Trivalent Arsenic, Attic Dust, and Butte Priority Soils

Submitted by:

Dr. John W. Ray

915 West Galena St.

Butte, Montana 59701

Assumptions:

We know the following:

1. Inorganic arsenic, even at low levels of exposure, poses a serious threat to human health.
2. Inorganic arsenic contamination releases result from the ore smelting process such as occurred very early in Butte, ending in the 1920s, and most prominently and recently in Anaconda. (See: Paul F. Holt, Inhaled Dust and Disease, (New York: John Wiley and Sons, 1987. See also: Arsenic (ATSDR)“While arsenic is released to the environment from natural sources such as wind-blown dirt and volcanoes, releases from anthropogenic sources far exceed those from natural sources.” (ASTDR) Mining and smelting are major causes. “The soil receives arsenic from a variety of anthropogenic sources, including. . . smelting operations, mining wastes. Mine tailing and smelter slag was estimated to add an additional, 200-11000 and 4,500 –9000 metric tons respectively. . . .abandoned mine tailings add still more.”
3. The 1997 Health Risk Assessment for Arsenic for Butte Priority Soils did not consider the health risks posed specifically and directly by trivalent arsenic contaminated attic dust.
4. Superfund was designed to remediate threats to human health and the environment such as that posed by trivalent arsenic.

Contention to Consider and Evaluate:

That attic dust in Butte is contaminated with trivalent arsenic coming from the Anaconda smelter and past operations in Butte, therefore, under Superfund, this contamination threat must be remediated.

Arguments in Favor of Contention:

1. Inorganic Arsenic, even at low levels of exposure, poses a serious threat to human health.

Trivalent arsenic is a proven human carcinogen. One form of human cancer directly linked to trivalent arsenic is skin cancer that has above average levels in Butte. (NIOSH, Tenth Report on Carcinogens, Arsenic Compounds, Inorganic. See also: International Agency for Research on Cancer, IARC Monographs on the Evaluation of the Carcinogenic Risk of Chemicals to Man, Vols. 2 and 23 and Supplements 4 and 7, USEPA, Integrated Risk Information System, Arsenic, inorganic (CASRN 7440-38-2) and Dennis M. Opresko, Ph.D., Chemical Hazard Evaluation and Communication Group, Biomedical and Environmental Information Analysis Section, Health and Safety Research Division, Oak Ridge Reservation Environmental Restoration Program, Risk Assessment Information System, 1997)

Not only is trivalent arsenic carcinogenic, even at low doses, [Arsenic exposure at low doses can cause nerve damage, cardiovascular problems, skin problems and constitutional complaints such as nausea, diarrhea, gastrointestinal upset, etc. (Johnson and DeRosa, ASTDR, The Toxicologic Hazard of Superfund Hazardous Waste Sites)] but it is also genotoxic. (Mass et al.,Chem. Res. Toxicol. 14:355-36, April 16, 2001) The EPA has specifically endorsed this genotoxic conclusion. (April 2001) “Inorganic arsenic is readily absorbed through ingestion and is widely distributed in the human body. It does not need metabolic activation to exert its effect.” (Chiou, et. al., Incidence of transition cell carcinoma and arsenic, American Journal of Epidemiology 153 (5): 411-418, 2001)

Moreover, there are no known safe levels of exposure to inorganic arsenic. Trivalent arsenic bioaccumulates in tissue and is excreted very slowly. (Dr. Ronald Brecher, Arsenic, EBI, Canada and Aapo Saask, The Arsenic Challenge, Scarab Development AB, Stockholm, Sweden)

Finally, trivalent arsenic causes a host of other serious medical problems. (Holt, Inhaled Dust and Disease, op. cit.; Norman Trieff, Environment and Health, Ann Arbor Science Publishers Inc.; Graber and Upton, Staying Healthy in a Risky Environment: The New York University Medical Center Family Guide; ATSDR; OSHA; NIOSH; and USEPA.)

2. Trivalent Arsenic is one of the contaminants of attic dust on the Butte Hill. The gross geologic morphology of the attic arsenic dust would lead to that conclusion.

3. There is strong evidence that a significant amount of the trivalent arsenic present in attics came from the Anaconda Smelter.

1. To the extent that trivalent arsenic is found in the attics of homes constructed after smelter operations ceased on the Butte Hill, the 1920s, there would exist the strong presumption that such arsenic emanated from Anaconda. By the EPA’s own assumptions, trivalent arsenic was not characteristic of the arsenic found in Butte soils but is characteristic of the arsenic found in Anaconda.
2. The prevailing wind patters in Southwestern Montana clearly indicate that the prevailing winds flow from the Anaconda Smelter to Butte—hence a plume of trivalent arsenic contamination could have reached the Butte Hill.
3. The Final Risk Assessment-BPSOU Baseline Human Health Risk Assessment for Arsenic, April 29, 1997 notes: “Aerial emissions from the mills and smelters, as well as the Anaconda Smelter, also contributed to the BPSOU.” (p. 1-2, emphasis supplied.)
4. Conclusion: The Anaconda Smelter would seem to be the only practical source for this trivalent arsenic found in Butte attic dust. What other major source exists?

