Hazardous Waste in GeorgiaBy Vicki Breman
Vol. 6, No. 4, 1984, pp. 7-12
If you are poor, black and live in the South, you are much more likely to live near a hazardous waste landfill than if you are white and middle class. How much more likely? Well, it seems that no one knows for sure and until recently, no one has tried very hard to find out.
If you drive out Georgia Highway 49, near Powersville, you will find the now-closed Peach County Sanitary Landfill. Rural Peach County lies near the center of the state. It has a black population of fifty-one percent. Over twenty-percent of the families in the county have incomes below the 1980 poverty level.
Only thirty feet from the Peach County Landfill stands the Lizzie Chapel Baptist Church, founded in the 1880s by black tenant farmers. Because it was contaminated with pesticide residue, the well which once furnished water for Lizzie Chapel was closed by the Georgia Environmental Protection Division (EPD) in June of 1983. Today the twenty-five members of the Lizzie Chapel congregation carry their own water to choir practice. Contamination of the wells of the five families who live just down the hill from the chapel seems inevitable as more of the toxic residue, the leachate, moves into the water supply.
Both the Georgia EPD (which manages the state's hazardous waste program), and the US Environmental Protection Agency (EPA--which administers the federal Superfund program for clean-up of abandoned toxic dumps) have put the Peach County Landfill on the current list to be considered for clean-up using Superfund money. The Peach County officials who ran the landfill until it was closed in 1978 are not particularly concerned. Tom Franklin, the county administrator, said he "didn't even know the church was up there 'til I saw their new sign."
The dumping of "empty" pesticide bags and floor sweepings from the Woolfolk Chemical Works (of Fort Valley, Georgia) contaminated the Peach County Landfill. Begun in 1925 by a local family, Woolfolk currently employs 125 people and is one of the biggest chemical manufacturers in the state. Peach County officials allowed Woolfolk to use the landfill from the early 1960s until its closing. Woolfolk dumped such known carcinogens as lindane, dieldrin, benzene hexachloride and several others listed on EPA's Toxic Substances Control Inventory. Supposedly, Woolfolk's dumping was restricted to a special section of the landfill, but monitoring by Georgia's Environmental Protection Division indicates that dumping actually occurred over the entire site.
The Powersville landfill is only one of over 525 sites in Georgia on a current Environmental Protection Agency inventory list. The EPA inventory gives the names of all sites for which the state of Georgia either knows that hazardous wastes are being currently generated, treated or disposed of (supposedly lawfully and carefully)--or where there exists the possibility of some contamination on sites used years ago and now closed or abandoned.
A 1981 study Hazardous Waste Generation in Georgia, by Dr. James E. Kundell and S. Wesley Woolf at the University of Georgia Institute of Government, estimated that industries in seventy-two counties of Georgia produce over 3.5 million tons of hazardous waste annually. This amount has surely risen in Georgia since 1981. It may even have been an underestimate at the time--if viewed in light of recently released EPA estimates on hazardous waste generation nationwide. The Wall Street Journal has reported that the EPA has revised its latest estimate of waste subject to federal regulation upwards by seventy-six percent to 264 million metric tons. This is four times EPA's own preliminary 1982 estimates.
This latest survey found that only about four percent of the total identified waste was handled by commercial disposal companies, but that they receive waste from about eighty-four percent of all hazardous waste sources nationwide. This means that most of the hazardous waste generated in this country is treated, stored or disposed of on-site or on adjoining property that the company has purchased. These industrial sites are often in or near urban centers and adjacent to low-income residential areas.
Although the surface area of a landfill site can look harmless enough, there may be chemicals buried--either covered-over through passage of time, or on purpose--that are slowly leaking into the earth and passing into the groundwater system. It may take years to discover the damage.
Much of the waste labelled "hazardous" is composed of chemicals which are either suspected or known to cause. cancer. While exposure to some hazardous waste materials causes immediate symptoms of "poisoning" such as nausea, headaches, or nervous system disorders, exposure to others produces no visible symptoms. Cancer may develop long
Page 8after exposure. And, because of the contamination of drinking water, or of soil, or of the air where people live and work, individuals often may be unaware that they have even been exposed to hazardous wastes.
