Second letter to Chuck Clarke, Region X EPA Administrator, regarding plan to import FPG waste into the USA

July 1, 1999

Mr. Chuck Clarke
Regional Administrator
Region X, Environmental Protection Agency
Seattle, Washington

Dear Mr. Chuck Clarke:

We wish to thank your office and agency for addressing the proposed importation of Taiwanese toxic waste with the seriousness the issue deserves. We appreciate receiving the packages of information that you have obtained to date with respect to this waste and for setting up an intra-regional working group on this thorny issue. We have just now received some new data from the Minister of Environment in Cambodia and will supply you with that study if you have not received it yet.

However, after receiving and digesting the information, we now have as many doubts as before about the nature of the waste and the rationality of the toxic waste importation proposal. Indeed it now seems that as many questions have been raised as have been answered by the documentation review. We are ever more sure that given the current level of understanding -- what we know and what we don't know about this waste, and prevailing policy obligations with respect to international commitments in regard to the transboundary movement of hazardous wastes, the EPA must move to deny permission for this dangerous, precedent setting importation request.

To date, we have been grateful that you have promised us and the people of region X that you will not allow the waste shipment until you are fully satisfied as to its characterization and are satisfied that Envirosafe in Idaho are technically and legally able to render this waste harmless. You have also stated that if you are satisfied with all the above, that you will insist on a full "public process"so that citizens can have a say in the final decision.

We believe there remains very serious doubt as to the nature of the waste and therefore the ability of Envirosafe to handle it. Beyond this fact, we also believe that the public does have a lot to say with respect to exposing precious environments, themselves and their communities to needless risk due to a mistaken policy of maintaining a free trade in toxic waste instead of insisting that hazardous waste be managed at source. Below we detail some of our significant concerns.

1. Waste Characterization -- We are still seriously in doubt about any assertions as to the characterization of the waste. Each new analysis only creates more questions and less certain answers. First, it must be remembered that Formosa Plastics is not a company for which any form of honor system can apply. The EPA cannot afford to begin to accept the word of a foreign company which illegally exported this waste to Cambodia -- a company that still claims that it is non hazardous and refuses to pay any compensation to the victim country or population despite great financial costs, property damage and loss of life that occurred in that country as a result of the dumping incident. This company has proven to be the transnational version of a midnight dumper and must be approached without benefit of any doubt.

In view of this fact, it has been extremely disconcerting to note that EPA representatives continue to indicate to the press and in other statements that they believe they are certain of the characterization of the waste (as being primarily K071 or brine sludges from the mercury cell chlor-alkali process). Yet the fact remains that we do not know what is in this waste. The normal methodology under RCRA for accepting a company's word for the waste should not apply extraterritorially and in particular with a company known for illegal and criminal-like waste disposal methods.

While it is likely that a major portion of the waste was historically K071, there is considerable evidence to suggest that the waste composition is highly variable and inconsistent with any one RCRA designated waste stream. It has been described physically in so many ways, e.g. brown sands, gray material, black material, graphite pellets etc. which suggests a non-homogenous waste of varying origins. Moreover it has been known to possess highly variable mercury levels from near 0 to up to over 10,000 ppm. This highest level cannot be counted as being from the graphite pellets as it was described by the Hong Kong EPA as a non-homogenous sample. Indeed, Envirosafe's assertion in their letter of 14 June has us confused. In that letter they state that the EPA listed range of mercury in K071 as being between 13 and 1000 ppm. They then insist that the current data set includes no mercury findings outside of that range. Yet there are several:

1. Hong Kong study -- Sample A -- 10,971 ppm.
2. Sequoia Analytical -- Sample S-121 -- 1,800 ppm.
3. Sequoia Analytical -- Sample S-140 -- 1,700 ppm.

It should be heard as loud alarm bells that the waste in question has recently been revealed to be from at least 2 sources ("presumed K071" and "graphite pellets") when it was originally characterized as only K071. This means that while the material was at Formosa Plastics facilities for the "two decades" it was stored, it was indeed adulterated or mixed with other waste sources. Graphite pellets are, of course, a very visible and obvious mixture. However it is very likely that other waste streams were also mixed with this material which are not so visibly obvious. To believe otherwise is to give unwarranted benefit of doubt and does not represent a rigorous approach to this matter.

Additional adulteration might indeed account for the variable nature of the waste as well as the preliminary findings of organic materials associated with the waste stream. These include, unexpectedly high levels of PCBs, and a phthalate. These findings create further cause for doubt as to the origins of the waste. Indeed phthalates are associated with the PVC production cycle in which Formosa Plastics is heavily involved yet which is not supposed to be a part of this waste stream. We have recently received the WHO study and that had two more samples of dioxins/furans found at 38 ppt and 59 ppt. Thus, in total to our knowledge we have but four dioxin samples. We believe that before dioxins/furans can be ruled as being insignificant, more samples are necessary.

