Introduction

In the following analysis, I intend to deconstruct the thinking behind regulatory frameworks of the EPA and NRC governing toxic, hazardous, and nuclear waste containment structures and to track its evolution and implications.

I intend to use this analysis so that EPA, NRC, and government officials may reflect upon their thinking and the implications of their thinking that authorize, legalize, and facilitate toxic, hazardous, and nuclear waste facilities which recycle waste back into the environment and contribute to the pervasive contamination of the globe.

I intend to show that to accept the regulations and the thinking behind the regulations is to abandon sound science, sound technology, sound reasoning, and common sense, as well as to preempt the Declaration of Independence and of the Constitution of the United states regarding unalienable and civil rights.

I intend to show that the thinking is nihilistic, even subversive and to show also that communities and regions targeted for these facilities have every right to defend themselves against what in essence is a contrived, delusional science goose-stepping its way into targeted communities and regions under the guise of so-called sound science and technology.

EPA’s Evolution of the Modern Landfill

In February, 1979, Deborah Ferruccio led a delegation of Warren County, North Carolina citizens to the Environmental Protection Agency in Washington, DC. The delegation wanted to learn the basis for changing the EPA regulation governing the distance between the base of a toxic waste landfill and groundwater, dropping the requirement from 50 to 5 feet. If  EPA kept the 50-foot standard, burying PCBs in the Afton community of Warren County, North Carolina would have been prohibited.

The 1979 regulatory changes governing the construction and location of landfills are as relevant today as they were then. The engineering design for landfills that EPA used to justify changing the 50-foot regulation to 5 feet is the same design used for modern landfills and for the radioactive waste encapsulation design reviewed in Section G of the Virginia Uranium Working Group’s Final Report.

Whatever might have been considered the merits of the conceptual engineering design from the theoretical point of view, the design has continued to fail in practice. And it is now common knowledge that the attempt to contain toxic, hazardous, and nuclear waste over time continues to fail, often with devastating and irreversible damage to the environment, natural resources, and public health.

Deborah taped the conversation involving the EPA officials and Warren County Citizens. The public officials participating in the meeting were Matt Strauss, Pete Principy, and Hal Snyder. I transcribed the tape.

The EPA officials began by explaining the origin of the 50-foot standard and then explained the reason for changing it: EPA found that in places where there are deep distances to groundwater and heavy clay “pans” between the base of a landfill and groundwater, containment of waste had a “pretty good track record,” so the 50-foot regulation governing the distance between the landfill’s base and groundwater had been chosen as a sort of “rule of thumb.”

But because east of the Mississippi, most sites wouldn’t have the intrinsic geological characteristics that would meet the criteria for approving sites for landfills, the engineering design of the landfill was expected to compensate for the absence of the heavy clay pans and deep distances to groundwater and to provide the same degree of safety provided by geological characteristics that could meet the 50-foot standard. It was expected that the proposed design would have “zero percent discharge,” meaning it wouldn’t ever leak. Of course, if it wasn’t going to ever leak, the distance between the base of the landfill and groundwater didn’t need to be 50 feet. It could be five feet, or even a foot under some circumstances.

 

EPA Waivers: Preemption of Environmental Rights

In the EPA’s Federal Register, the 5-foot regulation could be waived. The landfill’s base could come a foot from groundwater if the owner/operator of the facility could convince the EPA regional administrator that a leachate collection system could be installed between  the landfill’s base and groundwater and that there would be no hydraulic connection.

Such procedures for waiving regulations seemed to us to be completely scientifically unrealistic concerning the containment theory: A major toxic waste facility could come a foot from groundwater!

Could the waivers become discriminatory mechanisms and a message to governors to get landfill sites wherever politically possible? The procedures for waivers would ensure a sort of pseudo-scientific justification. Also, in North Carolina and throughout the South, “wherever politically possible” would probably mean in rural areas with high minority populations and small votes, such as was the case in Warren County, North Carolina.

EPA’s alleged reason for including procedures for waivers was that without regulatory “flexibility,” many sites where landfills were needed would be disqualified. Besides, state-of-the-art landfills were being designed not to leak. But what if they did?

It seemed to us that EPA’s regulatory framework would facilitate the preemption of environmental rights of targeted communities and even the rights of communities beyond the borders of targeted communities, since toxic, hazardous, and radioactive waste lasting in perpetuity could not possibly be kept forever within containment structures and geographical boundaries.

