AUGUST 1, 1979

    Mr. Chairman and Members of the Subcommittee, I am William Sanjour, Chief of the Hazardous Waste Implementation Branch of the Environmental Protection Agency (EPA). I was formerly Chief of the Assessment and Technology Branch in the Hazardous Waste Management Division.
    I am here at the request of the Subcommittee to testify on what I know of the development of regulations for hazardous waste under the Resource Conservation arid Recovery Act of 1976 (RCRA). My testimony will focus on the process by which the proposed regulations were arrived at, particularly with regard to EPA upper management actions and directives that affected the development of the regulations. In my opinion, those actions and directives reflect EPA mismanagement and departure from the statutory mandate and are a major contributor to the delay in promulgating the RCRA regulations.
    I have been with EPA for seven years, and before that I had been a management consultant and had spent several years working on environmental problems. I have a masters degree in physics and have completed advanced studies in operations research. Prior to joining EPA, I spent twelve years doing operations research in the Navy and in private industry with particular emphasis on the cost benefit analysis of technical systems.

Nature of the Hazardous Waste Problem

    In 1974, I joined the newly formed Hazardous Waste Division as Chief of the Assessment and Technology Branch. My duties were to supervise the branch in the conduct of studies to assess the breadth and depth of the hazardous waste problem in the U.S. and to evaluate the technology for handling it. This concern over the indiscriminate disposal of industrial chemical waste into the land was only first beginning to be explored on a national level and our pioneer studies brought to light an awesome problem. The findings of these studies have been eloquently summarized recently by Mr. Leslie Dach, and I would like to quote him:

    This nation's current hazardous waste management practices are an environmental catastrophe of staggering proportions. American industry generates over 96 billion pounds of hazardous waste a year. Of that amount, which is roughly equivalent to the total weight of every car now on the road, less than 10% is disposed of properly. The rest seriously threatens the water we drink, the air we breathe and the environment we enjoy. Included in this 96 million pound figure are chemical poisons that kill and debilitate ... chemicals that cause cancer, birth defects and nervous system damage. Often these are chemicals that have already made the headlines ... like asbestos, PCBs, and kepone.
    The threat to groundwater is particularly serious. Over half the American population relies on groundwater for its drinking water supply. Almost one fifth of America's population relies on groundwater from individual wells, wells without treatment systems ... so that polluted water goes directly from the well into people's mouths. Groundwater is an extremely fragile resource. It doesn't clean itself like surface water. Once dirtied, it stays that way for hundreds of years. Polluted groundwater travels like a slug. The pollutants don't mix well with the surrounding water and, therefore, the chemicals remain highly concentrated.
    The disease and dislocation caused by improperly managed hazardous waste are ... already upon us, and new disasters are discovered regularly. Groundwater supplies in towns like Toone, Tennessee, and Grey, Maine, have been poisoned, and citizens are forced to find alternative sources of drinking water. People in Love Canal, New York, have been forced to leave their homes. Hundreds of others would like to leave, but no one in their right mind will buy their property. Residents of Love Canal exhibit extraordinarily high rates of birth defects and other illnesses.
    These publicized incidents are only the tip of the iceberg. EPA estimates that there are at least 30,000 hazardous waste dumps sites across the country. A recent EPA study indicated that in at least 86% of the industrial land disposal sites investigated, hazardous materials have migrated into water supplies off the premises of the site. In over half the sites, groundwater had been contaminated to the point where it violated EPA's drinking water standards. The status of surface impoundments is similarly bleak. EPA indicates that most of the hundreds of thousands of surface impoundments holding hazardous waste are unlined and unmonitored.
    The research and analysis on this hazardous waste problem was done under the Solid Waste Disposal Act of 1970, and was closely monitored by several committees of Congress. We worked closely with these committees in developing various legislative proposals over a period of several years. This work culminated in October 1976 with the passage of RCRA. The approach taken in this Act to regulate hazardous waste was basically that approach developed by EPA's Hazardous Waste Management Division as an outgrowth of its studies. This Act passed both houses of Congress almost unanimously.

