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6 How Clean is Clean? An Environmentalist Perspective LINDA E. GREER The selection of cleanup levels for hazardous waste dump sites has been a priority issue within the environmental commu- nity since the original passage of the Superfund legislation. After lobbying the issue during the debate over the 1980 bill, the En- vironmental Defense Fund (EDF) oversaw the implementation of the statutory language and participated in the rule making that generated the National Contingency Plan (NCP), the set of regula- tions governing cleanups nationwide. EDF subsequently filed suit against EPA in 1982 over the agency's failure to resolve the cleanup standards issue in the NCP, arguing both that the agency's ap- proach was not what was contemplated by Congress when it passed the law and that the approach was not adequate to protect human health and the environment from the toxic hazards posed by dump sites. Since 1982, the "How clean is clean?" question has expanded to include not only the question of the level of cleanup appropriate at dump sites but also the technology to be selected in undertak- ing a cleanup and the point of compliance at which the cleanup goals will be attained. These three issues have been addressed by environmental and citizens groups at particular sites as well as in lobbying efforts on the 1986 reauthorized Superfund bill. CLEANUP IEVEIS EPA currently sets cleanup levels using the largely unmodified methodology originally proposed in its 1982 NCP. This approach allows cleanups to vary from site to site depending on a number of 110
AN ENVIRONMENTALIST PERSPECTWE 111 factors. Dubbed the "maximum flexibility/minimum accountabil- ity" approach by community groups living around the dump sites, this approach allows EPA to take into account numerous variables, most notably cost, in addition to the need to protect human health and the environment when cleaning up sites. The current EPA ap- proach results in the establishment of different acceptable levels of contamination in the ground water, surface water, and air from site to site across the country after cleanup. Thus, for example, some of our Superfund sites have been cleaned "down" to 50 ppm PCB in the soil, whereas others have been cleaned to 10 ppm and even 1 ppm. The major objection that environmental and commu- nity groups have about the current EPA approach is that it does not guarantee a minimum level of protection to citizens across the country; rather, a number of factors, many of which are never quantified or explicitly discussed, appear to determine the amount of contamination that will remain at the site after cleanup. EPA justifies its case-by-case approach to cleanup by citing the many technological complexities inherent in cleaning up dump sites as well as the scientific uncertainties involved in determining safe levels of exposure to various toxic chemicals in the envi- ronment. Although the environmental community does not dis- pute the premise that these decisions are inherently difficult, we strongly disagree with the idea that the solution is to make cleanup decisions case by case. Rather, it would be more equitable and efficient for the agency to establish a baseline of protection at toxic dump sites that would be guaranteed to all citizens. This baseline would comprise acceptable levels of contaminants in the ground water, surface water, soil, and air that would be achieved at the end of each and every cleanup (barring physical impossibility or truly exorbitant costs). Such a baseline would minimize the role that politics and short-term economics play in the selection of cleanup goals. It is important to note here that there are many in the in- dustrial community who agree with environmentalists that a case- by-case approach to establishing cleanup levels at dump sites is not desirable public policy. They agree because uncertainty in the appropriate cleanup levels for a site substantially complicates both negotiations between private parties and the agency concern- ing voluntary cleanups and settlements with responsible parties at Superfund sites. The fact that no site serves as a precedent for
112 HAZARDOUS WASTE SITE MANAGEMENT other sites, even those contaminated with identical chemicals, pre- cludes easy decisions on the part of corporate management to end cleanup negotiations as well as to initiate voluntary cleanup of sites not yet in the public eye. It was the agreement between industry and environmentalists concerning the desirability for predictable outcomes at Superfund cleanups that inspired detailed and suc- cessfu} consensus discussions on this topic at the Keystone Center in 1985 and 1986. The EDF has suggested since its lawsuits with EPA in 1982 that the baseline of protection for Superfund cleanups should com- prise drinking water standards, ambient water quality criteria, hazardous air pollutant standards, and other relevant and appro- priate numbers that have been developed in various EPA programs over the years. Such numbers exist for many relatively common industrial pollutants, and they are numbers whose origin lies in the desire to protect human health and the environment. They thus provide objective, quantitative cleanup goals and can be used without undue delay in the Superfund program. It is important, however, to distinguish between the need to establish a baseline of protection and the selection of appropriate numbers to constitute such a baseline. That is, it is possible to agree with environmentalists on the need for an objective baseline for cleanup but disagree on the