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#293 - When Is A Hazard Not A Hazard, 07-Jul-1992

To shore up his flagging support among corporate leaders, President
Bush has begun a major campaign to roll back environmental regulations.
Nothing like it has been seen in Washington since Ronald Reagan hired
Anne Gorsuch to throttle the EPA [U.S. Environmental Protection Agency]
back in 1980. Mr. Bush's campaign seems to be based on a belief that
dumping massive quantities of poisons into the environment will create
jobs and stimulate the economy.

In recent days the NEW YORK TIMES and others have detailed some of the
ways Mr. Bush has labored to scuttle the Clean Air Act--the only piece
of environmental legislation that slipped through Congress on his
watch. On June 25th EPA issued a key rule under the Act, a rule
allowing each corporate polluter to increase its toxic air emissions by
245 tons (490,000 pounds) per year without public notice or public
hearings.[1] A corporation simply has to file for an emission increase,
stating that the requested increase is needed because of a change in
production methods. The polluter can increase emissions immediately
upon filing. U.S. EPA then has 45 days to review the application and
state governments have 90 days to approve or disapprove. However,
without public notice, pollution-control officials will lack a key
element they often require before they can stand up to polluters:
public outcry.

According to the NEW YORK TIMES, EPA chief William Reilly battled it
out with Vice-President Dan Quayle over the emission-increase rule. Mr.
Reilly favored allowing polluters to increase their emissions by only 5
tons per year. In May it became clear that Vice-President Quayle and
his secret Council on Competitiveness (see RHWN #251) favored larger
increases; according to rumor, Mr. Quayle favored 40 tons per year. The
TIMES says President Bush then weighed in personally on the side of Mr.
Quayle, and when the final proposal was published, 245 tons per year
had been written in. A 245-ton increase is significant even when
measured against the large releases of toxins and carcinogens that are
routine for oil refineries, chemical plants, and pharmaceutical firms.
In polluted corridors like the Kanawha Valley of West Virginia or
"cancer alley" between Baton Rouge and New Orleans, Louisiana, the 245-
ton rule will allow enormous increases in airborne toxins when several
firms take advantage of it simultaneously, thus significantly degrading
environments that are already dangerous to life.

The administration's sabotage of the Clean Air Act has been heavily
publicized, but the mass media have so far ignored a much more far-
reaching proposal by Messrs. Bush and Quayle, to reclassify most of the
nation's hazardous waste as "non-hazardous" and thus allow it to be
dumped into ordinary municipal landfills. The proposal would put waste
regulation back to where it was prior to 1975, thus rolling back 16
years of work by a broad coalition of environmentalists.

On May 20th, 1992, the EPA published a notice in the FEDERAL REGISTER
(pg. 21450) proposing to redefine "hazardous waste." By EPA's own
estimate, the new rule would exempt 66% of presently-defined hazardous
wastes from RCRA [Resource Conservation and Recovery Act], the nation's
"cradle to grave" hazardous waste control law.[2]

Members of the hazardous waste industry, among others, are shocked and
outraged by the latest EPA proposal. According to an analysis by the
Hazardous Waste Treatment Council, a trade association for incinerator
operators, the EPA proposal would:

** Exempt 86.9 to 88.9 million tons of wastes from RCRA regulation;

** Contaminate one out of every seven drinking water wells within a
mile of a landfill receiving exempt waste, which is EPA's own estimate;

** Pollute the drinking water of at least 13,200 individuals getting
their water from wells near landfills that accept exempt wastes;

** Create as many as 1681 new "Superfund" sites, which would require
cleanup as a result of receiving exempt wastes, according to
calculations by the Hazardous Waste Treatment Council. The Superfund
list today only contains 1211 sites requiring cleanup, so adding 1681
new landfills to the list would more than double the size of the
officially-acknowledged cleanup problem.

The opportunity to re-write the hazardous waste rules arose Dec. 6,
1991 when the Court of Appeals for the D.C. Circuit decided a 12-year-
old lawsuit (Shell Oil vs. EPA), saying EPA had made a procedural error
by not giving industry enough time to comment on rules promulgated in
1980. Thus on procedural (not substantive) grounds, the court threw out
two key parts of the nation's hazardous waste laws: the "mixture rule"
and the "derived from" rule. The mixture rule said, if you mix a
hazardous waste with a non-hazardous waste, the result is by definition
a hazardous waste. The point was to prevent companies from merely
diluting their wastes to avoid regulation. The "derived from" rule said
any waste derived from treatment of a hazardous waste is, itself, a
hazardous waste. The point was to prevent "sham recyclers" from
processing wastes in ways that did nothing to detoxify them, merely to
avoid regulation.

The administration's new proposal "reinstates" the mixture rule and the
derived-from rule, but the two rules are unrecognizable in their new

EPA's new proposal actually encourages polluters to dilute their
wastes. Any waste containing toxins below certain concentrations will
be exempt from regulation. To get the concentration down, dilute. The
problem with this approach has always been that toxins have a bad habit
of getting into food chains and reconcentrating. What is dilute in
water today is concentrated in lettuce and grass and cows tomorrow.
This is why dilution can never be an adequate solution to pollution.