The placing of hazardous waste disposal facilities in low-income, minority communities follows the logic of an "economic reality" that argues that it is cheaper and easier to put hazardous waste sites in sparsely populated areas where land costs are low and residents have little political power.
A 1967 engineering study which led to the site selection for the non-hazardous Seminole Road Landfill in Georgia's DeKalb County illustrates that public officials do consider the likely response and the clout of area residents in choosing among alternative sites. Al Smith, a resident and participant in the DeKalb County controversy, points out that ninety-eight percent of the residences surrounding the chosen area were either black-owned or black-occupied. "Minorities and low-income folks," says Smith, "are seen as less likely to raise a fuss and mount an organized opposition."
Organized community opposition can be powerful and effective. In late 1977, Georgia's Environmental Protection Division issued a permit for what was its first and so far, only, commercial hazardous waste landfill, Gordon Services Company. According to Eugene Zwenig, technical advisor to Residents Against a Polluted Environment (RAPE), which successfully closed that landfill, Wilkinson County officials testified at a federal court hearing in August of 1978 that they had licensed only a waste oil refinery, a re-cycling industry. The site was being used to dispose of a variety of hazardous materials from as far away as Kansas.
Investigation by Mr. Zwenig's group revealed that the Georgia EPD had allowed dumping to take place for at least a month before it had issued a permit and that protection and testing at the disposal site were inadequate. The state had issued this permit in disregard of existing federal guidelines under the 1976 Resource Conservation and Recovery Act (RCRA) and the 1977 EPA Guidelines for State Officials.
Under public pressure from residents of the town of Gordon, who maintained an observation post at the entrance to the site around the clock for two months, the Director of Georgia's EPD, Leonard Ledbetter, commissioned a- task force of five members, (three from his own staff, one from the EPA and one from the US Geological Survey), to conduct an "independent technical evaluation" of the site. The task force recommended suspension of disposal at the site. The task force recommended suspension of disposal at the site pending further study and until the operator submitted for approval the procedures to be used to insure safe operation of the site, information which should have been considered before issuing a permit.
The Wilkinson County site has never re-opened. Eugene Zwenig warns that "it is now a Superfund site of the future." Monitoring wells at the site are being sampled every six months according to John Taylor, chief of the Georgia EPD Industrial and Hazardous Waste Management Program. This recent change from quarterly monitoring is of questionable wisdom since contamination is more likely to appear with each passing month that the waste stays in the ground.
Donny Weaver lives next to the site. He has his own well checked by the Georgia EPD each time it checks the Wilkinson County site. And, although the EPD has promised to send him copies of its monitoring results, he has yet to receive any.
Lack of a commercial hazardous waste landfill distresses those state officials and businessmen who believe that Georgia needs one to entice migrating industry. Some in the state are willing to sit down at the welcome table with the gleam of the New South in one eye and the sting of hazardous waste in the other. "Georgia could make up to twenty-five to thirty-five million dollars a year on hazardous waste sites," says former Governor George Busbee. Nor does current Governor Joe Frank Harris disavow this position.
Not to be deterred, in 1980 state of Georgia officials again tried to permit a commercial hazardous landfill waste facility--this time in sparsely populated (7,000) Heard County. The 1979 Georgia Hazardous Waste Act, passed in response to the Wilkinson County situation and also in an effort to prevent federal regulation of hazardous waste in Georgia under the Resource Conservation and Recovery Act, had stripped local governments of any control over solid hazardous waste disposal. No one told Heard County officials that Earth Management, Incorporated (EMI), a branch of IU Conversion Systems of Pennsylvania, had an option to buy
Page 9276 acres of land in the county and had begun preliminary investigations at the site.
Word got out about Earth Management's plans in Heard County. When the public hearing was held by the Georgia EPD on the permit application in October of 1980, community opposition was galvanized. A group known as Georgia 2000 filed lawsuits to stop the landfill. The efforts of the Heard County citizens were aided by Eugene Zwenig and his friends in Wilkinson County. Zwenig, who holds degrees in civil engineering from Auburn University and the University of Florida, is a retired researcher from the Tennessee Valley Authority.
Once again, the state of Georgia's ability to safely manage a hazardous waste program was challenged. A study from the Center for Environmental Safety at Georgia Tech found that Earth Management's proposed facility provided inadequate staff and laboratory ability to analyze the wastes it intended to dump and, "based on prior landfill experience, surface and ground water will be contaminated and uncontrolled reactions between incompatible waste will occur with the resultant possibility of toxic fumes, fires and explosion."