appropriate numbers to be used to construct it. In this vein, some grass roots citizens groups have taken the position that EPA standards and criteria should not form the baseline for protection at Superfund sites. Rather, these groups prefer that ambient background levels be used to establish acceptable levels of contaminants in the environment. They are interested simply in returning the site to the condition of the surrounding area as it existed before the dump was sited and in fact do not trust the EPA health-based numbers to protect them. As a result of successful work by the environmental lobby the 1986 reauthorized Superfund requires the use of all relevant and appropriate standards and criteria in establishing nationwide lev- els of cleanup. The law explicitly directs EPA to use requirements established by all federal environmental legislation including the Toxic Substances Control Act; the Safe Drinking Water Act; the Clean Air Act; the Clean Water Act; the Marine Protection, Research, and Sanctuaries Act; and the Solid Waste Disposal Act. The laws to be applied also include any state environmen- tal requirement that is more stringent than a comparable federal
AN ENVIRONMENTALIST PERSPECTIVE 113 requirement, including state requirements where there is no com- parable federal requirement. As a result of this new statutory language the environmental community expects that consistent levels of cleanup will be selected across the country, levels that are adequately protective of human health and the environment. Yet there are several ambiguous areas of the law on cleanup levels that remain for EPA to clarify, the successful implementation of which are critical to the success of the Superfund program. First, the standards and other guidance available to EPA and the states have been developed largely for water and to a small extent for air. There are no standards for contaminated soil, which presents a hazard through both direct contact, as when children play at the dump site, and through the soiT's ability to contaminate other media (by leaching its hazardous constituents into ground water and by volatilization and/or contaminated dust entrainment in the air). EPA must therefore develop a decision methodology for contaminated soil in order to provide a comprehensive baseline for cleanup at Superfund sites. Second, the legislation is vague as to the level of risk that is allowed to remain at dump sites after cleanup. This silence is unfortunate because nearly all of EPA's guidance numbers for carcinogenic chemicals provide a range of risk figures, and the selection of the acceptable level of risk could thus be left to the decisionmaker on a case-by-case basis. Much has been made of the inability to attain a zero-risk situation at a hazardous waste dump site no matter what level of cleanup is selected, given the one-hit mode! for the mode of action of carcinogens. The zero-risk issue has been hotly debated for many years, both inside and outside the Superfund program, and it is a good example of decisionmakers allowing the perfect to become the en- emy of the good. Because it is impossible to attain a zero level of risk, the agency has moved slowly to regulate carcinogens at all. Such issues as the role of the ever-decreasing analytical detection limit and the distinction between individual and population risk have rendered the EPA essentially incapable of responding to car- cinogenic hazards, be they in dump sites, industrial discharges, or ambient air. An expeditious solution to the complexities of reg- ulating carcinogens is, at a minimum, to regulate them to levels below current detection limits. In this way, society is doing the best it is capable of doing to minimize the hazards of exposure to
114 HAZARDOUS WASTE SITE MANAGEMENT carcinogens. Over the years, as our abilities to detect chemicals improve, the debate can continue over the appropriate levels for regulation. For now, however, a large number of carcinogens, reg- ulated at their current detection level, would pose no less than a 1 x 10-6 risk. Some carcinogens, such as dioxin, in fact pose risks much higher than 10-6 at their detection level. POST OF COMPI"NCE In contrast to the detail the 1986 Superfund statute provides on the issue of the level of cleanup to be obtained at dump sites, the statute is thin on the issue of point of compliance. That is, the statute speaks to "How clean is clean?" but is silent as to "where." On this issue the agency has three major points at which to achieve protective levels: (1) at the dump itself (at the edge of the waste or at the center of the dump), (2) at the property boundary, or (3) at the point of actual exposure (e.g., the welThead). Although it is theoretically possible to achieve equal levels of protection for human health and the environment under each of these alternatives, the choices differ substantially in the extent to which they require sophisticated hydrogeologic transport and fate models and institutional controls on future development, as well as the extent to which they require remedial technologies that are not yet within our grasp. It is only in considering our capabilities to implement each of these alternative strategies that the distinguish themselves. Achieving protective levels of contaminants beyond the prop- erty boundary has two major drawbacks from an environmental perspective. First, it requires extensive sampling and sophisti- cated mathematical modeling. Competent professionals who are skilled in these tasks are still quite rare in our society, and of the handful of persons capable of doing these jobs, few if any are em- ployed by federal or state governments. Because the strategy of allowing contaminants to attenuate out to the property boundary requires technical expertise that is difficult to obtain, it will often be carried out incompetently. Thus, it is undesirable as a public policy option. Furthermore, some well-qualified scientists believe that many Superfund dump sites are too complex, both geologi- cally and chemically, for accurate modeling or sampling to occur. Therefore, prudent policy suggests that an alternative means of