It should be noted that the same failed design has continued to be repackaged over time under different names but continues to fail. Whether called the Sub-D solid waste landfill, as implemented  in North Carolina and elsewhere across the nation in the 1990’s; or whether called a modern, or state-of-the-art, toxic or hazardous landfill; or a “best practices” radioactive waste encapsulation disposal facility, they all have one thing in common: the same failed design and the same failed components (leaking plastic and clay liners, clogged leachate collection systems, and ineffective monitoring wells).

North Carolina’s Waste Management Act (1981): Preemption of Civil Rights

While EPA was formulating a regulatory framework that would shift the site selection criteria for landfills from scientific to political considerations and therefore would preempt environmental rights of communities targeted for landfills, the North Carolina General Assembly was formulating the Waste Management Act of 1981 to preempt all civil rights of targeted communities concerning the siting of toxic, hazardous, and nuclear waste facilities. To summarize essential points of the Act: the governor makes the siting decision prior to public hearings; public hearings have merely a cosmetic function; all sovereignty rights of targeted communities concerning the siting of the facilities are preempted; and force is authorized as needed.

EPA’s State-of-The-Art Landfills Begin to Fail. Nevertheless, the State of North Carolina Uses Force to Open the PCB Landfill Site. Warren County Explodes. The Transformation of Environmentalism Begins.

Prior to 1982, the theory that the application of engineering principles could transform intrinsically inadequate or “marginal sites” into safe sites was tested in places such as New Jersey, where  Peter Montague of Princeton University found that four hazardous waste landfills had failed to meet expected performance criteria within a year of construction.

EPA stated in its Federal Register that all landfills will eventually leak and should be used only as a stopgap measure, and the EPA referred to targeted communities as sacrifice areas or sacrifice zones.

However, even though the consensus of the independent, unfettered scientific community was that the containment principle continues to fail and that all landfills leak, the state (backed by EPA’s regulatory framework preempting the targeted community’s environmental rights) and backed by the NC Waste Management Act (preempting the targeted community’s civil-rights) was preparing to open the PCB landfill site with force as needed. Since the Governor could not defeat the reasoning of Warren County citizens, he decided to attempt to defeat them by force.

Having kept our commitment to a 4-year research-based opposition to the state’s plan to bury PCBs in Warren County, having exhausted all possibilities of due process, and having no alternative left but civil-rights activism to defend the county, I spoke to citizens in the Warren County Courthouse the night before the forced opening of the landfill in September, 1982.

I stated the conclusions of the research, which I believed represented an accurate description of the reality confronting us, and concluded by stating  (1) that one cannot construct a moral argument for the proliferation of landfill technology without creating an ethic that would justify the destruction of the state, (2) that the state’s PCB plan could not meet the kind of criteria the people had a right to expect and (3) that therefore able, law-abiding citizens the next morning would be stopping PCB-laden trucks or would be in jail having tried.

For the next six weeks, as some 10,000 truckloads of PCB-contaminated soil converged on Warren County, whites, blacks, Native Americans, and national civil-rights leaders marched into history researched-based convictions in defense of Warren County’s and all future targeted communities’ environmental-civil rights. Civil-rights activism marched hand-in-hand with environmental concerns. The transformation of environmentalism had begun.

Although I had cautioned the state in December, 1978 that citizens would pursue due process first, then civil disobedience if the state attempted to bury PCBs in Warren County, the state nevertheless used approximately one million dollars worth of State Police and National Guard force to open the landfill four years later. The Duke Chronicle stated it was the largest civil disobedience in the South since Dr.Martin Luther King marched through Alabama. The EPA described the movement as a “watershed event.” As we predicted, the PCB landfill failed from the start.

With the advent of the environmental justice movement, it gradually became common knowledge that the containment principle continues to fail, recycling the waste  into the environment and contributing to the pervasive contamination of the globe.

 The position that waste lasting in perpetuity (sometimes hundreds of thousands, even millions of years,) can be kept in containment structures (solid and toxic waste landfills, double-tank systems, and radioactive waste encapsulation facilities, which continue to fail and recycle waste into the environment) defies reason, common sense, and democratic values.

NRC’s “Best Practices” Regulatory Framework: Contamination Inevitable, Legalized, Authorized, and Facilitated.

