A Hazardous Waste (1989)

A Hazardous Waste

What else can you call environmental regulations that prevent recycling, discourage cleanups, and stifle improvements in waste treatment?

| of Reason magazine

Recently, a Chemlawn truck was hit from behind by another vehicle while returning to the office at the end of a day spent fertilizing lawns. The accident ruptured the truck’s storage tank, which the driver had rinsed out after finishing his work. It also propelled the Chemlawn man into a head-on collision—with the inflexible regulations of the Resource Conservation and Recovery Act (RCRA).

Under RCRA, the watered-down residue of the chemicals the driver had been spraying on people’s lawns all day was considered a serious threat to public health and the environment. Local police called out an emergency response team, the area was cordoned off, and the leakage from the tank was treated as a highly toxic waste.

Such incidents are all too common. A wide range of critics, including former EPA officials, have attacked the policies established by RCRA as unfair, irrational, wasteful, self-defeating, and inconsistent with other environmental standards. Although intended to protect public health and encourage recycling, the law has done the opposite. Yet RCRA remains the single most important law governing waste disposal, with tendrils extending throughout the economy, affecting businesses from the comer service station to large industrial firms.

RCRA is largely the result of previous, unsuccessful federal environmental policies. In the early 1970s, the Clean Water and Clean Air acts imposed zero-emission standards on many substances. Factories shifted some pollutants from smokestacks and drainage pipes to sludges deposited in dumps and landfills. Although it did reduce public exposure to some hazards, for the most part this process constituted an expensive reshuffling, rather than a reduction, of hazardous wastes.

In an attempt to encourage recycling instead of dumping, Congress enacted RCRA in 1976 and revised the act in 1984 to make it much more prescriptive. But the prescriptions—congressionally mandated procedures and treatment standards imposed on waste producers and handlers—were based on little or no scientific evidence of health risks. They were concocted by House and Senate staff assistants with minimal knowledge of the regulated waste products.

“I don’t think Congress understood the issue,” says former EPA General Counsel Frank Blake. “I don’t think there are many staff people on the Hill who understand what RCRA treatment standards mean.”

Ignorance was compounded by ideology. Comments a Senate aide who has worked on hazardous waste issues throughout the ’80s: “The staffers who were the most instrumental in writing the bill were extremists who relied on the environmental lobbies and the Hazardous Waste Treatment Council for most of their information.”

As a result, RCRA turned out to bear little relationship to the protection of public health. Many of the regulations are essentially useless—as the EPA itself has admitted in its studies and in the fine print of the regulatory notices it publishes in The Federal Register. The agency has conceded, for example, that several petroleum wastes whose land disposal it wants to ban actually pose negligible health threats.

And while other environmental regulations try to weigh the risks of any given product against its benefits, RCRA considers only risks. As a result, its standards frequently conflict with those of other federal laws. Under the Toxic Substance Control Act, for example, the EPA permits the use of certain fertilizers. But under RCRA, the agency has ruled that piles of grass cuttings tainted with the same chemicals are a hazardous waste that must be subjected to extensive treatment.

RCRA also fails to recognize that the risk posed by a substance depends on its concentration. Under the Clean Air and Safe Drinking Water acts, if the toxic concentration falls below the level deemed hazardous by the EPA, the substance is permitted.

Under RCRA, by contrast, the EPA considers a substance hazardous if it contains any amount of almost 500 chemicals, or if it is flammable, toxic, reactive, or corrosive. A substance that is mixed with, comes into contact with, or is derived from a hazardous substance is also defined as hazardous and requires the same extensive (and potentially endless) treatment.

Blake, the former EPA general counsel, explains the approach this way: “You start from the fact that the concept of hazardous waste probably has more relationship to the concept of sin than to the chemical composition of the waste. Once touched by sin, you are forever tainted.”

In addition to the degree of toxicity, sound regulation ought to consider the likelihood of human exposure to the waste product. But RCRA has ignored this crucial factor. In 1986 Wendy Gramm, then head of the Office of Management and Budget’s regulatory office, criticized proposed RCRA regulations for presuming “that the individual receives the maximum exposure to the substance—in effect, that he would sink a straw into groundwater within the disposal facility property boundary and drink almost half a gallon of this water each day for 70 years.” Her critique went unheeded; as enacted, the regulations were based on even stricter standards.

Under RCRA, “clean and safe” is defined as the lowest concentration that can be achieved using existing methods—the “best available technology” standard. With each technological breakthrough, the definition changes.

But the health threat posed by a given concentration of a toxin does not depend on the sophistication of disposal technology. Advances in waste treatment cannot render a particular pollutant more dangerous. So the difference between the health-threat standard used by other EPA programs and the best-available-technology requirement set by RCRA indicates the degree of unnecessary regulation—treatment for treatment’s sake—that RCRA imposes.

