On the morning of Sunday, July 22, 1990, residents of Hilo awoke to news of a chemical spill that was causing traffic to back up along Kalaniana`ole Avenue, the main road extending along the southern shore of Hilo Bay through the community known as Keaukaha. According to reports, about 4,000 gallons of a wood-treating chemical containing copper, chromium, and arsenic had drained from a lumber treatment yard owned by Hawai`i Planing Mill.
It was two years before the spill made the news again. On July 15, 1992, the Hawai`i Tribune-Herald reported, in an article by Dave Smith, that some 250 cubic yards of contaminated soil and pavement were buried, under the supervision of county Civil Defense workers, at the Hilo landfill. According to Smith, the officers on the scene “were initially reluctant to talk to a reporter, saying they wanted to avoid negative publicity for HPM.”
The county’s efforts to protect HPM from bad publicity were successful. Over the last five years, nothing further has been written about the matter, despite the county having spent tens of thousands of dollars in the effort to win the Environmental Protection Agency’s after-the-fact approval of the waste burial, and countless thousands more to repave the streets and fill the shoulders that had been excavated in the wake of the spill.
So why did the County of Hawai`i assume so much responsibility for dealing with the waste and repairing the harm it caused to public property?
According to county Civil Defense Director Harry Kim, the county should have done even more than it did. In an interview with Environment Hawai`i, Kim said, “My disappointment to this day is that I honestly felt we should have paid for the whole thing.”
An Open Door To Mayhem
The spill began in the evening of July 21. A worker at HPM’s lumber-treatment facility on Kea`a Street left without securing the door of a pressurizing tank, or retort, which contained lumber that was to be treated overnight. Bright green liquid — between 2,500 and 4,000 gallons of it, HPM estimated – began flowing from the tank, across the asphalt of the parking lot and north in the drainage along Kea`a Street. Where Kea`a intersects with Kalaniana`ole Avenue, the liquid made a sharp left turn, continuing west along Kalaniana`ole for about 200 yards. In front of the Suisan fish warehouse, the liquid pooled in a 10-foot-deep, cement-lined sump. An unknown quantity of the spilled liquid seeped through a partly plugged drain at the bottom of the sump, traveling under the road and draining, finally, into a private fish pond that opens onto Reed’s Bay.
At 7:45 Sunday morning, a worker starting his shift at HPM’s Kea`a Street facility immediately noticed the open pressure chamber and the stream of chromated copper arsenate (CCA) flowing from it. He tried to contain the solution with sandbags, but, augmented by steady morning showers, the liquid was impossible to contain. The worker ran across the street to the Waiakea Fire Station, requesting help.
Fire Department personnel tried to control the spill, but had no better luck. They alerted appropriate authorities, including the state Department of Health and the Hawai`i County Civil Defense office.
Harold Matsuura, the state Department of Health’s chief sanitarian for Hawai`i County, reported the incident to the DOH’s Hazard Evaluation and Emergency Response office at 10 a.m., and by 1 p.m., Jeff Klein of HEER was touring the site with Civil Defense administrator Harry Kim.
Although HEER was the agency that had regulatory oversight responsibility, as the Environmental Protection Agency’s designate, Kim effectively took over day-to-day management of the spill response.
In HEER project report files, Klein wrote of seeing a “large sump hole next to the highway full of several thousand gallons of water that is reportedly contaminated by CCA.” He recommended that HPM take samples along the ditch next to the roads to determine the levels of heavy metals in the soil. HPM hired Brewer Environmental Services as their environmental consultants the day of the spill.
HPM, with Kim’s assistance, borrowed a vacuum truck from the county’s Division of Wastewater and collected as much liquid as they could with that. The liquid was returned to a tank at the facility, for reuse in the wood-protection process.
Off-duty workers from HPM were called in to help clean up the sawdust that had been used to soak up puddles. Arlene Kabei, then director of the state Department of Health’s Solid and Hazardous Waste Branch, instructed them to triple-bag and store the sawdust on site until it could be tested for landfilling. About 70 bags were stored under a roof in an open-sided section of the Kea’a Street facility. HPM also contacted Unitek to help absorb the spill with clay adsorbents, which filled four 55-gallon drums that also were stored onsite.
Kim ordered Kea’a Street cordoned off with cones, yellow tape and barricades in preparation for the Monday morning arrival of officials from the federal Environmental Protection Agency.