No Safe Disposal System: The Problem of Nihilism

Perhaps because of public knowledge that containment structures do not prevent contamination, or perhaps because of the need to attempt to sustain some measure of credibility for the nuclear industry, the NRC’s “best practices” regulations are explicitly and ironically premised on the inevitability of contamination while providing the dubious consolation that “radiological exposure to workers and the environment will be as low as reasonably achievable (ALARA).”

But this dubious consolation or promise is based on speculation concerning how much contamination is allegedly safe and therefore allegedly reasonable, and ultimately based on neither sound science, sound technology, sound reasoning, nor common sense, but on a promise to contaminate.

Therefore, because it is an inescapable historical reality and empirical fact that containment technology does not exist to support authentic safety regulations, the nuclear waste industry’s “best practices” emphasizes, instead, regulations that authorize, legalize, and facilitate pervasive and continuous contamination.

Maximum Contaminant Levels (MCL’s based on speculation concerning safe exposure levels) are authorized so that when the contamination occurs and litigation occurs, it can be argued that (1) contamination is in compliance with the regulatory framework, (2) that the license of the company should therefore continue even as the company continues to contaminate, and (3) that liability is not an issue since the contamination is within authorized and legal limits.  In other words, regulations are written to protect the companies, not the environment, natural resources, public health.

Clearly, there is no safe disposal system for toxic, hazardous, and nuclear waste. There never has been. The nuclear industry lost all credibility regarding waste management when it abandoned the position that radioactive and toxic waste could be contained and instead went to the ALARA standard, predicating the entire nuclear waste industry on a  promise to contaminate workers and environment “as low as reasonably achievable.”

Attempting to ascertain if there are safe exposure levels to various kinds of radiation by exposing workers to a radioactive environment over time may seem to be a good research idea, unless, of course, one is a worker mining, milling, or disposing of the radioactive waste or if one is living within a radioactive environment.

In addition to contributing to long-term studies of workers and others, uranium mining,milling, and radioactive waste storage will require the perpetual resources of numerous state and federal agencies, and countless professionals dealing with disease and death will benefit from radioactive and toxic contamination as well. Government bureaucracy will burgeon, oncologists and cancer clinics will have guaranteed business, but at what a cost to the workers and the people in the region and beyond!

Since abandoning the argument that radioactive waste can be contained, the nuclear industry has struggled to survive, because the public’s common sense tells them that we shouldn’t be producing waste when the waste containment structures inevitably fail, recycling the poisonous waste into the environment.

Those who have argued that we need to promote nuclear energy in order to reduce carbon that contributes to global warming and climate change seem to have overlooked the fact that insurance companies do not want to insure nuclear reactors because of the risks.  So,taxpayers are burdened with the billions of dollars required to build and maintain reactors and to dispose of the radioactive waste that lasts forever, all to support reactors that last approximately 35 years.

To consent to the NRC’s “best practices” regulations would be to abandon one’s reason, common sense, and one’s unalienable rights. To consent would be to support arbitrary and capricious regulatory frameworks, which are explicitly nihilistic and hostile to the inmost forms of the American democratic political consciousness that unites a diversity of belief systems into a commonality of shared values: The Declaration of Independence and the Constitution of the United States.

 

Environmental Injustice and the Preemption of Environmental-Civil Rights are Intrinsic to the Prevailing Model for Economic Development

Environmental injustice (a euphemism for nihilism) is intrinsic to the prevailing model for economic development because the toxic, hazardous, and nuclear waste generated during production must be “managed.”

To “manage” waste is to store it. To store it is to target a community to establish waste facilities that will inevitably recycle the waste back into the environment over time and therefore to deny the targeted community 13th and 14th amendment rights of the U.S Constitution and unalienable rights stated in the Declaration of Independence.

It should be noted that environmental injustice is often associated with discrimination and racism, but the principles of environmental justice are universal, as universal as the human right to safely exist.

The rationale informing the siting of these waste containment facilities is a rationale for selective human, community, and regional sacrifice. Yet, targeted communities and regions have the same rights as all communities.  (1) They have the right not to be reduced to a condition of involuntary servitude to waste management industries destructive to persons and properties; (2) They have the right not to be discriminated against and segregated within dense pockets of exterminating waste materials and gradually but inevitably exterminated; (3) They have the right to equal protection and due process of law; (4) They have the right to life, liberty, and to protection of their health, properties, natural resources, and environment on which their lives depend; (5) They have the right to happiness, which does not include suffering from disease and untimely death.