For example, the acceptable levels for acetone (used in nail polish and paint), methylene chloride (used in paint removers), and trichlorofluoromethane (used in fire extinguishers) under the other laws are, respectively, 400, 1,600, and 20,000 times the levels that RCRA mandates. The best-available-technology standard forces businesses to spend millions of dollars yet does little or nothing to protect human health.

When companies clean up their properties, RCRA requires that they bring the wastes down to the “background levels” at which the chemicals occur naturally in the surrounding environment—not simply to levels at which the threat to human health is insignificant. If someone poured a glass of chlorinated tap water onto the ground at a RCRA cleanup site, he or she could be fined for polluting the environment, says Blake.

RCRA hinders actions and technologies that could improve the environment. It discourages voluntary cleanups, notes its former administrator, Marcia Williams. If a company wishes to clean up part of its property, it must make the entire site meet RCRA’s ultraclean specifications. It must also obtain a cleanup permit, a process that takes two to four years and costs between $500,000 and $1 million.

According to one former high-ranking EPA official now working as a lawyer for a waste-treatment company in Maryland, some lower-level agency officials are openly hostile to voluntary cleanups by industry. He describes their response: “If you are going to distract our resources by bringing in this pesky voluntary cleanup, why should we make it easy for you?”

EPA’s permit process has devastated the mobile waste-treatment business, which offers quick responses to threats from hazardous waste. It routinely takes six months to get a permit for a treatment unit that may be used for only one or two days. Many companies have gone into the bootleg mobile-unit business, not bothering to get permits. As one environmental engineer notes, “The only reason the system has not broken down is because many people are ignoring EPA rules.”

RCRA also hampers innovation that could improve waste treatment. To install any new facilities for waste treatment, a company must first secure a permit from the EPA. Permit approval often takes one to four years and is by no means guaranteed. “You are not going to make a major capital outlay if you don’t know if you are going to get a permit or not,” says Russ Hanes, environmental manager for Mobil Oil.

The Leak Detection Technology Association complained in 1987 that “the largest single problem facing tank owners is not technology; rather, it is hesitancy in implementing leak-detection safeguards out of fear that EPA will disapprove those safeguards.” The association warned the EPA that “leak-detection systems are not being installed and leaks are not being detected. In other words, serious environmental damage is occurring even though we have the know-how and equipment to prevent it.”

Frequently, EPA officials require that applicants list the manufacturer’s name for each pump, gasket, or polymer to be used at a planned disposal site. Since the permit process can take half a decade, this effectively locks in outdated technology. Waste-treatment technology is speeding along, but the EPA is doing its best to jam on the brakes.

By prescribing countless minor details, RCRA makes dealing with hazardous wastes an enormously expensive endeavor—to little or no gain in environmental quality. Take fences, for example. Under the Clean Water Act, a company need only certify that its waste-treatment facilities are protected by a fence that prevents accidental entry and impedes willful entry. This usually means an 8-foot-high chain-link fence with barbed wire on top. But under RCRA, the company must submit roughly 25 pages showing the fence design, the location of fence posts and gates, a cross-section of the fence’s wire mesh, and so on.

Such regulations can reach ridiculous heights. An EastmanKodak factory required permits for waste disposal under both the Clean Water Act and RCRA. The Clean Water permit application was 17 pages long, while the RCRA application formed a stack 7 feet tall. David Thomas, a chemist and program analyst for the company, notes that RCRA permit applicants must report such picayune details as the brands and models of telephones and fire extinguishers they plan to use; buying a new brand of phone requires a permit modification.

Getting a permit to operate a waste-handling facility routinely costs the applicant $500,000 to $750,000. The EPA, meanwhile, must devote scarce time and money to perusing permit applications instead of checking for actual hazards. As the agency conceded in 1986, “Our facility standards too often focus in voluminous detail on the means of carrying out regulations, and not the ends, which [are] a healthy population and a clean environment.” Indeed, the EPA has already issued more than 17,000 pages of RCRA notices and regulations.

Despite its emphasis on some details, however, RCRA imposes an odd kind of uniformity that ignores important environmental factors. A 1986 draft policy analysis prepared by the EPA recognized that in ruling on proposals for new waste-disposal sites, the agency gives little consideration to “such factors as location, the surrounding environment, the nearest population, the nearest groundwater aquifers, atmospheric conditions, the type of waste managed, and the facility’s compliance history.” Under this evenhanded approach, an applicant seeking to dispose of old car batteries in rural Nevada could expect the same treatment as somebody who wanted to dump dioxin in Newark, New Jersey.

