Hazardous Waste and Disaster Preparation

by Victor Flatt and Joel A. Mintz

What Happened

According to the Houston Chronicle, there were more than 100 releases of hazardous substances into land, air, and water during and after Hurricane Harvey. At least one dozen of the Superfund sites listed in or near Houston were flooded during the storm.

On September 3, 2017, the U.S. Environmental Protection Agency (EPA) acknowledged breaches at 13 area Superfund sites. Later in September, the EPA reported that it had recovered 517 containers of potentially toxic hazardous waste from Superfund sites that flooded during Harvey. In its first mention of these releases on September 22, 2017, the agency provided no information as to where the materials had come from, what they were, or how hazardous they were.

More than a month after the hurricane, EPA acknowledged a serious breach at the San Jacinto Waste Pit Superfund site. According to ABC News, tests found very high levels of chemicals called dioxins at the site in Channelview. “[T]esting results released by EPA found levels at 70,000 nanograms per kilogram, more than 2,000 times the recommended level of 30 ng/kg, according to an EPA press release. The toxic chemical that leaked does not dissolve in water and could continue to spread,” the network reported.

Though the San Jacinto site had not undergone final remediation, the removal action of capping the hazardous waste was supposed to prevent any releases from the site. Indeed, even after the hurricane, the parties responsible for the waste pits continued to push for “capping” as a final cleanup solution, even though the waste would be left in place.

CERCLA and RCRA Hazardous Waste Containment Has Been Hollowed Out

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), better known as Superfund, was passed in 1980 to deal with the dangers of improper disposal of hazardous waste to land and water. As its name suggests, this statute makes past and present contributors to dangerous hazardous waste sites liable for the cost of cleanup of those sites. Cleanup must be to a standard that is necessary to protect public health and the environment. To ensure that hazardous waste sites are properly dealt with, cleanup plans under CERCLA are to prefer treatments that “permanently and significantly [reduce] the volume, toxicity, or mobility of the hazardous substances, pollutants or contaminants.” The most hazardous sites are listed on the National Priorities List and are to be given first priority for federal cleanup actions.

The Resource Conservation and Recovery Act (RCRA) was added to the Solid Waste Disposal Act in 1976 to provide for adequate transportation, storage, and disposal of hazardous waste upon generation. This cradle-to-grave program — to be implemented, in part, by a system of documentation known as the "manifest system" — was designed to ensure that hazardous wastes are not released into the environment in the first place. Where they are released, they are to be properly classified and safely transported and disposed of. Generators, transporters, and treatment, storage, or disposal (TSD) facilities are required to secure permits to control their management of this hazardous waste.

The permitting process is designed to prevent the release of dangerous hazardous wastes to the environment. Even if permits are followed, if there is evidence that any hazardous waste may present an “imminent and substantial endangerment to health or the environment,” the EPA administrator may order immediate action to remediate the problem.

Thus, CERCLA and RCRA either prohibit or penalize the release of any hazardous waste substances that harm human health or the environment.

Though CERCLA and RCRA are designed to control hazardous waste, over time, both laws suffer from lax enforcement. In particular, under CERCLA, the government has allowed more in situ remediation options, such as containing toxins rather than removing them, despite CERCLA’s preference for permanent solutions. The San Jacinto site in Houston, where such a containment strategy has been pursued, has continued to spill dioxins into the San Jacinto River with every major flood. The waste pits at San Jacinto have an outsized impact on poorer communities in the area, some of whom fish the Texas ship channel for food.

It is clear that the CERCLA cleanup process as implemented, and RCRA generally, are not sufficient to ensure the containment of hazardous waste during a disaster or emergency of the scope of Hurricane Harvey. This cannot continue. Allowing uncontrolled pollution that can harm health and the environment should not be a price imposed on communities already suffering from the ravages of disaster.


What Should Be Done?