Klein was told by Kim that some dead shrimp had been seen in the private pond across Kalaniana`ole Avenue from the sump. Klein and Matsuura saw none dead, but quite a few swimming around. Later, Klein wrote that he talked to the pond’s owner, Herbert Ikeda, who said no shrimp had died, but that they were acting funny. He said usually the shrimp hid during the day, so the fact that they were so visible indicated something amiss.
High Levels
Test results from soil samples taken the day of the spill show arsenic levels as high as 1760 milligrams per kilogram (parts per million), chromium at concentrations of 2560 mg/kg, and copper at 1290 mg/kg. Minimum state requirements for arsenic had been set at 25 mg/kg, chromium at 125 mg/kg, and copper at 200 mg/kg. HEER instructed HPM to remove the contaminated soil, put it in drums, and run toxicity tests to help determine the best disposal method.
Brewer took more samples to see if further rain had diluted the solution in the soil, driven the metals deeper into the soil, or spread them farther afield. Results from samples taken in the same areas as the first showed the same high concentrations, leading Brewer to conclude the solution had not migrated, but that the soils along the road and the sump were definitely contaminated.
From the outset, Civil Defense officials seemed keen on helping HPM limit its clean-up expenses. The first written suggestion of this appears in notes of a September 26, 1990, meeting, attended by Civil Defense personnel, HEER representatives, and Mike Fujimoto, vice president of HPM.
The notes were made by Wendell Hatada, a Civil Defense employee whose detailed logs, over two years, provide a thorough record of Civil Defense’s involvement in the spill response and follow-up action. The very first item of business in the meeting, run by Civil Defense, was to inform “DOH and Mike [Fujimoto] that the goal is to stay within the law yet minimize cost for HPM.”
Phase II: Holding Action
On August 3 and 4, two weeks after the spill, about 100 cubic yards of soil and gravel was back-hoed from the HPM yard and along the 500 yards of roadway the flow had traveled. The contaminated soil was placed in plastic-lined plywood boxes kept in the HPM yard. Each box was 12 feet by 12 feet and 2 feet deep. The base of each box had 10-millimeter-thick sheets of protective plastic sheeting — known as visqueen – folded five times on top of the plywood base. Over the visqueen lay more plywood on which rested the soil, topped with 6-millimeter visqueen and a blue, plastic tarp.
More samples were taken from the previously tested areas, and two areas still showed high levels of contamination: in front of the Toyota Parts entrance and near the fire hydrant closest to HPM. A week after the first big excavation, still more soil was scraped from these two sites.
Because CCA cannot be seen or smelled when it enters soil, the only way to test how much remains is to continually take soil samples and test them. Each time Brewer tested the soil, the results came back showing levels higher than background levels in nearby, unaffected soil. And so, more and more soil was excavated. Altogether, HPM went through about 10 soil removal cycles.
A Plan Takes Shape
In August, HEER began noting difficulties in dealing with Kim, whose agency had been made the lead responder in the case. Fujimoto told Klein he felt that Kim’s involvement was slowing things down. Klein, his notes show, told Fujimoto that, regardless of Kim’s involvement, HPM would remain responsible for any violations and for all costs of the clean-up. At Klein’s suggestion, Fujimoto hired a contractor to develop more detailed clean-up plan: Jennifer Kleveno of Brewer.
Mike Cripps, the HEER State On-Site Coordinator who began work on the incident in 1991, explained to Environment Hawai`i that if someone accepts responsibility for a hazardous spill, as Fujimoto did, HEER wants them to take all the action under HEER’s supervision and with HEER permission.
“We give them a chance to be Americans and do it their way,” Cripps said. He stressed, however, that it is all done under HEER guidance, so that if something is not progressing correctly or in accordance with regulations, HEER will step in and try to steer them on the right course.
“We want it to be educational,” he explained, “to let people solve their own problems. If we just do it, no one learns anything. This way everyone is learning about the environment and environmental laws. The process involves the responsible party, but doesn’t set them adrift.”
On August 20, 1990, Kleveno of Brewer, Mark Ingoglia, manager of the HEER office (an office so new as not to yet have state-formalized administrative rules), and Klein met to discuss the spill. Ingoglia made it clear that, should the clean-up plan involve ultimately disposal of the excavated soil in a public landfill, the soil would have to be treated to the point that it contained levels of contaminants no higher than background levels before this could occur.
