May 18, 2023

Environmental, Natural Resources, & Energy Law Blog

Interstate Toxic Waste Trucking - Tracy Kochevar Perry

 

Tracy Kochevar Perry LLM

Emerging Topics - Spring 2023

 

INTERSTATE TOXIC WASTE TRUCKING

When California cleans up contaminated sites, the dirt laced with old pesticides like DDT, heavy metals, or petroleum hydrocarbons is excavated and trucked away, 57% to proper in-state hazardous waste disposal facilities and 43% to traditional landfills in states with weaker environmental laws. Over the last five years, California has dumped more than 1.6 million tons of contaminated soil in Utah and Arizona.1 Differences in state laws make this a legal practice, but trucking toxic wastes between states heightens human health risks, increases greenhouse gasses, contaminates municipal landfills, and risks groundwater contamination in the receiving states. The Resource Conservation and Recovery Act (RCRA) needs to be amended to stop interstate toxic waste trucking, ensure that the traditional landfills that have already received California’s “hazardous waste” are properly assessed for groundwater contamination as well as human health risks, and create financial incentives for California to treat its contaminated soil in state, preferably in-ground.

CALIFORNIA’S “HAZARDOUS WASTE”

California is known for its stringent environmental standards that exceed those set nationally. Ironically, they also lead the nation in pesticide use (200 million pounds a year) despite only representing 2% to 3% of the nation’s crop land.2 In addition to more than a hundred past and current superfund sites,3 the California Office of Environmental Health Hazard Assessment lists approximately 500 state cleanup sites.4 Over the past twelve years, Californian facilities have generated 17 million tons of waste that was only considered hazardous within state borders— more than a third of it contaminated soil. California has two in-state hazardous waste disposal facilities, neither of which is at capacity. But both state and private remediation contractors regularly avail themselves of the low dumping fees and lax environmental standards of Utah and Arizona as California disposal fees are 20-60% higher.5 Oregon used to be one of California’s dumping grounds, but the Oregon Department of Environmental Quality adopted a rule in 1989 that imported solid waste is hazardous waste if the exporting state considers it hazardous.6 Nevada has a similar provision.7 Utah law, in contrast, welcomes waste from other states, even if the exporting state labeled it hazardous under their stricter standards;8 only a little paperwork and a fee are required.9 Arizona merely lists its tipping (dumping) fees.10 Yet, California hazardous waste standards are not that different from federal standards. California’s limit for lead contaminated soil, for example, is 1,000 parts per million (ppm),11 while the federal standard is 1,200 ppm.12 Thus, it is soil contaminated with 1,000 to 1,199 ppm of lead that is being trucked out of state. Whether filled with lead or some other hazardous substance, Utah and Arizona are receiving significantly contaminated soil into their landfills.

UTAH

In Utah, trash is money. Some smaller Utah counties see accepting solid waste as a viable way to boost their annual budget, taking a $2 per ton host fee from private waste companies to locate their facilities in the county.13 Landfills in the state are both privately and publicly owned, some even on school trust lands to help fund education. Trash trains historically brought nonhazardous solid waste (by Utah standards) into the state, until the railroad companies raised their rates to discourage the practice.14 The ECDC Landfill, owned by Republic Services15 (the second largest waste management company in the United States),16 has received almost a million tons of California’s toxic soil. The solid waste used to arrive from northern California by train, but it now must be trucked in. Despite the ECDC Landfill’s proximity to an aquifer, it enjoys the support of local officials. The landfill is considered an important source of jobs and tax revenue in the small community of East Carbon, Utah. In 2004, it did receive a load of actual hazardous waste (by federal standards) from California, but Utah regulators ordered its excavation in 2005.17

ARIZONA

Unlike Utah which actively courts solid waste imports, Arizona has a history of public outcry over Californian DDT-contaminated soil being trucked into the state.18 Yet, this practice continues with a variety of contaminated soils. Worse, Arizona allows its smaller landfills to obtain exemptions from groundwater monitoring. The La Paz County Landfill obtained their exemption in 1996 and does not monitor its groundwater, despite receiving Californian hazardous waste.19 The site is owned by La Paz County,20 but operated by Republic Services.21