Earth Management withdrew its permit application in the hope that public reaction would subside. It never did. On June 14, 1984, an unusual agreement was signed between Heard County and IU Conversions Systems. The county paid the company $350,000 and in return received ownership of the 276 acres where the dump was to have been placed, plus a guarantee that the company would never try to put another dump in Heard County nor within two miles of its borders.
Given the state of Georgia's poor record at managing hazardous waste disposal, how have they continued to act so autonomously?
It was not until 1970 that the US Congress finally recognized that hazardous waste storage and disposal was "a problem of grave national concern. " Having acknowledged the problem, it took six more years for Congress to enact the Resource Conservation and Recovery Act (RCRA), designed to regulate hazardous waste from "cradle-to-grave." Presently, the Reagan Administration's hostility toward protection of the environment obstructs RCRA's implementation.
The RCRA defines hazardous waste as "solid waste, or a combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may--cause, or significantly contribute to an increase in mortality of an increase in serious irreversible, or incapacitating reversible, illness; or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed." This law deals only with waste, not non-waste activities in which toxic materials are used--such as leaking tanks, spills in loading areas, leaking underground pipes, or leaking manufacturing equipment.
The Resource Conservation and Recovery Act required hazardous waste facility owners to obtain a permit. Because a number of facilities were already operating when the RCRA became law, a mechanism was included in the law to allow facilities in operation on November 19, 1980 to continue under "interim status" until a final hazardous waste permit was issued. All that was required to continue business as usual was for a facility to report to the EPA that: 1) the facility handles hazardous waste and, 2) the name, location and identification of what hazardous materials were to be handled and in what manner.
If the Peach County Landfill near Powersville had still been operating in November, 1980, it could have received "interim status" and operated until its monitoring well showed contamination--which occurred last spring. The EPA was to have developed permit and management regulations within eighteen months of the passage of RCRA. Instead of meeting that deadline, it issued "minimum standards" for management of facilities under interim status.
Although final regulations have been in effect since January 1983, they will need to be strengthened for years to come. The current regulations have no meaningful applicability since so few final permits have been issued (only thirty-five in EPA's Region IV--Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee--as of the summer of 1984). Any new facilities are subject to the final regulations. The EPA estimates that it will be 1989 or 1990 before all facilities either have been issued final permits or have been closed by denial of a final permit.
Georgia manages its own program, as do most states (state implementation is encouraged by EPA), and claims to be moving quickly to issue final permits. Up until the end of this April, according to EPA records, Georgia had issued the fewest final permits of any state in Region IV. Abruptly,
Page 10in May, the situation changed. Since May of 1984, the Industrial and Hazardous Waste Management Program of the Georgia EPD has been considering final permits at the rate of approximately one a week. It has not however, publicized the fact that it is moving so quickly to grant permits to these sites nor has the EPD encouraged citizens to participate in the permitting process.
The present method of advising the public is to print a public notice in the legal section of the Atlanta Journal-Constitution and in the local paper of the county in which the hazardous waste operation is taking or will take place. This notice gives the name and address of the company, the activities to be permitted and the locations where the draft permits can be inspected for comments. The notice also provides that persons may request a public hearing to comment on the permit application and ask questions about the proposed activities.
The Legal Environmental Assistance Foundation (LEAF, the South's only regional, public interest environmental law firm, see Southern Changes March/April, 1984) is currently seeking financial support for a Southern regional monitoring project to review these draft permits, make comments, and to notify and educate citizens near the proposed sites to enable them to participate in these decisions that bear upon their lives.
Although it sounds technical, such review is not difficult for citizens. There are four main areas of concern: does the permit meet the requirements of the federal regulation in 40 Code of Federal Regulations Section 264 for groundwater monitoring? Are the closure and post-closure plans adequate? Are container requirements sufficiently protective? Are the provisions for financial responsibility stringent enough so that if the facility has a contamination problem in the future, the state and its taxpayers are not left responsible after the company has left with its profits?
