My Turn: State may be liable for Badin PCB pollution
(Note: An earlier headline that appeared on this column was incorrect.)
By Dennis Lemly
Yadkin Riverkeeper (YRK) has issued a letter of intent to sue Alcoa for its PCB pollution of Badin Lake and associated violation of the federal Clean Water Act (CWA).
On the surface, the complaint seems to expose a straightforward case of industry breaking water quality laws. However, a closer examination of Alcoa’s Badin Works operations over the past 40 years and North Carolina’s regulatory activities during that time reveals another aspect of the problem. The Alcoa PCB pollution issue is an example of the failure of the National Pollutant Discharge Elimination System (NPDES), a joint federal-state regulatory program that was established as part of the CWA in 1972.
NPDES is the primary tool that states use to control toxic industrial waste by issuing permits that limit the amount of harmful chemicals released into surface waters. In 1975, EPA transferred authority and responsibility for permit writing to the North Carolina Division of Water Quality (DWQ). The following year EPA issued its “Red Book” of federal water quality guidelines, which informed DWQ about the environmental and public health hazard of PCBs (including their accumulation in fish and dietary threat to humans), their use in electric transformers such as those at Alcoa’s Badin Works and the need to recognize them as a high priority pollutant. The Red Book specifically stated that “every reasonable effort should be made to minimize human exposure.” Several other prominent federal reports were issued during 1972-1975, alerting the state’s environmental and public health departments to the sources, hazard and need for regulatory control of PCBs. Thus, by 1976 the knowledge and administrative process necessary for North Carolina to identify, evaluate and regulate PCB discharges to Badin Lake was in place. Yet, Alcoa’s Badin Works was not identified as a PCB concern until 1990, and then only because of a federal Resource Conservation and Recovery Act (RCRA) investigation of cyanide and fluoride discharges in seepage from solid waste management units (SWMUs), not because there was a suspected PCB issue.
Subsequent RCRA intervention led to corrective actions that included excavation of PCB-contaminated soil and capping of SWMUs to reduce discharges of PCBs and other contaminants to Badin Lake. Evidence suggests that DWQ was sufficiently informed and knowledgeable about the sources and risks of PCBs to trigger an investigation of Alcoa’s Badin Works and take regulatory steps much earlier, but chose not to act. For example, it did not issue a NPDES permit for surface water discharges at Badin Works until 1981. That initial permit and all of the revised and updated permits issued since then recognized storm water runoff as a source of pollution (contaminated storm water runoff in Alcoa’s NPDES-permitted outfalls was the source of PCB transport into Badin Lake, according to a 2001 RCRA report and a 2010 EPA report) but they had no limits for PCBs. In fact, the words “polychlorinated biphenyl” or the acronym “PCB” do not appear in any of Alcoa’s NPDES permits despite the fact that there have been applicable water quality standards and guidelines for PCBs since 1976.
The requirements set forth by DWQ were for “visual or olfactory assessment” of storm-water discharge characteristics that included color, odor, clarity, floating solids, suspended solids, foam, oil sheen and “other obvious indicators of storm water pollution.” Without specific monitoring/reporting requirements and effluent concentration limits for PCBs, the permits were meaningless and ineffective at controlling PCB discharges to Badin Lake. State intervention through NPDES could have reasonably been expected to take place as early as 1976, which would have greatly accelerated the identification, removal and safe disposal of PCB-contaminated soil. A 1970s action by DWQ would have prevented or minimized erosion and storm water runoff of PCB-laden soil into Badin Lake for two decades preceding the RCRA corrective measures that took place in the 1990s. This would have substantially curtailed PCB loading to Badin Lake and reduced the amount that is now in nearby lake sediments, perhaps by 80 percent or more.
I agree with YRK that PCB pollution of Badin Lake should never have happened, but in answering the question of who was responsible, one has to take a hard look at the state in addition to Alcoa. If YRK is going to sue Alcoa, I think it should also consider taking action against the state for inadequate regulatory control of PCB discharges.
Dennis Lemly is a research associate professor of biology at Wake Forest University. E-mail: firstname.lastname@example.org.
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