Source Reduction of Toxic Waste: Implications for Western Water Policy Carl Boronkay* INTRODUCTION It is somewhat ironical that source reduction of toxic chemicals has become imperative largely because of tb-, tremendous success that the producers of these substances have enjoyed in revolu- tionizing our way of life. Over the past half century, the use of chlorinated chemicals has grown tremendously throughout the industrialized world. Virtually every stamped or forged metal part manufactured by industry requires some sort of solvent to clean it after fabrication. Products from airplanes to printed cir- cuit boards are washed with these chemicals to improve their per- formance and to ease their production. The corner dry cleaner, not to mention his large industrial counterpart, needs these chemicals to remove stains and spots from clothing and other fabric products. In our economy, with its increasing high technol- ogy industrial base, microelectronic firms depend upon these chemicals to produce reliable and competitive products. In the past decade, however, we have begun to discover the cloud within the silver lining. These days names like trichloroeth- ylene, perchloroethylene, methylene chloride, trichloroethane, and others are commonplace in the news media, not because of the numerous ways in which these products improve our lives, but because they are increasingly showing up in our drinking water supplies. After decades of slow but steady progress in moving outward from disposal sites, these substances now threaten large volumes of water stored underground in the nation's ground- water basins. Places like Woburn, Massachusetts, Silicon Valley, and Stringfellow Acid Pits have added new perspectives to the risks inherent in modern society.' * General Manager, Metropolitan Water District of Southern California. 1. In the Woburn, Massachusetts area, at least three industrial firms disposed of spent solvents, especially trichloroethylene and perchloroethylene, on the ground outside their manufacturing facilities. These chemicals were linked to a high incidence of childhood COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 13:285 The health affects of these chemicals taken in minute concen- trations in drinking water are, of course, subject to considerable debate. But the fact is that these substances are certainly not do- ing anyone any good. The water industry has a major stake in dealing with the prob- lem of toxic wastes. It is an industry that tends to be far-sighted, with planning horizons measured in decades rather than years. Over the long run, it is simple common sense that source reduc- tion - that is, efforts to significantly reduce the amount of toxic waste created in the first place - must be an important part of any comprehensive groundwater quality control strategy. This paper defines the dimensions of the groundwater quality problem from the perspective of one of the largest suppliers of municipal and industrial water in the nation, the Metropolitan Water District of Southern California (Metropolitan). It also sum- marizes briefly an innovative joint effort with an old adversary, the Environmental Defense Fund (EDF), to improve the chances of implementing source reduction to deal with future contamina- tion episodes before they get started. DIMENSIONS OF THE PROBLEM Metropolitan provides supplemental water to nearly 14 million people in the coastal region of Southern California. 2 These water supplies, imported from the Colorado River 3 and Northern Cali- fornia4, augment local supplies, including groundwater which leukemia in the surrounding communities. See Nova: Toxic Trials (public television broad- cast, episode no. 1306, Feb. 25, 1986). The "Silicon Valley" refers to a high-technology manufacturing area near Santa Clara, California. In the early 1980s, several major firms including IBM, Intel, and Fairchild Camera and Instrument, found that thirteen public and forty private wells had been con- taminated. See Cal. Dept. of Health Serv., Groundwater and Drinking Water in the Sant Clara Valley: A White Paper (1984). The Stringfellow Acid Pits, near the community of Glen Avon in Riverside County, Cali- fornia, were operated from 1956 to 1972 as a hazardous waste disposal site under permit by the State of California. The site was voluntarily closed in 1972, when it was discovered that the underlying bedrock was fractured and wastes were leaking out. Trichloroethylene and perchloroethylene were found in the waste water stream, along with mineral acid and metals wastes. The site is on the Superfund National Priority list, and cleanup efforts are now in progress, with extraction wells delivering contaminated groundwater to an ad- vanced treatment plant. See G. J. Trezek, Engineering Case Study of the Stringfellow Superfund Site, Office of Technology Assessment, Cong., Aug. 1984. 2. Metro. Water Dist. of S. Cal., 1986 Annual Report xxxv, xxxviii. 3. Id at 1. 4. Id at 17. 286 Source Reduction of Toxic Waste provides about 1.2 million acre feet annually or nearly one-third of the water used in the region. 