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#328 - An Update On Two Key Incinerator Battles, 10-Mar-1993

Two high-visibility incinerator battles illustrate some of the DEFINING
ISSUES as President Clinton establishes environmental policies and an
environmental agency to implement them. For that reason, we interrupt
our PCB series, begun last week, to bring you updates on both fights.
We'll continue with PCBs next week.

* * *

They're once again burning dioxin-contaminated chemicals in a
residential neighborhood of Jacksonville, Arkansas. A 3-judge panel
from the 8th Circuit Court of Appeals in St. Louis overturned the
temporary shutdown order issued February 12 by federal district judge
Stephen Reasoner in Little Rock (see RHWN #325). Judge Reasoner had
ordered the burning stopped after federal and state environmental
officials admitted in court that the Vertac incinerator in Jacksonville
could not achieve the 99.9999% destruction efficiency required by
regulations. (SEE RHWN #325.) The 3-judge appeals panel said Judge
Reasoner's order lacked findings of fact and conclusions of law, and
was therefore invalid on procedural grounds. The private incinerator
operator ("Vertac Site Contractors") and U.S. EPA together appealed
Judge Reasoner's order and won.[1]

The 8th Circuit judges will decide March 17 whether to permanently
overturn Judge Reasoner's temporary order, or whether to let Judge
Reasoner shut down the Jacksonville incinerator. Meanwhile, Judge
Reasoner heard additional testimony in the case March 4 and 5 and will
issue a permanent order soon--most likely before the March 17 meeting
of the appeals panel. In court March 4, Judge Reasoner said he hadn't
changed his mind about his February 12 decision.[2] As we go to press
Judge Reasoner is still hearing testimony.

At issue is EPA's own regulations governing hazardous waste
incinerators. The regulations begin with a "preamble," which says,
"Although the DRE [destruction and removal] performance standard
APPLIES TO EACH WASTE FEED BURNED, this does not mean that a separate
trial burn for each waste or each different mixture of wastes is
required. If the owner or operator established (through a trial burn)
operating conditions for those wastes THAT ARE MORE DIFFICULT TO
DESTROY, this could provide the alternative documentation for the
permitting official to allow certain other wastes to be burned at the
same conditions."[3]

The regulations then go on to say that a DRE of 99.99% must be achieved
for all hazardous wastes[4] except for a few particularly hazardous
ones like dioxins, for which the required efficiency of destruction
(DRE) is 99.9999%.[5]

EPA officials argued March 4 before Judge Reasoner that the
Jacksonville incinerator doesn't really have to destroy 99.9999% of the
dioxin fed into it. They argued that their regulations say a
"surrogate" chemical may be burned instead of dioxin, which is true
(see the preamble just quoted above). However the regulations say that
the surrogate must be "more difficult to destroy" than dioxin. During a
1991 "trial burn" hexachlorobenzene was burned as a surrogate for
dioxin, but, by mistake, actual dioxin was also burned. The
hexachlorobenzene was burned with 99.9999% efficiency but the actual
dioxin was burned with only 99.96% efficiency. It seems clear,
therefore that hexachlorobenzene is not "more difficult to destroy"
than dioxin but is in fact easier to destroy. The data don't lie. It
therefore seems unlikely that Judge Reasoner will become convinced that
EPA is complying with its own regulations when it gives a green light
to an incinerator operator who (a) admits his machine can't achieve
99.9999% destruction of dioxin, and who (b) has offered no data showing
that his machine can destroy with 99.9999% efficiency a chemical "more
difficult to destroy" than dioxin.

Importantly, when Jacksonville citizens asked EPA chemist Dr. Cate
Jenkins to testify on their behalf, EPA headquarters prevented Jenkins
from testifying. Dr. Jenkins helped write EPA's dioxin incinerator
regulations in 1985 and she therefore had first-hand knowledge of the
INTENT of the regulations. Furthermore, Jenkins received a written
reprimand for writing down what she knew about the history of the
dioxin incinerator regulations, on EPA letterhead, and sending it to a
lawyer representing citizens in Jacksonville.[6] This incident offers
some insight into the new administration's response to whistle blowers
inside the agency.

The Jacksonville fight is being watched closely by the incineration
industry. There are roughly 100 sites in the country contaminated with
dioxins, and incineration is planned at many of them. In the state of
Missouri, for example, the International Technology Corporation ("IT
Corp") in January won a contract to burn dioxin-contaminated soil at
Times Beach, but the Missouri Department of Natural Resources has said
it will require IT Corp to achieve 99.9999% destruction of dioxin. IT
Corp says it has achieved only 99.97% destruction at another
incinerator it built.[7]

The Jacksonville legal fight may also impact the outcome of the
nation's other high-visibility incinerator fight--that of Waste
Technologies Industries (WTI) in East Liverpool, Ohio. According to an
affidavit from EPA chemist Dr. Cate Jenkins, WTI is seeking to burn
dioxin-containing wastes.[8]

Local citizens have been fighting the WTI incinerator proposal for 13
years. During 1991 and 1992 the incinerator was constructed, and it is
now seeking a permit to begin burning. The Bush administration's EPA
issued permission for a "trial burn" January 15. Usually when a "trial
burn" is conducted, the incinerator begins commercial operation
immediately while EPA reviews the "trial burn" data and decides whether
to issue an operating permit. Analyzing the trial burn data ordinarily
takes up to a year. In response to EPA's green light for a WTI "trial
burn," citizens filed a last-ditch lawsuit. Citizens claimed the trial
burn and the year-or-so of subsequent commercial burning would harm
their health. In court, WTI and EPA claimed there would be no
"unacceptable" health risks. The WTI incinerator sits on the edge of
the Ohio River, 400 feet from the nearest home, 1100 feet from the
nearest school, in a valley known for its stagnant and contaminated
air.

