Opening Address

Alvin Alm

Alvin Alm is Deputy Administrator of the U.S. Environmental Protection Agency [1984].

OWEN OLPIN: Welcome to the 13th Annual Conference on the Environment, sponsored by the ABA's Standing Committee on Environmental Law. To open our discussion of hazardous waste siting issues, I am delighted to introduce Deputy Administrator Alvin Alm of the U.S. Environmental Protection Agency.

ALVIN ALM: I do not need to tell you that hazardous waste is a problem in the United States. EPA's most recent study estimated that in 1981, 71 billion gallons of liquid hazardous waste was being produced annually in this country. That is roughly one metric ton to every person in the United States. We have failed miserably in the past in dealing with hazardous waste, and, due to generations of neglect, our landscape is dotted with health threatening hazardous waste sites. New Jersey alone has 85 Superfund¹ sites.

Hazardous waste has been given top priority at EPA. In the agency's list of 31 program priority activities, the first four deal with either Superfund or the Resource Conservation and Recovery Act (RCRA).

No current federal policy deals explicitly with hazardous waste siting. Many programs indirectly affect siting, however, and now operate to close off inexpensive and simple hazardous waste disposal options. As you know, RCRA provides cradle-to-grave regulations for hazardous waste, and is specifically designed to protect against ground water contamination. RCRA imposes restrictions on land disposal facilities in floodplains, along earthquake faultlines and wetlands, and in other environmentally sensitive areas.

RCRA includes a permitting program and sets forth closure and post-closure requirements to ensure that sites continue to meet environmental standards. EPA has begun to permit a large number of RCRA facilities, and will call in virtually all land disposal and incineration permits as quickly as they can be processed. Because of this activity, many hazardous waste sites will either be upgraded or closed down because they do not meet RCRA requirements.

Superfund's cleanup provisions affect the siting process by requiring the disposal of wastes and contaminated soil from cleanup sites at other facilities. EPA also recently developed a comprehensive ground water strategy that prohibits hazardous waste siting near aquifers serving substantial population centers or feeding unique ecological systems. RCRA, Superfund, and the new ground water strategy will reduce the number of hazardous waste sites available. The cost of hazardous waste disposal will therefore increase, and will create incentives for reducing the initial generation of waste.

EPA's studies do not show an aggregate shortage of existing and potential hazardous waste sites but indicate a substantial siting capacity excess. These figures are deceptive, however. Many facilities are located on-site at large generators; they are not generally available for hazardous waste disposal. Even where a potential site is identifiable, disposal of extremely hazardous waste is politically unpopular. To illustrate, EPA recently attempted to dispose of waste generated by the Hyde Park/Love Canal cleanup effort. Occidental Chemical Company planned to incinerate dioxins at the SCA facility in Chicago, but the State of Illinois was unwilling to grant a permit because of serious opposition from nearby residents. Capacity exists at the SCA site, but it can not be used because of public concern.

With a finite number of available sites, wastes are often moved thousands of miles and across several states for disposal. A comparative risk assessment idetifying the most dangerous phases of hazardous waste disposal has not been made, but EPA is now preparing a study that I suspect will show transportation and change of transport modes as substantial risks in the total hazardous waste management process. Proposal amendments to RCRA² legislation will eliminate many land disposal options and make it even more difficult to find acceptable hazardous waste site.