One thing that is certain in our view, is that the very preliminary and sketchy analysis of organics needs to be augmented dramatically. To date, the analytical work with respect to this waste has been prejudiced by unwarranted presumptions based on descriptions of the waste as K071 by Formosa Plastics. This biased approach cannot continue. It is clear that a rigorous and complete analysis of the waste from numerous sources for a full range of organics is necessary. This should be accomplished especially for organics known to be associated with the organo-chlorine and PVC industry.

Furthermore, there is likely to have been additional contamination from the temporary storage of the waste in used solvent and oil drums which were utilized at the site in Cambodia. There is no information about what these drums contained, we only know that the drums were not cleaned and were visibly sticky with residues. These drums in addition to the unknown prior use of the land disposal site in Cambodia will have further complicated the waste characterization.

Finally there is the overlooked concern with respect to methyl mercury. It is well known that methyl mercury is of extreme acute toxicity. It is also known for a fact that two persons did die in Cambodia after coming in close contact with the waste after exhibiting identical symptoms -- symptoms characteristic of methyl mercury poisoning. The Minimata Institute was the only entity to date that has looked for methyl mercury and indeed did find it in significant levels (33.7 ppb). We have long believed, after consultation with imminent mercury specialists, that the Minimata Study's conclusions that the mercury did not cause the poisonings were flawed. Their sampling of urine and blood came too late (several weeks after exposure) to show acute toxicity, and their sampling of hair would have only have shown long-term exposure, which was clearly not the case. Inhaled methyl mercury could well have been the cause of the deaths that followed the acute exposures in Cambodia.

If this waste does indeed contain "pockets" of methyl mercury as has already been indicated in the only known test to date, this may answer the question of why the 2 men in Cambodia died. It also raises tremendous concerns with respect to the ability of Envirosafe to handle this material and protect its workers and the immediate environment. The EPA cannot afford to ignore the deaths that occurred in Cambodia and the real possibility of the presence of methyl mercury or other organic forms of mercury. The extent of the contamination by this highly toxic compound cannot be ascertained until a large representative number of samples are taken for organic mercury forms. Again, we know for a fact that it has already been found the only time it was tested for. It is time to look again.

As you are aware, we are not alone in our judgement that the waste has not been properly characterized. 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 in the waste, and the accuracy of the K071 waste code assigned to the waste stream."

Likewise the Nevada Division of Environmental Protection has also recently had cause to doubt the nature of the waste. In an April 29, 1999 letter to US Ecology the Division wrote:

"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)."

"Therefore, the Division is unable to accept the designation of (K071) as a full and complete description of this waste stream. As you are aware, mercury-bearing wastes, in general, with concentrations of 260 mg/kg total mercury, or greater, are required to undergo retort/recovery prior to landfill. Accordingly, the Division will not authorize acceptance of any containerized quantity of this waste stream at the facility for the purposes of treatment (stabilization) and subsequent disposal unless the mercury content of each containerized quantity is determined per laboratory analysis to be less than 260 mg/kg mercury."

In sum, in our view all presumptions of waste characterization and origin must be set aside as they have insufficient basis. The EPA must go forward on the basis of recent and complete analytical data alone. To date that recent analytical data is insufficient particularly with respect to organics, including organic forms of mercury, to make conclusions about the waste origins, or its actual composition.

2. Envirosafe's Ability to Treat this Waste -- In relation to the above unknowns it follows that it is also impossible to know if Envirosafe can treat this waste according to its obligations under the law. The waste stream is extremely variable so initial test batches of Envirosafe's process will likely be non-representative. The complicating factors of organic contaminates including methyl mercury complicate matters significantly. Further we have not been able to find a record of Envirosafe having ever dealt with K071 even if we could agree that this was the accurate designation for the bulk of the waste.

3. Public Process -- Further, you have stated for the record that any import will involve a "public process." If EPA insists that Envirosafe can indeed process the waste in question in an environmentally sound manner, then clearly the risk involved which you believe warrants the promised public process must in your view be due to the potential risk of en route accidents and exposure. We concur with this assessment. Thus, in addition to a public process in the proposed receiving community and State, it is essential that communities all along the proposed transit route and in particular, the proposed port of Tacoma, and the workers that will be involved in the unloading be able to comment in the public process envisaged. We wish to know of the agency plans in this regard. This plan should not only include a public feedback mechanism (e.g. hearings) but a full notification scheme as well for local governments and emergency response agencies.

