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Synthesis/Regeneration 7-8   (Summer 1995)

Southern Illinois Activists
Combat PCB Incinerator at Wildlife Refuge

Richard Whitney, National Lawyers Guild

An alliance of environmentalists, community activists, and university and law students is fighting to halt an EPA-approved plan to incinerate 70-80,000 cubic yards of PCB-contaminated soil at the Crab Orchard National Wildlife Refuge in Southern Illinois. They (or rather, "we"; there's no point in my pretending to be disinterested here) are fighting an uphill battle, as the plan is being carried out under the Superfund program and the parties involved have already signed a Consent Decree—a court document that makes the plan legally binding. However, opponents have shown strength and determination that may yet win out. Some activists have been fighting the incinerator for five years, and are not about to quit.

Despite its name, the Crab Orchard National Wildlife Refuge has never been fully devoted to providing a refuge for wildlife. Owned by the US government, the Refuge encompasses about 43,000 acres of land and waterways in the Marion-Carbondale area of Southern Illinois. During World War II, the land was under the control of the military, which leased much of it to munitions manufacturers. Large quantities of ammunition were stored on site, in concrete bunkers that still dot the Refuge.

During World War II, the land was under the control of the military, which leased much of it to munitions manufacturers...Shortly after the war, Congress had the brilliant idea of creating a "wildlife refuge" on which industry would be permitted to operate.

Shortly after the war, Congress had the brilliant idea of creating a "wildlife refuge" on which industry would be permitted to operate. (This was sort of a precursor to that contemporary oxymoron, the "industrial park.") The land was placed under the authority of the Department of Interior and is now run by the Fish and Wildlife Service. To this day, Fish and Wildlife spokespersons boast about the "multiple-use" character of the Refuge, as if it is something to be proud of—Superfund sites notwithstanding!

Thus, munitions manufacturers continued to operate on the Refuge. Over the years, they were joined at various times by manufacturers of auto parts, fibreglass boats, corrugated boxes, plated metal parts—and electrical transformers and capacitors containing PCBs. Other parts of the Refuge were leased to farmers, and other portions devoted to recreation. To be sure, most of the land, which includes twelve lakes and large stretches of forest, is devoted to wildlife and remains very beautiful. However, that makes it all the more tragic that the natural environment there has been subjected to subtle but potent forms of pollution.

In the mid-1980s, the Fish and Wildlife Service discovered that some of the industrial operators on the Refuge had—surprise, surprise—unsafely disposed of their waste products on Refuge land. Some wastes had been placed in leaky landfills; others had been dumped or discharged into waterways. With the discovery of PCBs, lead and other toxic metals and explosive materials, the Refuge was soon placed on the National Priorities List for cleanup under the Superfund program.

Thirty-three potentially hazardous sites were identified and investigated, with some studies still continuing. The sites were grouped by level and type of hazard. Four sites were identified as having dangerous levels of PCB contamination. The EPA, which apparently is required by law to speak "bureaucratese," named these the "PCB Areas operable unit." Sangamo Weston, Inc., which had manufactured electrical capacitors containing PCBs at the refuge for many years, and its parent company, Schlumberger Industries, Inc., were jointly identified as a "potentially responsible party" for these sites—a polite way of saying that a party is very likely the polluting culprit and faces potential liability for the cost of cleanup under the Superfund law.

A "potentially responsible party" (or PRP, which also stands for "probable rapacious polluter") in this situation essentially has two choices. It can protest its innocence, let EPA handle the cleanup, and then face a costly lawsuit that might well result in it having to pay the full cost of the cleanup anyway. Or it can cooperate from the beginning and voluntarily accept much of the cost for the investigation and cleanup. If the PRP knows that it would probably be found liable, then the latter choice is the more logical one, since it allows the PRP to not only avoid sizable legal fees, but to have considerable input into the choice and execution of the cleanup method.

Schlumberger chose the latter course, and has participated in the cleanup process since the initial "remedial investigation/feasibility study" at the PCB sites in 1986. Tests of the soil during the investigation found PCB concentrations as high as 120,000 milligrams per kilogram, as well as lead in concentrations up to 20,500 mg/kg, cadmium at 57 mg/kg, dioxins at up to 169 micrograms per kilogram and dibenzofurans at up to 249 micrograms per kilogram. Unsafe levels of PCBs were also detected in pond water at one site and ground water at three sites. No danger of aquifer contamination was mentioned in the record, although there is some potential for contaminants at one site to migrate toward Crab Orchard Lake.

