What Did We Know About Hazardous Waste and When Did We Know It
February 19, 2004
Industry and EPA are frequently in a state of denial about when we knew about the dangers of dumping hazardous toxic chemicals. Industry because they are trying to avoid the responsibility and tremendous cost of cleaning past dumping by claiming that “nobody knew it was a problem back then, so we can’t be held responsible.” EPA and state governments have been known to deny any institutional knowledge of the problem before a certain date, and that date will vary depending on the spokesperson. This attitude exists in order to avoid criticism for not having prevented earlier dumping and is fueled by the very human reaction that “it wasn’t a problem until I learned it was a problem.”
I became involved in 1974, but I knew it was a problem before I learned it was a problem because I had joined an organization which had been working on the problem for some years. Therefore when I hear of someone saying, as EPA administrator William Ruckelshaus said that in 1974 “for all practical purposes, we were unaware that there was a hazardous waste problem,” I feel obliged to correct them.
Background Prior to 1976
Knowledge of groundwater pollution from industrial wastes predates the creation of the U. S. Environmental Protection Agency (EPA) in 1970. “From the 1940's to 60's, scientists and engineers developed an extensive body of theory and empirical findings concerning the hazardous properties of industrial waste, groundwater hydrology and links between land disposal of industrial waste and groundwater contamination [a].” A detailed study of what was know by industry appeared in the 1996 book “The Road to Love Canal: Managing Industrial Waste before EPA [b].” The book concluded:Before 1970 and the passage of the National Environmental Protection Act, there was no uniform regulation of chemical waste disposal. This does not imply an atomistic, locally based process of waste management decision making. To the contrary, there were numerous national organizations, in the fields of both manufacturing and public safety, that provided guidance on waste treatment technologies and served as networks for disseminating vital information. In fact, the staffs of many large manufacturers were by far the best informed and most capable of making critical decisions about proper waste disposal methods. There were government organizations and independent standards-setting associations that also provided mechanisms for introducing individuals and smaller companies to existing knowledge. These groups guided the formulation of local legislation and regulations regarding sewage and solid waste. Common law also acted to impose, albeit weakly, a degree of liability on waste disposers. Furthermore, professional journals, government reports, the popular press, symposia, and numerous other organs served effectively to disseminate information. The complex nexus of trade organizations, technical capabilities, economic constraints, and legal expectations contributed to the shaping of waste management practices.Congress finally acted in 1970 in the Resource Recovery Act, an amendment to the Solid Waste Disposal Act of 1965 (SWDA), which required the Secretary of Health, Education and Welfare (HEW) to study and to report to Congress on the storage and disposal of hazardous waste “including radioactive, toxic chemical, biological, and other wastes which may endanger public health or welfare.” This activity was carried out in the Bureau of Solid Waste Management of HEW. With the creation of EPA the responsibility was transferred to EPA and the HEW’s Bureau of Solid Waste Management became EPA’s Office of Solid Waste Management Programs (OSWMP).
To implement this Congressional mandate, EPA commissioned five studies, which culminated in a 1973 report to Congress. As SW-115, EPA published this report for public consumption in 1974 [c]. The report included many examples of damage to human health and the environment that resulted in the land disposal of industrial hazardous waste.
The period of 1970 to 1976 saw considerable activity on the part of OSWMP in gathering and promulgating information on the health and environmental problems caused by hazardous wastes. In 1974, the Hazardous Waste Management Division (HWMD) was created within OSWMP to focus on the problems of and solutions to the treatment, storage and disposal of hazardous waste. I joined OSWMP in 1974 as Chief of the Hazardous Waste Assessment and Technology Branch (HWATB), one of the three branches within the HWMD. To the best of my recollection, the Division had a staff of approximately 40 or 50 people and a budget in the tens of millions, approximately half of these resources were in my Branch.
HWATB was divided into two Sections. The Technology Section assembled and disseminated information on the mechanisms by which hazardous waste enters the environment and technologies available to control the land disposal of hazardous waste. The Assessment Section assembled and disseminated information on the damages caused by the disposal of hazardous waste. By the time I joined the Division many cases of hazardous waste damage had already been documented. By 1975 EPA had collected a dossier on over 400 hazardous waste disaster sites [d].
