By Michael MacMillan
A U.S. court decision has overturned a 1996 Environmental Protection Agency (EPA) rule that allowed the importing of PCB wastes for destruction in that country.
The Ninth Circuit Court of Appeals agreed with environmental rights group Sierra Club that the EPA lacked the authority to unilaterally open the border.
In a prepared press statement sent to affected PCB owners shortly after the court's decision, EPA officials announced that as of July 20 they will no longer accept shipments of PCB waste from outside the country.
"We recognize the disruption that this action may cause to your organization's planning and operations, " owners were told. "However, in light of the Ninth Circuit's decision, the Agency believes that this action is appropriate."
The EPA has 45 days -- until mid-August -- to appeal the ruling.
After the so-called "open-border" ruling came into full effect last February, foreign PCB owners were required only to advise the agency of their intention to send their PCBs to an accredited U.S. disposal firm. If the EPA had no objection, the shipment was approved.
The "open border" scenario was of particular benefit to Canada, where tons of dangerous PCB waste in storage rooms and secure dumps across the country awaits disposal. But one country's problem is another's goldmine. The U.S. waste disposal industry has spent the past twenty years lobbying Congress to help them break into the Canadian market. Statistics compiled during the brief "open border" period seemed to justify their efforts. Of the forty-two notices -- comprising 37,000 tons of PCBs -- cleared by the EPA since the borders opened, thirty-five were from Canada.
At stake is the question of how best to deal with PCB waste. Sierra Club is not so much concerned with border shipments, as they are with their ultimate destinations. Members of the group insist that the technology to effectively and safely destroy PCBs exists. They do not feel that incineration -- the method of choice for most American disposal firms -- is one of them.
Neil Carmen is a former pollution control officer for the state of Texas. He currently works as the clean air director for the Sierra Club's Lone Star chapter. Ten years of disposal plant inspections have acquainted him with both sides of the pollution debate. He is convinced that incineration is neither clean nor safe.
"The Sierra Club strongly supports recycling, especially of this material, but we want to see it done in the safest way possible, " he said.
Carmen points to a system pioneered by Canadian-based ELI Eco Logic as an alternative to burning. ELI Eco Logic's method involves stripping the toxicity from hazardous wastes by applying heated hydrogen. But what makes this procedure so special, Carmen explained, is that the system produces no harmful by-products.
"They (incinerators) do produce dioxins. The best state of the art incinerators in the U.S. and the world do produce dioxins."
Dioxins are toxic substances produced when chlorinated materials are incinerated. Opponents of incineration claim that burning them to reduce PCB stockpiles amounts to a pollutant tradeoff. As far as Carmen is concerned, incineration should not even be considered as a short-term solution. By intervening through the courts, he said, Sierra Club is giving a voice to those who live near hazardous waste incinerators, and who feel powerless to stop what they perceive as a threat.
"We just don't have faith in the incineration technology as it exits," Carmen added.
Nothing, however, is black and white in the world of environmental politics. So confusing has the process been that this most recent decision has neither side claiming victory or defeat. Few know the in's and out's of the PCB debate better than Mike Valentine, a Washington, D.C. representative for Ohio-based disposal company S.D. Myers. He's convinced that Sierra Club and other environmentalists do not understand his industry's push for an open border.
"For (them) to imply that this is some frivolous attempt to have a free for all is totally ridiculous," he said. Shipping waste was never intended to make the U.S. Canada's PCB dumping ground. It was meant to finally solve a long-standing and increasingly dangerous problem. Officials from both Canada and the U.S., he explained, came to this agreement very slowly, and only after strict controls were imposed on how and where the PCBs were to be shipped, and what was to be done with them.
Only a small percentage of wastes sent to the U.S. will ever reach an incinerator. Much of what constitutes "PCB waste" are old electric transformers filled with PCB-based dielectric fluids. According to statistics from S.D Myers, nearly 95 per cent of a PCB transformer is made of recyclable materials like steel, aluminum, brass and copper which are not burned. The remaining five per cent, mostly wood, paper and cardboard ends up in an incinerator. Even fluorescent lighting ballasts are comprised of 77 per cent recyclable material.
And incineration has survived scrutiny before, including one conducted by the U.S. Congress. Several years ago, members appointed their investigative body -- the General Accounting Office (GAO) -- to study PCB incineration. In a December 1995 letter sent to members of the U.S. Congress, Peter F. Guerrero, director of environmental protection issues at GAO explained that EPA encourages the development of alternative disposal methods. But the agency is proceeding cautiously, having "not yet identified any that can clean complex sites contaminated with PCBs and dioxin."
"EPA officials have come to rely on incineration, " continues the letter, "a remedy they trust, to clean up (PCB contaminated) sites."
In other words, EPA has studied the alternatives, and found incineration to be, at least for now, the safest way to rid the environment of PCBs. To ensure that incineration is performed with minimal threat to the environment, incineration facilities must follow strict guidelines outlined in the Toxic Substances Act.
Supporters of incineration also believe that leaving PCB's in storage indefinitely is not a credible strategy. This is why Valentine thinks that everyone -- Canadian PCB owners, U.S. businesses and the environment alike -- benefited from the "open border" agreement. By seeking a court injunction, he said, the Sierra Club is merely prolonging the life of PCB waste, and denying state-of-the-art facilities in the U.S. the chance to do what they do best.
"I don't think the decision is in the best interests of North America," he said.
Reaction in Canada to the Ninth Circuit Court's decision is cautious. Officials at the BOVAR Inc. disposal facility in Swan Hills, Alberta are taking a wait-and-see approach to the court's decision. They are aware of the implications of the court's decision for their future business prospects.
There's six companies in this market," said Monty L. Davis, BOVAR's president and CEO "but we're the largest by a fair margin, and this should be good for business."
Canada has the ability to handle all of its own PCB waste, he added, and his company has been in touch with potential clients to make sure they are aware of all their options.
"It means a longer lifespan, but from our viewpoint that's good."
Polychlorinated biphenyl (PCBs) are very stable substances that are highly resistant to natural degradation. As such, they tend to accumulate in organisms. Because of their high toxicity, PCBs have been banned from use in Canada since 1977. Since the ban took hold, a succession of federal governments have committed themselves to ridding Canada of PCB waste once and for all, with little success. Shipping PCBs to the U.S., where disposal facilities are far more numerous seemed to Ottawa a good long-term solution. The thinking in was that intense competition on both sides of the border would drop prices significantly, thus making it more attractive for Canadian PCB owners to finally rid themselves of their hazardous loads.
Whether or not Canadian PCB owners will once again have the option to ship their wastes south remains to be seen. Carmen thinks the EPA has few options.
"They (the Ninth Circuit Court) gave the EPA nothing to hang an appeal on, except a legal right," Carmen said.
Valentine disagrees. He points to the Ninth Circuit court's inability to make long-standing judgements, "Twenty-seven out of the last twenty-eight rulings by the Ninth Circuit court have been overturned on appeal," he explained, "nineteen of these were environmental rulings." ET