Very early on, the EPA indicated its preference for incineration as its favored method of disposing of the contaminated soil.

Very early on, the EPA indicated its preference for incineration as its favored method of disposing of the contaminated soil. A few other methods were ostensibly given some consideration, primarily landfilling and "in situ vitrification," a process in which contaminated soil is sealed in a glass or synthetic silicate material and transformed and encapsulated through the application of an electrical current that generates high heat. Other methods that destroy PCBs, such as thermal desorption, or "supercritical water," were not considered, presumably because they weren't sufficiently "proven" methods like incineration.

Sangamo/Schlumberger actually opposed incineration, which was the most expensive option of all those considered. However, the EPA has stuck to the line that incineration "provides a better balance of long-term effectiveness, permanence and reduction of toxicity, mobility and volume than any of the other alternatives."

There was fierce opposition to incineration from the local community and concerned environmentalists from the beginning. At public hearings, vigorous opposition to incineration was expressed. Against the notion that incineration was a "proven" method, opponents countered that it had "proven" to be unreliable at best, if not consistently unsafe. The main objections to incineration are as follows:

Incinerators never completely destroy hazardous wastes, and the combustion process itself invariably creates and releases new hazardous wastes. Of particular concern is the fact that the incineration of PCBs transforms some of them into their even more dangerous chemical cousins, the dioxins—and spews them into the atmosphere. The resulting dioxin fallout increases the dioxin contamination of the food chain.

Hazardous waste incinerators in practice have failed to prove that they can attain the 99.9999% destruction/removal efficiency (DRE) standard that the EPA asserts is sufficient to protect the environment. This legally required "six nines" DRE standard refers to the percentage of the target substance that is actually destroyed. At the Jacksonville, Ark., incinerator, for example, a trial burn performed under ideal conditions only achieved a 99.96% DRE for dioxins—which indicates that the incinerator would at best release 400 times as much dioxins as EPA regulations allow. Of course, a real incinerator, burning a varying mixture of toxins bound to the soil, day after day, is unlikely to achieve even that level of DRE. And that's not taking Murphy's law into account.

Against such criticisms, the EPA's responses have been a case study in bureaucratic denial of reality. The EPA's stock response is that the "six nines" standard will be achieved, therefore incineration is the "best available technology" for disposing of PCBs and, in any event, is better than doing nothing.

We have not really begun to see the worst impact on human life from the dioxins already present in the environment. The "background" levels of dioxins in the environment are already dangerous enough to wreak havoc on succeeding generations, and even if there were a complete cutoff of dioxin pollution today, the impact will not fade for several generations. As if that's not enough, the dioxins in the environment today also constitute a cancer risk of about 1 in 10,000, according to dioxin expert Dr. Arnold Schecter. Accordingly, "cutting back" is an insufficient response to the problem—any additional creation and dispersion of dioxins is an unacceptable risk.

In the absence of "insider" information, one can only speculate as to why the EPA, at least in many regions of the country, is so irrationally and stubbornly wedded to incineration as its preferred method of waste disposal. Somehow, the word "corruption," and the term "EPA-incinerator complex" (as in "military-industrial complex"), continue to arise in this author's mind. Other possibilities include simple bureaucratic inertia, a preference for sticking to a known routine over having to expend time and money on rethinking and replanning a waste disposal program, incompetence, or the tendency to believe one's own disinformation, if repeated often enough.

Whatever the explanation, the menace of hazardous waste incineration must be stopped at Crab Orchard, as elsewhere. As is often the case, the opposition forces at present center around a modestly sized core group of activists—but we have stirred a positive response, and we have been persistent. At present, our strategy is still focused on building community opposition to the point of "critical mass," and attempting to influence local political representatives to take a stand against incineration. Other options, including a legal strategy, are being explored as the time for incineration approaches.

With diligence, creative thinking, and a little help from the good working-class folks of Southern Illinois, we may yet prevail.

Richard Whitney is a law student at Southern Illinois University School of Law, and a member of the National Lawyers Guild. If you would like to help the fight against the Crab Orchard incinerator, have suggestions, or have any questions about this article, write to the National Lawyers Guild, SIU School of Law Chapter, Southern Illinois University School of Law, Carbondale, IL 62901.

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