Another landfill receiving California toxic waste is the South Yuma County Landfill.22 The facility is surrounded by agricultural lands, including an organic date orchard, Yumi Dates. The Cocopah Indian Tribe’s reservation is only three miles away from the landfill. A 2021 inspection report of the landfill noted blowing litter, a faulty storm water runoff system, and elevated chromium levels at one of its groundwater monitoring wells. A 2022 inspection report also noted deficiencies, including unacceptable groundwater quality.23 The facility is owned by CR&R, Inc. Environmental Services,24 a California company headquartered in Stanton.25

LANDFILL HAZARDS

The South Yuma County Landfill is of particular concern because working or living near a landfill can cause elevated blood lead levels,26 respiratory disease, and cancer.27 Children are particularly vulnerable.28 In Arizona, agricultural workers can be as young as sixteen, but there are no age restrictions if working for a relative.29 Additionally, one thousand tribal members live on the Cocopah Indian Reservation and work at its casino and golf resort.30 Receiving

Californian hazardous waste, especially where there are containment issues, will likely heighten the risks that working and living near a landfill already pose.

TRUCKING VS. IN-GROUND REMEDIATION

Trucking contaminated soil across state lines makes a significant contribution to greenhouse gas emissions. Diesel-fueled dump trucks vary in size and payload capacity, ranging from 13 to 26 tons.31 A 20-ton truck traveling 800 miles (about the distance between California and Utah) will release 2.59 metric tons of CO2.32 There are also containment risks during transit, especially in the event of an accident.

If California wishes to avoid costly disposal at in-state hazardous waste facilities, there are cost-effective treatments in-ground like bioremediation, chemical oxidation,33 and

phytotechnologies.34 Bioremediation of DDT has been particularly effective, using a mix of brown-rot fungi, cattle manure compost, and spent mushroom wastes.35 A 2017 California Department of Toxic Substances Control report recommended further study on in-situ treatment methods, but lack of money kept the state from following through.36

AMENDING RCRA

Though DDT, lead, and other Californian soil contaminants are on RCRA’s F List37 and identified as hazardous,38 they are not in sufficient quantities for states like Utah and Arizona to treat them as hazardous wastes. RCRA allows states to administer their own solid and hazardous waste regulatory programs if they meet federal minimum standards.39 States like California are free to develop more environmentally protective standards,40 but doing so at the expense of other states is unfair and potentially dangerous. Like Oregon and Nevada’s solution, the U.S. Congress should amend RCRA’s definition of hazardous waste41 to include any exported waste that the state of origin has labeled hazardous. If Californian hazardous waste is treated as hazardous waste outside its borders, then more stringent transportation, disposal, reporting, and monitoring regulations will apply, eliminating the financial incentive for California to export its waste. The three mentioned facilities that have already received large quantities of Californian hazardous waste should be treated as hazardous waste disposal facilities and required to apply for Subtitle C permits.42 Though that will be a costly inconvenience, it will be offset by the years of California tipping fees they have collected. Congressional representatives from both California and Utah will likely object to these changes, but California’s hypocritical behavior may have caused enough resentment to ensure bipartisan support.

CONCLUSION

Private waste management companies in Utah and Arizona may see nothing but dollar signs at the ubiquitous California hazardous waste trucks— the respective state and local governments may even share their view— but it is short-sighted. Even today’s best landfill management practices will likely be found inadequate with tomorrow’s knowledge. If interstate toxic waste trucking continues, their greenhouse gas emissions will contribute to climate change, Utah and Arizona municipal landfills will become increasingly contaminated until underlying groundwater and human health are negatively impacted, and the dumps ultimately become cleanup sites. Where California government agencies arranged for the disposal, California will be a potentially responsibly party (PRP) liable for cleanup costs.43 Otherwise, the receiving states will be scrambling to find financially viable PRPs to foot the bill. The likelihood of taxpayers bearing those costs will only increase as time passes. Congress needs to amend RCRA’s hazardous waste definition now to ensure that Utah and Arizona residents are protected, and California loses its financial incentive to truck its toxic waste over the border.