The prevailing toxic, hazardous, and nuclear waste model for economic development and the rights expressed in the U.S. Constitution and the Declaration of Independence continue not to coexist for targeted areas and areas affected beyond, and these rights will continue to be preempted to facilitate the siting of destructive waste management  facilities unless we join together to effect the needed changes.

These are universal rights, rights belonging to all people places and times, all races, colors, classes, and creeds. Yet they are denied to targeted communities through acts of bad faith, deception, breaches of law, and by regulations and waste management legislation preempting environmental-civil rights in full knowledge that the defense of these rights is the last defense against nihilism, against extinction.

 

Jobs

The prevailing model for economic development means simply this: We are consuming ourselves in consuming the products that create  toxic, hazardous, and nuclear waste, while promoting an economy at the expense of our health, environment, and natural resources, at the expense of our lives, our liberties and our pursuit of happiness.

Some will argue (though seldom openly) that we are at the same time creating problems, and to create problems is to create jobs to solve them. However, the jobs are based on promoting disease and death which cost society in lost wages and long-term treatment.

 

Patriotism

There are those who argue that it is our patriotic duty to mine uranium, but the truth is that in addition to contaminating the U.S., the uranium will be sold to countries, some of which are not allies of the United States and which continue to demonstrate hostile intentions to our national security. Such countries will perhaps use the uranium for peaceful purposes and at the same time reduce the size of their military budgets since they will know that for us to mine and sell the uranium to them is to “nuke” ourselves in the process. All they need to do to know this fact is to review the nuclear industry’s “best practices.”

 

Either/Or (Not a Logical Fallacy, but a matter of Right Vs. Wrong)

This region of the South, Virginia and North Carolina, needs to decide if it wants to  continue to base its economy on the nihilistic philosophy of waste expansion and injustice in order to establish a mega-waste management infrastructure that would solicit waste from other states and from overseas, even though containment structures cannot contain the waste and will inevitably spread contamination through wind, precipitation and underground and surface waters. Or, citizens of the region must decide to move toward a model for waste reduction and justice.

Virginia and this region of the South need to think very carefully about the implications of the mining of uranium and the possibility of opening the door to an inundation of radioactive waste from the region, the nation, and beyond, waste which even the NRC admits cannot be contained.

The recently created Virginia Nuclear Energy Consortium Authority seems determined to institute a nuclear way of life in Virginia, which would have implications far beyond its borders. Yet North Carolina and other states that could be impacted by radioactive contamination are not legally required to have a public hearing on the mining of uranium in Virginia.

 

Transformation

New laws policies, procedures, and regulations need to be written to deal with the realities confronting us, even as we push for a sustainable model for economic development.

The prevailing model for economic development is neither environmentally nor democratically sustainable. Toxic. hazardous, and nuclear waste cannot be contained over time and continues to cause irreversible damage to the public health, environment and natural resources, nor can civil and unalienable rights be sustained because the toxic, hazardous, and nuclear waste model for economic development requires for its implementation the sacrifice of targeted communities and regions, a sacrifice having global implications as well.

It will take vision, reason, common sense, wisdom, justice (without which there can be no harmony in the state) and a commitment to unfettered research and development to effect the transformation from the failed, destructive and delusional  “science” of containment to a model for economic development based on sound science and sound technology, a democratically and environmentally sustainable model.

As we effect this transformation together, we must not allow targeted communities and regions of the South to be sacrificed for profit and taken from within, for targeted communities and regions can only be taken and sacrificed from within, as happened in Warren County, North Carolina.

 

Commitments

I have stated at two NRC public meetings that the mining of uranium in Chatham, Virginia, would transform Virginia, North Carolina, and beyond into a radioactive way of life, ultimately, into a radioactive wasteland. Deborah and I have stated that we would interpret the lifting of the ban to mine uranium in Virginia as an arbitrary and capricious act of radioactive aggression against this region of the South, and we have stated that it would be met with the most serious forms of resistance.

The Conservative Voice has linked me to eco-terrorism. But it should be obvious from the above analysis and from a publicly documented history that I do not dismantle physical machinery. I dismantle the institutional thinking, the regulatory frameworks, policies, and laws, the mind-forged manacles that keep all of us enslaved to destructive delusions.

As stated above in December 1978, I made a commitment to the people of Warren County, North Carolina. History has shown that I kept that commitment nonviolently.  Although I am committed to nonviolence, I cannot speak for others who may join in the resistance to the mining of uranium in Virginia, but as I did in Warren County, I will work with all who are committed to nonviolence.

By: Ken Ferruccio

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