Federal District Judge Ann Aldrich in Cleveland ruled March 5 that WTI
can conduct the 8-day test burn but cannot then begin commercial
operation because "the approximately one-year post trial burn period of
operation may cause imminent and substantial endangerment to health and
the environment." The judge ruled that WTI must cease operation until
EPA analyzes the trial burn data.[9] As we go to press, WTI is
conducting the trial burn and has appealed the judge's ban on
commercial operation. According to Robin Woods in EPA's press office in
Washington, EPA has not decided yet whether to join WTI in its appeal.

At the trial EPA officials admitted they had conducted two risk
assessments to assess the dangers to local residents posed by the WTI
incinerator. EPA released to the public only one of the two risk
assessments, the one showing no substantial danger to residents, but
did not release the second risk assessment, which indicated dangers
1000 times greater. William Sanjour, a policy analyst in EPA
headquarters in Washington, on March 4 sent a memo to EPA's Inspector
General asking for an official investigation. His letter said, in part,
"High level EPA officials, whose salaries are paid by the taxpayers,
who are sworn to protect human health and the environment, tried to
suppress this study for the financial benefit of the owners of WTI....
This behavior is consistent with other actions by EPA officials in
unethically and illegally promoting the interests of hazardous waste
incinerator operators as I have previously pointed out to you in my
memoranda and letters of May 15, 1992, December 22, 1992, January 14,
1993, and February 12, 1993."[10]

Where does the Clinton administration stand on incineration in general?
In an interview with C&EN [Chemical & Engineering News] March 1, EPA
administrator Carol Browner remained noncommittal about hazardous waste
incineration. She said "much can be done to reduce the amount of
hazardous waste generated," and the remaining wastes must be handled in
the safest possible manner, she said, but she did not take a stand for
or against any particular technology. She did say that "the nation has
to be careful not to 'overbuild hazardous waste disposal facilities of
any type' to prevent creating an incentive for generating more
hazardous waste."

"However, Browner has a different take on incinerating municipal solid
waste," C&EN reports. "If properly constructed and managed,
'incineration is going to be part of a comprehensive system for dealing
with garbage,'" Ms. Browner told C&EN.[11]

--Peter Montague

=====

[1] Sandy Davis, "Vertac incinerator fired up after judge lifts order
banning burn," ARKANSAS DEMOCRAT-GAZETTE February 27, 1993, pgs. 1A,
10A.

[2] Julie Stewart, "Lawyer dismisses risk in burning Vertac wastes,"
ARKANSAS DEMOCRAT-GAZETTE March 5, 1993, pgs. 1B, 3B.

[3] FEDERAL REGISTER January 23, 1981, pg. 7675. Emphasis added.

[4] Chapter 40 CODE OF FEDERAL REGULATIONS Part 263.343(a)(1).

[5] Chapter 40 CODE OF FEDERAL REGULATIONS Part 263.343(a)(2).

[6] Memo from Gerald H. Yamada, Office of [EPA's] General Counsel, to
Catherine L. Jenkins, dated February 26, 1993.

[7] Tom Uhlenbrock, "Court Ruling on Dioxin Clouds Times beach
Incinerator Project," ST. LOUIS POST-DISPATCH February 14, 1993, pg.
6C. And Tom Uhlenbrock, "State Firm on Rule for Incinerator 99.9999% of
Dioxin Must be Destroyed," ST. LOUIS POST-DISPATCH January 24, 1993,
pg. 1D.

[8] Cate Jenkins, "Affidavit of Cate Jenkins, Ph.D., Contamination of
RCRA Hazardous Waste Nos. D037, D041 and F032 With Dioxins," dated
March 5, 1993.

[9] Greenwire staff, "Incinerator: Judge OKs 8-day trial burn in E.
Liverpool," GREENWIRE [The daily executive briefing on the environment;
phone (703) 237-5130] March 8, 1993, story #3.

[10] Memo ("High Level EPA Officials Involved in Suppression of Health
Risk Data in WTI Case") from William Sanjour to John Martin, dated
March 4, 1993.

[11] Lois Ember, "EPA's Browner to Take Holistic Approach to
Environmental Protection," C&EN [Chemical & Engineering News] March 1,
1993, pgs. 19-20.

Descriptor terms: william sanjour; cate jenkins; epa; incineration;
wti; oh; ar; jacksonville, ar; vertac chemical co; carol browner; risk
assessment; misfeasance; malfeasance; stephen reasoner; ann aldredge;
trials; appeals; regulation; regulations; rcra;