1.                 Robert Lewis, California Toxics: Out of state, out of mind, Cal Matters, January 25, 2023,

https://calmatters.org/environment/2023/01/california-toxic-waste-dumped-arizona-utah/

2.                 Californians for Pesticide Reform, California Pesticide Use, https://www.pesticidereform.org/ca-pesticide-use/

3.                 EPA, Search for Superfund Sites Where You Live, Last updated on September 2, 2022, https://www.epa.gov/superfund/search-superfund-sites-where-you-live

4.                 California Office of Environmental Health Hazard Assessment, Cleanup Sites, State of California, https://oehha.ca.gov/calenviroscreen/indicator/cleanup-sites

5.                 Robert Lewis, California Toxics: Out of state, out of mind, Cal Matters, January 25, 2023,

https://calmatters.org/environment/2023/01/california-toxic-waste-dumped-arizona-utah/

6.                 Oregon Administrative Rule 340-093-0040(2)(b)

7.                 Nevada Administrative Code 444.8565 (2)(b) defines hazardous waste as “[w]aste brought into this State which is designated as hazardous waste in the state of its origin.”

8.                 Utah Code 19-6-108.5

9.                 Utah Administrative Code R315-260-4

10.              Arizona Revised Statutes 49-836

11.              Department of Toxic Substances Control, State of California, 2023, https://dtsc.ca.gov/faq/lead-whats-the-threshold-for-non-hazardous-lead-do-we-still-haveto-take-wastes-with-more-than-350-ppm-total-lead-to-a-class-i-landfill-even-if-they-arent -hazardous-wastes/

12.              EPA, Lead in Soil, August 2020, https://www.epa.gov/sites/default/files/2020-10/documents/lead-in-soil-aug2020.pdf

13.              Allos Environmental, Promontory Point Resources, 2021 https://www.allosenv.com/promontory-point-resources

14.              Utah Rails.net, Trash by Train, last updated on May 15, 2022, https://utahrails.net/industries/trash-by-train.php

15.              U.S. EPA, Project and Landfill Data by State, updated on March 23, 2023 https://www.epa.gov/lmop/project-and-landfill-data-state

16.              Ian Tiseo, Revenue of leading waste management companies in the United States in 2022, Statista, Mar 1, 2023 https://www.statista.com/statistics/1046508/us-canada-ranking-waste-haulers-by-revenue/

17.              Robert Lewis, California Toxics: Out of state, out of mind, Cal Matters, January 25, 2023,

https://calmatters.org/environment/2023/01/california-toxic-waste-dumped-arizona-utah/

18.              Deborah Schoch, Arizonans Angered by Storage of Tainted Soil: Waste:

DDT-contaminated dirt is being shipped to Phoenix facility. But some officials are demanding that it be sent back to California immediately, Aug. 7, 1994, https://www.latimes.com/archives/la-xpm-1994-08-07-me-24493-story.html

19.              Robert Lewis, California Toxics: Out of state, out of mind, Cal Matters, January 25, 2023,

https://calmatters.org/environment/2023/01/california-toxic-waste-dumped-arizona-utah/

20.              U.S. EPA, Project and Landfill Data by State, updated on March 23, 2023 https://www.epa.gov/lmop/project-and-landfill-data-state

21.              Robert Lewis, California Toxics: Out of state, out of mind, Cal Matters, January 25, 2023,

https://calmatters.org/environment/2023/01/california-toxic-waste-dumped-arizona-utah/

22.              Robert Lewis, California Toxics: Out of state, out of mind, Cal Matters, January 25, 2023,

https://calmatters.org/environment/2023/01/california-toxic-waste-dumped-arizona-utah/

23.              Robert Lewis, California Toxics: Out of state, out of mind, Cal Matters, January 25, 2023,

https://calmatters.org/environment/2023/01/california-toxic-waste-dumped-arizona-utah/

24.              U.S. EPA, Project and Landfill Data by State, updated on March 23, 2023 https://www.epa.gov/lmop/project-and-landfill-data-state