AN ENVIRONMENTALIST PERSPECTIVE 115 assuring protection at dump sites be considered even in situations in which experts can be retained for cleanup work. A second drawback to the selection of the property boundary as the point of compliance is that it encourages polluters to buy up property rather than clean up ground water. In fact, we have seen this occur in the RCRA program. Clearly, this policy can lead to undesirable results if we are not careful to prohibit the purchase of property under these circumstances. Third, the use of the property boundary requires extensive control of future land uses surrounding the dump. As our experi- ence at Love Canal and countless other dumps has shown, we do not have the ability to predict accurately or control where future populations will live. Consequently, it is shortsighted to allow contamination to occur in currently undeveloped areas. Selecting the welThead as the-point of compliance has devel- oped support in several circles that advocate this alternative on the grounds that it is the most cost-effective. This option would address contamination only at the point at which it begins to contaminate a water supply well. Yet the alternative is flawed on several counts. It overlooks the technical uncertainties associated with the accurate prediction of ground water movement into the well drawdown zone and the cost of contaminating future water supplies. Furthermore, it is an option that is only applicable to sites with contaminated community well fields; individual homes could not be expected to install treatment units. As a general rule, it would not be cost-effective to treat contamination at the welThead because the contamination would be most dilute in this location. WelIhead cleanups may have Tow annual costs, but they have to be operated for many more years than a cleanup that addresses the concentrated source in an expeditious manner. The remaining option is to attain the required cleanup level at the edge of the waste. This alternative is clearly the most stringent and the one least subject to problems with scientific uncertainty or institutional control of land use. For this reason, under most circumstances, it is the preferred option of environmentalists. Yet EDF and many other national environmental groups agree that there are some circumstances in which cleanup at the edge of the waste would not be necessary to provide adequate assurances of protection for the public. For example, in those cases in which the hydrogeology around a site is simple (and ground water models therefore can be applied more accurately) and effective methods
116 HAZARDOUS WASTE SITE MANAGEMENT are available to preclude exposure to soil or air at dangerous levels at the site itself, it would be reasonable to use some of the property around the waste to attenuate the contaminants. We suggest that in these cases we use reasonable worst-case assumptions about such phenomena as adsorption, biological degradation, and ground water velocity to ensure a conservative result to the modeling exercises. In situations in which the geology is complex, however, or it is difficult to control access to the soil or air directly onsite, the only acceptable alternative is cleanup at the source itself. CLEANUP TECHNOlOGY Since the inception of Superfund in 1980, EPA has demon- strated a distinct preference in the technologies it selects to clean up dump sites. For the most part the agency has chosen to re- move some of the most highly contaminated materials at a given site, opting for redisposal at an operating hazardous waste landfi~! followed by containment (with clay caps and slurry walIs) of the remaining materials. Often, ground water pumping is also used to isolate the waste and complete the "containment strategy. For good reason the 1986 Congress severely criticized EPA for its nearly exclusive choice of containment. This criticism was founded on evidence that the containment structures were extremely short-term solutions. It was found that caps eroded within months of installation, and slurry wails often failed al- most as soon as construction was completed. Furthermore, an investigation of the operating landfi~Is used for disposal of highly contaminated wastes from Superfund sites revealed that the large majority of these sites were already leaking their toxic contents into the ground water. Thus, we had the ironic situation of the government paying large sums of money to private industry to move and dispose of toxic waste from existing Superfund sites for disposal in licensed dumps that were themselves well on the way to becoming future targets of Superfund action. Much of the justification EPA gave for selecting these re- moval and containment strategies was its peculiar definition of cost-effectiveness; EPA was considering only the up-front cost of constructing containment facilities and did not factor in long-term operation and maintenance costs or the cost of technological un- certainty in the performance of these structures. As a result, the agency's policy was extremely shortsighted.