Many people consider hazardous waste siting to be a federal responsibility.After all, siting is an issue because communities and states are unwilling to accept hazardous waste facilities. Because the problem cannot be solved at the state and local level, some believe that federal intervention is the answer. I have very little confidence in a federal solution, however. In the early 1970s, several attempts were made to establish a national powerplant siting authority. It was hoped that federal legislation would overcome the administrative problems cropping up even then in siting nuclear and coal-fired powerplants. Congressional approval was never obtained, however, and the bill died. The mid-1970s saw the proposal of a national nuclear powerplant licensing bill. Many were suspicious of the suggested licensing procedures, and after a great deal of discussion and comment, the legislation failed. An Energy Mobilization Board was proposed by the Carter Administration to expedite siting for major energy projects. Refineries, coal-fired powerplants, pipelines, and other energy facilities were to be within its jurisdiction, but it, too, did not find congressional approval. Passage of the Nuclear Waste Policy Act of 1982,³ concerned with spent nuclear fuel and high level radioactive wastes, was an exception to this rule. Yet it took years to pass, and creates national policy through a labyrinth of procedures and consultations [15 ELR 10234] so elaborate that, if all goes well, the Department of Energy might be able to open the first facility by 1998.

The record shows that Congress has not been willing to face the siting issue. Even in the face of energy shortages, two major oil supply interruptions, and the gasoline lines of the summer of 1979, Congress did not respond with federal solutions. It seems highly unlikely that if Congress refused to tackle siting under those circumstances it will work with an issue as emotionally charged as the disposal of hazardous waste. I am not optimistic that Congress will be willing to take on this issue.

Why has it been so difficult to site hazardous waste facilities? The fear of risk to public health is obviously the major impediment. The American public is traumatized by hazardous chemicals and the possibility of contracting cancer or birth defect diseases. The sheer terror of those living near these sites cannot be ignored. There is also public distrust of experts and government officials. The public is not persuaded by talk of double liners or leachate collection. They do not believe we can provide real and safe technical solutions that acceptably minimize the health risks.

Equity is also a consideration. Since not every community is required to host a hazardous waste site, those which do feel they are bearing an inequitable portion of the risk of modern industrial society. Increased health risks, the stigma of proximity to a hazardous waste site, and a possible loss of property values are all concerns felt by the public; those affected don't understand "why them."

Related to both of the above issues is public acceptance. We must convince the public that we know what we are doing and that public officials are capable of protecting their health. We also must convince them that the proposed solution is equitable and reasoned. They need to believe that all possible steps will be taken to protect the environment and public health.

The most dramatic case of public opposition has been the Chemical Waste Management proposal to incinerate liquid hazardous waste at sea.⁴ The burning would have occurred 180 miles from land. A great deal of technical work, including trial burns, had been conducted in anticipation of approval. Those efforts, however, were unacceptable to the Brownsville community. The pervasive sentiment throughout the state political structure was that the Brownsville community would be forced to accept unnecessary health risks. A record 6,000 people came to our public hearing, 2,000 comments were submitted to the agency, and 150 witnesses testified. Public opposition must be addressed if CWM is to obtain its permits.

Many different responses have been made to public opposition. Several states created hazardous waste siting boards that preempt or override local opposition and provide a forum for determining risks and benefits. State siting boards deal only partially with the equity issues, however, and their potential for success is debatable. The Southern California Hazardous Waste Management Project, founded in 1981, covers an eight-county region, including Los Angeles County, and about 2 1/2 million tons of regulated material. One hundred new hazardous waste facilities are planned to be sited in the area during the next few years. Because of its unique structure and regional approach, enough interjurisdictional equity may have been achieved to make the project successful.

Mediation is also used to resolve a wide variety of environmental disputes. A mediator can play an important role in dealing with equity problems and public health concerns. Other techniques worth considering are compensation and other incentives mitigating the negative impacts of siting decisions. In France, for instance, those living near nuclear reactors pay lower electricity bills. Compensation can take many forms, including direct monetary compensation or alternative compensation such as open space or parks, new roads, and better public works projects. Besides the carrots of compensation, states can apply the sticks of withheld state program grants, hazardous waste grants, or Superfund monies to force communities to host hazardous waste facilities. Senator Chafee has proposed such an amendment to the new RCRA amendment bill, but its chances of passing are marginal. Other possibilities include creating model siting legislation and interstate compacts similar in structure to the Southern California experiment, but on a grander scale.