RCRA Regulations

    Subtitle C of RCRA requires EPA to publish regulations for managing hazardous waste within 18 months of enactment, that is by May 1978. Section 3001 requires the Administrator to develop criteria for identifying the characteristics of hazardous waste and for listing hazardous waste Section 3002 and 3003 require EPA to issue standards for generators and transporters of hazardous waste respecting record-keeping practices, labeling, appropriate containers, use of a manifest system, and reporting of quantities and disposition. Sections 3004 and 3005 require owners of facilities which treat, store, or dispose of hazardous waste to obtain a permit and requires the Administrator to develop standards for such facilities as necessary to protect human health and the environment. The Act also provides in Section 3006 for state assumption of the program.
    Responsibility for drafting the regulations was divided among the three branch chiefs of the Hazardous Waste Management Division. I had responsibility for the hazardous waste facility standards (Section 3004) and for notification (Section 3010). Since the need for coordination was so great, we had daily meetings to thrash out our ideas in order to be well informed on all aspects of the draft regulations.

EPA Attitude

    It was clear that the earliest days that hazardous waste regulation did not have the support of our upper management or the Administration. For example:

  • The Administration instructed EPA officials and officials from other agencies, to testify against passage of hazardous waste regulations when it was being considered by Congress.

  • During the same period, EPA upper management urged the Hazardous Waste Management Division to "jawbone" with industry rather than seek regulatory authority over hazardous waste.

  • When RCRA passed, the Administration did not ask Congress for sufficient resources to implement it.

  • The implementation of hazardous waste regulations was made subordinate to the clean water program which was responsible for producing much of the hazardous waste.
  • In general, efforts were made to downplay the need for hazardous waste management.

    Reasons for Delay

        The mandated 18-month deadline set by Congress was not met. In part this was because the deadline was unrealistically short. In part it was because of the bureaucratic requirement of the EPA Administrator that regulations go through a time consuming "Work Group" committee so that everyone in the Agency can contribute to the process. But in my opinion the principal reason for the delay was because this legislation did not have support of our upper management or the Administration which showed up as a lack of leadership and motivation.
        In spite of this, by March of 1978, the technical staff had completed drafting hazardous waste regulations. This was done with the participation of all offices in EPA including the General Counsel and our own Assistant Administrator. Innumerable meetings had been held with every segment of the Federal government, state governments and local governments, as well as industry, labor, environmentalists and other affected parties. Every conceivable issue had been repeatedly debated and repeatedly resolved. At that point the draft regulations reflected a culmination of years of staff time and millions of taxpayers dollars spent on studies that we incorporated into the regulations, which we expected to be proposed in the Federal Register after a few months of upper management review and revision.

    Cutback of Regulations

        In June of 1978, however, we were informed by our management that because of pressure from the White House to fight inflation, the scope of the draft hazardous waste regulations would have to be reduced. To that end, and in spite of the conclusions reached by the research in which much time and money had been invested, and in spite of the RCRA requirements:

  • We were directed not to rely on objective characteristics and test protocols to identify hazardous waste/ but to rely instead on lists of specific industries to be regulated. It was felt that use of characteristics put too great an economic burden on industry for testing. We were so informed despite all the research we had invested in, despite the fact that RCRA doesn't explicitly provide for consideration of "cost effective alternatives" in developing regulations (as other environmental laws do) , and despite the fact that the cost of regulating hazardous waste disposal properly is far less than the economic, health and social costs of not regulating and of later cleaning up the land;

  • We were to avoid regulating hazardous waste from the oil and gas industry, electric power companies, and other large industries;

  • We were to avoid regulating the hazardous waste from industries or municipalities which have water discharge permits under the Clean Water Act.
  •     We were also told to stop looking for hazardous waste disposal sites which posed an imminent hazard to public health, to delay getting out the regulations while we restudied all possible options, and to keep all this from the public.
        To implement this new policy, we were told to do things which we know were not right. We were required to write public documents which we knew were misleading. The press and Congress and the public were given misinformation while accurate information was suppressed. Our task shifted to developing after-the-fact explanations to justify departures from the mandates and intent of the Act. Everyone of us on the technical staff had to make his own decision as to what extent he or she would be a "good soldier" and obey orders or to be a good citizen and obey the law. I was not a very good soldier and as a result I was transferred to a meaningless job out of the Hazardous Waste Management Division where I could no longer affect the regulations.

