Sessions
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ENVIRONMENTAL POLICY AND LAW
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Session 7
Waste Management
(The Resource Conservation Recovery Act; Flow Control; The Basel Convention; The Comprehensive Emergency Response, Compensation and Liability Act)
| Environmental Policy & Law |
Chapter 7: Waste Management |
Class Assignment: |
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Solid Waste Disposal Act & RCRA
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Dormant Commerce Clause & Waste Disposal
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The Bamako Convention |
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Additional Waste-Related Terms & Concepts |
Solid Waste Disposal Act & the RCRA:
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Solid Waste Disposal/Resource Conservation
and Recovery Act and Major Amendments (42 U.S.C. 6901-6991k)Solid Waste Disposal Act Overview:
"In 1965 the Solid Waste Disposal Act [Public Law (Pub. L.) 89-72] was enacted to improve solid waste disposal methods. It was amended in 1970 by the Resource Recovery Act (Pub. L. 91-512), which provided the Environmental Protection Agency (EPA) with funding for resource recovery programs. However, that Act had little impact on the management and ultimate disposal of hazardous waste. In 1976 Congress enacted the Resource Conservation and Recovery Act (RCRA, Pub. L. 94-580). RCRA established a system for managing non-hazardous and hazardous solid wastes in an environmentally sound manner. Specifically, it provides for the management of hazardous wastes from the point of origin to the point of final disposal (i.e., "cradle to grave"). RCRA also promotes resource recovery and waste minimization."
"RCRA (pronounced "rick-rah") gave EPA the authority to control hazardous waste from the "cradle-to-grave." This includes the generation, transportation, treatment, storage, and disposal of hazardous waste. RCRA also set forth a framework for the management of non-hazardous wastes. The 1986 amendments to RCRA enabled EPA to address environmental problems that could result from underground tanks storing petroleum and other hazardous substances. RCRA focuses only on active and future facilities and does not address abandoned or historical sites (see CERCLA)."
The Hazardous and Solid Waste Amendments of 1984 (HSWA, Pub. L. 98-616) HSWA (pronounced "hiss-wa") — "are the 1984 amendments to RCRA that required phasing out land disposal of hazardous waste. Some of the other mandates of this strict law include increased enforcement authority for EPA, more stringent hazardous waste management standards, and a comprehensive underground storage tank program." both expanded the scope and increased the requirements of RCRA." HSWA addressed congressional concern about the adequacy of existing requirements to prevent uncontrolled releases of hazardous constituents or hazardous wastes from hazardous waste management units. Three of the HSWA initiatives were especially noteworthy in preventing or addressing hazardous waste/constituent releases.
First, Congress directed EPA to develop what is now known as the Land Disposal Restrictions (LDR) Program [Section 3004(d) of RCRA]. Under the LDR Program the land disposal of untreated wastes is prohibited. Generally speaking, the LDR Program consists of three elements: the disposal prohibition, the dilution prohibition, and the storage prohibition. The most prominent aspect of the LDR Program is the disposal prohibition, which includes treatment standards, variances, and notification requirements. The EPA must establish treatment standards for all listed and characteristic hazardous wastes destined for land disposal. Treatment standards are either concentration levels for hazardous constituents or treatment technologies that must be applied to the waste in order to substantially diminish the toxicity of wastes and/or reduce the likelihood that wastes will migrate from the disposal site. The regulatory requirements of the LDR Program can be found in 40 Code of Federal Regulations (CFR), 261 and 268.
Second, facilities were required to satisfy minimum technology requirements (i.e., liners and leachate collection systems) for surface impoundments, waste piles, land treatment units, and landfills (40 CFR) 264/265, Subparts K-N) to prevent hazardous wastes and/or constituents from migrating into the groundwater and to allow releases to be detected when they occur [Section 3004(o)].
Third, when a facility seeks a RCRA permit, EPA was granted the authority to require corrective action for releases of hazardous waste and hazardous constituents from any solid waste management unit, regardless of when the waste was placed in the unit [Sections 3004(u) and 3004(v)]."
"The Medical Waste Tracking Act of 1988 (Pub. L. 100-582) amended RCRA in response to public concern over the degradation of shoreline areas, particularly in Connecticut, New Jersey, and New York, due to the washups of medical debris (e.g., needles, syringes, blood bags, bandages, vials). Among other things, this Act required EPA to establish a two-year demonstration program for tracking medical wastes generated in specified states. On March 24, 1989, EPA issued an interim final rule entitled Standards for the Tracking and Management of Medical Waste [54 Federal Register (FR) 12326]. "
"The Federal Facility Compliance Act (FFCAct, Pub. L. 102-386) was enacted on October 6, 1992, and, among other things, specifically waived sovereign immunity with respect to RCRA for federal facilities. Therefore, EPA may impose fines and penalties on federal agencies. Please click here to see a brief summary of the FFC Act. On March 26, 1996, RCRA was amended by the Land Disposal Program Flexibility Act of 1996 (Pub. L. 104-119). "
Solid Waste & Strategic Behavior:
American Mining Congress v. U.S. EPA, 824 F.2d 1177, 1183 (D.C. Cir. 1987) (American Mining I) In this important case AMC argued that its manufacturing wastes should be exempted from the designation of "solid waste" since such "wastes" were to be re-used (recycled) again in the manufacturing process - i.e. the wastes were not being discarded. The D.C. Court of Appeals agreed with AMC, ruling that such wastes could not be considered "solid wastes" under RCRA when they would be later used in the manufacturing process. Dissenters on the court were primarily concerned with the potential of manufacturing wastes (regardless of whether they are discarded or re-used) to cause environmental harm.
American Mining Congress v. EPA, 907 F.2d 1179, 1186 (D.C. Cir. 1990) (American Mining II) The issue of "potential environmental harm" represented by the dissenting judges in AMC1 were addressed in AMC2. This case involved the classification sludge held in a retaining pond under RCRA. Again, AMC argued that the sludge should not be considered solid waste since it was destined for potential re-use - this despite the issue of the sludge's potential leaching from the pond into nearby aquifers and streams. Recognizing the potential for environmental harm of the sludge, the court narrowed the ruling in AMC1 to only allow for wastes that are safely stored for immediate re-use ((within 90 days) to be exempted from RCRA's definition of solid waste.
American Petroleum Institute v. EPA (a.k.a. API) This 2000 case revolved around the claims by API that certain wastes produced as by-products of the refining process should not be treated as "solid wastes" under the RCRA when such wastes were brought to a reclamation facility to be recycled. This case was heard before the First Circuit Court of Appeals in Washington, D.C. where the majority of the petition from API was dismissed on the basis of the court's belief that it lacks jurisdiction in this matter. However, the court even further distanced itself from the AMC1 ruling by redefine the term "discarded waste" as involving materials that were "disposed of, abandoned or thrown away," such that wastes that were destined for an AMC "reclamation" facility were considered to already be "solid waste" since they had already entered the waste disposal system (i.e. what to do with the waste). This decision completely turned around AMC1 such that hazardous materials cannot "re-identify" themselves as somehow non-hazardous just because they have entered a waste reclamation facility.
Undaunted by this decision, API continues to pursue changes in RCRA's definition of solid waste, as exemplified in their 2003 memo to the White House. In that memo, API representatives called for the fundamental reform of RCRA as it relates to "residuals" from manufacturing that are to reclaimed or recycled since such materials are neither "disposed of, abandoned nor thrown away." They also ask that spent hydrotreating and hydrorefining catalysts also be excluded from RCRA since they are recyclable and their designation as hazardous wastes have increased the costs associated with their transportation. API argues that these catalysts should only be defined as hazardous wastes whenever they are handled in such a fashion as to violate EPA's "acceptable risk threshold." API also calls for (1) increased flexabilty and the elimination of redundant regulations in regard to EPA's determination of what constitutes "widespread use" of onboard refueling vapor recovery (ORVR) [this deals with the reduction of volatile organic compound vapor releases (VOCs) at filling stations where cars and trucks are fueled], and (2) the reduction of paperwork in regard to the Toxic Chemical Release Inventory (TCRI) reporting.
Categories of Solid Hazardous Waste: (Solid Waste & Hazardous Solid Waste):
"The statutory definition of a solid waste is completely irrespective of the physical form of the waste. A "solid" waste can be just as easily liquid or gas. A material is considered a solid waste if it:
Is a solid, semi-solid, liquid, or contained gaseous material which is discarded or has served its intended purpose?
Is abandoned?
Is being recycled by being placed on the ground (and that is not the normal use), burned for energy recovery, reclaimed, or accumulated more than one year.
Is inherently waste-like (e.g., dioxin wastes)?"
"After you have determined that you have a solid waste on hand, the next step is to determine if that solid waste is excluded from RCRA regulation.
EPA grants specific exclusions from some hazardous waste regulations if certain conditions are met. Some materials are excluded from the definition of solid waste, while some solid wastes are excluded from the definition of hazardous waste. Knowing these exclusions can be helpful in waste management programs.
Some materials that are excluded from the definition of solid waste (and therefore are NOT hazardous) include:
Domestic sewage
Industrial wastewater discharges
Radioactive waste
Spent wood preserving solutions that are reclaimed and reused in the wood preserving process
Processed scrap metal
Irrigation return flow
In situ mining waste
Secondary materials that are reclaimed and returned to the original process, if the reclamation and return process is totally enclosed.
These wastes are not hazardous because they are not considered solid waste.
Some solid wastes are excluded from the definition of hazardous wastes:
Household waste (pesticides, cleaners)
Some agricultural wastes that are returned to the soils as fertilizers
Fossil fuel combustion wastes
Cement kiln dust (unless the facility burns hazardous waste as fuel)
Arsenic-treated wood wastes generated from a person using wood for its intended purpose
Petroleum-contaminated media that is subject to the UST corrective action program
Used oil filters that have been hot drained
Used chlorofluorocarbon refrigerants that are being reclaimed for further use.
