March 31, 1989

Hon. William K. Reilly
U.S. Environmental Protection Agency
Washington, DC 20460

Dear Mr. Reilly:

About eighteen months ago, we were concerned that some persons in EPA were trying to overthrow a state law designed to protect public health and the environment of its citizens and we brought it to the attention of your predecessor; This was being done in order to force the siting of the so-called GSX treatment plant in Scotland County North Carolina. Eventually, EPA did relent and allowed the state law to stand.

Now, with a new administration, we understand that these persons are trying to get EPA to reverse it's position. We think this would be a very bad mistake: bad for you, bad for EPA, bad for the Administration, bad for the environment, and bad for the public welfare. We have, therefore, attached the two letters we sent to your predecessor and we would like to have the opportunity to present our views to you as well.

To summarize, these are the points we have made in the regarding this proposed facility:

  • Regardless of motivation, the state law restricting the discharge is really necessary. The evaluation by EPA headquarters was that the facility design allows too little margin for error. If the facility is built as planned, sooner or later something will go wrong and the Lumberton drinking water supply will be poisoned. Judging by how GSX operates its Pinewood, SC facility, this would happen sooner rather than later.

  • A careful reading of the fine print on the permit reveals that no treatment of the hazardous waste is actually required in this so-called treatment plant, and that untreated wastes could simply be diluted and legally dumped into the Lumbee River via the local municipal waste water treatment plant.

  • EPA in general, and Region 4 in particular, has an unhealthy cozy relationship with the hazardous waste management industry. The attached table illustrates how many federal government executives have used EPA's hazardous waste program as a stepping stone to high paying jobs in the industry they were supposed to control. If EPA reverses itself and allows GSX to build this facility, we should not be surprised if some EPA personnel, who are now promoting this facility, go to work for GSX, thus further reducing the credibility of EPA.

  • The "Bumpers Amendment" to RCRA was clearly written to allow states to do exactly what North Carolina is doing. It is EPA who has distorted the law. See our letter of January 19.

  • In the long run, commercial hazardous waste facilities are bad for the environment. The future of responsible management of all wastes, including hazardous waste, lies in source reduction, source separation, recycling, and waste treatment by the generator. The very existence of commercial facilities works against this and encourages profligate management of hazardous waste by generators. EPA should be discouraging commercial facilities in favor of responsible management of wastes by the producers of the wastes.

  • The public, those who have to deal with EPA on siting issues, superfund issues, and RCRA facility issues, have come to view EPA as little more than shills for the waste management industry. EPA appears to show far more enthusiasm for siting hazardous waste facilities than it does for controlling them. By removing a state's authority for trying to protect its citizens, while other states go unpunished when they fail to enforce environmental protection laws, only enhances this opinion.
  • To pursue the last point further, EPA's RCRA regulations contain minimum requirements for enforcement authority and authority to assess penalties that states must have before they can be authorized to run the federal hazardous waste management program. Nevertheless, EPA has approved state programs which do not have the required authority. There are examples of states that are doing a poor job of administering EPA approved RCRA programs, in part, because they lack adequate enforcement laws.

    For example, EPA regulations require that authorized states must be able to seek criminal penalties of $10,000 a day per violation and imprisonment for at least six months against anyone "who makes any false statement, or representation in any application, label, manifest record, report, permit or other document ... used for purposes of program compliance." (40 CFR 271.16 (a) (3) (ii)).

    The importance of this rule is that RCRA is a self-policing set of regulations. For the most part, it is only through false statements in the records such as ground water monitoring reports that persons are required to keep under RCRA that most violations can be identified. In this respect, RCRA is similar to the Internal Revenue System. While scofflaws may belittle so-called "paperwork violations", they are, in fact, about the only violations one can get under RCRA. This country's entire program for managing hazardous waste rests on discovering "paperwork violations".

    Therefore, without the authority to bring criminal penalties for false statements, enforcement of RCRA would be as ineffective as enforcement of income tax laws would be if IRS could not bring criminal penalties against persons who keep false records or who file false returns or no returns at all.

    In the attached memorandum of February 28, 1989, from Mr. Kaufman to the Inspector General, allegations are made of a possible conspiracy to submit a false hazardous waste facility permit application to the State of Nebraska for the purpose of avoiding the public review procedures for hazardous waste facilities required by Nebraska law and to shield the true owner, a giant oil company, from public scrutiny.

    The state subsequently issued a permit without the required public review, to a party who did not apply for one, and who falsely claimed to be the owner of the facility. When this was revealed in the press, the state's Attorney General confessed that there was very little that could be done about it under Nebraska law which has no criminal sanctions for omitting material information in applications, permits, reports, etc. The permit is still in effect.

    Nevertheless, Nebraska is an EPA authorized state.

    The comparison between EPA's attitude toward North Carolina and Nebraska is revealing. The Nebraska Legislature is now debating whether it should adopt EPA'S minimum requirements for a federally authorized state program, two years after it was authorized by EPA to run the federal hazardous waste program. There is no talk in EPA about withdrawing Nebraska's authority if they do not pass such legislation. In contrast, EPA sent public employees to Raleigh to lobby the North Carolina Legislature against passing a law to protect its own citizens and threatened to withdraw authorization of the hazardous waste program if they did so, even though such state legislation is explicitly allowed under federal law.

    We have been with EPA since it's inception, and this is typical of what has happened to the agency over the years. We have gradually moved from protecting the public interest to promoting the commercial waste management interest. We hope that you will not contribute to the further debasement of the agency by re-opening the GSX business.

                                                                                               Sincerely yours,

                                                                                               William Sanjour
                                                                                               Hugh B. Kaufman

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