Saturday, July 13, 2013

When a Spill Becomes Illegal Disposal. Part 4

"Disposal" in the case of TSCA, means PCBs that have been released into the environment.  The regulation, 40 CFR 761.3, defines it this way:
Disposal means intentionally or accidentally to discard, throw away, or otherwise complete or terminate the useful life of PCBs and PCB Items. Disposal includes spills, leaks, and other uncontrolled discharges of PCBs as well as actions related to containing, transporting, destroying, degrading, decontaminating, or confining PCBs and PCB Items.
That definition was designed to be as inclusive as necessary so that it would protect public health and the environment from PCBs.  Disposal was what the EPA wanted to manage and regulate, so it needed to define what constituted disposal.  Without capturing "spills, leaks, and other uncontrolled discharges of PCBs as well as actions related to containing, transporting, destroying, degrading, decontaminating, or confining PCBs and PCB Items," those persons with PCBs could avoid the cost by doing those things without regard to protecting public health and the environment.

EPA wanted to control everything related to PCBs:
§ 761.1 Applicability: (a) This part establishes prohibitions of, and requirements for, the manufacture, processing, distribution in commerce, use, disposal, storage, and marking of PCBs and PCB Items. (b)(1) This part applies to all persons who manufacture, process, distribute in commerce, use, or dispose of PCBs or PCB Items.
The two key points in that regulation are "all persons" and "disposal."  "Persons" is defined in  § 761.3 as is the term "disposal."  Once defined you either meet it or you don't.

Since "disposal" is defined for PCBs under TSCA to include "accidentally" and "spills" the release by CWM at Kettleman Hills of PCBs into the environment (through the concrete and into the soil) constituted disposal and the violation of "improper disposal" attaches.

I am not a lawyer, so right now I am speculating on this part.  Although no where in the definition does it indicate "into the environment," the case could probably be made that when it entered into the soil it "terminated the useful life of the PCBs.

So there CWM was.  For whatever reason, most likely sloppy employee management of the PCB items, a spill, or spills, took place and the soil below the concrete pad became contaminated with enough PCBs to meet the legal definition of disposal under TSCA.  CWM therefore improperly disposed of liquid PCBs when it released PCBs into the environment.

There it is in black and white from the EPA:
Improper disposal of PCBs, in violation of 40 CFR §§ 761.50(b)(I) and 60(a).
That letter now becomes ammunition for environmental groups that oppose anything involving hazardous chemicals (often referred to as CAVE people).

That letter is also used to parrot the same "facts" that get printed in legit mainstream news publications and on the web.  All the things that CWM does right are reduced down to what they have done wrong.  Here is what CBS News writes:
Last November, the state issued 72 violations alleging the company failed to report small spills that occurred between 2008 and 2012 — though they posed no health threats to the public. In May 2011, the state levied $46,000 in fines against the company for failing to report two spills.
That same year, the federal Environmental Protection Agency and the state toxics department levied $1 million in fines against the firm for having improperly calibrated lab equipment that thwarted efforts to accurately analyze chemical concentrations in waste. The EPA found the same problem with equipment five years earlier and said officials failed to fix it.
Federal officials also fined the operator nearly $10,000 for improper waste disposal.
Officials said the violations caused no off-site health impacts and "have not reached a level that would trigger a permit denial," said Brian Johnson, director of hazardous waste management.
This is what gets discussed as "fined numerous times by state and federal regulators for improper waste disposal and other problems," and then enhanced by the environmental group as "chronic violations by the company."

These TSCA definitions resulted in a violation and those violations gave weight to the contention that Kettleman Hills could be the cause of the birth defects.  One environmental activist was able to direct time and money and effort away from other research to prove what Richard Jackson, chairman of the environmental health sciences department at the University of California-Los Angeles told Mother Jones back in 2010:
"There's no way the public will be satisfied without a serious investigation," an epidemiological study is required—but that doesn't mean it will have any meaningful impact. "Communities are often led to believe that a scientific investigation will lead to some answers," Jackson says. "But my own experience is that oftentimes an enormous amount of resources is put into an investigation, and at the end of it we really don't know much more than we did at the beginning, except that we now know the residents have terrible medical care, terrible dental care, the kids are way behind in school, they're way behind in immunizations and nutrition." In some ways, he argues, spending money "to give them an epidemiological study rather than care is really not the right thing to do."
I agree.  And even when that investigation was concluded, Bradley Angel of the group Greenaction was still not satisfied telling CBS News in July 2, 2013:
The expansion permit was based on "bogus studies" and "hiding the number of birth defects and infant deaths," Angel said, adding that officials did not give Spanish speakers, who make up a large number of Kettleman City residents, enough time to testify at hearings.
3.5 miles away in the middle of nothing is a landfill that has accepted hazardous waste and {CBs since at least 1984 when I sent waste there.  In the town there are children with birth defects.  Those birth defects are not the result of improper waste disposal from PCBs that were found in the soil under the concrete where the PCB waste is handled.

A spill of PCBs into the soil may meet the definition of disposal, but that's all it meets in this case.

What has caused these birth defects?
Kettleman City's accumulation of birth defects could be the result of nothing more than chance—though that possibility dwindles with each new case. Heredity, diet, and lifestyle could also play a part.
I'll conclude with this photo from Mother Jones.  Great picture...wonder what was in those 55 gallon drums the Romero's family keeps in their yard and the photographer decided to let the children pose next to?


We have met the enemy and it is us!


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