    Departure from Statutory Intent

        I would like to give the Committee one of the more outstanding examples of departure from statutory intent and where it has led.
        After we had spent much money on research prior to and following passage of RCRA, we had concluded that the best approach to identifying hazardous wastes was through characteristics which, if possessed by a waste material, would establish that waste as hazardous, as opposed to our original intent of listing particular waste or industries which our research showed to be impractical. John Lehman, Director of the Hazardous Waste Management Division, for example, wrote in correspondence prior to the proposed regulations, that "we intend to be criteria oriented, both in defining a waste as hazardous and in describing what should be done in its management."
        However in RCRA, Congress decided to use both lists and criteria:

    . ... the Administrator shall ... develop and promulgate criteria for identifying the characteristics of hazardous waste, and for listing hazardous waste, which should be subject-to the provisions of this subtitle, taking into account. toxicity, persistence, and degradability in nature, potential for accumulation i.n tissue, and other related factors such as flammability, corrosiveness, and other hazardous characteristics.
        Based on such management direction and guidance and the statutory mandate which required us to use both lists and characteristics, the draft standards for "Criteria, Identification, and Listing of Hazardous Waste" were prepared by the EPA staff on March 6, 1978. These contained proposed teat protocols for the following hazardous characteristics:
    1) Ignitability
    2) Corrosivity
    3) Reactivity
    4) Radioactivity
    5) Mutagenicity, including a special Chemical list (Controlled Substances List)
    6) Bioaccumulation
    7) Toxicity, including thresholds based on the following parameters:
        a) EPA Human Health Water Quality Criteria
        b) EPA National Interim Primary Drinking water Standards (Which is a sub-set of the above)
        c) EPA Aquatic Environment Water Quality Criteria
        d) Animal toxicity values such as those in the NIOSH Registry of Toxic Effects of Chemical
        e) Bioassay tests
    It also listed specific hazardous wastes.
        These characteristics had been developed through research as the best indicators of harmfulness to human health and waste which were known to posses these characteristics were listed. Scientific data and actual experience with human health effects established that any substance that exhibited any one or more of these characteristics was indeed "hazardous".
        On December 18, 1978, EPA proposed hazardous waste regulations in the FederalRegister. Despite our knowledge of health effects from all the characteristics, however, the only characteristics included in the proposed regulations for identifying hazardous waste were ignitability, corrosivity, reactivity, and one form of toxicity.
        The toxicity test procedure was limited to only the 14 chemicals identified in item 7b, with a note that the Agency is "considering" adding those chemicals listed in the Water Quality Criteria under the Clean Water Act. There is in fact no test for toxicity in the sense of feeding the substance to a test animal or in terms of some common denominator of toxicity. Thus only a fraction of hazardous wastes, an estimated 35%, are identified as such by the proposed regulations.
        This cutback had been ordered by EPA management. I was personally involved in the decision-making process. The reason given by management for the cutback was to reduce the scope of the regulations so as to reduce the impact on industry. It was felt (without any evidence) that our draft regulations would cost American industry too much. It was also felt that industry already regulated under the Clean water Act should not be subject to further regulation (even though the Clean Water Act was responsible for producing much of the hazardous waste}.
        This cutback appeared to me to be a violation of the legislative intent and mandate as well as having an adverse affect on public health and the economy.