We recommend the following:

Cleanups should focus on permanent reduction of hazards

CERCLA cleanups should be refocused on permanent reduction of toxicity and exposure, not simply containment. The National Contingency Plan requires that CERCLA cleanup decisions be made through a specific process that has been spelled out by the EPA. What method is chosen for a cleanup is determined during the remedial investigation and the feasibility study. As the impacts from hazardous waste sites faded from the public view in the 1990s, it became more common for the EPA to allow containment as a permanent solution to hazardous waste sites, even though containment does not meet the standard of a permanent solution.

CERCLA requires that remediation actions ensure protection of human health and the environment. The law’s language is clear that cost-benefit calculations in determining the choice of remedy are barred unless health and the environment are absolutely protected.

Based on the demonstrated danger from the use of capping to control hazardous wastes at the San Jacinto Waste Pits in Houston, we recommend that the EPA issue a rule or guidance that specifies that capping hazardous wastes in place will rarely be sufficient for a final cleanup record of decision, and should only be used as a last resort if other options are not available. If a capping in place is proposed as a permanent solution, all citizens within a particular radius of the site or in an exposure zone should be contacted and allowed to comment at public hearings on the solution.

EPA should be transparent

The EPA must be more transparent in its information on releases after a disaster. While during a disaster it may be impossible to investigate releases from sites, the EPA should be the first to investigate all hazardous waste sites immediately after the disaster. Actions should be taken to identify leaks and take removal actions as necessary. Clear warnings of possible exposure should be given to the public, and exposure avenues should be eliminated at the expense of the responsible parties.

Require disaster plans

RCRA-permitted facilities should be required to develop an emergency and disaster plan for minimizing as much as possible the release of hazardous substances during a disaster. The EPA should by rule or guidance create a requirement that RCRA-permitted facilities have an emergency and disaster plan in place sufficient to protect against toxic releases in disasters such as Hurricane Harvey. RCRA’s emergency response section 7003 provides statutory authority for just such a rule. The Emergency Planning and Community Right to Know Act (EPCRA) is already applicable to some RCRA permitted facilities and provides a template for the parameters of such a requirement. EPCRA requires the EPA administrator to compile a list of hazardous substances and amounts, which when present at a facility trigger the requirement to plan for an emergency. All permitted RCRA sources could be required to plan for an emergency or disaster, or a subset of major sources could be so required (above a certain threshold amount of emissions). Limiting or starting with the subset of largest sources also would make the review of such plans more manageable by the implementing agency. Each source subject to the emergency and disaster planning could be charged an amount to cover the additional personnel necessary to review such plans. The EPA could start a process of basic implementing regulations to determine minimum requirements for such plans.

Prioritize RCRA enforcement

EPA and state environmental agencies should give a higher priority to enforcing the requirements of RCRA, including but not limited to the requirements pertaining to hazardous waste generators and the manifest system for cradle-to-grave waste management. RCRA enforcement has often been given an inappropriately low priority across the country. This de-emphasis should stop. The manifest system was intended to be a critical tool to track the generation and movement of hazardous wastes. In many areas, it is observed only in the breach. Far too many hazardous waste generators fail to properly test and classify their hazardous waste byproducts. Nor do they properly prepare manifest documents that direct how their hazardous wastes are to be transported and disposed of. Regulatory inattention to this situation encourages it to continue. Regulators should be provided with adequate resources and political support from elected and appointed officials to enforce RCRA effectively.

Adopt chemical spills safeguards under the Clean Water Act

The EPA should establish a rule on chemical spills under its Clean Water Act Authority for chemical spills that discharge into the Waters of the United States. In February 2016, the EPA entered into a court-ordered settlement to issue such rules after the disastrous chemical spill in West Virginia’s Elk River. Now the EPA has reversed course, claiming that such rules are unnecessary. Given the major disasters that have occurred at Clean Water Act-permitted facilities, and the likelihood of increasing emergency and disaster situations, the EPA should issue recommended rules on safety and containment.