Congress showed considerable interest in these damage reports and there was frequent interaction between our staffs, including myself, and Congressional staffs. Many of these cases were discussed in Congressional hearings and appeared in the later legislative history [e]. EPA published detailed case reports as well as summaries for dissemination to the general public [c, d, f, g]. These damage reports were done by my staff under my supervision.
The activities of the Division were tracked by the trade press and by environmental newsletters and occasionally in the general press and in professional journals. I, as well as others, had ongoing discussions and exchanges of information with industrial trade associations as well as individual manufacturers. Public hearings were also held with the active participation of trade associations and manufacturers. I attended many of these meetings and presided over some [h, i, j].
The HWATB also contracted studies of ten classes of industries. These studies included interviews of manufacturers and assessments of their hazardous waste disposal practices.
In 1975, EPA commissioned a study, under my supervision, by the firm of Geraghty & Miller, which proved conclusively that industrial hazardous wastes disposed in the ground will pollute underlying ground water and travel with it. The report was published in 1977 as SW-634 [k]. This and many other public documents were produced by the HWMD prior to the 1976 passage of the Resource Conservation and Recovery Act (RCRA).
Background from 1976
On October 21, 1976, Congress passed RCRA, which extensively amended the Solid Waste Disposal Act (SWDA). In the years preceding passage of this Act, both EPA and Congress were involved in research, discussions, and hearings on this law. The concern of RCRA was the regulation of the land disposal of wastes including industrial hazardous waste. Within EPA, RCRA was implemented by my office, OSWMP which became the Office of Solid Waste (OSW).
In 1979, Love Canal opened the floodgates of publicity and public concern about the disposal of hazardous waste. There were frequent news reports, TV specials, books and Congressional hearings, etc. based largely on the information collected by my office [l, m]. Because of major changes in direction from higher authority, EPA was long past its deadlines for issuing hazardous waste regulations and the Agency came under severe criticism from Congress and the press. In spite of this scrutiny and a court ordered deadline, hazardous waste treatment, storage and disposal regulations under RCRA were not issued until 1982.
Misconceptions Regarding the Knowledge of Hazardous Waste Disposal in the 1970s
Many misstatements have been made regarding the presumed lack of knowledge about the dangers of hazardous waste disposal on the part of EPA, industry and the public in the 1970s. These misconceptions are often introduced in lawsuits by industry representatives defending their dumping activities when faced with huge clean up costs. Examples of statements I have seen are:In the 1970s soils and sediments were not a concern.There is no compelling reason why our company should have believed its chemical use was environmentally harmful.There is a wealth of evidence to show that in the 1970s EPA, specifically OSWMP/OSW, was aware of the problems of hazardous waste disposed on soils and made that concern known to the public, industry, and Congress. Some examples are:
In the 1970s EPA allowed disposal of chemical wastes to occur because it did not believe that materials going to landfills would leach.
Our company took appropriate actions throughout this period consistent with what was the state of knowledge was within regulatory bodies.
Concern over contamination from old, abandoned waste sites first came to national attention in the late 1970s.
Prior to the implementation of hazardous waste disposal regulations in 1982 our company could not reasonably have been expected to know or have anticipated that its use, handling and disposal practices of chemical substances would cause environmental harm.
- The 1973 Report to Congress previously mentioned. This report was made public in 1974 and was widely distributed [c].
- A 1975 color brochure prepared from data from my office, acquainting the public of the dangers of hazardous waste disposal. This brochure was widely distributed to public libraries and schools [f].
- A 1975 collection of papers delivered to the National Conference on Management and Disposal of Residue from the Treatment of Industrial Wastewaters by EPA personnel, several of them from my staff, and published by EPA [g].
- A 1975 report to me from a member of my staff summarizing the 400 hazardous waste disposal damage reports. [n]
- A 1976 EPA guideline, prepared by my staff, for the proper disposal of PCB wastes published in the Federal Register. This guideline recommends disposal options, in order of priority, of incineration and “controlled land disposal.” It should be noted that the bibliography attached to this guideline lists more than 20 documents published between 1972 and 1976 relevant to the disposal of hazardous wastes [o].
- 1976 House Committee report on pending legislation which contains examples of hazardous waste disposal problems [e]. This information was supplied to Congress largely by my staff.
- 1976 conference report by members of my staff summarizing damage reports on damages caused by hazardous waste disposal. [d].