In a follow-up letter dated August 23, Ingoglia repeated this requirement: “The contaminated soil from the spill site without satisfactory treatment is unacceptable for solid waste landfill disposal in Hawai`i.”
HEER and HPM eventually agreed on an approach to the clean-up that required HPM, by September 21, to report fully on all it had done to date (sampling, excavation, etc.) and to deliver to HEER by December 25, 1990, a final remediation plan. The schedule was set out in a letter dated September 12 from Ingoglia to Fujimoto, which recapped agreements made during a meeting of the same date attended by Fujimoto, its consultant, and HEER.
The letter was business-like. After setting forth the deadlines, Ingoglia concluded, “If these documents are not provided with sufficient context and by the prescribed dates, the Office of Hazard Evaluation and Emergency Response will formally refer this case to the United States Environmental Protection Agency’s Region IX Emergency Response Section.”
Dissension
On the prescribed date, September 21, the first report was delivered to HEER, and Brewer and HPM were well engaged in developing the longer-term remediation plan.
On September 27, Hatada’s log indicates that Fujimoto “has the plan and would like to … hand carry it to Harry [Kim] and personally discuss it with Harry.” The meeting was set for October 1, at 8 a.m.
At that meeting, Fujimoto apparently gave Kim a copy of the September 12 letter, which Kim had not seen. On October 4, Hatada wrote that Kim “is pissed” over Ingoglia’s letter. Kim, Hatada wrote, instructed Hatada to call Ingoglia’s office and let Ingoglia know that in the future, Kim “will see governor” if any more letters “of a threatening nature” are sent to HPM.
One of the concerns of HEER was that HPM and Brewer had not sampled the shallow fishpond across Kalaniana`ole Avenue from the sump where the CCA had collected. In November, Ingoglia arranged with Brewer and HPM to have samples taken from the site. Fujimoto called Kim to ask for assistance in arranging the permission of the landowner to do sampling.
According to Hatada’s log, Kim was once more “pissed for them [state] not keeping CD [Civil Defense] informed.” Once more, Hatada was instructed to relay the message to HEER, which then promised to “keep CD informed as best as can.”
Shifting Deadlines
In November and December, HPM and Brewer continued to excavate and sample. At a meeting on December 6 at the HEER office in Honolulu, Brewer and HPM indicated that the soil removal process would be completed by early January 1991. “The final disposition of the removed material was also discussed,” HEER staffer Mike Nalipinski wrote in his account of the meeting. “HPM indicated that they did not own the property [the wood-treatment yard where the material was stored]. Therefore, final disposition of the material at HPM’s facility would be difficult due to potential liability issues.” The fee-simple owner of the land leased by HPM is Bishop Estate.
By mid-December, it was apparent that the deadline for the remediation report would not be met. HPM sought, and received, permission from HEER to submit its report two to four weeks later. On February 4, 1991, it finally arrived at the HEER office.
The report outlined several remediation options, most of which were dismissed as inappropriate, unproven, or useless for the particular type of wastes stored at HPM’s yard. Just three types of treatments were regarded as potentially effective: immobilization of the contaminants using ion exchange; immobilization by solidifying the waste; and extraction — basically, trying to wash out the contaminants from the soil through acid rinses.
However, according to the report, prepared by Brewer Environmental Services, the immobilization technologies would be of limited value, since, according to leaching tests that had been performed on the waste, the contaminants in their present state were not highly susceptible to leaching. For the same reason, removal of contaminants through the extraction process would also be of questionable value, while it would also require use of large quantities of sulfuric acid or other agent. HPM could reuse the sulfuric acid in its wood treatment process, Brewer noted. Still, it estimated the cost of extraction to be $408,509.12. Treatment with either type of immobilization technique would cost about $48,000. The cost of landfilling the waste without treatment, however, was pegged at just over $5,000. (Attached to the report was a list of expenses already incurred by HPM. For the first six months of spill response, the company claimed to have spent $63,480.79.)
Questionable Costs
For the next several months, personnel in the Department of Health reviewed the report. Arlene Kabei, then head of the DOH Solid and Hazardous Waste Branch, suggested that the contaminated soil “be treated at the site and the treated soil be reapplied at the facility.” The contaminated soil, she said, did not exhibit leaching characteristics that would make it regulated under the federal Resource Conservation and Recovery Act, which governs hazardous waste. On-site treatment could be done with the extraction procedure, as outlined by Brewer, she wrote.
