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Waste

Overview

Under review

Most household and common waste is regulated by states and localities. Much solid and hazardous waste is also regulated through the federal Resource Conservation and Recovery Act ("RCRA"). In addition, if waste or hazardous substances contaminate land or water, responsible parties may be liable for cleanup costs under with the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). Because waste regulation statutes only deal with waste once it is produced, Congress passed the Pollution Prevention Act ("PPA") to encourage the reduction, reuse, and recycling of waste.

RCRA

In 1976 Congress passed the Resource Conservation and Recovery Act (“RCRA”) as an amendment to the 1965 Solid Waste Disposal Act. The legislation  was a reaction to two growing problems: the large amount of household and industrial waste being produced, and the large number of sites contaminated by unregulated disposal of hazardous waste. RCRA sought to address the first problem by encouraging resource recycling, waste reduction, and minimum standards for landfill design, and the second by promoting proper waste disposal and clean up for hazardous waste management sites.

For a primer on hazardous waste and contaminated sites law, watch and download materials from the ELI Summer School program “Clean Land: Hazardous Waste and Sites."

For a thorough explanation of how RCRA works, see Susan McMichaels, “The RCRA Permitting Deskbook” and “The Law of Environmental Protection,” ch. 14.

Solid Waste

RCRA defines solid waste as "any garbage, refuse, sludge . . . and other discarded material" in any form except an uncontained gas. This  includes any material that is "abandoned" by being disposed of, burned, or accumulated, stored, or treated in place of being abandoned, or any material that is improperly "recycled" by being burned for energy, reclaimed, accumulated speculatively, or used in a manner constituting disposal. While this broad definition includes almost all waste, there are several exceptions. These include wastes regulated by another federal statute; domestic sewage; irrigation return flows; and materials that are properly recycled or reused.

For a discussion of the current state of RCRA law over solid waste, see John Wittenborn, “The Saga Continues—Howmet and the Ongoing Uncertainty of Solid Waste Regulation under RCRA.” Marian Chertow reviews the future of solid waste management in “Pursuing Sustainable Solid Waste Management.

Most solid waste is municipal solid waste ("MSW"). MSW is regulated mostly by state and local governments under cooperative federalism, where the federal government promulgates basic rules for the treatment, processing, and disposal of waste, and the states implement the regulations. Federal regulations require solid waste landfills to employ specific operating practices, such as placing a liner between the waste and the soil, monitoring local groundwater, and requiring plans and financial assurances for the landfill's eventual closing.  State and local governments carry out the permitting and regulation of these processes, and can impose more stringent requirements if desired.

Hazardous Waste

Solid wastes may be hazardous waste if they fall into one of two categories: listed waste and characteristic waste. Listed wastes are specific wastes and wastestreams described by name in various lists compiled by the Environmental Protection Agency ("EPA"). They turn everything they touch into hazardous waste. Characteristic wastes are wastes that exhibit a hazardous characteristic: ignitability, corrosivity, reactivity, or toxicity. Generators are tasked with determining whether the waste they produce exhibits any of the characteristics of hazardous waste, either through EPA-approved tests or through their knowledge of the waste's properties.

Congress created a system to track hazardous waste from its creation to its final disposal in order to assure that all hazardous waste is accounted for and disposed of responsibly. The system includes different responsibilities for each type of actor handling hazardous waste. Generators of hazardous waste must first get a permit to create the waste, then must follow strict labeling and recordkeeping guidelines. When it is time to dispose of the hazardous waste, generators fill out a "manifest" form that travels with the waste and tracks its whereabouts. Transporters of hazardous waste must also track the waste using the manifest system. The hazardous waste ends up at a treatment, storage, and disposal facility ("TSD"), where it is disposed of according to strict federal regulations. TSDs must also report the waste's disposal to the generator through the mainfest system. Due to the inherently risky nature of their activities, TSDs are subject to federal siting, permitting, operating, closure, and financial assurance requirements. If the system operates correctly, a waste is tracked and responsibly managed from "cradle-to-grave." 

There are several international agreements regulating the transportation and disposal of hazardous waste, the largest being the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. This agreement aims to promote the environmentally sound disposal of hazardous waste by reducing and regulating the import and export of hazardous waste among its 169 parties. The Basel Convention broadly defines waste as "substances or objects which are disposed of or are intended to be disposed of," including materials that will be reused in a productive way. This expansive definition can have impacts on businesses transporting goods and recycled materials internationally. The U.S. is not a signing party to the Basel Convention, and instead regulates its international trade in hazardous waste through multilateral agreements.

For an interesting discussion of the status of U.S. hazardous waste site laws versus international norms, see Joel Mintz, “Where Do We Fit In? U.S. Information Disclosure and Hazardous Waste Remediation Laws as Compared with the Policy Suggestions of the U.N. Environment Program” and “Time to Walk the Walk: U.S. Hazardous Waste Management and Sustainable Development.”

CERCLA

Prior to 1976, hazardous waste disposal was not stringently regulated, and significant quantities of hazardous substances had been buried or abandoned around the country. Following Love Canal and other famous cases of contamination discovered in residential areas, Congress responded with the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), also known as "Superfund." CERCLA regulates contaminated sites, assigns liability for the contamination, and provides funding for cleanup if no viable responsible parties can be found. It also provides EPA with express authority to order "response actions" when there is a "release or threat of release of a hazardous substance" from a facility. Courts have broadly interpreted CERCLA to impose liability on a wide range of actions and actors.

See how ELI has worked to improve the solutions to toxic waste sites over the years here.