- When signing RCRA into law, President Ford was quoted in a 1976 EPA press release as saying that hazardous waste disposal is “one of the highest priority environmental problems confronting the Nation [p].”
- The previously mentioned 1977 report which proved that industrial hazardous wastes disposed in the ground will pollute underlying ground water [k].
- “Laying Waste: The Poisoning of America by Toxic Chemicals” By Michael Brown. A popular 1979 book on hazardous waste, reprinted many times including paperback. The author, who was nominated for a Pulitzer Prize, got much of his material from me and my staff [m].
In my experience, it is hard to believe that large corporations were not aware of this literature. It is the practice in large corporations, to have managers who read the trade press, environmental managers who read environmental newsletters and follow Congressional and EPA activities relevant to the environment, and health officials who keep abreast of journal articles dealing with products handled by their company.
- “The Killing Ground”, a one hour 1979 ABC News TV documentary, narrated by Brit Hume, on the environmental and human health effects of hazardous waste disposal. This documentary, which was the first documentary ever to be nominated for an Academy Award, contained much material from me and my staff and I and others in OSW appeared in it [l].
In addition, there is considerable documentary evidence that most large corporations and trade associations had specific knowledge of the problems of hazardous waste disposal in the 1970s. Examples illustrative of this are:
- A 1975 public meeting held by EPA, before passage of RCRA, to “gather national input as to the nature and scope of prospective Federal guidelines for hazardous waste management”. The report by members of my staff shows many industry and trade association representative were present and their comments indicate extensive knowledge of hazardous waste concerns and a recognition that they are or represent generators and disposers of hazardous waste. This also shows that industry representatives were active participants in the ongoing national discussion over hazardous waste management even before the passage of RCRA [h].
Site remediation is another area where I have heard misstatements such as:
- Shortly after the passage of RCRA, EPA (OSW) held a series of public meetings to brief the public on the regulatory options being explored by EPA and to solicit input from the public, including industry. In one which I presided, there was a representatives of industry and trade associations, who offered many suggestions and comments which showed a knowledge of hazardous waste management in general including the pollution of groundwater from industrial land impoundments and the need to monitor groundwater [j].At no time prior to at least 1983 could our company reasonably have been expected to know or have anticipated that site remediation would be required.Also in regard to the Superfund law (CERCLA):
While this may have been true prior to 1978, at that time serious consideration and discussions were taking place in Congress, the press and EPA over the need for the remediation of polluting hazardous waste disposal sites. “Superfund” legislation was passed in 1980 and regulations issued in July 22, 1983.CERCLA was originally believed to apply to abandoned sites only, not active industrial locations.”I believe there is no distinction in the CERCLA law between active and inactive disposal sites. That initial attention was addressed to inactive sites was due to the fact that more was known about them initially.
Another area of misconception involves the distinction between on-site and off-site disposal e.g.:In the early years of EPA (e.g., the 1970s and early 1980s), distinctions were made between releases within a company’s plant and broader releases into the environment.In my recollection, to the extent that this was true it was because in the early days there was no regulatory authority to examine inside a company’s plant so that the bulk of the knowledge that could be gained was at abandoned sites. However I don’t recall anyone believing that a dump or pit outside a plant was any different from a similar one inside a plant and this is reflected in the documentary evidence. The previously mentioned 1976 study by Geraghty & Miller showed contamination from many of the sites on private company grounds [k]. On-site disposal is recognized as a problem in other appended documents including the 1973 Report to Congress [c], the 1975 EPA brochure “Hazardous Waste” [f], the 1976 legislative history [e], and the 1975 conference papers [g].
The claim is frequently made that concern about hazardous waste disposal began with Love Canal, e.g.:Particularly as a result of Love Canal, a national Hazardous Waste Task Force began identifying potentially risky sites in 1979 in an attempt to get a handle on the scope of the toxic waste site problem nationally.In fact that the Federal law mandating EPA to regulate hazardous waste practices (RCRA) was passed in 1976, two and a half years before the first Congressional hearings on Love Canal. And, as discussed above, for several years before the passage of RCRA, EPA, namely my staff, was deeply involved in identifying the hazardous waste disposal problem. Indeed, by 1978 our dossier on hazardous waste disaster sites had grown to over 600, most of which are now on the National Priorities List [c]. A Hazardous Waste Task Force was indeed created as a result of the publicity surrounding Love Canal, but that was neither first nor the last of EPA’s programs to identify the problem.