These solid wastes are excluded from the definition of hazardous waste by EPA.
In addition, some recycled materials are not classified as solid waste. Materials are not solid wastes IF:
They are being used as substitutes for commercial products
Returned back to the original process without first being reclaimed or land disposed.
This exemption is not valid if the materials are burned for energy recovery or used to make a product that will be applied to the land.
Samples collected for lab analysis are exempt from RCRA regulation until it is determined that they are to be disposed of.
Used oil that exhibits hazardous characteristics can be excluded if recycled. It is regulated under Standards for the Management of Used Oil (40 CFR Part 279).
Universal wastes (including batteries, pesticides, mercury-containing thermostats, switches, and thermometers, and electric lamps) may also qualify for reduced regulation.
The list above is NOT comprehensive. If your waste is not on the list above, it may still be excluded from RCRA regulation. See 40 CFR 261.4 for a complete list of those wastes exempt from hazardous waste regulation. Furthermore, if your waste IS listed above, that does not mean you are automatically exempt. Each exemption above is conditional and facility managers should review applicable sections of 40 CFR 261 and contact their State's hazardous waste program for clarification on exemptions."
"EPA "lists" hazardous wastes that fall into four categories;
F-listed wastes: The F list includes wastes from common industrial processes. Because they are not specific to one type of industry, they are called wastes from non-specific sources. This list includes for example many types of spent (or used) solvents. See 40 CFR 261.31 to see if your waste is F-listed.
K-listed wastes: The K list includes wastes from specific industrial processes, such as wood preservation, organic chemical production, and pesticide manufacturing. See 40 CFR 261.32 for the complete list of manufacturing process wastes to see if your facility might have a K-listed waste.
P- and U-listed wastes: These two lists designate certain commercial chemical products as hazardous when disposed of unused. These unused chemicals may become wastes in a number of ways. Some can be spilled while in use while others can be intentionally discarded if out of specification. For a waste to qualify as a P- or U-listed waste, it must meet all three of the following criteria:
The formulation must contain at least one chemical on the P or U list
The chemical in the waste must be unused
The chemical in the waste must be in the form of a CCP.
*A CCP is a chemical that is of technical (commercial) grade, 100% pure, and the only active ingrediant in the formulation.
There are hundreds of P- and U-listed wastes. Facility managers should look in 40 CFR 261.33 to see if chemicals present on-site are hazardous if disposed of unused. Please note that the chemicals with the "P" code are acutely hazardous. Generators with acutely hazardous waste are subject to different accumulation limits for those wastes."
If your waste is not listed in 40 CFR Part 261, it may still be a hazardous waste. The next step is to see if your waste is a characteristic hazardous waste.
Solid wastes that are not directly listed in 40 CFR Part 261 may still be hazardous. EPA uses a classification system based on the four properties of solid wastes. If a material exhibits at least one of these characteristics, it is classified as a hazardous waste. The four properties are:
IGNITABILITY
A substance is ignitable if it displays any of the following properties.
A liquid with a flashpoint of less than 60° C (140° F);
A non-liquid that is capable, under standard temperature and pressure, of causing fire through friction, absorbtion of moisture, or spontaneous chemical changes, and when ignited, burns so vigorously and persistently that it creates a hazard;
An ignitable compressed gas;
An oxidizer (such as a chlorate or peroxide).
Details on the ignitability characteristic are included in 40 CFR 261.21.
CORROSIVITY
A substance is corrosive if it displays any of the following properties:
An aqueous material with a pH less than or equal to 2 or greater than or equal to 12.5;
A liquid that corrodes steel at a rate of at least 0.25 inches per year at 55° C (130° F); NOTE: A waste that is not aqueous and contains no liquid falls outside the definition of EPA corrosivity.
Details on the corrosivity characteristic are included in 40 CFR 261.22.
REACTIVITY
A substance is reactive if it displays any of the following properties.
Normally unstable and readily undergoes violent change without detonating;
Reacts violently with water;
Forms potentially explosive mixtures with water;
A cyanide or sulfide bearing waste which can generate fumes in a quantity sufficient to present a danger to human health.
Capable of detonation
A forbidden explosive, or a Class A or Class B explosive, as defined in Department of Transportation regulations in 49 CFR Part 173.
Details on the reactivity characteristic are included in 40 CFR 261.23.
TOXICITY
A substance is toxic if it exceeds the concentrations for contaminants listed in the "Maximum Concentration of Contaminants for the Toxicity Characteristic" table, presented in 40 CFR 261.24. A specific test, the Toxicity Characteristic Leaching Procedure (TCLP) must be conducted to determine if the waste is classified as toxic. Details on the toxicity characteristic are included in 40 CFR 261.24.EPA designates specific, standardized test methods that are to be used when determining the characteristics of a waste. These techniques are listed in the above mentioned sections.
"The "Mixture Rule" states that mixtures of solid waste and listed hazardous waste must be regulated as hazardous waste. There are two ways to determine if a material is regulated under the mixture rule:
If the material is a mixture of a solid waste and a hazardous waste, and the mixture exhibits one or more of the characteristics of hazardous waste;
If the material is a mixture of a solid waste and a listed waste. The mixture rule is intended to discourage generators from mixing wastestreams. More information can be reviewed at 40 CFR 261.3(a)(iii) and (iv)."
"Hazardous waste treatment, storage, and disposal processes often generate residues that may contain high concentrations of hazardous constituents. The derived-from rule governs the regulatory status of such waste residues.
According to the Rule, any solid waste derived from the treatment, storage, or disposal of a hazardous waste is considered hazardous. "Derived from" wastes include sludges, spill residue, ash, emission control dust, and leachate. Some examples are drums that have been used for storage of a hazardous waste, or ash from the incineration of hazardous waste. This principle applies regardless of the actual risk to human or environmental health. More details about the "derived-from" rule and exemptions to the rule are included in 40 CFR Part 261.3 (c) and (d)."
"The "contained-in" policy dates back to a 1986 memorandum which states that although groundwater is not a solid waste, it can be considered a hazardous waste if it "contains" a hazardous waste. This policy was then applied to soil and debris."
Transporters, Generators, & Treatment, Storage and Disposal Facilities (TSDs)
The Hazardous and Solid Waste Amendments (HSWA) of 1984 and RCRA.
While "the Resource Conservation and Recovery Act (RCRA, Pub. L. 94-580) established a system for managing non-hazardous and hazardous solid wastes in an environmentally sound manner. Specifically, it provides for the management of hazardous wastes from the point of origin to the point of final disposal (i.e., "cradle to grave"), and promotes resource recovery and waste minimization.
The Hazardous and Solid Waste Amendments of 1984 (HSWA, Pub. L. 98-616) both expanded the scope and increased the requirements of RCRA. HSWA addressed congressional concern about the adequacy of existing requirements to prevent uncontrolled releases of hazardous constituents or hazardous wastes from hazardous waste management units. Three of the HSWA initiatives were especially noteworthy in preventing or addressing hazardous waste/constituent releases.
First, Congress directed EPA to develop what is now known as the Land Disposal Restrictions (LDR) Program [Section 3004(d) of RCRA]. Under the LDR Program the land disposal of untreated wastes is prohibited. Generally speaking, the LDR Program consists of three elements: the disposal prohibition, the dilution prohibition, and the storage prohibition. The most prominent aspect of the LDR Program is the disposal prohibition, which includes treatment standards, variances, and notification requirements. The EPA must establish treatment standards for all listed and characteristic hazardous wastes destined for land disposal. Treatment standards are either concentration levels for hazardous constituents or treatment technologies that must be applied to the waste in order to substantially diminish the toxicity of wastes and/or reduce the likelihood that wastes will migrate from the disposal site. The regulatory requirements of the LDR Program can be found in 40 Code of Federal Regulations (CFR), 261 and 268.
Second, facilities were required to satisfy minimum technology requirements (i.e., liners and leachate collection systems) for surface impoundments, waste piles, land treatment units, and landfills (40 CFR) 264/265, Subparts K-N) to prevent hazardous wastes and/or constituents from migrating into the groundwater and to allow releases to be detected when they occur [Section 3004(o)].
Third, when a facility seeks a RCRA permit, EPA was granted the authority to require corrective action for releases of hazardous waste and hazardous constituents from any solid waste management unit, regardless of when the waste was placed in the unit [Sections 3004(u) and 3004(v)]."
According to the EPA (based upon RCRA) a waste generator is "any person, by site, whose act or process produces hazardous waste identified or listed in part 261, or whose act first causes a hazardous waste to become subject to regulation."
These are facilities that lie between the waste generator and the waste treatment and disposal facility (TSD) where wastes are consolidated, sorted, and then shipped out in larger transportation vehicles.
According to EPA "Hazardous waste transporters are individuals or entities that move hazardous waste from one site to another by highway, rail, water, or air. This includes transporting hazardous waste from a generator's site to a facility that can recycle, treat, store, or dispose of the waste. It can also include transporting treated hazardous waste to a site for further treatment or disposal.
Requirements for transporters include :
- Obtaining an EPA Identification number (available from your state environmental office).
- Complying with the manifest system.
- Responding appropriately to hazardous waste discharges.
- Complying with all applicable DOT regulations and DOT's hazardous materials safety Web site
Note that some states may have additional requirements for transporters. "
"The Hazardous Waste Manifest System used by waste transporters is a set of forms, reports, and procedures designed to seamlessly track hazardous waste from the time it leaves the generator facility where it was produced, until it reaches the off-site waste management facility that will store, treat, or dispose of the hazardous waste. The system allows the waste generator to verify that its waste has been properly delivered, and that no waste has been lost or unaccounted for in the process."