This conference offers an opportunity for grappling with these issues. We are approaching a crossroad in hazardous waste management. Hazardous waste generation continues to increase as we shift away from convenient land disposal techniques toward more costly and complicated treatment alternatives. We must build many new facilities to meet the growing need, but efforts in that direction will surely result in a raw clash of political forces. The paralyzing fear of hazardous wastes provokes strong opposition to continued operation of existing facilities as well as to siting new ones. When combined with the lack of confidence in experts and public officials and the perceived unfairness of the process, a gridlock occurs.

An equitable state siting process that includes public participation and private sector involvement must be developed. When the federal government becomes too involved in any local issues, other entities shirk their responsibilities, and an acceptable solution becomes impossible. While the federal government should provide technical assistance and overall leadership, it should never become a primary actor in the decision process. With that, I leave the floor open for questions and comments.

PARTICIPANT: We all accept the fact that we need to site new facilities to dispose of waste, and that the process will become more difficult and more expensive. Alternative approaches, such as recycling the waste product, have not been pursued, so some producers have taken a "holding pattern" approach, and store their waste on-site rather than putting it into the regulatory stream. I am convinced that a lot of waste is being held pending the resolution of regulatory conflict and confusions. What are EPA's views and concerns about accumulating waste?

[15 ELR 10235]

ALM: Looking at the range and magnitude of the problem we face, on-site storage is not the most significant.It is a major job implementing existing programs, and I think EPA is doing it quite well. I don't believe on-site storage is as serious. As we move further into the permitting process, storage will be affected. At that point we will better understand the nature of the problem. I don't believe the impact on aggregate space and capacity will become a great problem, though, especially since, as the price of waste disposal increases, economics will force generation to decrease. I think the larger problems of long distance transportation of extremely hazardous wastes and the increasing difficulty of disposing of dioxins and PCBs deserve greater attention.

PARTICIPANT: Will you elaborate on the studies addressing the comparative risks of transportation of different types of waste?

ALM: I recently directed the Office of Planning Policy and Evaluation to conduct a comparative analysis of the risks from combustion of liquid hazardous wastes at sea and on land. The study will look at every step in the process, from generation to transport to a site. By evaluating the risk at each step in the process, we hope to learn about not only the aggregate risks of different technologies but the points of greatest risk. We have already selected an outside advisory group and anticipate a great deal of public involvement. The Science Advisory Board is also doing a parallel review, and we will integrate their work into our own. This should be the most significant comparative risk analysis ever done in the hazardous waste field.

JOHN McGLENNON: Regarding a possible federal role in hazardous waste siting, I see the states doing a reasonably good job in developing workable siting procedures. New facilities have been sited under recently enacted state siting procedures, and I am encouraged about keeping the responsibility with the states.

EPA can lend a hand, however. EPA does not need legislation in order to develop a state program grant formula for hazardous waste that would compensate states siting new facilities. Federal assistance is needed to monitor new facilities, many of which are regional and take waste from beyond one state. Incentives built into state program grants for hazardous waste management need not be viewed as a disincentive to those states that don't site hazardous waste facilities, but would certainly encourage state consideration of siting proposals.

EPA can furnish further assistance by providing research, technical expertise, and testimony at siting hearings on the actual health effects and environmental impacts caused by hazardous waste facilities. EPA can appear credible by delivering testimony indicating that the Agency has researched and identified the potential effects of a facility, and they aren't as opponents have stated them to be.

ALM: You suggested modifying the state program grant fund to reward states permitting hazardous waste sites. That is an interesting idea, and one I would like to think about. I must first ask you, though: what about those states that already have hazardous waste sites? Should they be grandfathered in? If so, aren't you really penalizing states that don't have sites? Since many states don't have facilities, I suspect that you would run into political opposition, but it is worth considering.