EPA permits are sometimes used as an excuse. For example:Our company’s wastewater discharge and landfills operated under government permits. The government could not have issued these permits if they believed these activities caused environmental harm.EPA permits for water discharge under the Clean Water Act (CWA) and landfills under RCRA are not intended to be government guarantees against pollution but rather to bring polluting, or previously polluting, or potentially polluting facilities under government scrutiny and regulation. Facilities which have contaminated and polluting soils on their property are issued permits which include clean up requirements. Permitted facilities which subsequently emit discharges in excess of their permit requirements are required to report the fact and may be subject to civil and even criminal penalty and placed on a schedule of compliance. Many thousands of permitted facilities have been or are polluting into the environment with the knowledge of government authorities.
Our company would not have received these permits if regulatory agencies had been concerned about environmental harm from our practices.
For example, EPA reported that in FY 2000 the percentage of facilities with recurring significant violations of the CWA is 53.5 percent and 18.1 for RCRA, and that the average time for these facilities to return to compliance is 1.16 years for CWA and 0.97 years for RCRA [q]. It is extremely rare for an EPA permit to be withdrawn at EPA’s instigation.
Sometimes they blame EPA for not stopping them, e.g.:Regulatory agencies, such as EPA have, and had during the period in question, considerable authority to stop imminent hazards to human health and the environment.EPA did not get “imminent hazard” authority over hazardous waste until 1976. Even afterward it was almost never used alone because of the difficult burden of proof required by the courts for such action. The government must prove “imminent and substantial” danger to public health or welfare.
Corporations have argued that there was no reason to be concerned about any of their practices concerning hazardous waste disposal in the absence of a specific regulation addressing that practice. This is disingenuous since most large companies are aware that it takes years, sometimes decades to develop a regulation within EPA and the process is a fairly public one in which interested corporations and their trade associations play a large role as we have seen from the previous discussion.
CERCLA, Comprehensive Environmental Response, Compensation, and Liability Act
HEW, Department of Health, Education and Welfare
HWATB, Hazardous Waste Assessment and Technology Branch
HWMD, Hazardous Waste Management Division
OSW, Office of Solid Waste (previously OSWMP).
OSWMP, Office of Solid Waste Management Programs
RCRA, Resource Conservation and Recovery Act
SWDA, Solid Waste Disposal Act of 1965
[ a] Halina Szejnwald Brown, Brian J. Cook, Robert Krueger & Jo Anne Shatkin, “Reassessing the History of U.S. Hazardous Waste Disposal Policy -- Problem Definition, Expert Knowledge and Agenda-Setting”, RISK, Vol 8, (Spring, 1997) [Concord, NH: Franklin Pierce Law Center], .(http://www.fplc.edu/RISK/vol8/summer/brown+.htm). The quote is from p. 3.
[b] C. E. Colten & P. N. Skinner, THE ROAD TO LOVE CANAL: MANAGING INDUSTRIAL WASTE BEFORE EPA, (Austin:The University of Texas Press, 1996).
[c] U.S. EPA, REPORT TO CONGRESS, DISPOSAL OF HAZARDOUS WASTES [SW-115] (Washington, DC: U.S. EPA, 1974).
[d] Emery C. Lazar, Robert Testani and Alice B. Giles. “The Potential for National Health and Environmental Damages from industrial Residue Disposal,” Proceedings of the NATIONAL CONFERENCE ON DISPOSAL OF RESIDUES ON LAND, p.196, September 13-15, 1976, St. Louis, Missouri, (Sponsored by: Office of Research and Development, Office of Solid Waste Management Programs U.S. Environmental Protection Agency, Environmental Quality Systems, Inc. Information Transfer Inc.). An article by members of HWATB summarizing damage reports on damages caused by hazardous waste disposal.
[e] U.S. House of Representatives. REPORT OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE U.S. HOUSE OF REPRESENTATIVES ON H.R. 14496, [Report No. 94-1491] (Washington, D.C.: U.S. Government Printing Office, 1976). 1976 House Committee report on pending hazardous waste legislation. Illustrative examples of hazardous waste disposal problems on pp. 17 – 23.
