazardous waste.6 has two very important benefits: it is a proven method of toxic waste treatment, and it provides a useful and safe repository for nuclear plant by-products.

Biological Incineration A new land farming technology known as biological incineration, has led to new strains of micro organisms that thrive under adverse conditions. Researchers at Cornel1 University, have proposed using large doses of one newly isolated bacterium, that thrives on a diet of pentachlorophenal PCP), as a treatment for this highly toxic wood treatment chemi c al The process Spouted-Bed Incineration: Batelle Columbus (Ohio) Laborato ries recently developed an incineration process for burning wastes with low heat contents.8 Wastes that could be treated in this way include chemical waste liquids, used oils, carbo n black gas, and pulping process clarifier sludge.

Mobile Incineration: The Oil and Hazardous Materials Unit of EPA has developed a prototype high temperature mobile incinerator 3 Va. Finn's Mutant Bugs could be an Answer to Toxic Wastes," The Washington P ost Business Monday, November 29, 1982, p. 44 Science Magazine, Vol. 220, No. 4601 June 3, 1983) p. 1 Finding New Antidotes for Hazardous Wastes," High Technology, November December 1982 p. 33 Ibid p. 34 5 Ibid.

Ibid p. 33 6 with a capacity of 100 gallons of liquid waste per hour. The incinerator, built by the I.T. Corporation of Los Angeles, is cheap, efficient, and very portable. It answers the needs of many communities that need to clean up toxic waste dump sites yet do not want to build a permanent wa s te treatment plant.g Some companies have already begun producing several of the unit's other inventions, including a mobile chemical treatment plant, a mobile decontamination 'facility, and a backpack foam spraying system to deal with oil and chemical spi lls.

Incineration at Sea: Waste Mangement Inc. of Des Plaines Iowa, incinerates hazardous waste at sea.1 Since seawater readily absorbs the hydrogen chloride produced in the incineration process EPA does not require stack gas scrubbers. In 1982, the compan y's ship attained a 99 percent effective destruction rate of 3.9 million gallons of PCBs. While ocean incineration is an attractive alternative to landfills, however, the technology is still expensive.

Matching and Re-use: Another method of disposing of h azardous waste is to recover those by-products which can be reprocessed and reused. Steel plants, for example, generate large quantities of acids, and these acids can be used to neutralize the alkaline effluent from a nearby chemical plant A similar proce ss involves blending limestone with acidic chemical factory wastes. Monsanto's adipic acid plant in Pensacola, Florida, places such a mixture in exhaust stacks, where it removes up to 95 percent of the sulphur from the stack gases.

LESSONS FROM ABROAD Amer ica can learn a tremendous amount about safe and effec tive hazardous waste disposal from England, France, Holland, West Germany and Japan The British have developed a method of mixing cement with liquid wastes. 'This permanently encases toxic waste chemi c als in solid concrete blocks that can be used safely as a sub-base for highways The French have a complicated system of economic incentives and disincentives to encourage French industry to take wastes to.in cineration centers, rather than dumping them on company property or in landfills. Some of these incineration facilities have be come so proficient at recovering waste metals that they are now selling the metals back to the same cmpanies which brought in the waste. lo l1 Samuel G. Freedman, "Finding New Ways to Destroy Toxic Wastes," New York Times, January 10, 1983, p. 81.

High Technolo November/December 1982, p 33.

James A. Stegenga, "Toxic Waste Disposal The European Way," Christian Science Monitor, May 24, 1982, p. 23. 7 Dutch and German engineers have perfected "at-sea" incinerators that can burn certain wastes with minimal effects on the seawater.

This process is similar to the method used by America's Waste Management Inc In Japan, companies that violate toxic waste laws not only pay stiff fines and clean-up costs, but also must pay medical bills and the moving expenses of affected,people who wish to relocate NEW FEDERALISM AND HAZARDOUS WASTES The discretion and responsibility for intrastate waste management should be returned to state and local governments.

For this, federal law must be interpreted uniformly by the EPA's Regional.Officers and the states must be able to fulfill fully their oversight responsibilities The effectiveness of the RCRA decentralization process under current federal law, depends on whether a given state has reached Phase I or Phase I1 authorization. Phase I authorization or interim authorization) establishes the administrative frame work within which a state can implement RCRA. Phase I1 authoriza tion (or final authoriza t ion) is granted to a state if its program is compatible with and equivalent to the federal program, and if the state has demonstrated adequate enforcement capability. Regu lations under Phase I1 include financial responsibility require ments, technical st andards for treatment and storage.and disposal facilties, emergency plans, and inspection and monitoring standards.

Progress so far has been mixed. By April 1983, thirty-six Just ten states, however states had their administrative Phase I frameworks in pla ce while eight were in the draft stage had met the full Phase I1 requirements; another sixteen states have draft plans. Nine states have not even filed a draft Phase I plan.12 Only Wyoming has elected not to have its own state program.

States and regions face very different problems. Industrial and municipal hazardous waste generators and their toxic by-products are not the same in Maine and Montana. Air, soil, and water con ditions also vary considerably from state to state.

The decent ralization pace must be accelerated. The faster states create their own hazardous waste oversight procedures and become capable of enforcing their own rules, the faster intrastate hazardous waste generators can be cataloged. Once this process is complete, each state can plan how to best guarantee the safety of its citizens. The federal role should be to set tough federal guidelines from which the states can set their own limits and policies l2 Idaho, Alaska, Hawaii, Colorado, South Dakota, Minnesota, Michi g an, West Virginia and the Virgin Islands. 8 CONCLUSION Congress must remember, as it revises the nation's hazardous waste policy, that the goal should be to clean up waste, not to create a hazardous waste bureaucracy. Moreover while Congress should protec t the environment, legislators should not penalize industry to the degree that non-compliance becomes the rule rather than the exception, due to unreasonably complicated laws.

The federal government should not include small quantity generators under RCRA. It should encourage state and local governments to assume whatever oversight function they deem neces'sary, possibly including the promulgation of regulations which control such small quantity generators.

Landfill utilization should immediately be made il legal as a means of hazardous waste disposal between landfills and groundwater, air and soil contamination A direct relationship exists The present toxic tort recovery system is extremely confusing An individual bringing a plenary lawsuit may have to over come sub stantial legal and.equitable problems, depending on the forum state's law. Congress must provide for an equitable solution to a potentially staggering medical and legal problem.

Congress should also encourage the private sector, which is developing innovative solutions to the hazardous waste problem.

These efficient and safe methods must replace dangerous and hap hazard practices such as landfilling A federal-state dialogue, on the basis of President Reagan's New Federalism proposals is essential to meeting the objectives of RCRA and Superfund. The federal government should reduce its role in hazardous waste management according to the progress of states in assuming responsibility for intrastate management.

Most interstate hazardous waste problems should continue to be under the purview of the federal government, unless a consortium of affected states agrees to take action. International hazardous waste situations should remain the exclusive responsibility of the federal government to emphasize th e decentralization of hazardous waste management authority and the need for private sector alternatives. Instead of trying to show their concern by outbidding their colleagues in voting more funds for EPA, as though that was some test of their commitment t o a clean environment, legislators should recognize at last that Washington, unlike Father, does not necessarily know best Congress, in its review of RCRA and Superfund, should continue Paul T. Langerman Policy Analyst