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?

Source

We have met the enemy and it is us!

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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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