Taking exception to Brewer’s description of the process, Kabei noted there was no need “for the large quantities of sulfuric acid as stated in the cost estimate. It is a relatively simple process… We suggest a revisiting of this alternative and the development of a new cost estimate…Please also note that the cost estimate did not take into consideration that the acid water may be reused in the wood treating process… Cost of testing seems to be excessive as well.”
Other advantages to dealing with the soil on site included the fact that liability “will stay with the facility” and that, since the facility was already regulated as a hazardous waste generator under RCRA, there was a built-in guarantee that “any contamination that affects the environment will be removed at closure, including any residual contamination from the treated soil.”
Kabei closed her letter with “an additional comment: Cost estimates seem to be tilted toward land disposal. I suggest requesting supporting documents for all alternatives listed.”
Outstanding Issues
Even after the report was submitted in February, questions lingered over what to do with the sump area, where levels of arsenic were still higher than federal regulations allowed.
In April, following extensive discussions among all parties involved, the Department of Health decided that HPM should make one last effort to dig up contaminated soil from the sump area. As Deputy DOH director Bruce Anderson wrote to Fujimoto on April 11, the removed soil “should then be included with the final remediation for the soil already stored at your site.”
“This will be the final removal of the sediment requested by DOH,” Anderson wrote, “and should result in adequately eliminating the contamination from the sump” resulting from the July 1990 spill.
The excavation occurred on April 26.
At that point, with removal of the last of the contaminated soils from the off-site areas, Civil Defense’s reason for involving itself in the spill clean-up ceased to exist.
But its involvement was only beginning.
‘Just Dump It’
On April 26, 1991, Bruce Anderson again wrote to Fujimoto, this time to give him the state’s recommendations for the disposal of the contaminated soil. The Department of Health, Anderson said, preferred to have HPM solidify the soil and leave it on-site. He suggested using the resulting concrete to create a berm around the facility to prevent another accident, using it to raise the level of the parking lot, or placing it in a hole dug on-site. But, Anderson continued, “DOH realizes the space restrictions caused by these on-site disposal alternatives, and as an alternative we would allow the material to be placed in a sanitary landfill if it were solidified or encapsulated either before or at the time of disposal.”
Anderson also warned Fujimoto that although the contaminated soil wasn’t considered a hazardous waste under RCRA at that time, it would be on June 6, when a new RCRA ruling would add the chemicals used in wood treatment to the EPA’s list.
“After June 6, 1991,” Anderson wrote, “the total quantity of CCA contaminated soil would then have to be treated and/or disposed of as a RCRA hazardous waste. If the contaminated soil is disposed of before that date, it is not subject to regulation.”
Still, he went on to say, “because of the lateness (of our response), the Solid and Hazardous Waste Branch will not pursue enforcement of the new RCRA ruling as long as it is apparent that HPM is proceeding with good faith.”
Fujimoto did not reply to Anderson. Instead, he and Harry Kim apparently decided to develop their own waste disposal plan, which, for all practical purposes, kept both the Department of Health and the Environmental Protection Agency in the dark.
Unilateral Action
On May 9, 1991, Fujimoto of HPM and Kim and Hatada of Civil Defense conferred. According to Hatada’s notes, all three were puzzled by the Department of Health’s requirement that the contaminated soil be treated as hazardous if were not regulated as hazardous waste at the time. As an outcome of that meeting, it was decided that Civil Defense — that is, Harry Kim — would negotiate with the EPA and the state on the disposition of the 322 cubic yards of stored material: “goal is to just dump it in landfill,” Hatada wrote.
June 6, 1991, the date when the CCA-contaminated soil became regulated as hazardous waste under federal RCRA laws, slipped past with no mention in the county log of any action by HPM.
However, on June 12, Fujimoto called Hatada to ask what to do with the boxes in his yard. He didn’t want the state to think he was causing a delay. Hatada assured Fujimoto that Civil Defense would make see to it that the state wouldn’t blame HPM. In a letter sent out that same day to Ingolia of HEER, Kim wrote: “This is to inform you that the Hawai`i County Civil Defense Agency is working with HPM to review all of the possible available alternatives to dispose of materials collected from the accidental spill. I will contact you shortly to arrange a meeting to review this alternative and, hopefully, come to an agreement on methods of disposal acceptable to the Department of Health and EPA regulations.”