I think your points about technical assistance are very well taken. EPA does, in fact, have an aggressive community relations program. We do get involved at the local level, although I'm sure we could do more. EPA technical assistance could make important contributions to the siting process. We are moving away from EPA issuing all permits and taking all enforcement actions. We have ten state people for every EPA staff person in the field. We plan to provide additional technical assistance to the states in the hazardous waste field, as well as other EPA programs.

PARTICIPANT: As producers, we are trying to develop innovative disposal programs, yet when we format our permit, EPA directs us into incineration or one of the other existing technologies. Rather than earmarking innovations with existing regulatory demands, can the Agency do anything to encourage new hazardous waste detoxification research?

ALM: I think that, over time, the procedural rigidity will decrease. We're putting more money and effort into hazardous waste research. If the new RCRA bill passes, we will see a tremendous acceleration in non-land-disposal technologies. Experimentation will increase simply because of economics. Pressure to abolish dependence on land disposal is an incentive to develop other technologies, and EPA will be challenged to foster innovation rather than ensnarl it in red tape. Whether we can allow innovation within the current regulatory morass is an open question, but we strongly encourage it.

PARTICIPANT: Is hazardous waste siting a state or federal problem? At what point is there a national interest in assuring that at least one site exists in every state?

ALM: I do not believe Congress would pass a bill regulating hazardous waste siting and requiring every state to develop siting procedures. Even if it did, I do not think it is either necessary or wise for every state to have a site. If a federal hazardous waste siting bill were to be seriously pursued, Congress would debate the matter for years. Meanwhile, no one would contemplate or follow other alternatives. The probability of implementing a workable federal solution is so remote that it is not now worth considering.

The problem has to be addressed at the state and local level.We will be talking to the National Governors Association and to state environmental directors about this approach.They face these problems on a daily basis, and from a dialogue and sharing of ideas perhaps we can establish a unified direction.

PARTICIPANT: I'm from the State of New York. We have five sites approved to receive hazardous waste, three of which are wholly owned subsidiaries handling their own wastes. As long as tax dollars are not redirected into hazardous waste, the states are going to be reluctant to make further commitments to new facilities. EPA can insist that federal activity will be minimal, and that state and local governments are responsible for siting facilities and developing responsible solutions, but that insistence is meaningless. Larger states can afford to site facilities but they won't want to take care of the whole country, so the problem will ultimately revert to the federal level. It seems to me that EPA needs to take a leadership role in encouraging allocation of more funds toward a solution.

[15 ELR 10236]

ALM: I don't think it's any secret that EPA asked for a substantial increase (proportionally larger than for any other state grant program) for the hazardous waste program. We were not successful. As part of the overall budget, EPA was treated well, particularly when compared to other domestic agencies, but this is a period of financial stringency. I hope to see more funds go toward the hazardous waste grants, but we can only wait and see what happens.

PARTICIPANT: I am less certain than you that, as the cost of disposal increases, the production of hazardous waste will decrease. Many producers are locked into a hazardous waste disposal level by virtue of the processes they have selected.

I am also concerned about your comments on transportation, and agree that transportation may very well be the highest risk area in the management process. Reviewing the history of the Superfund cases and reading about waste being retransported from one site to another, often in the dead of night, raises questions about the disincentives we can create to discourage waste transportation. I recognize that other problems will result, but aren't the risks serious enough to justify them? If, for instance, waste can only be transported to the nearest site or some other reasonable distance, local monopolies can develop. Federal regulations have treated similar scenarios before, however. What can we do to reduce transportation risks?

ALM: It would be very nice to have a large number of sites close to major generators so we wouldn't have to ship waste long distances. In the near future, however, our new permitting strategy may actually lead to a closure of a number of marginal facilities. There is no quick solution to the risk of transporting hazardous wastes until the public has greater confidence in the system. That will ease the problem but certainly not solve it. I am afraid I don't know the single best approach to preventing large-scale transport.

