A publication of Work On Waste USA, Inc., 82 Judson, Canton, NY 13617 315-379-9200 February 1990

EAST LIVERPOOL, OHIO: Part 3

Cover-Up underway at US EPA Region 5 in effort to protect WTI’s illegal permit.

In 1980

a federal EPA regulation was promulgated that stated any permit issued for
a hazardous waste facility had to include both the OPERATOR of the
facility and the OWNER of the property on the permit.
See Federal Register, May 19, 1980, Vol. 45, No. 98, page 33169.

In 1983

Valdas Adamkus, Regional Administrator of US EPA Region V, issued a permit to Waste Technologies Industries (WTI) to build and operate one of America’s largest hazardous waste incinerators
within 1100 feet of an elementary school. WTI will be the operator of the facility
while the Columbiana County Port Authority is the owner of the property.
Only the operator, WTI, was listed on the permit.
Ref: Permit issued to WTI on June 24, 1983, signed by Valdas V. Adamkus.

In 1991

Valdas Adamkus, Head of US EPA Region V “explains” WTI’s illegal permit
in a 12-2-91 letter to U.S. Senator John D. Rockefeller IV: “...It is true that the property upon which the Facility sits is owned by the Columbiana County Port Authority. It is also true that the Agency was aware of that fact at the time the permit was issued, and that the permit was issued solely to WTI. In 1983 the Agency did not make the distinction between property owners and facility owners. WTI owns the facility; it does not own the property. Since 1983, the Agency has changed its policy. It now issues permits to property owners and the facility operators as co-permittees. To correct this problem the Agency will be using the Class I modification procedures to issue the permit to the Columbiana County Port Authority as a co-permittee. It is within the Agency’s discretion to make this change; it is not required to do so...”

In 1992

US EPA Region V lawyer contradicts Valdas Adamkus with a
novel explanation of why WTI’s illegal permit is valid.
In a 2-24-92 interview with Waste Not, Nancy-Ellen Zusman, Assistant Regional Counsel at US EPA Region V stated the reason the 1980 regulation was not implemented was because there was a lot of confusion in the EPA, nationwide, in the 1980’s, and that the permit forms used by US EPA Region V were not updated until 1990. The permit forms in question differ in one instance only. In 1983 the permit form had one line for the “Permittee,” whereas in 1992, the permit form has two lines for the “Permittee.” The “confusion” on the specific Owner/Operator 1980 regulation existed for 10 years at US EPA Region V, according to Zusman. What Zusman told Waste Not is in contradiction to what Valdas Adamkus wrote to Senator Rockefeller IV on 12-2-91, which was: “Since 1983, the Agency has changed its policy.” But, according to Zusman the policy wasn’t changed until 1990. The bottom line of Zusman’s comments to us was that the the 1983 permit issued to WTI was technically and legally valid because: (1) “there was a lot of confusion at EPA” and (2) because US EPA Region V permit forms were not changed until 1990.

Questions raised so far:

1. Can US EPA Region V legally extricate itself from having issued an illegal permit to WTI in 1983 on the grounds that “confusion existed at the EPA in the 1980’s” which led to the use of outdated permit forms for 10 years? (How many other illegal permits were issued by Region V during the 1980’s ?)

2. Why did Valdas Adamkus lie to U.S. Senator Rockefeller IV that his Agency changed its policy on the
specific Owner/Operation 1980 regulation for permits “[s]ince 1983,” when his Assistant Regional Counsel, Zusman, told Waste Not that the changes to the 1980 regulation did not come into effect until 1990, the magic date that US EPA Region 5 made the appropriate change to their “permit form.”

3. What obligations does Valdas Adamkus, as Regional Administrator of US EPA Region V, have to insure that Federal regulations are implemented.

In 1981 did the Port Authority of Columbiana County know what it was getting into when it leased the land to WTI?

Under Federal law both the operator of a hazardous waste facility and the owner of the land on which is is built may be held responsible in the event of accidents or contamination. Was the Columbiana County Port Authority aware of these liabilities when they leased the land to WTI? Probably not, because the lease they signed with WTI appeared to release them from any liability. On page 5 of the 6-1-81 Lease Agreement between the Port Authority and WTI “Liability” is defined: “Lessee [WTI] shall indemnify and save harmless Lessors [Port Authority], its officers and members of its Board from any and all liability of any nature whatsoever as a result of Lessee’s construction, maintenance, use or tenancy of the Premises. During the term of the Lease, Lessee shall, at its sole expense, maintain general public liability insurance for the benefit and protection of both Lessor and Lessee in an amount not less than Two Hundred Fifty Thousand Dollars ($250,000.00) for injuries to any one person and not less than One Million Dollars ($1,000,000.00) for injuries to more than one person arising out of any one accident or occurrence, and for damages to property in an amount not less than Five Hundred Thousand Dollars ($500,000.00).”

In 1992 the US EPA Region V illegally added the Port Authority to WTI’s permit without the Port Authority’s request or consent.
When the Port Authority found out that they were going to be added as a co-permittee with WTI for one of the largest hazardous waste incinerators in the U.S. they tried to keep their name off the permit. In a 1-30-92 letter to US EPA Region V Attorney Zusman, from the Attorney for the Port Authority, J. Michael Kapp wrote: “...In response to your letter, dated December 20, 1991, concerning the proposed modification of the present U.S. EPA - WTI permit wherein the U.S. EPA proposes to now re-issue the permit to the Columbiana County Port Authority as Co-Permittee...It is the reasonable position of the Port Authority that, if at the time of the original application, the U.S. EPA believed that the Port Authority should have been named as a Co-Permittee or could have been named as a Co-Permittee, under law, such request to the Port Authority would have been then and there made. Waiting almost a decade is simply too long to now suggest to the Port that it should be named as Co-Permittee. The Port trusts that you will closely review these comments in light of the U.S. EPA’s past history in this matter and will conclude along with the Port that such December 20, 1991, suggestion is not fair, right or warranted, both in fact and law.” On 2-3-92 the US EPA Region V added the Port Authority to WTI’s permit as a co-permittee. 2-24-92: Port Authority does not want to be a co-permittee - agrees to petition US EPA. A Port Authority Board Meeting approved a resolution to petition US EPA “to review the condition of the permit decision that added the Port Authority as a co-permittee.”

For more information: Terri Swearingen 304-387-0574; Connie Stein 304-232-4083; Alonzo Spencer 216-385-4584; David Deakyne 412-573-4845; or the Tri-State Env.Council, PO Box 76, Chester WV 26034.

WASTE NOT # 184 A publication of Work on Waste USA, published 48 times a year. Annual rates are: Groups & Non-Profits $50; Students & Seniors $35; Individual $40; Consultants & For-Profits $125; Canadian $US45; Overseas $65. Editors: Ellen & Paul Connett, 82 Judson Street, Canton, NY 13617. Tel: 315-379-9200. Fax: 315-379-0448.