5 Before 1980, problems with chemicals in our water supplies were virtually unknown. Partly be- cause of improved technologies for detecting the presence of con- taminants 6, today there is a keen awareness about the presence of chlorinated chemicals and other contaminants in our ground- water supplies. In Southern California, groundwater production has not been seriously affected to date by these chemicals. As of 1986, the net groundwater production loss in Metropolitan's service area due to chlorinated chemicals amounted to 6,500 acre feet, about one- half percent of total well production 7. However, this relatively optimistic figure belies the potential magnitude of the problem in the future. Based on a recent study conducted by Metropolitan, 17 percent of the wells tested in the region showed concen- trations of contaminants, primarily trichloroethylene and per- chloroethylene, above California state "action levels8." Appro- ximately another 33 percent of the wells tested showed trace amounts of the contaminants-that is concentrations were mea- surable but lower than state action levels9. In the past, impacts on groundwater production have been minimized by relocating pro- duction facilities and by blending well water with other supplies to bring concentrations down within acceptable levels. The fu- ture impact of toxic wastes on water supplies is highly uncertain and the subject of considerable concern to water suppliers. In the future, toxic wastes will impact water supplies in ways that are not widely understood. One critical point is that in the future the health of water consumers is not likely to be among the primary impacts of toxic wastes. The water industry will supply only water that is healthful, based upon the best possible scientific information available. Future drinking water standards must somehow be established that consider the health consequences of 5. See Metro. Water Dist. of S. Cal., Groundwater Quality and Its Impact on Water Sup- ply in the Metro. Dist. Service Area, Report No. 969, at 3 (1987). 6. See generally ORGANIC CARCINOGENS IN DRINKING WATER: DETECTION, TREATMENT, AND RISK ASSESSMENT 93-196 (N. Ram, E. Calabrese & R. Christman ed. 1986). 7. Report 969, supra note 5, at 3. 8. Id. at 3, 5. The State of California promulgates "action levels" for chemicals which are suspected to have health hazards, but for which no State or Federal maximum contami- nant level (MCL) has been set. Id. app. at B-5. The action levels are established without formal hearings, based on available technical data. 9. Id. at 3. 1988] 287 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 13:285 exposure to particular substances in water and the costs and risk tradeoffs of achieving mandated standards. But whatever drink- ing water quality standards are established to protect human health, they will be met. In the arid west, the primary impacts of water quality policies will be on the economics and politics of supplying water to a rap- idly growing population. More stringent drinking water quality standards would require the installation of more sophisticated and costly water treatment facilities. In some cases, groundwater quality problems may seriously reduce the available production from a groundwater basin. Inevitably, this will increase the de- mand for more imported surface water. In effect, toxic waste problems in Southern California extend hundreds of miles east- ward to the Colorado River and even farther northward to the Sacramento/San Joaquin River Delta. Groundwater basins are valuable not only because of the water they provide, but also for their storage capacity and water man- agement potential. Southern California's groundwater basins are an increasingly important component of conjunctive use pro- grams designed to capture surface water when it is plentiful and store it underground until later dry years when it is needed. These programs can generate reliable dry year water supplies for western cities and farms. Moreover, they do so by allowing more water to be taken during high flow periods, when no adverse im- pacts occur on the environment. Consequently, groundwater contamination threatens one of the key management tools re- quired to resolve the technical and political controversies that have plagued western water policy for decades. SOURCE REDUCTION: LOOKING FORWARD TO A SOLuTION It seems fair to say that groundwater quality regulations have so far necessarily concentrated, first, on cleaning up past contamina- tion episodes and, second, on "command and control" strategies to regulate the practices of private firms. The cooperative effort of Metropolitan and EDF reflecLs a mutual conviction that, at least in part, the policies of the future must depart from past regula- tory practice on both counts. Source reduction practices look not to the problems and conflicts of the past, but to the possibility of preventive policies and consensus in the future. That long time rivals such as the partners in this enterprise can work together on this topic bodes well for its consensus building potential. In addi- 288 Source Reduction of Toxic Waste tion, source reduction practices require a level of innovation and cooperation from industry that is not likely to be consistent with the highly detailed command and control approaches of the past. In January, 1987, Metropolitan and EDF jointly created the Source Reduction Research Partnership (SRRP). SRRP is chartered to conduct the most comprehensive and practical study of source reduction ever. Although the concept of source reduc- tion