Letter to Chuck Clarke, Region X EPA Administrator, Regarding Plan to Import FPG Waste Into the USA

May 26, 1999

Mr. Chuck Clarke

Dear Mr. Chuck Clarke:

We would like to meet with you to discuss the serious matters with respect to the proposed import into Region X of significant quantities of foreign hazardous wastes. Laurie Valeriano of the Washington Toxics Coalition and Jim Puckett of the Basel Action Network can meet in person, while it would be advisable to be joined by phone with Bradley Angel and Jane Williams who were involved in Region IX and Scott Brown who is involved in this matter from Idaho.

We find the proposal for toxic waste importation inappropriate from both the view regarding this specific instance as well as in respect to the precedent setting implications in allowing the western United States to become the toxic dumping ground for unsustainable Asian industrial development. Prior to our meeting/conference we alert you to some of the concerns and outline them below.

It has come to our attention that EPA, Region X is likely to grant approval to the proposed shipment through the region and subsequent disposal at the Envirosafe facility in Idaho, of 7,233 tons in 17,976 drums held in 321 shipping containers, of toxic wastes originating from the Formosa Plastics Group (FPG) of Taiwan. This is the very same waste that was illegally dumped by FPG on Cambodia late last year. Later FPG tried to have the waste exported to a Safety-Kleen landfill in Westmorland, California. There it was rejected after the Basel Action Network and California activist groups revealed analytical data about the waste that showed that it was clearly more toxic than had been previously described by Safety-Kleen.

According to the letter by Robert Heiss, EPA's Director of the Import-Export Program in Washington, D.C., rescinding EPA approval to import the waste into California, "These data call into question the chemical composition of the waste, the concentration of mercury, and the accuracy of the K071 waste code assigned to the waste stream."

Additionally, the letter noted the "substantial increase in waste volume" and the fact that this increase was likely to exceed Safety-Kleen's storage permit limits. The letter asked for information also on the full range of data regarding the origin and nature of the waste, the origin and amounts of D004 arsenic contaminated material, and the chemical characterization and amounts of crushed drums and percentage levels of residual hazardous waste in the drums.

California Senators Barbara Boxer and Diane Feinstein both wrote the EPA letters objecting to the import of foreign hazardous wastes into the state of California.

Following these events, Safety-Kleen gave up trying to pursue this very lucrative contract. In a statement, they wrote, "based on Safety-Kleen's independent professional judgement, it has been determined that this material is more complex than originally believed and is potentially non-conforming."

FPG then sought to send the waste to Nevada and Idaho. Already, the State of Nevada and Region IX have written letters to the disposal firm, American Ecology near Beatty, Nevada, expressing similar concerns as were raised in California. According to the letter from Nevada Department of Conservation and Natural Resources: "Due to the high and widely disparate levels of mercury reported for this waste stream in conjunction with the distorted history and extended period in which the waste was outside the control of the generator, it is reasonable to conclude that this waste stream was combined with and/or contaminated with other mercury-bearing wastes which would no longer entitle the waste to strict consideration as a hazardous waste from a "specific source" (i.e. K071)."

Further, as reported on May 14 in the Las Vegas Sun, David Emme, chief of the state Division of Environmental Protection's solid waste department, "At this time, the state is inclined not to allow the sludge into the state." Then, as reported in Las Vegas Review Journal, Nevada's US Senator Richard Bryan stated in a letter to American Ecology, "while the practice of U.S. companies importing hazardous waste from other nations is in itself very questionable, your company's proposal to accept highly toxic sludge is particularly egregious."

Now it appears that Idaho has become FPG's path of least resistance. But we sincerely believe that this perception will change once the facts are in and EPA and the State of Idaho are able to make a reasoned assessment. While there remain serious unanswered questions about this actual specific case, the implications and repercussions of this precedent setting toxic waste import go far beyond issues of whether or not the contract is strictly legal. Thus below we will outline our concerns first about some of the remaining technical and legal questions and next, discuss the policy implications for not only Idaho, EPA Region X, but for the entire country and world.

Technical and Legal Concerns:

-- The waste in question has never been fully characterized by independent sources. Tests for organic constituents have not been conducted with the exception of one study commissioned by the World Health Organization (WHO) on dioxins and furans. Yet it is our understanding that to date nobody in the United States has seen this study. Furans are a particular concern with respect to K071 waste according to a recent Swedish study (Rappe et al) on this particular type of waste. Further, as was noted by Robert Heiss, the waste in question does not conform to the K071 designation, so all assumptions about the nature of the waste are in doubt. The waste is known to be non-homogeneous and highly variable in mercury content. This will be especially true now that it is known that well over twice the original volume is being exported.

One lesson that can already be drawn from this incident is that it is inappropriate to utilize data from companies that stand to gain from the disposal approval. FPG's credibility in the case is particularly suspect due to their criminal-like dumping of the waste in question on the unsuspecting, poor and war-torn country of Cambodia. Further, FPG has never ever admitted that the waste is hazardous waste, when by all relevant definitions it clearly is. The waste in question sat on FPG's property for many years and there is no evidence to conclude that even if it was of K071 origin, that it had not been mixed or otherwise adulterated by other industrial wastes. Thus it is imperative that the wastes be tested for a full range of priority pollutants.

-- The drums used to temporarily store the waste have been observed first hand by the Basel Action Network as being contaminated with oily and solvent like residues. Thus the waste as well as the crushed drums will surely contain organic constituents which must be characterized.

