January 30, 1985

Subject: Emelle Consent Agreement With Waste Management Inc.

From: William Sanjour and Hugh B. Kaufman

    Attachment 1 is a consent agreement by the U.S. Environmental Protection Agency (EPA), the state of Alabama, and Chemical Waste Management Inc. (CWM) concerning the CWM hazardous waste landfill at Emelle, Alabama. The ostensible purpose of this document is to punish CWM for past violations of the law and to assure future compliance. The purpose of this memo is to document the ways in which this agreement, rather than punishing CWM, actually rewards them.

    On September 7, 1984, EPA rescinded permission for CWM to dispose of PCB's at Emelle because the site is less than 50 feet above groundwater in violation of 40 CFR 761.75 (b)(3) (see attachment 2, p. 9). The consent agreement restores permission to bury PCB's (p. 12, V.D.) and waives the 50 foot requirement. No reason is given for granting the waiver. This provision is worth tens of millions of dollars to CWM.

    The agreement states on p. 13 that "The Regional Administrator ... may revoke the waiver ... if there is evidence showing ... an unreasonable risk to health or the environment...". However the regulation covering waivers, 40 CFR 761.75(c)(4), states that the facility owner must first "submit evidence that the operation of the landfill will not present an unreasonable risk of injury to health or the environment ..." before the Regional Administrator considers granting a waiver. Thus the consent agreement not only waives the fifty foot rule but it also waives the regulatory requirement to justify waiving the rule.

    Not only did the Regional Administrator give no reason for granting the waiver, he had good reason for not granting it. On September 28, 1984, CWM filed a notice with the EPA regional office, pursuant to 40 CFR 265.93(d)(l), that its groundwater monitoring system had detected a significant increase in two indicator parameters. According to EPA regulations, this is a presumption that the facility is leaking (45 FR 33194,5, see attachment 3).

    The principal complaint against CWM, which the consent agreement was intended to correct, was the illegal storage of PCB's at Emelle. Page 2, B.1. of attachment 1 states the removal of these PCB's as the principal objective of the agreement Page 9, A.1. shows the schedule at which PCB's are to be removed from the Emelle site. However A.2. allows an exception if the PCB's are contaminated with dioxin (TCDD). In the later case there is no specific schedule for removal and indeed no removal at all if the cost to CWM is "unreasonable" (attachment 1, p. 10. line 6).

    However the presence of dioxin in the PCBs was suspected long before the consent agreement was drafted (see attachment 2, p. 10) and was confirmed to the public a week before the decree was signed (attachment 2, p. 11). Thus the entire discussion of PCB removal is a sham.

    Page 34 of the consent agreement contains a "covenant not to sue".  This says that:

EPA and the State hereby covenant not to initiate or maintain any civil claim or civil cause of action against CWM . . . with respect to the Emelle facility based on facts or circumstances known to EPA or the State or their agents, employees, or their contractors as of October 12, 1984.
    This provision means that violations which existed prior to October 12, 1984, will not have to be corrected unless specifically mentioned in the consent agreement. Since the consent agreement covers far less ground than do the regulations, in essence the consent agreement waives most of the regulations.

    In addition, p. 33 of the consent decree contains a "force majeure" provision which excuses CWM from complying even with the consent decree if "such failure is caused by persons or events beyond the control of CWM". There is no such comparable force majeure provision in the EPA regulations which this consent decree supercedes.

    Aside from the requirement to remove the illegally stored PCB's, the other concessions required of CWM in the consent agreement are:

  • A requirement for a liner in new PCB disposal cells (p. 13). This is no more than the requirement in the regulations (40 CFR 761.75 (b) (2)).

  • A requirement for a leachate collection system in new PCB cells (p. 14). This is also no more than the requirement in the regulations (761.75(b) (7)).

  • Similarly the requirement for shallow well monitoring on p. 14 is already required in 761.75(b)(6).

  • A waste impact and hydrological study (p. 20). This is part of the requirements of part B of a RCRA permit application (270.14).

  • Compliance with RCRA monitoring requirements. The RCRA compliance requirements on pp. 22 to 28 are, as the text of the consent agreement itself points out, merely iterations of the requirements of the 265 regulations.
  •     In summary, for $450,000 and an agreement to follow some, but not all, of the regulations which govern such facilities, CWM has received a PCB disposal permit, a waiver from the PCB rules, a waiver from the need to remove illegally stored PCB's, and a waiver from most other regulations. The value to CWM of these actions is perhaps over one hundred million dollars.

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