"The key component of this system is the Uniform Hazardous Waste Manifest which is a form prepared by all generators who transport, or offer for transport, hazardous waste for off-site treatment, recycling, storage, or disposal. Currently, the manifest is a paper document containing multiple copies of a single form. When completed, it contains information on the type and quantity of the waste being transported, instructions for handling the waste, and signature lines for all parties involved in the disposal process. The manifest is required by both Department of Transportation and EPA. Each party that handles the waste signs the manifest and retains a copy for themselves. This ensures critical accountability in the transportation and disposal processes. Once the waste reaches its destination, the receiving facility returns a signed copy of the manifest to the generator, confirming that the waste has been received by the designated facility."EPA provides a training module for solid waste transporters which can be accessed online.
Treatment, Storage and Disposal Facilities (TSDs)
Treatment: "Treatment is any process that changes the physical, chemical, or biological character of a waste to make it less of an environmental threat. Treatment can neutralize the waste; recover energy or material resources from a waste; render the waste less hazardous; or make the waste safer to transport, store, or dispose.
Hazardous waste generally must be treated before it can be disposed. The treatment standards for each specific hazardous waste (by hazardous waste code) are outlined in 40 CFR §268.40.
Detailed descriptions of the appropriate treatment technologies are outlined in 40 CFR §268.42 Table 1, "Technology Codes and Description of Technology-Based Standards". One common method of treatment is hazardous waste combustion or incineration. Combustion or incineration is used to destroy hazardous organic constituents and reduce the volume of waste. Depending upon the type of waste and its constituents, residual ash may in some cases be landfilled or may require further treatment."
The Land Ban and Regulatory Hammers
"Modern landfills are well-engineered facilities that are located, designed, operated, and monitored to ensure compliance with federal regulations. Solid waste landfills must be designed to protect the environment from contaminants which may be present in the solid waste stream. The landfill siting plan—which prevents the siting of landfills in environmentally-sensitive areas—as well as on-site environmental monitoring systems—which monitor for any sign of groundwater contamination and for landfill gas—provide additional safeguards. In addition, many new landfills collect potentially harmful landfill gas emissions and convert the gas into energy. For more information, visit EPA's Landfill Methane Outreach Program.
There are several types of solid waste landfills:
Municipal Solid Waste Landfills
Municipal solid waste landfills (MFWLFs) receive household waste. MSWLFs can also receive non-hazardous sludge, industrial solid waste, and construction and demolition debris. All MSWLFs must comply with the federal regulations in 40 CFR Part 258 (Subtitle D of RCRA), or equivalent state regulations. Federal MSWLF standards include:
Location restrictions—ensure that landfills are built in suitable geological areas away from faults, wetlands, flood plains, or other restricted areas.
Composite liners requirements—include a flexible membrane (geomembrane) overlaying two feet of compacted clay soil lining the bottom and sides of the landfill, protect groundwater and the underlying soil from leachate releases.
Leachate collection and removal systems—sit on top of the composite liner and removes leachate from the landfill for treatment and disposal.
Operating practices—include compacting and covering waste frequently with several inches of soil help reduce odor; control litter, insects, and rodents; and protect public health.
Groundwater monitoring requirements—requires testing groundwater wells to determine whether waste materials have escaped from the landfill.
Closure and postclosure care requirements—include covering landfills and providing long-term care of closed landfills.
Corrective action provisions—control and clean up landfill releases and achieves groundwater protection standards.
Financial assurance—provides funding for environmental protection during and after landfill closure (i.e., closure and postclosure care).
Some materials may be banned from disposal in municipal solid waste landfills including common household items such as paints, cleaners/chemicals, motor oil, batteries, and pesticides. Leftover portions of these products are called household hazardous waste. These products, if mishandled, can be dangerous to your health and the environment. Many municipal landfills have a household hazardous waste drop-off station for these materials.
More information on municipal solid waste landfills:
Bioreactor Landfills
Bioreactors are municipal solid waste landfills that are designed to quickly transform and degrade organic waste. The increase in waste degradation and stabilization is accomplished through the addition of liquid and, in some cases, air to enhance microbial processes. Bioreactors are a new approach to landfill design and operation that differ from the traditional "dry tomb" municipal landfill approach.
Construction and Demolition (C&D) Debris Landfills
These landfills accept only C&D debris such as concrete, asphalt, brick, wood, drywall, asphalt roofing shingles, metals, and some types of plastics generated during the construction and demolition of homes, commercial buildings, and other structures. C&D landfills are subject to less stringent standards than municipal solid waste landfills due to the relatively inert nature of C&D debris materials.
Industrial Waste Landfills
These landfills are designed for the management of non-hazardous industrial process wastes. Industrial waste consists of a wide variety of non-hazardous materials that result from the production of various goods and products. Industrial waste landfills are subject to the federal requirements in 40 CFR Part 257, Subparts A and B, as well as any state-specific regulations."
Protecting Groundwater from Landfill Waste
Despite the best efforts of regulation to protect groundwater from landfill pollution, there is always the possibility that such pollution can occur. For instance, in landfills with plastic linings, leakage can occur from point sources (holes and tears n the liner) which will produce leachate-contaminated groundwater plumes that may not be detected by groundwater monitors that are sunk vertically into the soil. According to engineer Dr. G. Fred Lee of G. Fred Lee and Associates of San Macero California:
"Hazardous waste and municipal solid waste dry-tomb landfills represent an ongoing threat to groundwater quality. Because the plastic sheeting used in the composite liners in Subtitle C and D landfills will eventually deteriorate, and because there is virtually no possibility that landfill covers of the type being constructed today will keep moisture out of the landfill for as long as the wastes represent a threat--that is, forever--it is inevitable that leachate will migrate through the liner to pollute the underlying groundwater.
At best, groundwater monitoring detects leachate pollution after the fact. In areas where groundwater could be used for domestic or any other purposes, the presence of Subtitle C and D landfills represents a continuing threat unless an approach is implemented and maintained to provide appropriate intervention before leachate can reach the groundwater. Thus, instead of relying on groundwater monitoring to detect liner failure, we suggest the practice of direct monitoring for failure of the uppermost composite liner in a Subtitle C landfill or the composite liner in a Subtitle D landfill.
We propose (2) the use of a pan lysimeter monitoring system that would underlie the full landfill area. This approach would include a double-composite liner system in which the lower composite liner would be used for leak detection. Such a system would reveal when leachate has leaked through the upper composite liner to a sufficient extent to pollute the groundwater under the landfill and render it unusable for domestic water supply purposes. Although Subtitle C landfills (and, in a number of states, Subtitle D landfills) incorporate double composite liner systems, the lower liner is simply relied upon as an additional barrier to leachate migration. In our system, however, the function of the lower liner is not the last level of containment but rather the first line of leak detection."
Overall, Dr. Lee cites a number of common problems with landfills to include those highlighted in Table 1:
Hazardous Waste Treatment Council v EPA: Here is the introductory statement to this case when it appeared before the U.S. Supreme Court in October, 1988:
"This case involves challenges by petitioner, an industry trade association, to three regulatory actions taken by the Administrator of the United States Environmental Protection Agency (EPA), pursuant to the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6901 et seq.
The first EPA action, which was the subject of the first opinion below, was the promulgation of final regulations establishing standards under Section 3004(q) of RCRA, 42 U.S.C. 6924(q), for used oil that is burned for energy recovery. The court of appeals dismissed part of petitioner's challenge to those regulations for lack of standing and upheld the rule in all other respects. Pet. App. 1a-27a.
The other two EPA actions are the subject of the second opinion below. EPA published a notice establishing the deadline for certain cement kilns burning hazardous waste fuel (HWF) to submit permit applications under Section 3005 of RCRA, 42 U.S.C. 6925 (1982 & Supp. IV 1986. EPA also promulgated final regulations establishing standards for the permitting of "miscellaneous units" under RCRA. The court of appeals dismissed petitioner's challenges to both of those EPA actions because petitioner lacked standing. Pet. App. 30a-40a. In both of its opinions, the court of appeals determined that petitioner's interests in the lawsuits were not within the "zone of interests" protected or regulated under RCRA."Here are the findings of the Court of Appeals in this case:
"(1) organization had standing insofar as it represented members on whom regulatory laxity might inflict environmental injury; (2) appellate jurisdiction did not exist over claim that promulgated rules failed to include necessary requirements because EPA had not fully implemented statutory goal; (3) rules for regulated used oil could be less stringent than rules applicable to other hazardous waste; (4) mixture of used oil with hazardous waste from small quantity generator could be treated as regulated used oil, rather than hazardous used oil; and (5) rule permitting dilution of off-specification used oil with virgin oil in order to meet specifications reflected permissible construction of waste disposal law. [The Court of Appeals] Dismissed in part; all other respects denied."
From this court ruling came a new approach to managing the problem of used oil. According to the EPA's Used Oil Management Program:
"Used oil is any oil that has been refined from crude oil or any synthetic oil that has been used and as a result of such use is contaminated by physical or chemical impurities. Simply put, used oil is exactly what its name implies--any petroleum-based or synthetic oil that has been used. During normal use, impurities such as dirt, metal scrapings, water, or chemicals can get mixed in with the oil, so that in time the oil no longer performs well. Eventually, this used oil must be replaced with virgin or re-refined oil to do the job at hand EPA's used oil management standards include a three-pronged approach to determine if a substance meets the definition of used oil. To meet EPA's definition of used oil, a substance must meet each of the following three criteria:
Origin — the first criterion for identifying used oil is based on the origin of the oil. Used oil must have been refined from crude oil or made from synthetic materials. Animal and vegetable oils are excluded from EPA's definition of used oil.