is hard to disagree with, the extent of its practical applicabil- ity is uncertain. In the face of the recent ban on the disposal of toxic wastes at landfill sites' 0 , and increasing regulatory pressures on the manufacture, use and disposal of toxic substances", indus- try has clear incentives to reduce the amount of hazardous chemi- cals that they use and the amount of toxic waste that they generate. However, like any major policy change, a significant move toward source reduction will confront technical, economic, institutional, and legal challenges. The purpose of SRRP is to as- sess the obstacles objectively and identify possible solutions to the problems identified. When the project is complete, we expect to have a detailed set of data on chemical usage and disposal practices, and potential applications of source reduction for the industries overlying the major groundwater basins of Southern California. All informa- tion provided by industry will be protected by contractual com- mitments to preserve confidentiality. The study will inventory the technical and economic practicality of source reduction measures, concentrating on large and small firms alike in the industry sec- tors that use the vast majority of chlorinated chemicals. Eventu- ally, the study should provide much more definitive information 10. In 1984, Congress passed the Hazardous and Solid Waste Amendments (HSWA) to the Resource Conservation and Recovery Act (RCRA), the legislation that governs the management of hazardous waste. These amendments effectively will ban the land disposal of virtually all untreated hazardous substances by the year 1992 at the latest. Chlorinated solvents were among the first substances so banned, on November 8, 1986. See Hazardous Waste Management System: Land Disposal Restriction: Final Rule, 51 Fed. Reg. 40573-74 (1986). 11. The five major chlorinated solvents [trichloroethylene (TCE), perchloroethylene (PERC), 1,1,1-trichloroethene (TCA), methylene chloride (METH), and 1,1,2-trichloro- 1,2,2-trifluoroethane (CFC- 113)] are under regulatory scrutiny for a variety of reasons. Three (TCE, PERC, and CFC 113) are suspected carcinogens and may be regulated as toxic air contaminants. Two (TCA and CFC 113) are suspected of depleting the ozone layer in the stratosphere or upper atmosphere. Two (TCE and PERC) have been regu- lated because they contribute to photochemical smog. All five have worker exposure levels. K. WOLF & F. CAMM, POLICIES FOR CHLORINATED SOLVENT WAsTE-AN EXPLORA- TORY APPLICATION OF A MODEL OF CHEMICAL LIFE CYCLES AND INTERACTIONS 8-14 (1987). 1988] 290 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 13:285 than is now available on the possible future threat to our ground- water basins posed by toxic waste and on the technical and eco- nomic potential for reducing those risks through source reduction. No less important, SRRP will explore the difficult institutional issues, both regulatory and private, that may complicate and delay the introduction of source reduction strategies. For example, in many firms on-site reclamation of toxic wastes may be both tech- nically and economically feasible, but strongly discouraged by the land disposal ban implemented in 1986 2-a consequence unin- tended by Congress.13 Similarly, some source reduction strate- gies will require coordination among many firms involved with the manufacture and use of toxic chemicals as well as firms in- volved in the transportation, incineration, and disposal of hazard- ous wastes. We expect that many of the problems that must be worked out reflect not the economic and technical issues of pri- mary concern in the past, but the institutional interactions among regulatory agencies and the firms involved in the highly compli- cated waste management chain. CONCLUSION Finding ways to protect groundwater basins from future con- tamination has implications not only for the health of people, but it may also play an important role in resolving long-lived contro- versies over the water resources of the west. The SRRP is in- tended to facilitate that process by looking hard and objectively at the practical issues involved in the application of the theoretically attractive idea of source reduction. The study is expected to pro- duce an unprecedented data base that will facilitate decisionmak- ing by regulated firms and regulatory agencies and that will prove highly valuable in long range water planning. A project like the SRRP cannot be expected to determine whether source reduction will or will not occur. The regulatory pressure on industry and the common sense of source reduction would seem to make more 12. In promulgating the HSWA, which phased out the land disposal of virtually all un- treated hazardous substances, Congress hoped to encourage source reduction. See 51 Fed. Reg., supra note 10, at 40573. In on-site reclamation of solvents, a contaminated sludge is generated that can no longer be disposed of on land. Other treatment technologies, like incineration, for instance, are much more costly.. This discourages users from adopting on-site recycling. 13. See id at 40572. 1988] Source Reduction of Toxic Waste 291 source reduction certain in the future. However, SRRP will hope- fully make the transition faster and more effective - and in the end that could be extremely important.