'Hazardous' Dispute Flares Up in Kentucky

Regulators back away from closing a major incinerator even as a new allegation is raised about illegal waste disposal

HAZARDOUS waste incineration takes place at very high temperatures, and so does the accompanying public debate. But supporters and critics almost always agree that incineration ought to be accompanied by close regulatory monitoring to keep the process as safe as possible.Here in the small western Kentucky town of Calvert City, however, the practical reality of regulating a hazardous waste incinerator has been disagreeable and traumatic. Two years ago state regulators announced that they wanted to shut down Calvert City's LWD Inc., one of the 17 commercial hazardous waste incinerators in the United States. Now they say the case for closing the plant has "dissolved." As if a dramatic regulatory reversal wasn't enough to stir things up, a former LWD employee, Lynn Ray Hill, revived an old allegation about the illegal burial of hazardous material at LWD's incinerator site - and then suddenly died. Rumors of murder cropped up, but investigations have failed to uncover evidence of foul play. Even so, environmentalists held a vigil on June 25 at Kentucky's state capitol in Frankfort to mark Mr. Hill's passing and call for further scrutiny. Instead of engendering public confidence in the state's ability to oversee a controversial industry, the LWD case has bred cynicism and the belief, among the incinerator's critics, that government oversight is impossible here. "It just doesn't exist," says James Champion, a retired Marine lieutenant colonel and a local environmental activist. "The facility has never been properly regulated," adds Donald Harker, a former state environmental official who favored closing LWD. LWD's regulatory low moment came in September 1989, when Mr. Harker, then director of Kentucky's Division of Waste Management, announced he intended to deny the company an operating permit. Harker based his denial on a "past performance" rationale - asserting that LWD's president and owner, Amos Shelton Jr., should not be allowed to run a hazardous waste incinerator because LWD had illegally stored, treated, and disposed of hazardous waste in the early and mid-1980s. Harker also alleged that LWD failed to train its workers properly or maintain records according to law. "Operating a hazardous waste facility seems to demand the highest level of integrity and concern for the public health and welfare, and I would say nothing we've seen [at LWD] reflects that," Harker said in an interview at his office in Frankfort, Ky. He is now co-director of a private, nonprofit group, the Kentucky Local Governance Project. In early 1990, Harker was asked to leave his state job because of his strong regulatory stance, he says. But at least in the short term remaining regulators followed through; in September they ordered LWD to close its plant. LWD's lawyers went to court, asserting that the Kentucky Natural Resources and Environmental Protection Cabinet - which encompasses the Division of Waste Management - was on the verge of putting LWD out of business on the basis of allegations that had never been tested in a trial or hearing. Franklin County Circuit Court Judge William Graham agreed and prevented the cabinet from closing LWD. C. Christopher Trower, LWD's lead lawyer, denies that the company has acted illegally; he says LWD has pressed the state for more information about the alleged violations, but so far the cabinet hasn't been forthcoming. But recent comments by Kentucky's top regulator, cabinet secretary Carl Bradley, suggest the state is reversing its position on LWD. "We have seen that we jumped too far, with too few facts, and based on some erroneous assumptions two years ago," Mr. Bradley told a legislative committee in May. "Some of the ills we saw have been remedied, and some of the believed ills we saw turned out not to be such ills." The state's case against LWD, says John Nichols, the cabinet's deputy secretary, has "dissolved" because the people who gave information about LWD to cabinet officials now say they are unwilling to testify in a hearing or trial. Harker says confidential interviews with as many as a dozen former LWD employees led to the charges in the permit denial. One problem for the cabinet may be the recent death of Lynn Ray Hill. A 39-year-old Murray, Ky., resident, Hill worked at LWD for several years during the early to mid-1980s, according to his widow, Carolyn Hill, and brother-in-law, Steve Hutson. Hill died on Feb. 27, 17 days after giving an interview to the editor of Tell It Like It Is, a muckraking weekly newspaper published in Murray. According to editor Robert Harrell's notes, Hill sought a guarantee of anonymity and said: "There's over 5,000 drums of chemicals buried [at LWD] under the concrete floor of the plant, rather