25.              CR&R Environmental Services Incorporated company website, 2023, https://crrwasteservices.com/contact-us/

26.              M. Angela Kim and Kimberly A. Williams, Lead Levels in Landfill Areas and Childhood Exposure: An Integrative Review, Public Health Nursing Journal, January 2017 https://pubmed.ncbi.nlm.nih.gov/26879806/

27.              Francesca Mataloni, Chiara Badaloni, Martina Nicole Golini, Andrea Bolignano, Simone Bucci, Roberto Sozzi, Francesco Forastiere, Marina Davoli, Carla Ancona, Morbidity and mortality of people who live close to municipal waste landfills: a multisite cohort study, International Journal of Epidemiology, Volume 45, Issue 3, June 2016, Pages 806–815, https://academic.oup.com/ije/article/45/3/806/2572780

28.              See M. Angela Kim and Kimberly A. Williams, Lead Levels in Landfill Areas and Childhood Exposure: An Integrative Review, Public Health Nursing Journal, January

2017, https://pubmed.ncbi.nlm.nih.gov/26879806/, and Francesca Mataloni, Chiara

Badaloni, Martina Nicole Golini, Andrea Bolignano, Simone Bucci, Roberto Sozzi, Francesco Forastiere, Marina Davoli, Carla Ancona, Morbidity and mortality of people who live close to municipal waste landfills: a multisite cohort study, International Journal

of Epidemiology, Volume 45, Issue 3, June 2016, Pages 806–815, https://academic.oup.com/ije/article/45/3/806/2572780

29.              Arizona Revised Statute 23-1382(1)

30.              Cocopah Indian Tribe website, © 2018, https://www.cocopah.com/

31.              Laurence Perkins, How Many Tons Can a Single Axle Dump Truck Carry, My Auto Machine, 2023,

https://myautomachine.com/how-many-tons-can-a-single-axle-dump-truck-carry/

32.              Jason Mathers, Green Freight Math: How to Calculate Emissions for a Truck Move, Environmental Defense Fund, March 24, 2015

https://business.edf.org/insights/green-freight-math-how-to-calculate-emissions-for-a-truc k-move/

33.              Enva, Treatment Methods for Contaminated Soil, 2023, https://enva.com/case-studies/contaminated-soil-treatment-methods

34.              EPA, Remediation Technology Descriptions for Cleaning Up Contaminated Sites, Last updated on June 29, 2022,

https://www.epa.gov/remedytech/remediation-technology-descriptions-cleaning-contamin ated-sites

35.              Adi Setyo Purnomo, Toshio Mori, Ichiro Kamei, Ryuichiro Kindo, Basic studies and applications on bioremediation of DDT: A review, International Biodeterioration & Biodegradation, Volume 65, Issue 7, October 2011, Pages 921-930, https://www.sciencedirect.com/science/article/abs/pii/S0964830511001788

36.              Robert Lewis, California Toxics: Out of state, out of mind, Cal Matters, January 25, 2023,

https://calmatters.org/environment/2023/01/california-toxic-waste-dumped-arizona-utah/

37.              EPA, Appendix B - Pesticides that are Hazardous Waste under 40 CFR 261, 33(e) and (f) when discarded, https://www.epa.gov/sites/default/files/2014-09/documents/pr83-3-appendix-b.pdf

38.              EPA, Defining Hazardous Waste: Listed, Characteristic and Mixed Radiological Wastes, Last updated on June 15, 2022,

https://www.epa.gov/hw/defining-hazardous-waste-listed-characteristic-and-mixed-radiol ogical-wastes

39.              42 U.S.C. § 6929

40.              42 U.S.C. § 6929

41.              42 U.S.C. §6903(5)

42.              Under RCRA, hazardous waste must be placed in a Subtitle C landfill. The municipal landfills in question are currently regulated under Subtitle D. See EPA, Solid Waste, last updated March 1, 2023, https://www.epa.gov/emergency-response-research/solid-waste

43.              42 U.S. Code §9607(A)(4)