Again, on July 17, Fujimoto again expressed concern about not having dealt with the stored soil before the June 6 deadline. The EPA had recently expressed to him its concerns about his methods of shipping hazardous waste to the mainland; Fujimoto was worried that if they came down for a standard inspection, he might run into problems. He told Hatada that he would like to proceed with burial of the waste in a concrete capsule, if a suitable area in the landfill could be designated.
At Kim’s instruction, Hatada told Fujimoto that Kim was trying “to negotiate to even minimize the cost of burying in the concrete coffin.” In addition, Hatada told Fujimoto that the county would “take full responsibility for the ‘non-compliance,'” and that should any state or federal official question HPM, Fujimoto should “immediately refer them” to Civil Defense.
Green Light
By August 1991, Kim had decided on a way of addressing HPM’s desire to remove the stored material from its lumber yard by having it stored — temporarily, at least — in the Hilo landfill.
The idea was presented to the state and the EPA. Both expressed initial agreement, but wanted to know details. If the waste would be wrapped in a geotextile cloth, as the EPA suggested, how long would that last? the DOH wanted to know. (If the expected life of the wrapper was shorter than the expected remaining life of the landfill, that would be a problem.) Kim informed the state, based on information he himself was provided by the Public Works Department, that the landfill would close in two years — i.e., by 1993. The geotextile cloth was expected to hold up at least three years, according to its manufacturer.
Also, both the DOH and the EPA wanted to approve in advance the specific location where the burial would occur.
Despite the conditional nature of the approvals, Civil Defense notified Fujimoto on September 19 that (according to Hatada’s logs), “Fed., St., Cty. have all agreed that material can be disposed in County landfill — county has accepted it.” Civil Defense was negotiating with Public Works “on exact site.”
Although the arrangement had been presented to the state and the EPA as a temporary solution, by September 23, Kim had apparently decided to negotiate to “make disposition permanent & final, not temporary.” Fujimoto’s response on hearing this, Hatada writes, was “Great!”
The EPA Balks
In November, Kim wrote to the EPA, attempting to get it to sign off on his plan. Brad Shipley, the EPA’s on-scene coordinator, responded on November 14. He included a copy of a letter he was sending the same day to HEER, describing the specific information he would need before EPA could sign off on the plan. In a cover letter to Kim, he wrote: “I appreciate the responsible and cautious manner that you and Mike Fujimoto have demonstrated… Please insure the requested information is provided expeditiously so that a resolution for this case can be achieved in the near future.”
In the letter to Ingoglia, Shipley wrote that he understood that HEER was the lead agency directing HPM. He reaffirmed that EPA’s role would continue to be to provide technical support. He wrote that he would not approve HPM’s work plan without first consulting with HEER.
Shipley’s problems with Kim’s proposal included the lack of a specific location for the impoundment, confirmation that the landfill closure plan would include monitoring and containment of the leachate, and a missing diagram of the impoundment design.
An End to Waiting
On January 22, 1992, Kim sent Shipley the revised work plan including a general map and containment design. Kim assured Shipley that the liner would last longer than three years, and that the new engineering design called for a second liner to close the top of the impoundment before the final covering.
A month later, with Civil Defense not having received a response, Hatada phoned Shipley. Shipley reminded Hatada that final approval still had to come from the Department of Health. In addition, he said, since HPM’s soil was now a RCRA-listed hazardous waste, the state might not allow it to be landfilled. Finally, he urged that the county await a formal letter from the EPA before taking any action to move the waste.
By April, there was still no letter from the EPA. On April 2, 1992, Kim drafted yet another letter to Shipley requesting a decision. But the letter was never sent. A note on the bottom of the letter, in Hatada’s writing, states that, “Per CD-1[Kim], hold off on sending this letter — will just go ahead and landfill the material.”
Four days later, Kim gave Fujimoto the go-ahead to order the geotextile liner and begin preparations to move the waste. In a formal authorization letter, Kim wrote: “We would like to apologize for the inconvenience, cost and delays that the governments’ bureaucracy has imposed upon you for almost the past two years. We hope that this solution will finally take a burden off of you which government has made you carry since June [sic] of 1990. Upon final burial of the material, HPM is resolved [sic] of any further involvement regarding the disposition of the material.”