Use — the second criterion is based on whether and how the oil is used. Oils used as lubricants, hydraulic luids, heat transfer fluids, buoyants, and for other similar purposes are considered used oil. Unused oil such as bottom clean-out waste from virgin fuel oil storage tanks or virgin fuel oil recovered from a spill, do not meet EPA's definition of used oil because these oils have never been "used." EPA's definition also excludes products used as cleaning agents or solely for their solvent properties, as well as certain petroleum-derived products like antifreeze and kerosene.
Contaminants — the third criterion is based on whether or not the oil is contaminated with either physical or chemical impurities. In other words, to meet EPA's definition, used oil must become contaminated as a result of being used. This aspect of EPA's definition includes residues and contaminants generated from handling, storing, and processing used oil. Physical contaminants could include metal shavings, sawdust, or dirt. Chemical contaminants could include solvents, halogens, or saltwater. "
Used Oil Is: *
Used Oil Is Not:
- Synthetic oil — usually derived from coal, shale, or polymer-based starting material.
- Engine oil — typically includes gasoline and diesel engine crankcase oils and piston-engine oils for automobiles, trucks, boats, airplanes, locomotives, and heavy equipment.
- Transmission fluid.
- Refrigeration oil.
- Compressor oils.
- Metalworking fluids and oils.
- Laminating oils.
- Industrial hydraulic fluid.
- Copper and aluminum wire drawing solution.
- Electrical insulating oil.
- Industrial process oils.
- Oils used as buoyants.
*This list does not include all types of used oil.
- Waste oil that is bottom clean-out waste from virgin fuel storage tanks, virgin fuel oil spill cleanups, or other oil wastes that have not actually been used.
- Products such as antifreeze and kerosene.
- Vegetable and animal oil, even when used as a lubricant.
- Petroleum distillates used as solvents.
Oils that do not meet EPA's definition of used oil can still pose a threat to the environment when disposed of and could be subject to the RCRA regulations for hazardous waste management.
Once oil has been used, it can be collected, recycled, and used over and over again. An estimated 380 million gallons of used oil are recycled each year. Recycled used oil can sometimes be used again for the same job or can take on a completely different task. For example, used motor oil can be re-refined and sold at the store as motor oil or processed for furnace fuel oil. Aluminum rolling oils also can be filtered on site and used over again.
Used oil can be recycled in the following ways:
Reconditioned on site, which involves removing impurities from the used oil and using it again. While this form of recycling might not restore the oil to its original condition, it does prolong its life.
Inserted into a petroleum refinery, which involves introducing used oil as a feedstock into either the front end of the process or the coker to produce gasoline and coke.
Re-refined, which involves treating used oil to remove impurities so that it can be used as a base stock for new lubricating oil. Re-refining prolongs the life of the oil resource indefinitely. This form of recycling is the preferred option because it closes the recycling loop by reusing the oil to make the same product that it was when it started out, and therefore uses less energy and less virgin oil.
Processed and burned for energy recovery, which involves removing water and particulates so that used oil can be burned as fuel to generate heat or to power industrial operations. This form of recycling is not as preferable as methods that reuse the material because it only enables the oil to be reused once. Nonetheless, valuable energy is provided (about the same as provided by normal heating oil)."
" EPA distinguishes between used oil and waste oil. For example, bottom waste generated from an oil storage tank cleanout or virgin oil spill residue may be contaminated with impurities, but because they have never been used, they do not meet the definition of used oil. Two other distinctions regarding used oil that you may encounter at your campus' printing operations include mixtures of used oil with hazardous wastes, and solid wastes, both of which are further described below. Many states also have their own used oil regulations.
Used Oil and Hazardous Waste Mixtures
If the hazardous waste is listed, then the mixture of used oil and hazardous waste must be managed according to the hazardous waste rules. If the hazardous waste is characteristically hazardous, then two possibilities exist for managing the mixture of used oil and characteristically hazardous waste:
If the hazardous waste is hazardous solely because it is ignitable and the resulting mixture is not ignitable, then the mixture can be managed as used oil. For example, used oil displaying toxicity characteristic for lead is mixed with an ignitable hazardous waste. Providing the mixture is no longer ignitable, this mixture may be managed as used oil. If the mixture is ignitable, then it must be managed as a hazardous waste and not as used oil.
If the hazardous waste exhibits one or more characteristics of hazardous waste other than ignitability, the resultant mixture must not display any characteristics if it is going to be managed as used oil. For example, used oil displaying toxicity characteristic for lead is mixed with a hazardous waste that is characteristically reactive. In order for this mixture to be managed as used oil, it must be void of both the lead characteristic and the reactive characteristic.
Used Oil and Solid Waste Mixtures
Used oil mixed with solid waste or material contaminated with or containing used oil is regulated under the RCRA used oil regulation in 40 CFR 279. If the used oil has been properly drained or removed from the mixture; that is, there are no visible signs of free-flowing oil, then in almost all cases the solid waste is no longer subject to regulation as used oil. If, however, the solid waste is burned for energy recovery, then it is still subject to regulation as used oil. The drained used oil, of course, is regulated by 40 CFR 279.
Used Oil Containing PCBs
Used oil containing less than 50 ppm of PCBs is subject to 40 CFR 279 provided that no dilution has occurred. Used oil with greater than or equal to 50 ppm is regulated under TSCA, 40 CFR 761.
Conditional Exemptions
While several types of exemptions from the used oil regulations exist (such as distillation and tank bottoms used for asphalt paving and roofing, crude oil pipelines, petroleum refineries) - they key exemption potentially applicable to a printing operation is the exemption for wastewater. Basically, any small spills, leaks, or drippings from machinery, pumps, and other similar equipment during normal operations that enter the wastewater treatment system during washing or draining are exempt from used oil management regulations; rather, they are regulated by the Clean Water Act. Used oil that might be recovered from wastewater, however, must be managed according to the used oil requirements in 40 CFR 279.
Used Oil Storage
The RCRA requirements for storing used oil are straightforward, "borrowing" some requirements from the RCRA hazardous waste rules for container management. In short, the requirements for storing used oil are as follows:
The used oil must be stored in tanks, containers or units subject to regulation under 40 CFR 264, 265, or 280. These may include aboveground tanks, underground tanks (USTs), or lined surface impoundments.
Tanks or containers must be in good condition; meaning, free of any visible spills, leaks, structural damage or deterioration.
Tanks, containers and fill pipes used to transfer used oil into USTs must be clearly labeled as "Used Oil," to prevent inadvertent mixing of used oil with hazardous waste or other materials.
There is no time or quantity limitation imposed on generators of used oil because, given that used oil is a marketable commodity, EPA is trying to provide an incentive for generators to send used oil out for recycling. If your printing operations generate used oil that is sent off-site for recovery, the transporter used to transport the used oil must have an EPA identification number.
Used Oil Disposal
Options for used oil disposition include: sending the used oil off-site to a facility authorized to process or re-refine the used oil; burning used oil as a fuel; marketing the used oil. Each is described below.
Sending Used Oil Off-Site
In most cases, a generator of used oil sends the used oil off-site to a facility permitted to handle the used oil (much like a hazardous waste treatment, storage and disposal facility (TSDF)). The generator must make sure the used oil is transported using a transporter that has an EPA identification number.
Burning Used Oil as a Fuel
Used oil that meets the specification criteria in 40 CFR 279.11 is not regulated by the burner standards in 40 CFR 279. Off-specification used oil can be burned for energy recovery in only the following three devices: industrial furnaces (only 12 specific furnaces that are listed in 40 CFR 260.10), boilers that meet the criteria listed in 40 CFR 260.10, and permitted hazardous waste incinerators.
Marketing the Used Oil
A used oil marketer is defined by EPA as one who either (1) directs a shipment of off-specification used oil from their facility to a used oil burner; or (2) first claims that used oil that is to be burned for energy recovery meets the used oil fuel specifications set forth in 40 CFR 279.11. In essence, then, there are off-specification used oil marketers and specification (or on-specification) used oil marketers and the requirements for the two vary.
If a used oil marketer has not already done so, it must obtain an EPA identification number by notifying the EPA of its used oil activity in a written letter that includes the marketer's name, the owner of the marketer, address of the marketer, name and phone number for a point of contact, and the type of used oil activity.
Off-specification used oil may only be shipped to a used oil burner who has an EPA identification number and who burns the used oil in approved industrial furnaces or boilers. The marketer of off-specification used oil must keep a record (e.g., log, invoice, manifest, bill of lading, etc.) of each shipment of used oil to a used oil burner that identifies the following:
Name and address of transporter delivering the used oil to the burner
Name and address of the burner who will receive the used oil
EPA identification numbers of both the transporter and the burner
Quantity of used oil shipped
Date of shipment
On-specification used oil may be shipped to a regulated used oil burner, as well - providing the oil has been analyzed to demonstrate it's "on specification." The marketer of specification used oil must keep a record of each shipment of used oil to an on-specification used oil burner that identifies the following:
Name and address of the facility receiving the used oil
Quantity of used oil shipped
Date of shipment
Cross-reference to the record of used oil analysis or other information used to make the determination that the oil meets the specification."
On- and Off-Specification Used Oil:
"On-specification Used Oil. On-specification used oil is oil that falls within the following levels for each of the following constituents:
Constituent/Property:
Allowable Level
Arsenic:
5 ppm maximum
Cadmium:
2 ppm maximum
Chromium:
10 ppm maximum
Lead:
100 ppm maximum
Flash Point:
100 deg. F minimum
Total Halogens:
1,000 ppm maximum *
*The specification limit for total halogens is 4,000 ppm, but if oil is contaminated with 1,000 ppm or more halogens it is presumed to be mixed with a hazardous waste until testing proves otherwise. Often times it is simply saltwater that makes the halogen level high. Demonstrating that the halogens are inorganic instead of organic is one legitimate way to rebut the presumption and classify the used oil as on-specification.