CERCLA created stringent rules of liability to avoid leaving the federal government with cleanup costs when potentially liable actors disclaimed responsibility or became insolvent. It is a strict liability statute, meaning that the government does not have to prove that a party intended to dispose of the waste improperly or disposed of it improperly; the fact that it was disposed is evidence enough. Additionally, CERCLA imposes joint and several liability, meaning that a party can be liable for the entire cleanup even if it was one of many parties contributing to the problem. Under CERCLA, persons who in the past disposed of wastes legally or who merely owned contaminated sites may be held liable for historic contamination on their property.

CERCLA provides for two types of actions: short-term "removal" at immediately dangerous sites and long-term "remediation" at stable but contaminated sites. In present day, removal actions are less common because most immediate threats from contaminated sites have been cleaned up or contained. Therefore, the current focus of the Superfund program is the listing, cleanup, and assignment of responsibility in remediation actions.

For a discussion of CERCLA action types, see Jerry Anderson, “Classification of CERCLA Response Actions as Removal or Remedial.”

CERCLA Procedures

Potential Superfund sites are identified and inspected, then given a score on the Hazard Ranking System. If a site scores high enough, it is placed on the National Priority List ("NPL"). Once a site is placed on the NPL, EPA determines the best way to go about the cleanup, through "remedial investigations," "feasibility studies," and public comment. A "record of decision” is created, which details the actual alternatives considered and the final cleanup actions to be taken. Once complete, those responsible may be required to monitor the site to ensure that the cleanup will "provide for the long-term protection of human health and the environment." The NPL currently has approximately 1300 sites, with less than 100 proposed sites.  Since CERCLA's inception in 1982, more than 350 sites have been completely remediated and over 1100 sites have "finished construction," meaning that they are stable and are being monitored.

For a discussion of getting a Superfund site off the National Priorities List, see David Abney, “Unringing the Bell: Overturning EPA Placement of a Site on the National Priorities List.”

States are critical in CERCLA decisionmaking and implementation. As in RCRA, states must abide by all federal standards, but can choose more stringent standards for variables like level of cleanup. States work with the federal government to facilitate remediation; they can administer cleanups and can receive funding when they themselves conduct a cleanup .

Potentially Responsible Parties

Most CERCLA response actions costs millions of dollars, and the government or liable parties are eager to find Potentially Responsible Parties ("PRPs") with whom they can share the costs.  When the government carries out the cleanup, it may sue PRPs in "cost recovery actions;" when some of the PRPs carried out the cleanup, they may sue other PRPs in "contribution actions." There are four main types of PRPs: (1) current owners and operators of the site, (2) prior owners of operators of the site at the time of dumping, (3) generators of the waste, and (4) transporters of the waste who played a role in selecting the site of the waste's disposal. Some of these definitions have been read broadly to encompass parties like the financial institutions that lent money to the PRPs and unknowing land purchasers. Because of political backlash, liability for some of these controversial parties has been limited. For example, now lenders are not liable unless they take active management control of the contaminated site, "innocent landowners" are not liable if they make appropriate inquires before purchase and comply with subsequent cleanup processes, and individuals or small businesses can limit their liability by entering into de minimis and de micromis actions which cap liability for a comparatively small payment.

For a discussion of the current state of CERCLA liability law, see Kevin Gaynor, “Unresolved CERCLA Issues after Atlantic Research and Burlington Northern,” Charles Warren, “Courts Shed Light on CERCLA’s Bona Fide Prospective Purchaser Defense.”

For a discussion of how to value contaminated property, see Robert Simons, “When Bad Things Happen to Good Property.”

Brownfields

CERCLA's stringent and broad liability rules can create a situation in which actors are afraid to invest in potentially contaminated properties for fear of future liability under the statute. These unused sites are referred to as "brownfields,"  “an industrial or commercial property that remains abandoned or underutilized in part because of environmental contamination or the fear of such contamination.” " To combat this problem, EPA created a program to "empower states, communities, and other stakeholders in economic redevelopment to work together in a timely manner to prevent, assess, safely clean up, and sustainably reuse brownfields." The program functions by providing grants and funding to parties looking to clean and develop brownfields, as well as limiting liability for actors who undertake the public service of cleaning up contaminated sites. One of the most important aspects of the brownfield program is the release from liability for actors who voluntarily undertake a brownfield cleanup.

States participate cooperatively with the federal government to facilitate remediation of brownfield sites. This cooperation is facilitated through federal grants and state implementation of federal brownfield program requirements. Some heavily industrial states, for example New Jersey, prevent the transfer of contaminated property altogether. New Jersey's Industrial Site Recovery Act ("ISRA") requires certain levels of remediation before an "industrial establishment" can be sold, transferred, or closed. The goal of this and similar programs is to promote "efficient and timely cleanups" and eliminate unfair burdens on those eventually responsible for site remediation.

ELI has an excellent website on brownfields, as well as an extensive body of publications, many free for download, and an extensive research program on contaminated sites.

For an article on how brownfield programs can help encourage smart growth, see Joel Eisen, “Brownfields Development: From Individual Sites to Smart Growth.”

Pollution Prevention

Congress passed the Pollution Prevention Act of 1990 ("PPA") to encourage reduction in the amount of waste produced, not just regulation of wastes that had already been generated. While the act includes mainly voluntary measures, it has helped reduce the amount of waste produced according to EPA.

PPA  creates the well-known hierarchy of "reduce, reuse, recycle" by encouraging generators to first try to reduce or reuse waste. When this was not feasible, generators are encouraged to recycle the waste or to at least treat it "in an environmentally safe manner." Disposal or release into environment is considered a "last resort."

For articles on innovative uses of pollution prevention, see Richard Reibstein, “Using the Tools of Pollution Prevention to Reduce Greenhouse Gas Emissions,” and William Thomas, “Using Auditing, Pollution Prevention, and Management Systems to Craft Superior Environmental Enforcement Solutions.”