That same day, Kim signed a work order to the Department of Public Works to “commence and complete” the operations to landfill the waste materials from HPM.
Final Burial
On June 22, 1992, Public Works engineer Larry Capellas informed Hatada that the site designated in the plan submitted to the EPA could not be used, for reasons that are not set forth in Hatada’s notes. (That site lay just outside the southwest corner of the landfill, near Hawaiian Homes farm lots.) Capellas asked Hatada if it would be all right simply to place the waste in the existing landfill. Hatada said that was fine. He then asked Kim if they had to redo and resubmit the drawing to EPA or anyone else. Kim said no.
The Solid Waste Division did not dig the trench using county labor, but hired Kiyosaki Tractor Works to do the work. Once more, the chosen site was not usable (it turned out to be underlain by solid rock), and a third site was chosen. By Friday, July 10, the trench was completed.
On Saturday, county workers from the Highway Division provided laborers, a supervisor, and vehicles to take the geotextile liner from its storage place at Solid Waste and deliver it to the trench. Highway workers were also used to lay the liner in the trench, in preparation to receive the first load of waste, which arrived at 10 a.m. HPM hauled until 4:30 pm when the landfill was locked. By 2:30 p.m. Monday, the transfer was completed, and at 3:15, county workers began covering the encapsulated waste with a back hoe and a bulldozer.
The next morning, as work was nearly completed, Dave Smith from the Hawai`i Tribune-Herald turned up at the site. In an article carried in the next day’s paper, he reported that the state health officials who were supposed to oversee the process were not told of the actions. Hatada was quoted as saying he didn’t want the disposal to be made public and that, in any case, all federal regulations were being followed.
On July 20, 1992, Hatada, Kim and Mike Cripps of HEER conferred by telephone to develop a strategy to dealing with the media. They all agreed to state, if further media inquiries were made, that HPM had followed all regulations and recommendations, and that Civil Defense made an administrative decision to relieve HPM of their two-year responsibility.
Last Rites
Six months passed before the state was officially notified by Kim of his “administrative” decision. On January 22, 1993, Kim wrote a short letter to Steve Armann, acting director of HEER. “Disposition of the HPM material … was carried out as designated in the memo of January 22, 1992, to Brad Shipley of the U.S. Environmental Protection Agency. As you may be aware, some problems did occur in coordination because I failed to notify your office on the time table of the disposition.”
In a development not explained fully by public records, Civil Defense dropped out of the picture and the county’s efforts to get square with the EPA and state were turned over to Jay Sasan, county industrial safety coordinator, within the Department of Public Works.
After several months of inaction, Sasan requested after-the-fact approval from the state for the county’s decision to receive the HPM waste. Bruce Anderson, deputy director of health, notified Sasan in August 1993 that there remained “outstanding questions,” most of which related to the fact that, after June 6, 1991, CCA wastes were regulated under RCRA and, as such, generally not allowed to be buried in sanitary landfills.
In November 1993, Sasan received a definite answer from the EPA to his request for permission to landfill the waste. According to a letter from Jeffrey Zelikson, director of Hazardous Waste Management Division for EPA Region IX, the RCRA listing of CCA-contaminated waste made disposal of the soil in the landfill unacceptable.
Cripps of HEER concurred with this assessment, and on November 30, 1993, he explained his concerns to Anderson: “The contaminated soil which has been illegally disposed of in the Hilo solid waste landfill contains heavy metals (chromium, arsenic and copper) that are in a soluble form and very mobile. The geomembrane is invariably breached because of the materials’ [i.e., the membrane’s] construction limitations. There exists a significant potential for impacting the quality of groundwater and further contamination of solid wastes in the landfill.”
He proposed that the soil be washed, the volume of contaminated soil reduced, and then the reduced waste be shipped to the mainland for ultimate disposal. Wood-treatment solutions contain arsenic and chromium in soluble form, Cripps noted. This means that once in the soil, they would have increased mobility in comparison to their elemental forms. He warned that the arsenic ions that exist in solution could pass through the geomembrane to the soils below and perhaps to the groundwater.
But within weeks, Cripps had changed his mind. As he outlined it to Anderson in a memo on January 11, 1994, he was now recommending that the soil be removed and shipped as-is to a licensed hazardous waste landfill. The cost of this option, he had found, was $153,500, while the treatment he had recommended would have cost $283,000.