Burners of on-specification used oil must comply with the following notification, analysis, and recordkeeping requirements.
Obtain an EPA ID number;
Perform an analysis of the used oil to ensure it is on- specification; and
Record each shipment of on-specification used oil delivered to a burner.
Off-Specification Used Oil. Off-specification used oil is oil that exceeds the specifications shown in the table. Used oil is assumed to be off-specification unless testing proves otherwise. Off-specification used oil may be burned only for energy recovery in boilers and industrial furnaces. Burners of off-specification used oil must comply with the following standards:
Obtain an EPA identification number to burn off-specification used oil;
Process and store used oil in areas with oil-impervious flooring and secondary containment;
Issue a onetime written notice to the generator, transporter, or processor/re-refiner certifying that the burner has notified EPA of its used oil management activities; and,
Record each shipment of used oil accepted for burning."
Besides the types of wastes, how do the RCRA Subtitle C and Subtitle D programs differ? Under the RCRA hazardous waste regulations, Subtitle C, EPA has primary responsibility for the permitting of hazardous waste treatment, storage, and disposal facilities. This is until EPA authorizes a State to operate portions or all of the hazardous waste program in lieu of EPA operating the program. In contrast, Congress intended via RCRA Subtitle D that permitting and monitoring of municipal and non-hazardous waste landfills shall be a State responsibility. RCRA does not authorize EPA to issue Federal permits for disposal of Subtitle D wastes. Information on the permitting process and on individual landfills must be obtained by contacting the state agencies (and in some states the local health departments) and the local municipality, in Alaska, Idaho, Oregon, or Washington."
"Subtitle C establishes a federal program to manage hazardous wastes from cradle to grave. The objective of the Subtitle C program is to ensure that hazardous waste is handled in a manner that protects human health and the environment. To this end, there are Subtitle C regulations for the generation; transportation; and treatment, storage or disposal of hazardous wastes. In practical terms, this means regulating a large number of hazardous waste handlers. The RCRA Subtitle C program also:
Conducts compliance evaluation inspections to ensure that hazardous waste is managed in accordance with law, regulations, and safe handling practices.
Works with state agencies and the Department of Justice on civil and criminal enforcement of hazardous waste laws where violations are observed.
Helps state and local agencies develop and administer hazardous waste management programs.
The Subtitle C program has resulted in perhaps the most comprehensive regulations EPA has ever developed. The regulations first identify the criteria to determine which solid wastes are hazardous, and then establish various requirements for the three categories of hazardous waste handlers: generators, transporters, and treatment, storage and disposal facilities (TSDFs). In addition, the Subtitle C regulations set technical standards for the design and safe operation of TSDFs. These standards are designed to minimize the release of hazardous waste into the environment. Furthermore, the regulations for TSDFs serve as a basis for developing and issuing the permits required by the Act for each facility. Permits are essential to making the Subtitle C regulatory program work, since it is through the permitting process that the EPA or state applies standards to TSDFs.
The RCRA Corrective Action program is a result of the 1984 Hazardous and Solid Waste Amendments (HSWA) passed by Congress. These amendments required the cleanup of contamination from improper waste management practices both prior and after the passage of RCRA. The statute requires responsible parties that are seeking a permit to treat, store or dispose of hazardous wastes to clean up environmental contaminants at their sites regardless of the time of release. EPA’s Corrective Action authority was substantially expanded by HSWA, allowing the Agency to address any releases of hazardous waste or hazardous waste constituents to all environmental media at both RCRA permitted and non-permitted facilities."
Based upon the provisions of Subtitle D, "the state and local governments are the primary planning, permitting, regulating, implementing, and enforcement agencies for management and disposal of household and industrial or commercial non-hazardous solid wastes. EPA establishes technical design and operating criteria (which, at a minimum, the States include in their own regulations) for disposal facilities. Also, per Subtitle D, EPA must determine the adequacy (approval status) of the State permit programs. Note, EPA can only do compliance inspections and enforcement of the Federal minimum criteria after EPA has determined a State’s solid waste program to be inadequate. Approved States benefit from potential use of the flexibility that is included in the federal regulations. Tribes can also request (petition) EPA for use of the flexibility on a site-specific landfill basis.
EPA’s minimum national technical criteria (regulations) include specific requirements for location, operation, design (liner, leachate collection, run-off controls, etc), groundwater monitoring, corrective action, closure and post-closure care, and financial assurance responsibility. The primary regulations are found in 40 CFR Part 257 and Part 258 of the Code of Federal Regulations. EPA has also issued regulations under the Clean Air Act that apply to emissions from very large landfills, and certain EPA criteria issued under the Clean Water Act may apply. Note, EPA currently (10/01) does not have any specific or unique RCRA regulations on disposal of medical wastes at landfills. States and local communities should be contacted to find out how to dispose of medical wastes.
EPA provides States, local agencies, and Native American Tribes and Alaskan Native Villages with information, guidance, and policies to help these entities, the public, and the regulated community to make better decisions on waste issues. Subjects covered include incineration and landfilling activities, the environmental and economic benefits of source reduction and recycling of solid wastes, and upgrading or closure of environmentally unsound disposal units.
EPA has helped develop and implement new initiatives and programs that aid businesses, states, local governments, and tribes in implementing resourceful solid waste management programs. The focus is particularly on the environmental and economic benefits of source reduction and recycling (the term Source Reduction refers to reducing waste at the source, or point of creation, of the product itself). These initiatives include WasteWise, Jobs Through Recycling, Pay As You Throw (Unit Pricing), and Full Cost Accounting for municipal solid waste."
Challenge of Pollution Prevention:
Raw materials that later become waste may be completely unregulated, or may be regulated under FIFRA or TSCA. OSHA regulates occupational exposure to contaminants, leaving the RCRA to only cover the so-called "waste stream" which is "a narrow subset of total manufacturing operations." As the text points out, most environmental law treats industries like "black boxes" in which something is known about the resources going in and those coming out (including waste) but little is known about what actually goes on "inside the box (a.k.a. factor7)."
For that reason, environmental law frequently relies upon what is known as the "End of Pipe" approach to waste regulation (where 99% of environmental regulation occurs), making this the regulatory approach of last resort. However, when business are encouraged to become more self-regulating in their behavior, they can be encouraged to adopt and "end of pipe" prevention model where they become responsible for "managing" the resources they have created.
A more useful approach involves Pollution Prevention which includes such strategies as:
Source Reduction and Reuse, which the EPA source reduction "refers to any change in the design, manufacture, purchase, or use of materials or products (including packaging) to reduce their amount or toxicity before they become municipal solid waste. Source reduction also refers to the reuse of products or materials." Benefits of source reduction and reuse include:
"Saves natural resources. Waste is not just created when consumers throw items away. Throughout the life cycle of a product—from extraction of raw materials to transportation to processing and manufacturing facilities to manufacture and use—waste is generated. Reusing items or making them with less material decreases waste dramatically. Ultimately, less materials will need to be recycled or sent to landfills or waste combustion facilities.
Reduces toxicity of waste. Selecting nonhazardous or less hazardous items is another important component of source reduction. Using less hazardous alternatives for certain items (e.g., cleaning products and pesticides), sharing products that contain hazardous chemicals instead of throwing out leftovers, reading label directions carefully, and using the smallest amount necessary are ways to reduce waste toxicity.
Reduces costs. The benefits of preventing waste go beyond reducing reliance on other forms of waste disposal. Preventing waste also can mean economic savings for communities, businesses, schools, and individual consumers.
Communities. More than 6,000 communities have instituted "pay-as-you-throw" programs where citizens pay for each can or bag of trash they set out for disposal rather than through the tax base or a flat fee. When these households reduce waste at the source, they dispose of less trash and pay lower trash bills.
Businesses. Industry also has an economic incentive to practice source reduction. When businesses manufacture their products with less packaging, they are buying less raw material. A decrease in manufacturing costs can mean a larger profit margin, with savings that can be passed on to the consumer.
Consumers. Consumers also can share in the economic benefits of source reduction. Buying products in bulk, with less packaging, or that are reusable (not single-use) frequently means a cost savings. What is good for the environment can be good for the pocketbook as well. "
Waste Minimization which employs aste management techniques that focus upon "reducing the amount and toxicity of hazardous waste generated." "Waste minimization techniques focus on preventing waste from ever being created, otherwise known as source reduction, and recycling. These techniques can be practiced at several stages in most waste generating processes, but require careful planning, creative problem solving, changes in attitude, sometimes capital investment, and a genuine commitment."
Other useful Pollution Prevention techniques include:
"Housekeeping
A little extra attention paid to "minor" sources of waste can result in major reductions. These techniques have worked for other firms:
Inspect and repair equipment to reduce waste caused by equipment breakdown, leaks and spills
Contain leaks and spills by installing drip trays and splash guards
Control inventories by purchasing only what is needed, and date and label all storage containers so products will not exceed their shelf life
Modify equipment and materials cleaning practices to reduce the frequency of cleaning, to minimize quantity of cleaning material used, or to enhance recycling of raw materials removed during cleaning
Keep containers closed except when material is added or withdrawn
Segregate different kinds of waste to increase opportunities for recycling and reduce the volume of waste that must be considered hazardous
Track wastes to insure proper handling
Material Substitution
Disposing of hazardous materials has become expensive. It makes sense to substitute less hazardous materials whenever possible. Good material choices can also increase opportunities to recycle. Consider the following substitutions:
Use water soluble cleaning agents in place of organic solvents and degreasers
Replace hydrocarbon-based paints and inks with water based ones; then use water rather than hydrocarbon solvents for cleanup
Buy recycled and recyclable products
One company that replaced organic solvents and degreasers with water-soluble synthetic cleaners reduced solvent use by 30% and saved $12,000 a year.