And the EPA has been capricious in announcing its regulations. “Some of the complex regulations are effective on the same day they are published,” says Kenneth Price, a chemist with Heritage Environmental Services, an Indiana waste handler. “You spend six months sitting around trying to guess what the regulations are going to be.…It is like regulatory Russian roulette—if you guessed wrong, you shot yourself in the foot.”

Nor has RCRA done much to encourage recycling—supposedly a major goal of the act. In fact, the Institute of Scrap Recycling is a leading RCRA critic because the law makes recycling difficult, expensive, and legally risky. For example, the EPA is expected to rule this year that used oil is a hazardous waste. The ruling will require service stations that currently collect used oil for recycling to formally apply for EPA permits; it will also impose on them a heavy burden of paperwork to keep track of the oil. All handlers of used oil could be exposed to unlimited, perpetual liability—so that if the oil is ever involved in an environmental problem, they could be sued as if they were responsible. The likely result is that many, if not most, current handlers of used oil will stop handling it and that far more used oil will end up being dumped surreptitiously into sewer systems. By calling used oil “hazardous,” the EPA has made it a greater hazard.

Similarly, the aluminum industry has been bushwhacked by the EPA’s restrictions. Until last year, aluminum manufacturers recycled spent potliner, a waste product that contains traces of cyanide but is about 55 percent carbon and therefore an excellent fuel for industrial kilns. After incineration in the kilns, the ash from spent potliner has almost no cyanide residue—less than is contained in peach pits.

But in September 1988, the EPA ruled that spent potliner is a hazardous waste. As a result, any efforts to recycle the material now require completion of hundreds of forms and create the potential for vast liability. The day before the EPA’s new regulation went into effect was the last day industrial kilns would voluntarily accept the heating material from aluminum plants. As a result, most of the spent potliner now is being sent to landfills, where it will lie for decades, if not centuries.

To make matters worse, RCRA has turned the recycling industry into a political target. A major battle over RCRA rules is brewing between business lobbies in Washington. “The treatment industry appears to be opposed to EPA rules that would allow more recycling, since any wastes that are recycled mean less business for the treatment industry,” says Peter Halpin of World Resources Company, a major recycling firm based in McLean, Virginia.

The Hazardous Waste Treatment Council, a lobby of waste-treatment companies, is pushing the EPA to impose the most stringent treatment standards. It often denounces the agency to the press when its regulations are less than draconian. The Washington Post and other major news organizations have gobbled up the council’s statements as if they were gospel. Reporters rarely, if ever, note that the group is about as objective as an agricultural lobby calling for more farm subsidies.

The council has tried to whip up a frenzy of waste-product fear on Capitol Hill. At a 1988 hearing, Sen. Alan Simpson (R–Wyo.) reported one of the lobby’s tactics. A recycling company had visited several Senate offices and left behind small vials of kiln ash attached to letter openers embossed with the corporate emblem. The Hazardous Waste Treatment Council, which represents several firms that compete with the recycler, had been lobbying to shut the company down. “I learned that [the council], in an effort to inflame emotions and stimulate fear among the staff, tried to hire some individuals to dress up in ‘moon suits’ and come up here on the Hill to collect these letter openers as if they were an imminent threat to the health of the staff,” Simpson said.

Instead, the council ended up sending letters to senators warning them that they were in possession of a hazardous material and urging them to have it taken to an EPA-approved facility for proper disposal. “This type of lobbying activity is unfortunate and decidedly boobish, and I do hope it will not continue,” Simpson concluded. (The council refused to respond to numerous requests for an interview.)

In 1986, the Office of Technology Assessment noted that environmental protection in the United States is less economically efficient than in European countries—that Americans pay more for the same level of environmental quality. “The reason seems to be not merely greater government regulation but less flexible environmental regulations in the United States that block effective and more economical and technologically advanced solutions,” said the OTA.

RCRA provides a prize example of this less-bang-for-the-buck approach. It epitomizes the fundamental intellectual failure in the breakdown of American environmental policy—the failure to examine seriously why programs don’t work, to admit error, and to consider alternatives.

Congress and the EPA have attempted to solve the waste problem by relying on decrees, rather than crafting incentives that provide businesses with goals to achieve in whatever ways work best. By doing so, they have delayed cleanups, stifled treatment innovation, discouraged recycling, and wasted billions of dollars. They have ill served the environment and the public health, as well as the economy.

The Department of Commerce estimates that compliance with federal antipollution regulations costs $85 billion a year. Unfortunately, much of this money is wasted on filling out permit requests and cleaning up wastes that aren’t genuine hazards. The more we spend on cleanliness as a moral ideal, the less we have to spend on real public-health threats.

Contributing Editor James Bovard is an adjunct analyst at the Competitive Enterprise Institute in Washington and the author of The Farm Fiasco. This article is a project of the Reason Foundation’s Investigative Journalism Fund.

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