Cripps’ assessment was confirmed on March 16, 1994, when Harding Lawson Associates, under contract to the County of Hawai`i, released the “Operation Manual for the South Hilo Sanitary Landfill,” required by the state. Appendix H of the manual concerned “Disposal Options for CCA-Contaminated Soil.” Because of costs, the approximate time required for disposal of the soil, and the expected closure date of the landfill (October 9, 1996), HLA recommended, like Cripps, that the soil simply be excavated and transported to a licensed hazardous waste landfill.
Political Plays
At this point, the issue of the contaminated soil reached the political arena. On February 11, EPA Regional Administrator Felicia Marcus received an inquiry from U.S. Representative Patsy Mink, on behalf of Mayor Stephen Yamashiro, seeking clarification for EPA’s decision requiring excavation of the CCA-contaminated waste.
On February 22, she received a similar inquiry, again on behalf of Yamashiro, from Senator Daniel Inouye, and, on March 7, yet another inquiry, again on Yamashiro’s behalf, from Senator Daniel Akaka.
Kim takes full credit for involving elected officials, especially Yamashiro. He told Environment Hawai`i that it was he who went to the mayor and got him to agree that the situation needed to be resolved. By doing so, Kim said, he forced the state to pick up its pace of dealing with the county. “The delays stopped when the state saw his [Yamashiro’s] involvement,” Kim said.
Marcus responded to the congressional inquiries with virtually identical letters, all dated March 24, 1994. Marcus explained to the congressional delegation that, since the county was not licensed to receive RCRA-regulated waste – and could never hope to be — it could not legally receive the waste. “The only other option possible under RCRA for this waste would be for the county or HPM to petition EPA to ‘delist’ the waste,” Marcus wrote. However, she was not encouraging on this point: “Information available on the waste characteristics indicates that this waste would not meet the standards for such a delisting. Moreover, the delisting process, which requires formal rule-making, is a protracted one, and could be expected to take over a year.”
Stall-out
On October 13, 1994, Marcus wrote Akaka once more, this time in reference to an inquiry he had made on behalf of Richard Wurdeman, corporation counsel for Hawai`i County.
She wrote that she had requested that the soil be excavated and properly disposed of in a hazardous waste landfill on the mainland.
“The Agency believed it was working cooperatively with the County in drawing up a plan to properly dispose of this waste,” she wrote. Hawai`i County had agreed in November 1993 that it would send the EPA a workplan. It did not. Instead, Marcus wrote, it “let EPA know by letter that it will not proceed with proper disposal without legal action by EPA. EPA still believes that the soil must be moved and is currently reviewing this matter to determine the appropriate way to proceed.”
On November 25, 1994, Kiyosaki received a letter from Latha Rajagopalan, enforcement officer for EPA Region IX, following up on recent conversations between the EPA and the county. She proposed a schedule that included having HPM and the county reach an agreement on their respective responsibility for this disposal, and then, by December 15, 1994, make a written commitment to meet these responsibilities. Next, a month later, they had to submit a final workplan.
Fujimoto decided he wanted to see if Rajagopalan would agree to a delisting process. He asked Kiyosaki how much the county would be willing to pay toward the disposal. Kiyosaki responded that she didn’t want to pay anything.
“However,” she wrote Wurdeman and county Managing Director Bill Davis, “I did leave the door open for limited negotiation. Mike brought up the fact that he had a letter [from Civil Defense] saying that HPM was absolved of future liability and I told Mike that we didn’t believe Harry [Kim] had the authority to make such a statement.”
In any event, within months, the county had agreed to hire the consultant selected by HPM to attempt to delist the waste. HPM and the county would share the consultant’s charges, with the county agreeing ultimately to pay $37,950. (This was slightly more than the consultant’s estimated cost of $71,700.) In June, it signed a no-bid contract with the consultant, Turner/Maclane, owned by Kati Neidig of Hayward, California.
Hide and Seek
One year after Turner/Maclane became involved, the county, state, and EPA had agreed to run tests of the buried soils, as a step toward delisting. But there were problems, as the company doing the tests wrote in its report: “It was expected that one to two days of backhoe work would be sufficient to remove the anticipated volume of overburden from the Unit. The overburden included rubbish and landfill cover material… Due to changes in the landfill topography in the area of the Unit, a greater level of effort was needed to locate and delineate the Unit… The location and condition of the Unit varied from the expected site conditions.” In other words, the county had lost track of the CCA-contaminated waste.