PARTICIPANT: Why shouldn't generators build smaller localized facilities to treat their waste? An on-site facility treating waste from one plant, or off-site projects local to a city or group of cities seem more practical and easily sited. Cost must be spread over a broad base, so perhaps they are not financially feasible. Are there any studies underway that look at the small, local alternative?

ALM: You ask an interesting question about sizing of facilities. In the last 1960s and early 1970s regional sewage treatment facilities were considered the wave of the future because of very promising economies of scale. But operation and maintenance problems often exacerbated, rather than minimized, water pollution problems. The electric utility industry depended during the 1950s through the early 1970s on ever increasing large plants, but today strategies are aimed at smaller increments.

I don't know what the answer is for hazardous waste facilities. Small on-site technologies respond to a number of the problems being discussed, without raising the same tide of citizen opposition. It may well be that the high cost of off-site disposal and evolving technologies will encourage even greater on-site treatment of hazardous wastes. We don't know what shape the industry will ultimately take, any your solution may be one many firms will choose.

FRED ANDERSON: The Brownsville permit to incinerate waste at a floating facility out in the Gulf met with incredible public opposition. What happened? Why were people so upset about this particular advanced disposal technique?

ALM: I honestly don't know. It caught some of us at EPA by surprise. The community expressed several concerns, including the public health impacts from the highly toxic chemicals involved, and a fear that a wreck at sea would have a catastrophic effect on the Gulf marine environment. The strongest issue raised was that of equity, however. Many felt that the Southwest site was chosen because it would be politically less difficult than sites on the Atlantic or Pacific Oceans. It is a powerful and emotional issue, and the controversy will continue for some time.

1. Superfund is the popular name of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9657, ELR STAT. 41941.

2. S. 757, 98th Cong., 1st Sess. (1983), the Solid Waste Disposal Act Amendments of 1983, is now pending on the Senate calendar.If enacted it will effectively reduce the number of landfill facilities permitted to dispose of hazardous wastes. "Reliance on land disposal should be minimized and land disposal, particularly landfill and surface impoundments, should be the least favored method for managing hazardous wastes." Senate Comm. on Environment and Public Works, S. Rep. No. 284, 98th Cong., 1st Sess. (1983). New section 3004(b) would require a two-step assessment process in which a waste is first examined for toxicity, mobility, and propensity to bioaccumulate. It is then evaluated in light of the proposed method and site of disposal and the presence of other substances that, with the introduction of the waste, might alter its chemical nature. [S. 757 was enacted as Pub. L. 98-616 on November 8, 1984: The Hazardous and Solid Waste Amendments of 1984. The amended version of RCRA is codified at 42 U.S.C. §§ 6901-6987, ELR STAT. 42001. — Ed.]

3. Pub. L. No. 97-425, 96 STAT. 52201 (1983), 42 U.S.C. § 10101-10226, ELR STAT. 41971.

4. The states of Texas and Louisiana, several shoreline cities, Texas public officials, and local and national environmental groups have filed suit against the EPA (Texas v. Ruckelshaus, No. B-83-354 S.D. Tex., filed Nov. 7, 1983). They are seeking to enjoin any further action on operating and research permits tentatively issued to Chemical Waste Management, Inc., until EPA promulgates and implements regulations on ocean incineration. Plaintiffs claim that the issuance of permits without substantive EPA regulations on the means of disposal would violate the Toxic Substances Control Act; the Marine Protection, Research, and Sanctuary Act; and the Administrative Procedure Act. Chemical Waste Management reportedly plans to burn approximately 500,000 metric tons of polychlorinated biphenyls and "organo-chlorine soup" aboard its ships Vulcanus and Vulcanus II. In his annual request to the Science Advisory Board, EPA Administrator Ruckelshaus has asked for a study of the effects of ocean incineration [See 1983-1984 [Current Developments] ENV'T. REP. (BNA) at 1052, 1053, 1320.]