Georgia could have established more stringent rules and regulations than the bare minimum required to obtain EPA approval for its program. Although some states in the US have strengthened their own rules, Georgia and most other Southern states have not. Instead, the state has simply incorporated as its own the federal RCRA regulations--with their many weaknesses and dangers: inadequate groundwater protection standards, no requirements for closing facilities until leaks are found and corrected, and no financial assurance for corrective action on leaking sites.
Worst of all, the federal law which Georgia adopted exempts those who produce one ton or less of hazardous waste a month. "This small generator exemption is very scary," says Georgia Representative Denny Dobbs, formerly with the Emergency Response Branch of EPA in Region IV. Dobbs favors closing this loophole which has been estimated as allowing up to twelve-million metric tons of hazardous waste nationwide to be sent to ordinary municipal landfills such as the Peach County site. There are fifty municipal landfills on the Superfund inventory for Georgia, the majority of which may well require a clean-up in the future.
The state of Florida has moved to close this "small generator loophole" by recently amending its Hazardous Waste Management Program to apply to all waste generators in excess of one-hundred pounds per month. Florida has also instituted a program to enable small businesses, households and other small generators of hazardous wastes (used electric batteries, containers for business machine chemicals, paint cans, household poison containers) to safely dispose of them during "amnesty days" established by the legislature for several locations around the state.
The US Congress is considering measures to deal with the problem nationwide. Hazardous waste from small quantity generators is now covered by the Solid Waste Disposal Act and amendments to RCRA now pending before Congress would reduce the small generator exemption in that law to one-hundred pounds per month.
As currently written, the Resource Conservation and Recovery Act appears unlikely to prevent the sites it regulates from becoming major clean-up problems in the future. A staff memorandum from the Congressional Office of Technology Assessment points out that "no matter what may be done to limit land disposal in the future, the interim-status facilities have already received billions of tons of hazardous waste over several decades."
Lastly, RCRA merely tracks hazardous wastes and assumes that they will be properly disposed of, but gives no incentive to industry to recycle or to select alternative methods of disposal. RCRA encourages landfilling as long as it is cheap. And landfilling is likely to remain cheap until more stringent and protective regulations are in place. As Eugene Zwenig notes, "The need exists to remove industry from the burial habit toward full conservation and recovery practices." To do this, we must "attack the problem at its root." Total cost should be borne by the generator of hazardous waste with rewards for successful reclaiming and recycling projects.
The magnitude of the abandoned hazardous waste site problem finally led Congress, in 1980, to enact the Comprehensive Environmental Response, Compensation and Liability Act, known popularly as Superfund. Through taxes on manufacturers, producers, exporters and importers of oil and forty-two chemical substances, a trust fund of $1.6 billion was created. This fund was combined with the National Contingency Plan established in 1968 to respond to emergency oil spills and releases of hazardous substances in navigable waters--funded through the Clean Water Act.
Superfund money, which is reimbursable to the govern-
Page 11ment by the party responsible for the pollution, is available for three kinds of situations:
Immediate Removals--where prompt action is needed to protect public health or the environment. These include such things as protecting drinking water supply, averting fires or explosions and preventing exposure to highly toxic substances. These actions must be taken within six months and at a cost of less than one million dollars.
Planned Removals--for quick, but not emergency response actions. They are designed to minimize risks and are subject to the same time and cost restrictions as emergency removals.
Remedial Actions--long-term, more expensive actions directed to permanent clean-up. Only sites that go through a rigorous investigation and priority ranking process are eligible for remedial action, since money is limited and cleanup expensive.
Every attempt is made to find the parties responsible for the pollution and require that they pay at least part of the clean-up The Powersville site in Peach County is currently being considered for designation as a National Priority Site; a decision is expected in October. If Powersville is selected, a funding formula for clean-up will have to be devised.
Superfund operates on the premise that responsible parties are liable for the situations they have created. If they can be found and are not bankrupt, they will pay a large share of the cleanup costs. If no responsible party can be found, Superfund pays one-hundred percent for immediate or planned removals. For remedial actions, ninety percent of privately owned sites or fifty percent of municipally owned sites are paid for by federal money with the state left to pay the difference. That local governments have to bear such a. large amount of clean-up costs in their own jurisdictions tends to make them less than eager to discover hazardous sites.