It took the testing company 19 days to locate and uncover the trench. Samples were taken, at last, on March 19 and 20.
In all the samples, copper and lead were present in concentrations far below EPA’s residential Preliminary Remediation Goals (PRGs). Chromium concentrations in three samples passed muster. In one sample, though, chromium levels exceeded the PRG for residential areas, but were still less than half the far more liberal PRG for industrial areas.
However, arsenic levels far exceeded any PRGs. In fact, the mean of the concentration in tests of samples from all four areas was 131.8 ppm, or nearly 350 times the residential PRG of 0.38 ppm and 55 times the industrial PRG of 2.4 ppm.
To continue the delisting process, then, Turner/Maclane sought to show that these high arsenic levels were on a par with the so-called background levels of arsenic found elsewhere in Hilo. If this could be shown, Turner/Maclane could argue that the landfilled arsenic posed relatively no greater danger — and perhaps even far less — than arsenic that existed elsewhere in the Hilo environs.
The Waiakea Mill Pond provided Turner/Maclane with exactly the sort of “background” numbers it needed. Dumping of tons of arsenic wastes by a canec mill had caused sediments there to be so contaminated (with arsenic concentrations reported as high as 6,370 ppm) that fears of stirring it up caused consultants to recommend leaving it alone.
Most of the sites (Waialoa River, Waiakea Mill Pond, and Hilo Bay) used by Turner/Maclane for comparisons were not only highly polluted — to the extent that some were considered for Superfund listing — but were also at least a mile and a quarter from the spill site and the landfill. The actual arsenic contamination of sites in the more immediate area of the spill, as established by some of Brewer’s earlier background studies, was found to be 31 ppm for arsenic (which is itself nearly 13 times the industrial PRG).
A subconsultant also tested the samples for the possibility that the hazardous chemicals might leach into the groundwater that lies about 75 feet below the surface. The standard EPA test used for this is called the TCLP (toxicity characteristic leaching procedure). The results of this test, Turner/Maclane reported, showed that the leaching potential for all the heavy metals were one to two orders of magnitude below the regulatory threshold for hazardous waste.
‘Finally!’
The approach of Turner/Maclane might have been scientifically dubious, involving as it did the claim that sites known to be heavily polluted could be used to establish “background” levels for arsenic. Still, the EPA, which by this point seemed as eager as everyone else to bring the whole episode to a close, accepted the proposed “delisting.”
On February 14, 1997, Fujimoto received a letter from Richard E. Vaille, chief of the compliance branch of EPA Region IX, informing him that “EPA has determined that CCA contaminated soil generated at HPM and stored at the Hilo Landfill poses no threat to human health or the environment, and can be left in place.”
But, Vaille added, “This decision assumes that the landfill will be closed in accordance with all applicable regulations under Subtitle D of RCRA, including all groundwater monitoring requirements. This decision does not affect any decision regarding corrective action or remedial action at the landfill that may arise in the future.”
Anderson circulated his copy of Vaille’s letter around DOH offices with his own note at the bottom: “Finally!”
Reburied
A year and a half later, the waste has again been lost. According to former Solid Waste director Capellas, the material had been buried under 20 feet of refuse after the sampling and the county had surveyed the site so it could always be found again.
However, the new head Solid Waste, Walter Lucas, told Environment Hawai`i he has no idea where the waste is buried and could not find it during a recent tour of the landfill. When asked for a survey of the location of the HPM spill in the landfill, the county’s head surveyor, Ronnie Matsumura, said the survey itself was well buried and seemed loathe to try and find it.
Rajagopalan remains confident in the tests run and the decision made to leave the soils alone. “This is a permanent decision,” she said.
While Mike Fujimoto did not return calls from Environment Hawai`i, Harry Kim did. Kim said he stills feels embarrassed and responsible for the delays suffered by HPM. “My disappointment to this day is that I honestly felt we should have paid for the whole thing,” he said. “It was government that let down the private industry that was trying in every way to fulfill requirements. I take my hat off to HPM for their beyond-comprehension patience in dealing with a government that screwed them.”
Volume 9, Number 3 September 1998
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