Further, as EPA is now writing legislation to implement the Basel Convention we believe that EPA must embark upon a national public process to solicit comments throughout the country with respect to the proposed "open borders" toxic waste import policy. As noted below, the prime concern over this shipment is a policy concern over the many "mountains" of foreign toxic waste which are likely to follow this one. This issue has a direct bearing on how the EPA deals with import legislation. As was noted by Ana Tschursin in our last conference call, the EPA's current working drafts for this legislation apply no new criteria that would allow this country to bridle a complete free trade in toxic wastes.

4. Misguided Policy Precedent -- It has recently been reported that Taiwan generated 18.21 million tonnes of industrial waste (1997) and 1.47 million tonnes (1998) of industrial hazardous waste (by Taiwan definition). Yet the Taiwan EPA reports that licensed waste management firms only have the capacity to deal with 18% of this material while a further 20% is managed by in house generators. This leaves a remaining 62% which is not being dealt with. In one year's time this equates to considerable volumes of waste that are presumably piling up and awaiting disposal. In the course of many such years the volumes of industrial waste in Taiwan are now astronomical. If EPA really believes that this waste shipment is a one-time event in the absence of clear commitments to limit the international trade in hazardous wastes, they are living in a fools paradise. The dirty industrial development of Taiwan or the rest of Asia for that matter, must not become the responsibility of the rest of the world. The answer for toxic waste as everyone knows is source reduction. The answer is not exportation to areas of least economic resistance or areas with large open spaces that are "under-polluted". For this reason the international community has banned ocean dumping (London Convention) and has sought to strictly control the transboundary movements of hazardous waste on land (Basel Convention).

The Basel Convention requires the following fundamental obligations:

Each Party shall take the appropriate measures to:

(a) Ensure that the generation of hazardous wastes and other wastes within it is reduced to a minimum, taking into account social, technological and economic aspects;

(b) Ensure the availability of adequate disposal facilities, for the environmentally sound management of hazardous wastes and other wastes, that shall be located, to the extent possible, within it, whatever the place of their disposal;

(d) Ensure that the transboundary movement of hazardous wastes and other wastes is reduced to the minimum consistent with the environmentally sound and efficient management of such wastes, and is conducted in a manner which will protect human health and the environment against the adverse effects which may result from such movement.

The above principles are known as the Waste Minimization Principle, National Self Sufficiency Principle and Waste Movement Minimization Principle, respectively. Where is the US EPA in upholding these internationally agreed principles? Although the United States, nor Taiwan are as yet Parties to the Basel Convention, the Taiwan EPA has stated that it wishes to behave as if it were, while the United States is hoping to pass implementing legislation in time to ratify before the next Conference of the Parties in December. We believe therefore that it is incumbent on the United States (and Taiwan) now and with this shipment to start instituting policies with respect to waste imports (and exports) that are consistent with the fundamental obligations of the Basel Convention.

As we have noted in our past correspondence and discussions with you, it is our belief that the United States must adopt a policy of exporting appropriate technologies, not importing toxic waste. This view was shared by Senator Patty Murray in a recent letter to you in which she stated"we do not want to encourage the shipment of waste from Taiwan in the future, since that country should be incorporating available technology to reduce toxic waste at its source."

Additionally, Congressman McDermott wrote in a letter to Carol Browner recently, "If this proposal is allowed to proceed in Washington and Idaho, it will set a precedent that could lead to the routine shipment of toxic and hazardous waste as a commodity at the whim of global market fluctuations. There are tremendous international energy, health and safety consequences of this practice. It would be irresponsible for the EPA to open this door without serious investigation of the potential environmental and social impacts, including the opportunity for public involvement in the decision....if the technology exists for safe disposal, that method could be exported so that other nations can take responsibility for their own production. If the technology does not exist for safe disposal, then it is the responsibility of other nations to police their own industry, and not ours to serve as an international waste facility."

It is clear that EPA cannot continue to act in a policy vacuum with respect to hazardous waste importation. Clear policies must be put in place now and with this shipment to implement the obligations of the Basel Convention before misguided precedents are set and voracious appetites for lucrative foreign waste contracts are developed by waste management companies. A free trade in toxic waste will not help our environment and will provide Taiwan and Formosa Plastics with no favors either. Accepting their waste merely forestalls the day when they need to take source reduction strategies seriously. For all of these reasons we are certain that you will deny the importation permission for the Formosa Plastics Waste.

Sincerely yours,

on behalf of:

Jim Puckett, Basel Action Network
Scott Brown, Idaho Conservation League
Laurie Valeriano, Washington Toxics Coalition

cc. by fax or E-mail:

Dave Bartus, Waste and Chemical Management, EPA Region X
Mike Bussell, Waste and Chemical Management, EPA Region X
Tacoma City Council Members
Tacoma Mayor's Office
Pierce County Commissioners
Robert Heiss, EPA, Washington
Ana Tschursin, EPA, Washington
Washington Congressman Adam Smith's Office
Washington Congressman Jim McDermott's Office
Senator Patty Murray's Office