A second key feature of the new EPA proposal is that any company can
declare its wastes exempt (because of low concentration) without
producing any laboratory analyses or data to support the claim.
Industrial polluters will be bound only by an "honor system" not to

EPA supports its new proposals with elaborate risk assessments that
claim to show that only 13,200 people would have their drinking water
supplies contaminated by the proposal.

The Hazardous Waste Treatment Council has published a long analysis of
EPA's risk assessments, trying to prove that risks to human health from
the new proposal are much worse than EPA's scientists say they are. But
the new proposal, and the risk assessments that support it, really
represent a triumph of an approach that William Reilly has been pushing
since he arrived at EPA four years ago and which the Hazardous Waste
Treatment Council and its allies have never opposed: use risk
assessment to decide priorities. Polluters love this approach because
there is so little available data about health risks from pollutants,
and the data that do exist are so controversial that a carefully-
crafted risk assessment can support any claim anyone wants to make.

The problem is illustrated by an EPA study of the composition of
leachate from 13 of the nation's 17 hazardous waste landfills. Only 4
percent of the total organic carbon in the leachate was analyzed, but
in this four percent, EPA chemists identified 42 organic acids, 43
oxygenated and heteroaromatic hydrocarbons, 39 halogenated
hydrocarbons, 26 organic bases, 32 aromatic hydrocarbons, 8 alkanes,
and 13 metals. The unidentified 96 percent of organic carbon is of
unknown toxicity. As the National Academy of Sciences said in reporting
this data, "Overall, the number of compounds found in the four percent
of the leachate studied is large, and yet this represents only a
fraction of the overall organic contribution."[3] The unknowns are much
larger than what is known. This is par for the course in any problem
involving complex toxicity.

In short, risk assessment is a "flexible" technique that allows you to
reach any conclusion you set out to reach. The National Academy of
Sciences put it politely when it said, "Risk assessment techniques are
highly speculative, and almost all rely on multiple assumptions of
fact--some of which are entirely untestable."[4] Claims that can't be
tested can't be refuted, so risk assessors can claim anything they
like. You can't refute a fairy tale, even one wrapped in the trappings
of science. As Dr. David Ozonoff of Boston University said recently,
"Risk assessment is: you shoot an arrow, then draw a target around it."
This is the system Mr. Reilly has worked tirelessly to embed within
EPA. He dignifies it with the title, "science-based decision-making,"
but--as EPA's latest proposal makes clear--it really means "establish
your goals politically, then pepper your conclusion with numbers and
call it science-based decision-making." It is the most enduring
disservice a chief of EPA has ever inflicted upon the agency.

You don't need risk assessment to tell you that controlling the
discharge of toxic chemicals into air and water is good for human
health and the environment; you need common sense. Zero discharge is
the right goal, not "acceptable risk."

As for Mr. Bush's notion that pumping poisons into the environment
creates jobs and stimulates the economy, it is hard to find an
economist who believes it. On the contrary, as a writer in the WALL
STREET JOURNAL said recently, "Laws and regulations that force
polluters to spend money on cleaning up the environment do not diminish
the wealth of a nation. They transfer this wealth from polluters to
polluter-cleaner-uppers and lay a foundation for greater future
wealth.... What [Mr. Bush's regulation-relaxation policies] do is
temporarily insulate inefficient producers from the need to innovate
and invest in new equipment... temporarily shielding ossified
entrenched interests from the dictates of a changing world economic


--Peter Montague


[1] Keith Schneider, "Industries Gaining Broad Flexibility on Air
Pollution," NEW YORK TIMES June 26, 1992, pgs. A1, A16. See also Keith
Schneider, "Bush on the Environment: A Record of Contradictions," NEW
YORK TIMES July 4, 1992, pgs. A1, A7.

[2] EPA's official estimate of the amount of hazardous waste produced
in the U.S. each year is 265 million tons. Of this, half (about 133
million tons) is today subject to RCRA regulation. In its May 20
FEDERAL REGISTER notice, EPA estimated that about 88 million tons would
be exempt under the new proposal.

[3] Anthony B. Miller and others, ENVIRONMENTAL EPIDEMIOLOGY, VOLUME 1:
PUBLIC HEALTH AND HAZARDOUS WASTES (Washington, DC: National Academy of
Sciences, 1991), pg. 107.

[4] Miller, cited above, pg. 45.

[5] Michael Silverstein, "Bush's Polluter Protectionism Isn't Pro-
Business," WALL STREET JOURNAL May 28, 1992, pg. A21.

Descriptor terms: george bush; clean air act; william reilly; dan
quayle; rcra; incineration; hazardous waste treatment council; mixture
rule; derived from rule; risk assessment; george bush;