Equipment Modifications
Some pollution prevention techniques require re-examining and modifying equipment to reduce equipment-related inefficiency. Many industries can minimize waste by using the following techniques:
Automate process monitoring to reduce errors that may produce off-specification batches
Choose equipment that is easy to clean
Use spray equipment that reduces overspray
Modify equipment to reduce materials lost to the waste stream (e.g. reduce water use; install tank overflow controls, revise rinsing methods)
Modify equipment to reduce emissions (e.g. increase freeboard on tanks or install chillers in the freeboard zone to reduce volatile gas emissions)
A simple drag-out recovery system cost a nickel plating firm less than $1,000. The firm saved $4,200 worth of nickel per year and reduced the amount of nickel sludge produced by 9,500 pounds a year.
Process Modifications
Rethinking an entire production or manufacturing process can be a very effective way of preventing pollution. Often the new process is more efficient and costs less to operate. The kinds of process modifications that will work depend on the process itself, but these examples illustrate the idea:
A circuit board manufacturer began to use screen printing rather than lithography for image transfer, eliminating the need for developers
A power tool manufacturer replaced a solvent-based electrostatic paint system with a water-based electrostatic immersion system
An engine remanufacturer replaced an inorganic caustic cleanser by introducing a system that bombards articles to be cleaned with aluminum shot "
The Dormant Commerce Clause & Waste Disposal
For an analysis of this issue, you might want to review the article by Professor Richard A. Epstein entitled "Waste and The Dormant Commerce Clause" as well as the response ("Waste and the Dormant Commerce Clause: A Reply") to that article by Professor Jonathan Adler, and Professor Epstein's "reprise" to Adler's criticism.
"The Dormant Commerce Clause doctrine in United States case law limits the power of states to legislate in connection with interstate commerce."
"The Dormant Commerce Clause does not expressly exist in the text of the United States Constitution. It is a doctrine of congressional power inferred by the U.S. Supreme Court from the actual Commerce Clause in Article I, § 8 of the Constitution. This article authorizes Congress to "regulate commerce among the states."
This clause is applied in the following court cases:
Basel Convention (Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and Their Disposal)
The Basel Convention was brought on in part due to a number of cases involving international cases involving problems with waste disposal to include the Khian Sea case and the case Koko (Nigeria) case.
According to the ENVIS - Environmental Information System, the "Basel Convention found its origin in the international outrage due to illegal transnational shipping of hazardous waste. In the later half of 1980s, the highly industrialized countries faced stringency in the environmental regulations, leading to a rise in the costs of hazardous waste disposal. Exploring a cheaper alternative, the hazardous wastes began finding an easy inlet into the developing countries. The European Environment Agency asserts that the "central goal of the Basel Convention is to protect human health and the environment by minimising hazardous waste production whenever possible through environmentally sound management. The convention requires that the production of hazardous wastes be managed using an integrated life-cycle approach, which involves strict controls from its generation to storage, transport, treatment, reuse, recycling, recovery and final disposal." The Convention encompasses the movement of toxic, poisonous, explosive, corrosive, flammable, ecotoxic and infectious wastes across trans-boundaries.
According to the Congressional Research Service report, the Basel Convention has two overall purposes: "(1) to encourage the environmentally sound management of hazardous wastes, and (2) to protect developing countries from receiving hazardous wastes without prior informed consent."
Accordingly, the objectives of the convention include:
Active promotion and use of cleaner technologies and production methods;
Further reduction of the movement of hazardous and other wastes;
The prevention and monitoring of illegal traffic;
Improvement of institutional and technical capabilities especially for developing countries and economies in transition;
Further development of regional and sub-regional centres for training and technology transfer.
According to James Salzman and Barton Thomposn, Jr. Parties signing on to the Basel Convention agree that they will not initiate the exportation of waste without written confirmation of (1) "Consent of the importing country, (2) consent of any transient countries, and (3) confirmation from the importing country of a written contract between the exporter and the disposer specifying the environmentally sound management of the waste."
Under the convention, signatories obligate themselves to the following actions:
"Each Party can prohibit the import of hazardous wastes and other wastes. If it does, it should inform other Parties to the Convention (Article 4, paragraph 1 (a).
Each Party shall prevent the import of hazardous wastes and other wastes if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner (Article 4, paragraph 2 (g)).
Each Party that intends to export hazardous or other waste shall ensure that the waste will be managed in an environmentally sound manner at the place of its destination. (Article 4, paragraph 8)
Each Party shall not permit hazardous wastes or other wastes to be imported from a non-Party unless these is a bilateral, multilateral or regional agreement allowing this import (Article 4, paragraph 5) and (Article 11, paragraph 1)
Each Party shall not permit hazardous wastes or other wastes to be exported to a non-Party unless these is a bilateral, multilateral or regional agreement allowing this import (Article 4, paragraph 5) and (Article 11, paragraph 1)
Each Party shall ensure that persons involved in the management of hazardous wastes or other wastes shall prevent pollution and minimize potential impacts on human health and the environment (Article 4, paragraph 2 (c)).
Each Party shall prohibit all persons under its national jurisdiction from transporting or disposing of hazardous wastes or other wastes unless such persons are authorized to do so (Article 4, paragraph 7 (a)).
Each Party shall require that hazardous wastes and other wastes that are being transported to another country to be properly labelled according to international rules and standards (Article 4, paragraph 7 (b)).
Each Party shall require that any person who takes charge of a transport of hazardous wastes or other wastes from one country to another to sign the movement document (see details of movement document) (Article 6, paragraph 9).
Each Party shall require that any person who takes charge of a transport of hazardous wastes or other wastes that pass through (transits) another country to inform the transit country in writing. (Article 2, paragraph 13).
Each Party shall notify the Secretariat of any bilateral, multilateral or regional agreements or arrangements it has agreed upon for the purposes of moving hazardous or other wastes. (Article 11, paragraph 2).
Each Party which potentially could be an importer of hazardous or other wastes may write to the exporter and:
consent to the import with or without conditions,
deny permission for the import, or
request additional information (Article 6, paragraph 2)
Each Party shall ensure that any export of hazardous or other wastes is covered by insurance, bond or other guarantee as required by the importer or transit country (Article 6, paragraph 11)"
The Basel Convention was concluded in March of 1989 and a complete text of the final agreement can be found at Globelaw.com, as can the Basel Convention Rules of Procedure. For an interesting look at a case study involving the Basel Convention, look at the piece by Kevin Cuddy (1992) in American University's TED (Trade and Economic Development) Online Journal entitled "Basel Convention on Waste Trade." Likewise Phillipe Roch of Ourplanet.com provides another interesting retrospective on the Basel Convention entitled "The Basel Convention: Ten Years On." The Congressional Research 1998 report on the convention is also worth reviewing.
The Basel Convention defines wastes as "substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law." Under the Convention, 'disposal' means any operation specified in Annex IV to the Convention. Annex IV contains two lists of 'disposal operations'. These are:
Annex IVA which sets out operations which do not lead to the possibility of resource recovery, recycling, reclamation, direct re-use or alternative uses; and
Annex IVB which sets out operations which may lead to resource recovery, recycling, reclamation, direct re-use or alternative uses.
In 1995 the Basel Convention was amended with what is now known as the "Basal Ban" in which signatory parties " agreed to an immediate ban on the export from OECD to non-OECD countries of hazardous wastes intended for final disposal. They also agreed to ban, by 31 December 1997, the export of wastes intended for recovery and recycling." Since 1995, the Basel Ban has been the dominant goal and activity of the treaty. The U.S. has vociferously opposed the ban, preferring instead to selectively ratify the Basel Convention. While the U.S. has financially contributed to the Secretariat of the Basel Convention, it has not ratified the treaty - primarily because doing so would require a number of changes in the Resource Conservation and Recovery Act (RCRA) to include:
Expanding EPA authority beyond its current statutory limits to to stop waste exports in cases where it believes the waste would not be managed in an environmentally deleterious manner.
Defining what the term " environmentally sound management" (ESM) means within the context of RCRA as well as addressing the issue of how the U.S. EPA would go about evaluating the "environmentally sound management" practices of overseas receiving facilities.
Providing EPA the authority to repatriate wastes from other countries whenever such wastes are deemed to not be managed in an environmentally sound fashion (also known as the “go get it and bring it back provision”). Currently, EPA lacks the authority to require a company to retrieve waste from a foreign locale and return it to the U.S. for proper disposal.
To date, the U.S. has not ratified the Basel Convention.
The Bamako Convention, adopted in January 1991 among African nations (Organization of African Unity), was a response to the Basel Convention, reflecting the concerns of OAU members that a the total ban on exporting hazardous wastes into Africa were not adequately addressed. According to the Center for International Earth Science Information Network at Columbia University, the objective of this convention was to " To create a framework of obligations to strictly regulate the trans-boundary movement of hazardous wastes to and within Africa." The convention can be summarized as follows:
"The summary of provisions include Scope of the Convention, which is confined to hazardous wastes, though not wastes from ship discharges covered by another Convention. Hazardous substances banned, cancelled or refused registration by government regulatory action for health or environmental reasons are defined as hazardous wastes under the Convention. Radioactive wastes are covered by the Convention. State Parties are tasked with responsibility for the enactment of legislation identifying and categorizing hazardous wastes not already listed in the Convention. The Convention enumerates general obligations of States Parties in respect of the enforcement of a ban on hazardous waste import, and on the dumping of hazardous wastes at sea and internal waters, in respect of waste generation, and the adoption of precautionary measures. State Parties are required to establish monitoring and regulatory authorities to report and act on transboundary movement of hazardous wastes. The Convention also stipulates the requirement of cooperation between States Parties, and with international organizations, in the fulfillment of the objectives of the Convention and provisions on the exchange of information among State Parties on incidents of hazardous wastes, and on approaches to a solution of the problems identified. The Convention establishes a secretariat to serve a Conference of the Parties and some financial. It also deals with the procedure for settlement of disputes. The Convention has the following annexes: categories of wastes which are hazardous waste; list of hazardous characteristics; disposal operations; information to be provided on notification; information to be provided on the movement document; arbitration."