    Questionable Explanation for Cutback

        To legitimize the cutback in characteristics, an after-the-fact explanation was devised, which is the explanation that appears in the Federal Register. This was that reliable test protocols were not available for the characteristics that were dropped. While it may be true that some of the test protocols for the dropped characteristics are at least arguably not as scientifically reliable as those which were kept, it is important to keep in mind that this explanation was attached after the fact to legitimize a limitation of the scope of the regulations, a limitization that Congress did not intend.
        In particular, I don't see how EPA can argue that there are no acceptable test protocols for radioactivity. And on June 14, 1979 EPA proposed standards under the Clean Water Act which would require industry to test their waste water discharges for many of the substances which the proposed RCRA regulations say test protocols are not available. Moreover, it should be noted that many of the very same test protocols that were dropped from the March 6, 1978 draft are still used in the proposed regulations but in a different form. The very same test protocols which were deemed unsuitable for bringing hazardous waste into the system are used in Section 250.15 of the proposed standards to allow wastes out of the system. This includes test protocols for cancer, birth defects, bioaccumulation and toxicity.
        One must conclude from all this that the "test protocol" story in the Federal Register was invented after the decision to drop the hazardous waste characteristics had been made and that the real reason for the decision was an attempt to reduce the cost to industry in response to the President's fight against inflation.

    Effects of Cutback: Increases Costs

        Yet, it should be noted that EPA has put forward no facts or data to support the contention that cutting back on the number of hazardous waste characteristics will in fact reduce inflation.
        Rather, as an authority on hazardous waste practices, it is my opinion that the costs and the inflationary impact of regulating hazardous waste will be increased rather than decreased by the cutback decision. The reason for this is that it takes vastly more money to clean up a site where hazardous wastes have been improperly disposed of than it does to dispose of it correctly in the first place, and the regulations as proposed will be responsible for creating many sites which will have to be cleaned up later.
        To illustrate this point, consider a manufacturer whose waste does not appear on the very limited list of characteristics of hazardous wastes proposed by EPA. He will assume his waste is not hazardous and he may make decisions about disposing of in a municipal landfill or make a capital investment in a site of his own. If several years later EPA adds his waste to the list, he may be required (if not by EPA then by local pressure) to dig up the site entirely and transport the waste to a permitted hazardous waste facility, a prospect which would bankrupt all but the largest of companies. Ultimately, if he cannot clean up his own waste it is very likely the clean up cost will be borne by the public.
        If the complete characteristics of hazardous waste were published by EPA and if EPA were limited to listing only those wastes which failed the previously announced characteristics (as was done in the earlier drafts of these regulations) then everyone would know where they stand and could act accordingly. This would cost far less in the long run.

    Leave Many Wastes Unregulated

        I have spent some time doing research into what hazardous waste will be left unregulated by the Agency's decision to eliminate from the standards those test protocols which define whether a waste is poisonous or causes cancer or birth defects and to rely instead only on identification of specific known hazardous wastes. I have found that about 80% of the waste from the manufacture of pesticides are not specifically identified in the proposed standards. Some examples of wastes which the proposed regulations leave unregulated are:

  • Waste residue from-the manufacture of C-56 (hexachlorocyclopentadiene) which was identified in hazardous waste disposal problems at Love Canal and "Bloody Run" in Niagara Falls; the "valley of the Drums in Kentucky; Montague, Michigan; Toone, Tennessee; the Louisville sewer system; and the Memphis sewer system.

  • Waste residue from the manufacture of Kepone, which destroyed the fishing in the James River in Virginia.

  • Waste residue from the manufacture of Mirex which destroyed fishing in Lake Ontario.

  • Waste residue from the manufacture of pentachlorophenol which contains dioxin.

  • Waste residue from the manufacture of Heptachlor which is a carcinogen.

  • Waste residue from the manufacture of DBCP which causes sterility.
  •     Whereas previously these wastes may have been disposed of inadequately and secretly, they can soon (thanks to a clean bill of health from EPA) be disposed of inadequately and openly.  This means that such a waste may legally be:
  • Used as fertilizer where it can enter the food chain.

  • Used as landfill where it can leach into underground drinking water.

  • Stockpiled where it can run off into surface water and leach into groundwater.
  • If the waste is volatile (as in Love Canal) it will be allowed to poison the air without constraint.