At this point in the Peach County case, for example, Woolfolk Chemical Works denies any responsibility because they "didn't break any laws" and such liability, Woolfolk claims, would force it out of business. Because the Resource Conservation and Recovery Act was not in force at the time, technically, Woolfolk did not break any laws. But, as Leonard Ledbetter, Director of Georgia's Environmental Protection Division has stated, "In no way does Superfund legislation have any language that forgives the source for having created an environmental problem." Even if Superfund money is available, Woolfolk should pay.
What will happen if Powersville is not selected for Superfund and/or Woolfolk is not found liable for the contamination at the site? Then, as much as the full cost of clean-up will fall to the municipality (as owners of the landfill) and to the state of Georgia. Georgia has its own Superfund statute as part of its Hazardous Waste Management Act, which created a Hazardous Waste Trust Fund. The Trust Fund's only sources of money are bond forfeitures (of which there have been none), state assessed fees and surcharges, and civil penalties. The fund presently contains only $141,000 according to John Taylor of EDP's Industrial and Hazardous Waste Management Program. That amount is meaningless given the costs involved. The Luminous Processes site, the only one in Georgia to be cleaned up under Superfund, cost $750,000 to remove 1,800 cubic feet of radiation-contaminated soil from a one-acre area and transport it to a secured disposal site.
The actions at Powersville would be different, and would be directed at protecting the water supply--possibly by curtaining-off the underlying groundwater from the contaminated site and assuring an alternative water supply for those with contaminated wells. It would be very expensive.
Georgia has over 525 sites on the Superfund inventory, yet only a total of five have been considered for Superfund. When asked why this was so, John Taylor responded, "Georgia is not a very industrialized state, especially compared with areas in the Midwest and Northeast, so it is unlikely that we have many hazardous waste sites that would be eligible for Superfund." In all likelihood, Taylor's assumption is erroneous. It is also dangerous. Even one Times Beach or Love Canal situation in Georgia would be catastrophic.
Because of lack of money, EPD only began to assess some of its potential Superfund sites in January 1984. This action was made possible by a federal grant which is limited to preliminary assessments and site inspections; it is neither sufficient, nor intended for cleanup.
Georgia needs a state superfund with adequate financing to both encourage the state to assess abandoned sites for possible clean-up and to have sufficient funds to do a thorough clean-up if needed. The Conference on Alternative State and Local Policies in its publication The Toxics Crisis: What the States Should Do, recommends the adoption of independent and stable funding mechanisms, based on fees levied both on the generation and disposal of hazardous waste. As the report emphasizes, this dual approach discourages on-site production of hazardous waste by the generator tax and prevents imported waste from escaping taxation.
The report also suggests that states designate some of their superfund money for litigation expenses to investigate and pursue illegal dumpers. Money recovered could then be returned to the superfund making it partially self-supporting.
Most of the Southern states do have their own superfunds (Alabama and Arkansas do not) but although some have better funding mechanisms than others, given their caps of three-million to six-million dollars and the costs of clean ups, only South Carolina is ever likely to have an adequate amount to clean up more than one or two sites.
The Georgia office of the Legal Environmental Assistance Foundation (LEAF) is currently preparing a report on the current status of abandoned waste sites in Georgia, outlining the need for sufficient funds to take care of the problems that are sure to be found. This report will be distributed to Georgia legislators and will be available to the general public.
The other major problem the citizens of Georgia face is their government's current insistence upon a hazardous waste landfill in the state. According to the EPA, ninety-percent of the hazardous waste generated today can be disposed of safely without landfilling. "Land burial and deep well injection are absolute last resorts," says Denny Dobbs. His order of priority is waste reduction, recycling and waste exchange, treatment (biological and chemical) and incineration.
Among Southern states, Florida already has banned hazardous waste landfills and is beginning a program to promote resource recovery, recycling, re-use and treatment.
Page 12In order to eliminate its landfills and encourage alternatives, Georgia needs to assess exactly what hazardous wastes are being generated, determine the state-of-the-art disposal method for each and decide the proper kind of disposal facility and state needs. Even the best alternative methods will need close monitoring.
Some alternatives to landfills are more expensive in the short term. But the costs of living with hazardous waste landfills--measured by the inevitable clean-up bill and the damage to human health for generations to come--is considerable and ultimately unacceptable.
Vicki Breman is an attorney with the Georgia office of the Legal Environmental Assistance Foundation.