Proposal to Dispose of Toxic Wastes on Reservation Debated

Tribal Chairman Ralph Goff never imagined the furies he was letting loose when he and his tribe agreed quietly to consider allowing a toxic-waste business on the Campo Indian Reservation last fall.

But word got out in this impoverished corner of southeastern San Diego County, where relations with Indians are edgy even in the best of times. The response was immediate and emotional--and, Goff would say, distinctly patronizing.

There have been testy statements from local politicians and petition drives by a neighboring community. There have been letters to the governor, calls from environmental officials and barroom rumors of hazardous wastes already cascading into creeks.

“The implication to us is: Don’t even think about it,” Goff said last week in the Campo tribal office, as the Santa Ana winds raced wildly across the endless chaparral outside. “But I think we have the right to explore any economic development that comes before us. . . .

“People have said we’re not regulated by the state and county, that’s true. And I don’t have any intention of giving up any of our sovereignty at all. . . . That’s one of the few things we do have here--our right to make our own decisions and destiny here.”

The toxic-waste proposal--still undecided, like several others pending on reservations nationwide--represents to Goff and the Campo band of the Mission Indians a rare economic opportunity and a significant test of their right to choose. But, to neighbors and state and county officials, it represents an environmental risk that demands the most careful scrutiny. They say it raises the question of the extent to which Indians may make a decision that could affect non-Indian neighbors.

“State policy in California is to encourage tribal self-government and self-development to the extent that it’s not inconsistent with the interest of the non-Indian community,” said Roderick Walston, a senior deputy state attorney general specializing in Indian law.

“It’s in the latter situation where the conflicts have arisen. We are sympathetic to the tribes’ efforts to improve themselves economically. . . . At the same time, we have to resist the kinds of activities that impair legitimate off-reservation interests.”

The Campo reservation--about 15,000 acres of inhospitable highland stretching from the Tecate Mountains south to the Mexican border--is among the poorest reservations in Southern California. It is home to about 150 Indians.

Ranching and government offer the only jobs within miles, and most of the Indians are unemployed. Families travel the dusty roads in battered station wagons. The sign on the door of the tiny general store in nearby Live Oak Springs reads, “We Quit. Going Out of Business.”

“It’s probably worse than the ghetto,” said Lannie Deserly, an Indian who works with tribal governments. “In the barrio at least you can go three miles to your neighbor and find a job. When there are people, you have an opportunity of getting out.

“On the reservation, it’s a little different. Also, they have sovereignty. They have no desire to leave their lands. That’s their homeland. If they lose that, they’ve lost everything.”

Out to this hungry territory came PCB Treatment Inc., a 3-year-old Missouri firm that disposes of oil contaminated with polychlorinated biphenyls (PCBs). PCBs, now banned because of their toxicity, were long used as coolants and lubricants in electrical equipment.

The company proposed that the Indians lease it 10 acres. There, it would receive transformers from across California and drain the oil into drums. Then it would truck the drums out for disposal in incinerators in Nevada and Illinois.

At full capacity, the facility would employ eight people with wages starting at $6 an hour, according to statements made by the company. It would pay $25,000 a year to lease the land, and one cent per pound of material received--an estimated $200,000.

“The advantages would be economic: There’d be jobs and the tribe would receive money,” Goff explained simply. He said the tribal council has plenty of uses for the cash: “Everything we work with: Housing, social services, government operation.”

He said the chief disadvantage is equally clear: “The material that’s being processed. It is a toxic substance. We’d have to regulate it real close. And also, we don’t know whether it would be compatible with other business ventures.”

PCBs--extraordinarily persistent chemicals capable of causing cancer and damage to the liver and immune system--have been singled out for special handling under federal regulations that require that utilities gradually retire all PCB-contaminated equipment.

Spilled on the ground in significant quantities, PCB-contaminated oil can destroy ground water supplies. If it burns, it can be equally dangerous, sending dioxins and dibenzofurans, suspected of causing cancer, into the air.

“It’s your classic pact with the devil,” said David Roe, a lawyer with the Environmental Defense Fund in Berkeley. “The same thing that makes them troublesome--that they’re so durable--makes them wonderful for certain industrial applications. They don’t break down.”

As a result, disposal of PCB-contaminated oil has been problematic.

It has already been banned from hazardous-waste landfills. But there are few hazardous-waste incinerators in the country. States have attempted in recent years to find places for them, but public opposition has prevented a single new incinerator.

“There is a great need for hazardous-waste disposal sites,” said Warner Reeser, an environmental scientist with the Council of Energy Resource Tribes, which has been hired by the federal Environmental Protection Agency to assess the impact of the proposed facility.