        Besides the cutback of characteristics, there are other examples in my opinion where EPA has violated the Congressional intent of RCRA. I wrote several letters to the public docket on some of these issues and since EPA removed them from the docket I would like to include them as an appendix to my testimony.

    EPA Management Efficiency and the "Superfund"

        I would like to turn now to the issue of the efficiency of EPA management's approach to the regulation of hazardous waste. As I've said my background is in operations research and cost benefit analysis is an area in which I have a great deal of experience.
        The "superfund" being proposed by the Administration to clean up hazardous waste dumps is a classic example of a program which costs very much and where the benefits are not only small, but in some respects, negative. This superfund, in my opinion, is the Administration's response to the adverse publicity they have been getting on their handling of the hazardous waste issue. This is more of a diversion than a response.
        As a result of the news stories about leaking dump sites as Love Canal, Montague, Michigan, and the "Valley of the Drums", the focus has been on what to do about these sites, whereas the infinitely more important issue from the standpoint of public health is what to do to prevent such sites in the future.
        The Administration is moving away from doing things which protect the environment in favor of doing things which take care of the consequences of not doing the things which protect the environment. To illustrate how far this has gone, we are spending millions in Federal funds to clean up Love Canal in Niagara Falls but we have dropped from our proposed hazardous waste regulations those very wastes which we are cleaning up. "Taking care of the consequences of the failure to protect the environment" is not the same thing as "protecting the environment". Nor is it a substitute for environmental protection. Therefore it is a sham to refer to superfund as "environmental legislation" when in fact it is really disaster relief.
        I don't mean to sound uncompassionate for the victims of bad hazardous waste disposal practices. I don't feel t have to take a back seat to anyone in my concern for them. If we were allowed to do our job of finding those sites and warning those people then there would now be fewer victims. If we are allowed to regulate those wastes then there will be fewer still. However it strikes me that the problem of cleaning hazardous waste sites and the relief of the victims belongs more in the category of disaster relief or welfare relief rather than environmental protection. And if EPA would rather do that than find these sites, assess damage and draft and enforce regulations to prevent those disasters, then some other agency should be found to do this.


        I would like to conclude my testimony by making some recommendations for correcting some of the problems I've identified.
        First and most obvious, there is no substitute for enthusiasm and the will to do the job you're charged with. In my opinion, EPA and the Administration does not want to regulate industrial disposal of hazardous waste. Unless this lack of will and attitude is changed, any money or positions added to EPA's budget for hazardous waste management is wasted and could be counterproductive.
        It is possible to restore a great many of the more toxic waste .residues (including C-56) dropped from the draft regulations without having to re-propose the regulations. This can be done by adding the Water Quality Criteria to the list of fourteen substances in the Drinking Water Standards. This is discussed in the attached memo from Mr. Marc Turgeon.
        In pursuing the issue of what to do about old sites, I recommend that EPA use the people who have demonstrated their enthusiasm and competence in identifying the problem. I recommend that they give technical and legal support to state and local efforts to solve the problem. I further suggest that enforcement efforts be concentrated on bringing or threatening to bring imminent hazard or tort action against owners of inactive or existing hazardous waste sites, when there. are "deep pockets" and sites which pose the greater health problem.
        I would also recommend that EPA concentrate on regulating hazardous waste and leave disaster relief to others. If Congress wishes to set up a superfund for this purpose, I would recommend it be administered by the Federal Disaster Assistance Administration or some other agency with EPA's role limited to technical advice.
        We know from experience with the Clean Water Act and the Construction Grants Program (which gives billions to municipalities to construct sewage treatment plants) that EPA's priorities follow the dollar. If this superfund is administered by EPA than we can expect further attenuation in interest in all other aspects of hazardous waste management and perhaps other programs as well.
        Lastly, I would ask Congress to have compassion for the civil servant charged with writing regulations to implement a law which is opposed by the Administration. He is caught between his conscience and his career. I recommend that the job of drafting regulations be placed under an independent agency which answers directly to Congress.
        I appreciate the opportunity to testify here today, and I'll be glad to answer any questions.

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