DATE:           June 16,1980

SUBJECT:     Impotence of Hazardous Waste Regulations

FROM:          William Sanjour, Chief
                      Hazardous Waste Implementation Branch (WH-563)

TO:                John H. Skinner, Director
                      State Programs & Resource Recovery Division (WH-563)

    Between 1975 and 1976, EPA published three hazardous waste disposal damage reports which illustrated the problems arising from the disposal of hazardous wastes in the United States. These studies were used by EPA to point out the need for the regulation of hazardous waste. Congress responded with the Resource Conservation and Recovery Act (RCRA) of 1976, and the legislative history of that Act contains many references to these cases. Since EPA has just published regulations under RCRA (May 19, 1980), I have gone back to these old case studies to see how well these regulations handle them.

    I am sorry to report that of the nine damage cases studied, at least six of them would not have been prevented by these regulations. The following is an analysis of those incidents to which the regulations would not have applied.

1. Dioxin Poisoning

    There are no provisions in the regulations either prohibiting or controlling the spraying of hazardous waste as a dust suppressant. Thus, the spraying of Missouri horse arenas with dioxin-contaminated waste oil would not have been prevented. See attachment 1 from EPA Publication SW-151.2, December 1975. Waste oil is not currently listed as a hazardous waste by EPA, nor is dioxin a regulated hazardous waste under Subparts C and D of Part 261. (It is listed in Appendix VIII to Part 261, but that is only a list of potentially regulated wastes and does not apply here. Other possibilities are that it might have been regulated as 2,4,5-T but this is not certain.)

2. Arsenic Poisoning

    Nothing in the regulations would have prevented the contamination of a Perham, Minnesota drinking water well with arsenic. See attachment 2 from EPA Publication SW-151, June 1975. The waste involved, a grasshopper bait composed of arsenic trioxide as well as other non-hazardous substances, is not listed as a hazardous waste, although it probably would be an EP toxic, since 21 ppm of arsenic was found in the drinking water. Nevertheless the waste would probably not have been regulated because its quantity was less than 1000 kg. However if we assume the waste was regulated and the landfill complied with all RCRA regulations, the incident still would have occurred.

    Subpart G of Part 265 requires post-closure care, including groundwater monitoring, for a period of thirty years. (The Regional Administrator may require longer maintenance and monitoring but only if it is necessary to protect human or the environment; unless the site had been leaking and the leak had been detected, the longer monitoring would not have been required.) The damage incident occurred forty years after disposal.

    Subpart G also contains provisions for post-closure use of the property and provides for a notice in the deed to the property that the land had been used for hazardous waste disposal. However, these provisions do not apply to use of adjacent property or protection of adjacent property owners after the post-closure period. Therefore, the regulations might have diminished the concentration of arsenic in the water, but they would not have prevented the post-closure drilling of a drinking water well on adjacent property, and subsequent contamination of that well.

3. Army Chemical Warfare Wastes

    Contamination of the shallow groundwater aquifer underlying Rocky Mountain Arsenal might also have occurred despite the regulations. See attachment 3 from EPA Publication SW-151.2, December 1975. It is unclear from the report what type of chemical warfare manufacturing wastes were generated by the Army Chemical Corps, and it is not obvious from the regulations that chemical warfare wastes are included in the hazardous waste lists. Since the wastes were contained in unlined holding ponds, the Army and Shell Chemical Co. would have been required to inspect for and to remedy any deterioration of the impoundment. Regs. 265.266, 265.15(c). However, it is not clear whether they would be required to clean up or otherwise render harmless the wastes leaking into the aquifer.

    Section 265.15(c) provides that "[w]here a hazard is imminent or has already occurred, remedial action must be taken immediately." This provision is vague as to the types of situations to which it applies and to the types of remedial actions required. As noted above, since the surface impoundment inspection section contains a specific reference to 265.15(c), deterioration of the physical impoundment must be remedied. By contrast, no section of Subpart F, Groundwater Monitoring, contains a cross-reference to 265.15(c).

    Nor does Subpart F itself contain any provisions for remedial action other than implementation of a "groundwater quality assessment program" via a site-specific plan. Regs. 265.93.(1)

    The implementation of the plan is to continue until closure of the impoundment, but closure is neither a suggested nor a mandatory remedy. No provision is made for supplying affected persons with alternate sources of drinking water. Finally, the Subpart D contingency plan for release of hazardous wastes to the environment conspicuously omits releases to groundwater.

4. Destruction of Water Supply

    Since the regulations do not now provide for closure and post-closure trust funds or for performance surety bonds, there is no assurance that money would be available to remedy groundwater contamination if such action is in fact required. Monetary costs associated with contamination of an aquifer are high; for example, over $400,000 in direct costs were accrued when the state of New Jersey discovered that the Cohansey Aquifer had been contaminated by hazardous wastes dumped on farmland. See attachment 4 from EPA Publication SW-151-3, June 1976. This applies to Rocky Mountain Arsenal as well. In effect, then, the regulations will not prevent this type of groundwater contamination situation.

5. Chemical Industrial Waste Dumping

    There are also no provisions in the regulations which would have prevented the dumping of hazardous wastes into a sand pit in Crosby, Texas. See attachment 5 from EPA Publication SW-151.2, December 1975. Of the wastes involved -- from oil refineries, petrochemical, chemical, and other industries -- some are included in the regulations, such as steel mill pickling liquor, and some are not. If the wastes had been disposed of in a landfill, the 265.314 requirements for landfilled liquid wastes would have applied. The Subpart K requirements applicable to the situation do not contain special provisions for liquid wastes, for soil types and porosity, for impoundment liners, or for other special containerization of the liquids. Disposal into an unlined sand pit is not prohibited. Groundwater monitoring may or may not have detected contamination of the underlying aquifer, but groundwater monitoring is not required for another year and as discussed above, the regulations do not adequately provide for remedial action in such a situation.

6. Volatile Waste

    Another damage-causing problem not currently addressed by the regulations is volatilizing wastes. Volatilization of landfilled hexachlorobenzene wastes in Louisiana led to expenditures of over $380,000 and delayed marketing of 30,000 head of contaminated cattle, See attachment 6 from EPA Publication SW-151.3, June 1976. The regulations require safeguards against wind dispersal of contaminants but not against volatilization. Regs. 265.302(d); 45 Fed.Reg. 33,204 (May 19, 1980). Thus, the regulations would not have prevented this damage incident, either.

    In conclusion, many of the damage cases which were used by EPA to justify passage of RCRA would not have been prevented if the regulations recently promulgated to implement RCRA had been in effect at the time. In some of the cases, the wastes themselves are not regulated. In others, the wastes are regulated, but the method of disposal is not regulated or is not regulated in such a way as to prevent the release of the hazardous wastes. And in still other cases, especially the groundwater situations, the failure of the regulations to mandate remedial action ensures that the damage will not be prevented.


cc: Steff Plehn

1. Implementation of the plan is triggered by a finding of significant increases in levels of contaminants using the student's T test; the test, however, because it is designed to eliminate false positives might never have triggered the plan.

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