than being properly disposed of." A bulldozer operator, Hill claimed to have dug trenches where the drums were buried. (Tell It Like It Is has advanced the idea that Hill was murdered, but on May 24 the medical examiner for western Kentucky released an autopsy report saying the death was from natural causes. A state police detective and several reporters have investigated Hill's passing without turning up indications of foul play.) The timing of Hill's death, and the misperceptions about its cause, may have made it more difficult for the state cabinet to find former LWD employees willing to repeat their assertions about environmental problems at the incinerator plant. An investigator for the cabinet, Joseph Schmitt, confirms that "there has been recent activity" in the unsuccessful search for witnesses. Environmental activist Champion, who lives just north of Calvert City, interviewed a half-dozen former LWD employees two years ago in collecting information about environmental problems in the area. He says they didn't want the company to learn their identities. "There's deep-seated fear that permeates the fiber of this area about those places," Mr. Champion says, referring to LWD and several chemical companies that operate near it. Even though allegations about illegal on-site waste dumping at LWD have been around since the mid-1980s, Hill's comments were distinctive. Harrell's notes suggest Hill was able to name several of the chemicals he said he helped bury: "There's acetone, muratic [sic] acid, cyanide, tricloethene [sic], and a very lethal derivative from shoe dye." The two misspellings likely stand for muriatic acid, an industry label for hydrochloric acid, and trichloroethylene. Harker, the former regulator, says previous allegations of this kind have been blanket assertions about the large-scale burial of drums of waste. Some of the chemicals Hill apparently named also appear in the report of a 1986 investigation of the LWD incinerator site conducted by the US Environmental Protection Agency. "We know that there is soil and groundwater contamination at LWD," says Jeaneanne Gettle, an environmental engineer in the compliance section of the EPA's Atlanta office. The 1986 investigation showed the presence of acetone in two soil samples and one sediment sample from the site, and cyanide in soil, surface, and groundwater samples. Hill reportedly recalled burying both those chemicals. (Federal inspectors found a slew of substances on LWD property. In one soil sample, taken near the plant's cooling tower, they detected 48 organic compounds, 17 inorganic elements, a PCB, and cyanide, in varying concentrations.) The EPA decided these findings did not pose an "imminent substantial hazard," says spokesman Carl Terry, but did "warrant further investigation." The agency has ordered LWD to monitor and eventually decontaminate the site, and so far groundwater monitoring wells have indeed been installed, says Mr. Terry. Results are only available through a Freedom of Information Act request, he says. LWD lawyer Trower says the "releases" of chemicals found by EPA at the site may have come from a landfill on the property where various types of waste were buried from 1969 until its closure in 1985. He says chemicals could legally have been deposited in the landfill before November 1980, when the disposal of hazardous waste was regulated by Congress. "There's no question but that this old landfill was operated by a major chemical company [the site's previous owner] ... in the middle of a chemical comple x in an unregulated world," he says. But LWD never buried hazardous wastes in the landfill after regulation was imposed, says Trower, adding: "When the law changed, LWD changed." EPA spokesman Terry says the agency hasn't been able to determine when the site was contaminated. The Hill death has fueled a lot of rumor around Calvert City, but word of secretary Bradley's comments restarted the public discussion about the regulation of LWD. It's a sharply contrasting mixture of approval and cynicism. The Paducah Sun, the daily newspaper that serves the largest city in western Kentucky, said in an editorial that LWD, "long the favorite whipping boy of environmentalists and state officials sympathetic to their view, may have found vindication in" the secretary's statement. But environmentalists like Champion, the retired Marine, say the new view on LWD shows that "there's no ability inside of state or federal government to regulate industry. They had a case [against LWD] and they got rid of the case." Corinne Whitehead, another environmentalist who has long been critical of LWD and other industries in the Calvert City area, decries Bradley's position: "Kentucky's government, I hope, is the only one in the United States that rewards consistent violators with permits."

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