When a Spill Becomes Illegal Disposal. Part 3

The trouble with getting a violation is that it can now be used against you by your opponents.

Greenaction is demanding that the EPA "deny permits to expand the Chemical Waste Management hazardous waste landfill in Kettleman City due to the chronic violations by the company, the ongoing health crisis including birth defects, miscarriages and childhood cancer."

Mother Jones links to a PDF from the EPA titled "Notice of Toxic Substances Control Act Violations."

What's going on here?

First off, the Kettleman Hills hazardous waste landfill is highly regulated both under RCRA (for accepting hazardous waste for disposal) and under TSCA (for accepting PCBs for disposal).

PCBs are not hazardous waste and are regulated under a different law called the Toxic Substance Control Act (TSCA) which requires a separate permit to treat and dispose PCBs. What this means for the Kettleman Hills facility is that they are inspected by two different entities within the EPA as well as from the state of California.

Kettleman Hills takes in a lot of hazardous waste for dispsoal.  There are very few commercial hazardous waste landfills available in the United States (Texas has only two) so hazardous waste that must be landfilled goes there based on cost, distance, and acceptance.  When you take in a lot of waste in bulk and in drums you are bound to make mistakes.

You can read all about those mistakes the EPA found during their inspection here.

I want to look a bit deeper into the EPA violations that Mother Jones linked to.  In particular, I want to focus on violation number 2:

1. Failure to decontaminate structures prior to continued use, in violation of 40 CFR §761.30(u)(I);
2. Improper disposal of PCBs, in violation of 40 CFR §§ 761.50(b)(I) and 60(a);
3. Failure to properly manifest PCBs and PCB Items, as required by 40 CFR § 761.207(a);
4. Failure to resubmit Notification of PCB Activity Form No. 7710-53 to EPA, as required by 40 CFR § 761.205(f); and
5. Failure to indicate removal from service dates, as required by 40 CFR § 761.65(c)(8).

Items number 3, 4, and 5 are administrative violations.  These are what I call the "dotting "i"s and crossing "t"s.  If you think that these rise to the level of chronic violations, well, that's your call.  Regardless, they do not impact public health and therefor do not contribute to health issues.

The EPA makes available the inspection report that generated the notice of violation letter Mother Jones linked to.  If this report was easily available at the time I don't know.  But it would have been nice to explain just what the violations were for.  I mean, if you want to be fair and not let trutiness get in the way.

Let's look at violation number 1: Failure to decontaminate structures prior to continued use.

TSCA requirement 40 CFR. § 761.30(u)(I), states that any person may use equipment, structures, other non-liquid or liquid materials that were contaminated with PCBs during manufacture, use, servicing, or because of spills from, or proximity to, PCBs >50 ppm.

Here is what the EPA found:

EPA documented the release of PCBs below the drain valve cap of CWM's 10,082gallon PCB tank. Analytical results for the PCB wipe sample collected directly below the drain valve cap show PCBs on-site in excess of the 10µg/100 cm2 threshold (equivalent to 50 ppm).

What concentration did the EPA find in the wipe sample?

EPA documented PCBs at 11 µg/100 cm2 below the first drain valve cap for the facility's 10,082-gallon PCB tank.

Yeppers, they exceeded it by one (1).  Okay, you might be saying, but they also found another sample twice that high:

EPA also detected PCBs above the TSCA regulated threshold outside on CWM's concrete pad. Analytical results for one surface wipe sample detected PCBs at 24 µg/100 cm2. This PCB concentration is above the TSCA regulated threshold (10 µg/100 cm2) and operations in this area violates TSCA's continued use requirements for structures contaminated with PCBs.

So there you have violation number one.  EPA found low concentrations of PCBs in the area that CWM uses to drain and flush PCB electrical equipment.  Of the 12 wipe samples they took, two exceeded the threshold.  Still, it is a violation.  One mile over the speed limit or 30 miles, still a violation.  Not the same risk, but...

So let's look at violation number 2: Improper disposal of PCBs

40 CFR § 761.50(a)(4) states that spills of PCBs at concentrations of 50 ppm or above constitute disposal of PCBs.

Let that sink in for a bit.  If you have a spill of >50 ppm PCBs you have now disposed of your PCBs.  Since the location of the spill is not approved for disposal, it is now considered "improper" disposal.

CWM improperly disposed of liquid PCBs when it released PCBs into the environment.

Here is what happened:

CWM ...detected PCBs on the concrete slab on the northeast side ofthe building. This is the same area where PCBs,at 15 and 22 ppm were detected in the soil during EPA's February 2010 inspection. In response to the PCBs detected in soil, the facility cut a portion of the contaminated concrete slab back one foot, removed any contaminated soil present and back filled the area with clean soil. CWM disposed of the TSCA regulated waste in the facility's Landfill B-18.

That was their response to finding PCBs in the soil ("the environment") at concentrations "at 64, 74 and 440 ppm."  The violation is because it happened, not for their cleanup.

The reason for this series of posts is because of that violation:

CWM improperly disposed of liquid PCBs when it released PCBs into the environment.

"Improperly disposed."

Fast forward now to July 2, 2013.  CBS News writes:

Calif. regulators recommend controversial toxic waste dump expansion.

And what does CBS News report?

The landfill has been fined numerous times by state and federal regulators for improper waste disposal and other problems.

See?  "Improper waste disposal."  And who does CBS News quote in their July 2, 2013 article? Bradley Angel of the group Greenaction, this time stating:

"A draft permit will send a message to industrial polluters that you can violate your permit constantly for years, commit serious and chronic violations, and still get your permit."

CWM is by no means perfect.  These violations, regardless of their worthiness, are violations.  But you need context here.  A release "into the environment" may meet the legal definition under TSCA for disposal, but it is not the same thing that most people would consider to be improper disposal.

And therein lies the problem with law and perception.  Laws and regulations draw a line in the sand.  On this side it is legal and on this side it is a violation.  It also defines what a particular term means.


Next Post:  When a Spill Becomes Illegal Disposal.  Part 4

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