AN ENVIRONMENTALIST PERSPECTIVE 117 The environmental community lobbied hard in Congress to in- sert a presumption for permanent treatment technologies at dump sites, and it was successful in obtaining strong and specific per- manent treatment language in the 1986 bill, which requires that EPA use such treatment at Superfund sites to the maximum ex- tent practicable. Permanent treatment is defined as treatment that permanently and significantly reduces the volume, toxicity, or mobility of the hazardous substances, pollutants, or contami- nants at the site. The statutory bias toward the implementation of permanent technologies is designed to encourage such methods as biological degradation, incineration, and other destruction tech- nologies as well as chemical fixation and stabilization processes for metals. It is hoped that, in the Tong term, these types of treat- ments will be more elective in addressing the contaminant sources at the dump sites. Furthermore, the environmental lobby obtained new statutory language on the role of cost in making both cleanup and technology decisions. As of the end of 1986, an analysis of cost-effectiveness can begin only after a remedial action has been selected in com- pliance with health and environmental protection requirements as well as permanent treatment requirements. Thus, cost will not play a role in the selection of the correct course of cleanup action; rather, it will come into play only after the cleanup strategy has been selected. It is hoped that this secondary role for cost consider- ations will allow the agency to select permanent technologies with high up-front costs but Tow long-term operation and maintenance costs. CONCLUSION There has been considerable dissatisfaction on the part of community and environmental groups concerning the "How clean is clean?" decisions made to date by EPA. The decisions made so far in the program have been inconsistent, and they have not always been adequate to protect human health and the environ- ment. In light of this problem the national environmental groups expended a great deal of time and money to improve the language of the Superfund legislation and redirect EPA. We were largely successful in our attempts to improve the law and are looking over the next 5 years for these legislative improvements to show up in
118 HAZARDOUS WASTE SITE MANAGEMENT regulations, in guidance documents, and, most importantly, at the Superfund sites themselves. PROVOCATEUR'S COMMENTS Leo M. E:me] In both her written and spoken remarks, Linda Greer followed very closely these major areas: How clean is clean?; what are the cleanup levels?; what are the standards?; where is the point of compliance: is it out at the edge of the dump, or is it someplace off property?; and what kind of technology should be used? In all these areas ~ think she comes across very strongly for no-nonsense standards, little flexibility, and the use of minimum engineering, essentially using the same techniques and the same standards at all sites. She suggests the use of existing standards such as the Safe Drinking Water and ambient stream standards, and calls for no off- property containment and, again, the minimizing of dependence on ground water models, engineering calculations, and so on. She appears to have little trust of major corporations, EPA, and the consulting industry in general. ~ have been on both sides of this. ~ have a lot of sympathy for the simple, straightforward, no-nonsense approach. ~ was director of the state of Illinois' EPA at one time. Outside of my office was a big couch, and this is where major industry heads in the state would sit with their state representative before entering my office and saying, "Oh, please be reasonable, please allow some flexibility, please let me pollute just a little bit more." So, ~ can understand the problem with a lot of flexibility. However, ~ wonder if this apparent distrust and emphasis on very straightforward and simple solutions is really politically and econorrflcally feasible. ~ heard Tom HelIman talk about balancing and about going out and putting the spade in. By this ~ took him to mean, let's get some data, let us proceed on the basis of the data, and let us tailor our solutions to the individual conditions. ~ just wonder whether Tom Heliman and his consulting engineer- and ~ presume that Tom has a good consulting engineer- are really going to allow Linda to push this concept of a uniform solution and inflexible standards at every site. ~ also wonder whether they will continue
AN ENVIRONMENTALIST PERSPECTIVE 119 to put up the money for what can be a quite costly and expensive uniform solution at every site, or whether they are only going to do this after a very Tong litigation process. From experience at a few sites where ~ have put on my lit- tle plastic suit and respirator and actually gone out and walked around, there is enormous variability, ranging from mining sites in western Colorado to the Rocky Mountain arsenal. There is enormous variability, and ~ just cannot help but wonder whether we have to allow some flexibility in the conditions, the standards, and the solutions that we apply to each of these sites and whether the type of program that Linda has proposed is economically and politically viable. Her suggestion essentially to use Safe Drink- ing Water standards, ambient water quality standards, and other existing standards as the appropriate guidelines or cleanup cri- teria tends to ignore that even within these standards a great deal of variability exists. For example, the ambient water quality standards within the state of Colorado for a trout stream are far stricter than those for the drinking water that we can consume. Where do we come down in that? How much flexibility do we allow? In conclusion, ~ would just ask Linda to take into account longer-term political and economic viability. If we go with limited flexibility, where are we going to be in 10 years? Are things going to be cleaner? Are they going to be stalled because of continued litigation by Tom HelIman and his very skilled attorneys and en- gineers who are going to say we must have some flexibility? Or are we going to have to have a cleaner site and solve some of the neighborhood problems that Linda Greer brought out?