[f] U.S. EPA, HAZARDOUS WASTE [SW-138] (Washington, DC: U.S. Government Printing Office, 1975). Color brochure on hazardous waste
[g] U.S. EPA, INDUSTRIAL WASTE MANAGEMENT, SEVEN CONFERENCE PAPERS [EPA/530/SW-156] (Washington, DC: U.S. EPA, February, 1975). These 7 papers by OSW personnel were presented to the National Conference on Management and Disposal of Residues from the Treatment of Industrial Wastewaters, Washington, D.C., February 1975.
[h] Arnold Edelman, David Huber, Allen Kohan, Jack Kooyoomjian, Cam Metcalf, Chris Porter, Michael Shannon, and Robert Testani. HAZARDOUS WASTE MANAGEMENT, ISSUE ANALYSIS FROM DISCUSSIONS AT FOUR PUBLIC MEETINGS, DECEMBER 1975 (Washington, D.C.: U.S. Environmental Protection Agency, 1976). EPA report on a 1975 public meeting held to “gather national input as to the nature and scope of prospective Federal guidelines for hazardous waste management.
[i] Alice Giles, “Memo to Mr. Tim Fields, Program Manager Technology Program, HWMD (AW-465): Synopsis of Comments from Section 3004/3005 Type II Meeting in Chicago, Illinois, April 20, 1977,” undated. Ms. Giles was an Environmental Scientist with the Technology Program HWATB/HWMD/OSWMP. Memo summarizing 1977 public meeting on RCRA.
[j] Alice Giles, “Memo to Mr. Tim Fields, Program Manager Technology Program, HWMD (AW-465): Synopsis of Comments from Section 3004/3005 Type II Meeting in New Orleans, April 18, 1977,” dated June 8, 1977. Memo summarizing 1977 public meeting on RCRA.
[k] U.S. EPA. THE PREVALENCE OF SUBSURFACE MIGRATION OF HAZARDOUS CHEMICAL SUBSTANCES AT SELECTED INDUSTRIAL WASTE LAND DISPOSAL SITES [EPA/530/SW-634] (Springfield, VA: National Technical Information Service, 1977). A study commissioned by EPA (OSW/CAB) in 1975 or 1976 to determine if hazardous waste disposal in the ground results in groundwater contamination. 50 hazardous waste disposal sites with no known record of having caused environmental problems and which had control wells upstream were used in the study. The study concluded that “Ground-water contamination at industrial waste land disposal sites is a common occurrence” (p.161).
[l] Brit Hume, Michael Connor, and Steve Singer. ABC NEWS CLOSEUP, THE KILLING GROUND, (American Broadcasting Companies Inc., March 29, 1979). Script of a 1979 ABC News TV documentary on the environmental and human health effects of hazardous waste. Reference to EPA’s curtailment of information on hazardous waste disposal sites (p. 54). Concerns over the problem of site remediation discussed on p. 52 et. seq..
[m] Michael Brown, LAYING WASTE: THE POISONING OF AMERICA BY TOXIC CHEMICALS, (New York: Pantheon Books, 1979). A popular book on hazardous waste.
[n] Emery C. Lazar, “Memo to William Sanjour, Chief, Technology Branch, HWMD (AW-565): Hazardous Waste Damage Inventory,” dated September 8, 1975. Mr. Lazar was Program Manager for Public Health & Environmental Damage Assessment, HWMD (AW-565). Cover memo for a paper summarizing damage reports.
[o] U.S. EPA, “Guidelines for disposal of PCB,” FEDERAL REGISTER Vol. 41 p.14134 (April 1, 1976). Land disposal of PCB is on p. 14135, bibliography on p. 14136.
[p] U.S. EPA, NEW LAW TO CONTROL HAZARDOUS WASTES, END OPEN DUMPING, PROMOTE CONSERVATION OF RESOURCES [EPA press release - December 13, 1976] (http://www.epa.gov/history/topics/rcra/05.htm).
[q] U.S. EPA, FY 2000 ANNUAL REPORT, GPRA PERFORMANCE RESULTS - GOAL 9: CREDIBLE DETERRENT & GREATER COMPLIANCE (March 15, 2001, http://www.epa.gov/ocfo/finstatement/2000ar/2000ar.htm).