Comprehensive Emergency Response, Compensation, and Liability Act (CERCLA)
The Comprehensive Environmental Response Compensation and Liability Act (CERCLA) (a.k.a. SuperFund) empowered the EPA with broad discretion to investigate and remediate the most contaminated waste sites in the U.S. Under this law, the United States Congress directed EPA to identify abandoned or uncontrolled hazardous waste sites and clean up the worst of these sites. The Agency carries out these responsibilities through the Superfund response process, according to procedures outlined in the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The NCP is a federal regulation that guides determination of the sites to be corrected under both the Superfund program and the program to prevent or control spills into surface waters or elsewhere
CERCLA authorizes EPA to conduct a "Preliminary Environmental Site Assessment" – i.e. an initial investigation which entails a detailed review of the available background information followed by an inspection of the off-site and on-site areas. This process is also known as “environmental due diligence” which precedes the Phase I Environmental Site Assessment process. CERCLA also includes what is known as “strict liability” (a.k.a. liability without fault) that would apply to a so-called innocent purchaser of a property who could nevertheless be held liable for contamination regardless of the absence of his role in creating the contamination in the first place. To a significant degree, CERCLA is the Congressional response to the Love Canal pollution case.
CERCLA was enacted by Congress in December 1980, creating a tax on the chemical and petroleum industries and providing EPA extensive federal authority to directly respond to the release (or threatened releases) of hazardous substances that may potentially endanger public or environmental health. So stated, CERCLA:
"established prohibitions and requirements concerning closed and abandoned hazardous waste sites;
provided for liability of persons responsible for releases of hazardous waste at these sites; and
established a trust fund to provide for cleanup when no responsible party could be identified."
CERCLA authorizes two forms of response to polluters:
Short-term removals, where actions may be taken to address releases or threatened releases requiring prompt response.
Long-term remedial response actions that permanently and significantly reduce the dangers associated with releases or threats of releases of hazardous substances that are serious, but not immediately life threatening. These actions can be conducted only al sites listed on the EPA's National Priorities List (NPL).
Moreover, CERCLA enabled the revision of the National Contingency Plan (NCP), which provides guidelines and procedures for responding to both releases and threatened releases of hazardous substances, pollutants, or contaminants. The NCP also established the NPL. CERCLA was amended by the Superfund Amendments and Reauthorization Act (SARA) in October 1986.
The following figure illustrates how CERCLA works:
So illustrated, CERCLA involves negotiating a set of sequential steps:
"Site Discovery
Potential CERCLA sites are typically identified through state and county inspections and reports from concerned citizens. Federal facilities, such as JPL, were required to conduct investigations of past waste management activities, in response to SARA Section 120(d) (Federal Facilities).Preliminary Assessment and Site Investigation
The first step in the CERCLA process for a federal facility is two initial studies known as the Preliminary Assessment (PA) and Site Investigation (SI). Both studies include collecting and reviewing available information to determine the magnitude of the problem posed by the site. At the conclusion of the SI, the site is then scored by the EPA using a standard system called the Hazard Ranking System (HRS). The HRS considers potential relative risks to public health and the environment from release or threatened release of chemicals at the site.NPL Listing
If the overall potential risks at a site are determined to be significant based on its HRS score, the site will be nominated for placement on the National Priority List (NPL). The NPL is a listing by the EPA of the top-priority sites that are eligible for investigation and remediation under the federal CERCLA program. Typically, sites must receive a score of at least 28.5 out of 100 to be included on the NPL. JPL received a score of 50.0.
Remedial Investigation and Feasibility Study
After a site has been placed on the NPL, two related studies, the Remedial Investigation (RI) and the Feasibility Study (FS), are planned and conducted. An RI/FS may take several years to complete depending on the size and scope of the site. This phase includes comprehensive sampling and data collection to evaluate the nature, extent, and magnitude of impacts both on- and off-facility. As part of the RI/FS, a risk assessment is performed to identify and quantify the risks that the site poses to public health, welfare, and the environment. The risk assessment evaluates present and future risks in the absence of any remediation and helps determine the need for and extent of remediation requirements. During the FS, remedial alternatives are identified and evaluated based on technical feasibility, protectiveness, effectiveness, impacts to the community, institutional concerns, conformance with other applicable relevant and/or appropriate environmental laws, and costs. A preferred cleanup alternative is proposed as part of the FS.
Removal Actions
A removal action can be conducted at any time during the CERCLA process, if the site poses an immediate threat to public health or the environment. A Removal Action is an immediate (short-term) action, such as the implementation of a temporary alternative water supply, which is taken to safeguard public health or the environment. In cases where more than a six month planning period exists before a removal action will begin, an Engineering Evaluation/Cost Assessment (EE/CA) is prepared in order to identify the objectives of the removal action and evaluate various alternatives with respect to cost, effectiveness, and implementability. After the Removal Action is completed, the environmental investigation or remediation process resumes according to the appropriate step in the CERCLA process.
Proposed Plan and Public Comment Period
Upon completion of the FS, a Proposed Plan is published, which summarizes the remediation alternatives evaluated in the FS. The Proposed Plan describes the preferred clean up strategy proposed by the lead agency and the supporting regulatory agencies. The Proposed Plan is then submitted for public comment for a 30-day period, which may be extended an additional 30 days upon timely receipt of a request from a member of the community.
Record of Decision
At the conclusion of the public comment period and following consideration of all community comments, the lead agency, with regulatory approval, will make the final remedy selection. This final remedy selection is issued in a Record of Decision (ROD), a legal public document that sets forth and explains the remediation alternatives to be used at a CERCLA site. The ROD includes a Responsiveness Summary that contains responses to all public comments received during the public comment period on the Proposed Plan.
Remedy Design and Implementation
After the ROD is signed, the Remedial Design (RD) phase of work is initiated. The RD includes preparation of engineering reports, technical drawings, and specifications to describe implementation of the selected remedy. Upon approval of the RD by the supporting regulatory agencies, the Remedial Action (RA), or the actual construction and implementation of the selected clean up alternative, is initiated. The final long-term remedial action may take one to two years to construct, although treatment may take several more years. The RA is implemented until cleanup objectives are achieved.
NPL De-Listing
A site may be removed from the NPL upon determination that no further response is required to protect human health or the environment. Under Section 300.425(e) of the NCP (55 FR 8845, March 8, 1990), a site may be de-listed after all appropriate response actions are completed. Partial deletions can also be conducted at NPL sites. For example, soil remediation may be completed and the vadose zone de-listed prior to de-listing groundwater at the same NPL site.
Long-Term Monitoring/Review
After RD/RA activities have been completed, the site is monitored to ensure the effectiveness of the response. Typically, CERCLA sites undergo reviews every five years after implementation of the remedy to evaluate the continued protectiveness of the remedy"CERCLA's Potentially Responsible Parties:
"Potentially Responsible Parties are individuals, companies, or any other parties that are potentially liable for payment of Superfund cleanup costs. Companies that generate hazardous substances disposed of at a Superfund site, current and former owners and operators of the site, and transporters who selected the site for disposal of hazardous substances may be responsible for part or all of the cleanup costs.
EPA attempts to identify PRPs early to achieve a PRP-lead cleanup rather than EPA performing a Superfund (Fund-lead) cleanup. A PRP search generally is initiated around the time of site discovery. EPA conducts a preliminary search to identify obvious PRPs. PRP searches include reviewing state and federal agency records, conducting title searches, interviewing site operators, and performing PRP financial assessments.
If a PRP having sufficient financial assets is unwilling to settle, EPA may issue a unilateral administrative order (UAO) under Section 106(a) of CERCLA. A UAO compels the party to conduct the cleanup. Failure to comply with a UAO may result in the imposition of fines, damages, and court orders to conduct the cleanups. If EPA feels the site requires immediate action, EPA uses Superfund monies to proceed with cleanup (a Fund-financed cleanup), with the authority to later recover its costs from PRPs through Administrative actions, if less than $500,000. When more than $500,000 is sought, EPA must go to court to recover its expenses. These lawsuits usually result in a settlement (consent decree), but may go to full trial."
The following table outlines how financial liability functions under CERCLA:
Triggering Superfund Liability
"Superfund liability is triggered if:
Hazardous substances are present at a facility,
There is a release (or a release may occur unless something is done to prevent it) of these hazardous substances,
Response costs have been or will be incurred, and
The defendant is a liable party.
There are 4 classes of Superfund liable parties:
1. Current owners and operators of a facility,
2. Past owners and operators of a facility at the time hazardous wastes were disposed,
3. Generators and parties that arranged for the disposal or transport of the hazardous substances, and
4. Transporters of hazardous waste that selected the site where the hazardous substances were brought.
Potentially responsible parties are liable for:
The costs the government has incurred for cleanup,
Damages to natural resources (for example, to a fishery),
The costs of certain health assessments, and
Injunctive relief ( i.e ., performing a cleanup) where a site may present an imminent and substantial endangerment.
CERCLA liability is retroactive - Parties may be held liable for acts that happened before Superfund's enactment in 1980.
CERCLA liability is joint and several - Any one potentially responsible party may be held liable for the entire cleanup of the site (when the harm caused by multiple parties cannot be separated).