“Given the jurisdictional thing, some of the reservations may be viewed as preferred areas,” Reeser said. “If the states don’t have any jurisdiction on Indian lands, it might be easier to develop a site there if they only have to deal with tribal and federal regulations.”

Which is precisely what worries the reservation’s neighbors and county and state environmental officials, who have appealed to federal officials and the state attorney general for an opinion on whether they have any say in reservation matters.

In general, the courts have interpreted federal law to mean that states and counties have no jurisdiction on reservations. So officials say it appears initially that the state and county Health Services Departments would have no control over the proposed facility.

Only the EPA and the tribe could exercise authority over the planning and operation of the plant. The federal Bureau of Indian Affairs would also have veto power over any lease of reservation lands.

The EPA would advise the Bureau of Indian Affairs on the environmental impact of any project before a lease could be approved, EPA officials say. Adverse environmental effects could justify disapproval of a lease, the Bureau of Indian Affairs superintendent for Southern California said.

If the Indians choose to proceed, and the Bureau of Indian Affairs approves, EPA officials say they would scrutinize this project like any other. That would include ensuring that it is constructed and operated in keeping with federal regulations.

But because PCBs are covered under the Toxic Substances Control Act, they are not covered under the main hazardous-waste law, the Resource Conservation and Recovery Act (RCRA). For that reason, the company would not need a permit to construct the facility.

Jeff Zelickson, deputy director of the toxics and waste management division of the EPA region that covers California, insisted that the combination of Bureau of Indian Affairs and EPA rules would subject the facility to unusually close scrutiny.

“In essence, what you’d be getting here is probably a more thorough review than you would get through an RCRA permit,” he said last week. But county and state officials remain concerned.

“Frankly, we want to regulate it,” said Jim Smith, an official in the toxic substances division of the state Health Services Department. Asked why, he answered bluntly: “Because it’s in the best interests of public health.”

Now a raft of East County residents and politicians also want a say.

U.S. Rep. Duncan Hunter tried to set up a meeting of all sides--only to have the company back out, saying that its plans were too preliminary to discuss. County Supervisor George Bailey has called for state and county regulation, saying, “Toxic wastes know no boundaries.”

When Goff told an aide to Assemblyman Steve Peace (D-Chula Vista) that it was too early to discuss the proposal in detail, Peace fired off a letter saying, “Be assured I am prepared to use whatever measures necessary to ensure that these plans are fully reviewed.”

The planning group for the community of Boulevard, three miles from the eastern boundary of the reservation, last month issued its six reasons for opposing the idea. They ranged from trucking risks to security problems at the site to PCB Treatment’s record of safety violations at other facilities.

The EPA has accused PCB Treatment of repeated violations of federal regulations at its facilities. The violations included spills, failure to mark containers, and storage of thousands of pounds of PCBs a year after they should have been disposed.

“We are not against the Indians and we are sensitive to their economic needs,” said the letter the planning group mailed to Goff and 10 public officials, “but we are concerned for the health and safety of our residents.”

In a telephone interview from Kansas City, Mo., Jack Van Gundy, chairman of PCB Treatment, insisted that the project’s critics are jumping the gun. He contended that the proposal is very preliminary, and any facility is years away.

Van Gundy, who said his firm has more than 1,000 clients and handles an estimated 10 million pounds of PCBs a year, said the Campo proposal came from a San Diego businessman who is setting up a subsidiary of PCB Treatment and who hoped to help the Indians find work.

The businessman, Robert Fuger, who has been the principal company representative on the proposal, could not be reached for comment last week. He failed to answer repeated telephone messages left at the office of his tax consulting service.

Goff, too, insisted that the proposal is a long way from approval--if it ever receives his band’s OK. He pointed out that Reeser’s group is studying the environmental impact. He said it may be months before it comes up for a vote by the band’s general council.

“A lot of people try to bait you to get into an argument about it,” he said. “I have no arguments. I want to look into it and try to see if it’s good. . . . People come here and they’re mad at us because we’re even thinking about it.”

If the Indians vote to pursue the proposal, Goff insists he has no objection to EPA scrutiny. He said he would be happy, too, to listen to the advice of state and county health officials, and perhaps even to adopt their ordinances as the tribe’s own.

“We’re just as concerned as anyone else--probably more so,” Goff said of the environmental questions. “Because this is all we’ve got left--our reservation. From having the whole country to being bottled up on a reservation. This means a lot to us, our reservation.”