4. The 1997 Health Risk Assessment for arsenic and subsequent health studies for Butte Priority Soils does not specifically and directly consider trivalent arsenic found in Butte attics.

The 1997 Health Risk Assessment for arsenic and subsequent studies only consider the levels of trivalent arsenic found in soil as a potential source of the dust home contamination problem. This is deceptive in that arsenic is water soluble and would have been washed away to a large extent given rain, snow melt, wind, etc. However, the fine trivalent arsenic dust found in attics would not have been washed away by rain and snowmelt. Wind would not have blown away the trivalent arsenic found in attics. It is totally plausible that there would be low level of trivalent arsenic in the soil while having high levels of trivalent arsenic in attics. Arsenic does not lose it toxicity over time.

5. The EPA contention that contaminants found in the attics of Butte homes does not pose a health risk to Butte residents because there are no pathways of contamination is specious

1. The dust obviously entered the attics. What enters can leave, if disturbed.
2. New and Expanded Pathways of exposure can be created by:
1. Remodeling and Painting
2. Use of the attics for storage
3. Weatherization
4. Deterioration of ceilings.
5. Fires
6. Subsidence and cracking
7. Cleaning
3. The pathway argument rests on the failed premise that remediation should attempt to keep people from contaminants rather than remove the contaminants from people.
4. The pathway argument directly contradicts the Superfund requirement for permanent solutions in that human behavior patterns, residential use patterns, and general land use patterns change over time.
5. There exists no current law, rules, or regulations that would prohibit the owner of a home or the renter of a home from using or disturbing the home’s attic.

6. The pathways argument is contrary to the principles of environmental justice in that this approach means that low-income citizens will continue to bear a disproportionate toxic burden.

7. The pathways approach is contrary to the principles of the Superfund Redevelopment Initiative and the Superfund Land Revitalization Action Agenda in that it limits or precludes future productive land uses and redevelopment of sites contaminated with toxic attic dust.

8. The pathways argument is directly contrary to the Principles of Pollution Prevention and the Precautionary Principle, which are embraced by EPA policy, rules and regulations, as well as Montana State Law.

9. The Libby Cleanup Precedent would warrant addressing contaminated attic dust in Butte.

10. The citizen education approach, advocated in ATSDR’s Health Consultations Documents, is inadequate. Such an approach places the burden of avoiding exposure to toxic wastes on the residents of Butte Priority Soils. Effective resolution of liability obligations is shifted from the PRPs to the non-liable citizens. This is a total convolution of the Superfund process that calls for cleaning up an area in order to protect human health and the environment. Superfund is not an education program but a cleanup program. Superfund places the liability for cleanup on those legally responsible for the pollution, not the victims of pollution.

Superfund’s purpose is to clean up hazardous waste sites that pose a threat to human health and the environment. Remedies under Superfund should provide a permanent cleanup remedy not temporary containment. Simply, cleanup is the “act of cleaning up” and the term clean means “pure, free from dirt, contamination, impurities.” According to the EPA, Superfund’s mission is to “make sites safe, make sites clean, and bring new technology to bear on the problem.”

If one carefully examines the major laws and regulations pertaining to Superfund, one finds that they all emphasize the following:

1. Cleanup as the primary goal of any Superfund activity.
2. The reduction of toxicity, volume and mobility of hazardous substances, pollutants, and contaminants at a site. For example, the NCP mandates that the overriding goal of the Superfund remedy selection process is: “to select remedies that are protective of human health and the environment, that maintain protection over time, and that minimize untreated waste.” [40 CFR 300.430(a)(1)(i)] Treatment is the preferred approach to dealing with contaminants.
3. Permanent cleanup remedies. Section 121(b) of CERCLA mandates that: “Treatment which ‘permanently and significantly reduces’ the hazardous substances involved is to be ‘preferred’ over other remedies and EPA must select remedies that utilize ‘permanent solutions’. . . .” (Quoted in Environmental Law Handbook, Arbuckle, et. al, 10^th Edition, p. 88) During the Senate debate on SARA, Senator George Mitchell (D-Maine) argued that permanent treatment means that EPA cleanup plans must result in the permanent and major reduction in the toxicity, volume, and mobility of hazardous substances, pollutants, and contaminants at a site and that this reduction must be to the “lowest level achievable.” Senator Mitchell stated: “In addition to the quantitative reduction implied, significant reduction in this context means the minimization of volume, toxicity and mobility of such substances to the lowest levels achievable with available technologies.” (132 Congressional Record, S. 14914 (daily edition. October 3, 1986) It is clear that the legislative intent was permanent, real cleanups of Superfund sites.
4. Cost is not the major factor in selecting a cleanup remedy under Superfund. Cost is secondary to protecting human health and the environment. Under Superfund, human health and the environment must be protected from potential threats regardless of cost. During Senate debate on SARA, Senator John H. Chafee (R-RI) noted: “the extent to which a particular technology or solution is feasible or practicable is not a function of cost. A determination that a particular solution is not practicable because it is too expensive would be unlawful.” (132 Congressional Record, S. 14925 (daily edition, October 3, 1986) The way in which cost is supposed to figure into Superfund decisions is that a determination is first made as to what is the level of protection for human health and the environment which the remedy should achieve and then selecting the most cost effective means of achieving that level of protection. Cost as a balancing criterion does not mean selecting the cheapest remedy. It is clear that the law mandates that the EPA designs a remedy which will be permanently protective of human health and the environment and then finds the most cost effective method of implementing that remedy. “The EPA is never justified in selecting a short-term, impermanent remedy (like landfilling or capping) simply because it is cheaper than a permanent alternative. The law could hardly be clearer.” (Environmental Research Foundation, “More Lessons from Superfund.”)
5. The use of institutional controls is not a substitute for cleanup of a site. “Institutional controls. . . generally shall not substitute for more active measures (e.g. treatment and/or containment of source material) as the sole remedy. . . . (40 CFR 300.430(a)(1)(iii)(D). See: OSWER Directive 9355.0-69, EPA 540-R-97-013-“Rules of Thumb for Superfund Remedy Selection.”

Superfund was designed not only to deal with actual harms to human health and the environment but also with threatened harms and potential threats. CERCLA specifically deals not only with release of hazardous substances but also with the “threat of” release “into the environment of a hazardous substance or pollutant or contaminant. CERCLA defines each of these terms quite broadly.” (Environmental Law Handbook, p. 76.) Also, Superfund places an emphasis on treatment rather than containment for hazardous waste. [EPA, “Rules of Thumb for Superfund Remedy Selection,” 40 CFR 300.430 (a)(1)(iii)(A)]

11. Given the inherent uncertainties of Health Risk Assessment and given the admissions contained in the 1997 Priority Soils Health Risk Assessment for Arsenic that that assessment was based on assumptions, estimates and was subject to major uncertainties (pages 5-62-65) and given that that 1997 Health Risk Assessment has been searchingly criticized as to adequacy, we should not base the proposed Priority Soils remedy on that 1997 Health Risk Assessment. Any remedy based on this Health Risk Assessment is suspect. It is highly possible if not highly probable that the 1997 Health Risk Assessment missed a potentially significant threat to human health—trivalent arsenic in attics. This omission needs to be corrected.

Recommendation:

1. Contaminated attic dust needs to be specifically assessed as to its potential health risk.
2. A definitive determination needs to be made as to the characteristics and constituents of the contaminated attic dust.
3. A definitive determination needs to be made as to whether or not the arsenic found in Butte Priority Soils attics emanated from Anaconda.
4. If the contaminants found in the attic dust pose a threat to human health, they should be removed as part of the Priority Soils Superfund cleanup.

Summary:

No comprehensive cleanup of Butte Priority Soils is possible unless contaminated attic dust is directly and specifically addressed. So far, there has been no comprehensive assessment of the health risks posed by contaminated attic dust in Butte. So far, contaminated attic dust has been a priori excluded from consideration under the Priority Soils cleanup. This failing needs to be redressed. Contaminate attic dust clearly falls within Superfund’s purview. Although a potentially serious health risk, so far, detailed consideration of contaminated attic dust has been a taboo issue. Given the potentially serious health threat posed by trivalent arsenic in Butte Hill attics, continued failure to consider comprehensively contaminated attic dust would be contrary to the Superfund mandate. In short, attic dust must be comprehensively considered and remediated.

The EPA’s current waste-in-place proposed remedy for Butte Priority Soils rests upon the 1997 Health Risk Assessment. To the extent that that Health Risk Assessment was flawed, incomplete, inaccurate, or missed significant sources of contamination, the remedy based on that Health Risk Assessment will be flawed, incomplete, inaccurate, non-protective and inadequate. Given the potential threat to human health posed by contaminated attic dust, attic dust must be comprehensively and completely addressed in any remediation plan for Butte Priority Soils.

Contaminated attic dust needs to be remediated as part of the remedy for Butte Priority Soils.