-- The dioxin and furan content must be examined in light of relevant TSCA certification requirements for the import of all chemical substances as well as RCRA stipulations regarding the disposal of dioxins/furans.

-- The transport route, risk management requirements of the relevant ports (presumably Tacoma or Seattle) and Interstate 90, must be examined for compliance and readiness.

-- As it is known that there is a Taiwan EPA imposed deadline on FPG of June 15 for removal of the waste in question from Taiwan, and thus phased export is unlikely, it is crucial to examine the implications regarding permitted storage capacity of Envirosafe while they conduct the treatment process designed to lower the leach TCLP test to the allowable levels.

-- Finally, we wish to know precisely why one region of EPA is denying the importation of this hazardous waste while Region X might not.

Precedent Setting / Policy Implications

The Basel Action Network has been working for many years on preventing the dumping of toxic wastes from rich industrialized nations to poorer, less industrialized nations. We well understand the limitations of certain countries to manage toxic wastes. This was one of the reasons that the global community in the context of the Basel Convention, banned the export of hazardous wastes from OECD (Organization of Economic Cooperation and Development -- 29 most industrialized countries) to non-OECD countries. In other words the global community recognizes that there should not be a free trade in hazardous waste.

But the reasons for the global ban were two-fold. Non-OECD countries were unlikely to possess the wealth and industrial infra-structure to mitigate the risks from hazardous wastes, and such exports worked as a direct disincentive for companies and countries to take responsibility for their own hazardous wastes at source by implementing clean production, waste minimization methods and technologies.

In this case, Taiwan, were it not for the political impasse over its recognition as a nation, would surely be both a Party to the Basel Convention and a member state of the OECD. It is a highly industrialized and wealthy country. Indeed FPG is one of the richest companies in the world -- it is the world's largest producer of PVC plastic among many other products. The claim that Taiwan lacks appropriate landfills for this waste while perhaps true, should not provide them with an excuse to export the material. FPG should be required to take responsibility for the waste at source, in their own country and at their own facilities. Clearly this company has the resources to solidify, neutralize or safely store this waste in situ. Already we know of one company that has offered its at-source technology to FPG but has been refused. The company would rather export their problem than take responsibility for it.

The solution to toxic waste is not to move it around the world on a path of least resistance. The solution cannot be exporting to others just because they have more space and thereby create risky transport situations and pollution other locations. Rather the solution is to reduce hazardous waste at source. Any policy that works against that goal is highly suspect. In cases of countries that claim they lack technology to deal with toxic wastes of their own generation, the solution is to export appropriate technologies -- not import their hazardous wastes.

This question has a major bearing right now not only on Idaho, which could potentially become the "black hole" for all of the growing mountains of wastes from newly industrializing countries all around the globe, but also is extremely relevant in light of the Clinton administration's desire to finally ratify the Basel Convention.

With the ratification of the Basel Convention, the US will become a new target for all kinds of hazardous waste imports which previously were impeded due to the Basel requirement that only Parties to the Convention can trade in hazardous wastes with one another, absent a special bilateral agreement. Further, it is known that the EPA is seriously considering lifting the ban on PCB importation in the proposed Basel implementation legislation.

These factors can lead to a situation where US communities near dumpsites could well become the repositories for massive quantities of hazardous wastes from all over the world. This new development was never clear to the communities around these facilities which no doubt participated in the permitting process. The foreign importation potential of these facilities and the transport routes involved were unlikely to have been a part of the environmental impact assessments. Further as many of the disposal facilities are in poorer, minority communities, serious environmental justice issues are raised.

The US Administration is very concerned about ratifying the Basel Convention with urgency as they want to attend the 10th anniversary meeting of the Basel Convention this December as full Parties. However they have now created two serious political hurdles for themselves:

First, they are refusing to ratify the Basel Ban Amendment described above. This has incurred the opposition of not only the Basel Action Network, but Greenpeace, Center for International Environmental Law, Friends of the Earth, Sierra Club, Center for Health, Environment and Justice, and Essential Action as well.

Second, they have refused so far to address the serious concerns over hazardous waste importation noted above. The current legislation allows importation of waste to occur at any time as long as the facility to which it is directed is deemed environmentally sound. This sole consideration does not reflect the clear political consternation of communities in light of the real possibility that they will, such as those communities already in California, Nevada and Idaho, become global waste repositories. Judging by the quick and unequivocal responses of US Senators in California and Nevada to date, there should be no doubt as to the policy blunder the EPA would be making in blithely permitting hazardous waste imports such as those now proposed for dumping in Idaho. The Basel legislation currently being considered is severely flawed in this regard.

We ask that you meet with us so we can have a serious discussion about our above mentioned concerns. After this issue is given careful consideration to these concerns we are sure that you will have no option but to deny approval to this dubious and dangerous waste import proposal.

Sincerely yours,

on behalf of:  
Jim Puckett, Basel Action Network
Scott Brown, Idaho Conservation League
Laurie Valeriano, Washington Toxics Coalition
Bradley Angel, Greenaction
Jane Williams, California Communities Against Toxics
Lily Hseuh, Taiwan Environmental Action Network  

cc. by fax or email:  

Mike Bussell, Waste and Chemical Management, EPA Region X
Mike Fagan, Waste and Chemical Management, EPA Region X Seattle City Council Members
Seattle Mayor Paul Schell
King County Commissioners Robert Heiss, EPA, Washington
Ana Tschursin, EPA, Washington
Washington Congressman Jim McDermott's Office