CERCLA liability is strict - A potentially responsible party cannot simply say that it was not negligent or that it was operating according to industry standards. If it is determined that the potentially responsible party sent some amount of the hazardous waste found at the site, it is liable. "
There are several defenses that may be used to defend a CERCLA law suit. These include:
Secure Creditor Exemption: An amendment to CERCLA that serves to "immunize from liability lenders who otherwise would be liable as "operators" or "owners" due to their efforts to realize on their collateral. The exemption applies to "any person who, without participating in the management of a facility, holds indicia of ownership primarily to protect his security interest in the facility."
The Innocent Landowner Defense: "The Innocent Landowner defense arises out of the statutory definition of "contractual relationship" referred to in the third party defense. Congress defined "contractual relationship" to include real estate transactions, and then provided that an owner of contaminated property can establish a defense to CERCLA liability if (i) the property was acquired after the hazardous substance was disposed there and (ii) at the time of acquisition, the owner "did not know and had no reason to know" that the hazardous substance was disposed on the property. Further, an owner can establish that he or she had "no reason to know" only if he or she conducted appropriate due diligence prior to the acquisition.
To establish that the defendant had no reason to know…the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership AND uses of the property consistent with good commercial or customary practice in an effort to minimize liability.
… From 42 U.S.C §9601(35)(B) (emphasis added)
According to CERCLA all appropriate inquiry into the previous ownership must be undertaken to comply with the innocent landowner defense. As a party to a commercial real estate transaction it is imperative that the environmental due diligence adheres to both Statute 9601(35)(B) and ASTM Phase I ESA. The American Society for Testing and Materials (ASTM), which is a private not-for profit standards-writing organization, has developed a standard (Designation E 1527-00) for conducting a Phase I Environmental Site Assessment (ESA). The Phase I ESA standards were written to establish good site assessment."
Bonafide Prospective Purchaser Defense: "Under SABRA, a purchaser of property, even environmentally contaminated property, acquiring a facility after December 20, 2001 and meeting the following conditions, may invoke the bona fide prospective purchaser defense to CERCLA liability: (1) all disposal at the site occurs prior to acquisition; (2) for commercial property, the person makes all commercially appropriate inquiries in accordance with the revised due diligence standard in §101(35), and for residential property, the person inspects the premises and searches the title to reveal that there is no basis for further inspection; (3) provides all legally required notices regarding the discovery of the hazardous substances; (4) exercises appropriate care by taking reasonable steps to stop any continuing release, to prevent future releases, and to prevent or limit human or environmental exposure to previous releases; (5) provides full cooperation to persons conducting response actions; (6) complies with any existing or clean-up derived institutional controls on the use of the land, such as types of development; (7) complies with requests for information from the U.S. Environmental Protection Agency ("EPA"); and (8) is not a potentially responsible party, or affiliated with another potentially responsible party through direct or indirect familial relationship, or through any contractual, corporate or financial relationship. The bona fide prospective purchaser can expect to have an EPA windfall lien placed on its property, which means that the EPA may impose a lien on the contaminated property for the amount equal to the appreciation in the property value as a result of the EPA response action. This lien, however, does not need to be satisfied until the property is sold."
Contiguous Property Owners: "Under CERCLA, a contiguous property owner whose land has been contaminated by adjacent contaminated lands (generally by migration via groundwater) is generally liable for the contamination on his property. Under SABRA, however, there is a new defense for such contiguous property owners. SABRA allows a contiguous property owner to be relieved from liability by meeting the following conditions: (1) he did not cause or contribute to release; (2) is not affiliated with or successor to the person who is liable for release; (3) takes reasonable steps to stop any continuing release, to prevent future releases and to limit exposure to release; (4) provides full cooperation and access to response action providers; (5) does not impede any ongoing response action; (6) complies with requests for information; (6) provides all required notices of release; and (7) did not know about the release in the contiguous property at the time of purchase. Any purchaser who does not fit into the criteria of the contiguous property owner defense may still qualify for the bona fide prospective purchaser defense. However, if the purchaser qualifies for the contiguous property owner defense, he cannot pass the defense on to a buyer of his property once the contamination is known."
"Divisibility" Exemption: "A potentially responsible party may avoid joint and several liability if it can prove that the harm it caused can be separated from the harm caused by other potentially responsible parties (this is rare given the nature of hazardous waste sites). Although a cleanup is often divided among potentially responsible parties to perform or pay for, that does not mean that the harm caused by each potentially responsible party's waste can be separated. "
Service Station Exemption: "The Service Station Dealer Exemption (SSDE) is for "service station dealers" that accept "do-it-yourselfer" used oil and send the used oil to another facility for recycling."
Recycling Exemption: "Those who arranged for the recycling of certain materials are exempt from CERCLA generator and transporter liability, providing they meet certain criteria."
Cleanup Contractor Exemption: "Companies/individuals contracted to perform investigation or cleanup activities at Superfund sites are protected from CERCLA liability, except in cases of negligence or intentional misconduct."
State & Local Government Liability Under CERCLA: "State and local governments are not liable for costs resulting from an emergency response to a hazardous substance release or threatened release (unless gross negligence or intentional misconduct is involved). In addition, if a government "involuntarily" acquires a CERCLA facility, it is exempt from owner/operator liability (provided it did not cause or contribute to the contamination)."
Bush (George W. Bush) Administration Amendments to CERCLA:
"President Bush recently signed into law the Small Business Liability Relief and Brownfields Revitalization Act, the first substantial set of amendments to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) in years.
The amendments are complex and cover many aspects of the Superfund program. Among the most significant changes are new provisions limiting liability for "innocent landowners," "bona fide prospective purchasers" and "contiguous property owners." The amendments also aim to encourage redevelopment of "brownfields" – commercial or industrial properties where contamination and potential CERCLA liability hinder development – by providing federal funding to states with voluntary site cleanup programs.
Innocent Landowner Defense Clarified
Prior to these amendments, the innocent landowner defense – available to owners that did not know and had no reason to know of contamination upon acquisition – was so narrow that courts rarely accepted it. The amendments clarify with new detail that to be an innocent owner one must carry out "all appropriate inquiries" prior to acquisition and take "reasonable steps" to stop any new or continuing release.
As to the "all appropriate inquiries" requirement, the U.S. Environmental Protection Agency (EPA) is to promulgate detailed regulations by January 11, 2004. Until then, the amendments codify the use of an American Society for Testing and Materials standard (ASTM Standard E1527-97, "Standard Practice for Environmental Site Assessment: Phase 1 Environmental Site Assessment Process") for property purchased on or after May 31, 1997. For sites purchased prior to that date, courts must evaluate liability on a case-by-case basis guided by general statutory criteria. As to "reasonable steps," EPA may (but is not required to) issue guidance. Unless and until it does so, this new term is open to interpretation by the courts.
Bona Fide Prospective Purchasers Protected
Prior to the amendments, persons acquiring previously contaminated property, but who did not qualify as innocent landowners, were liable for cleanup of contamination regardless of the extent of their knowledge or care. To facilitate the sale and development of brownfields and similar property that is still suited for commercial or industrial use, the amendments establish standards of inquiry and conduct that may shield from such liability a purchaser who took ownership after January 11, 2002. To qualify, the owner must establish, among other things, that it made appropriate inquiries into the previous ownership and uses of the facility and took reasonable steps to stop any new or continuing releases.
If a landowner successfully establishes that it was a bona fide prospective purchaser, it will not be liable for any cleanup or remediation of the property. However, if EPA incurs unrecovered response costs at a facility for which an owner is not liable because of this exemption, and the fair market value of the remediated property exceeds its value prior to cleanup, EPA may impose a "windfall" lien on the facility for those costs.
Exemption Created For Contiguous Property Owners
Previously, a property owner could be liable under CERCLA for owning property contaminated by a hazardous substance released from a neighboring site owned by someone else. Under the new contiguous property owner exemption, a property owner who, among other things, conducted all appropriate inquiries when acquiring the property, did not know or have reason to know that the property was contaminated, and has taken reasonable steps to stop any new or continuing releases of hazardous substances will not be liable as an owner or operator. Although reasonable steps are required, a contiguous landowner need not conduct groundwater investigations or remediation if a hazardous substance enters groundwater beneath that landowner's property solely as a result of subsurface migration in an aquifer. (This provision codifies EPA's July 3, 1995 policy concerning owners of property overlying contaminated aquifers.)
EPA may issue an "assurance" that no enforcement action will be initiated against the owner and may grant protection against cost recovery or contribution claims. An owner who cannot qualify for this exemption, because of knowledge of the contamination at time of acquisition, may still qualify as a bona fide prospective purchaser.
De Micromis Exemption Adopted
Another exemption introduced by the amendments is the "de micromis" exemption, which eliminates liability for cleanup response costs and contribution actions to entities that contribute less than 110 gallons of liquid materials or less than 200 pounds of solid materials to a site. However, EPA may use its discretion to hold the contributor liable if the small contribution has had an overwhelmingly toxic effect that significantly contributes to cleanup costs."
Properties containing high levels of contamination, and requiring extensive time and resources to remediate are referred to as "Superfund sites." However, only a small percentage of all contaminated sites, approximately 13,000, are designated Superfund sites, and ten percent of these are on the National Priorities List (NPL). By comparison, the term "brownfield" irefers to the large majority of contaminated properties, which are typically smaller in size than Superfund sites and contain low to moderate levels of contamination. Under federal law, current and prospective brownfield property owners are subject to CERCLA requirements before a "brownfield" property can undergo redevelopment. CERCLA can be differentiated from earlier environmental laws in that it revises the formula by which liability and financial responsibility is allocated at the point of site cleanup. Prior to CERCLA's enactment,, liability was determined on the basis of (1) acts of negligence, (2) nuisance, (3) trespass, and similar common law standards. Upon the enactment of CERCLA in 1980, liability was redefined to mean "strict, retroactive, joint and several," which now made current, former and prospective owners responsible for site cleanup.
Brownfield Amendments: (Brownfields Revitalization Act)
"On January 11, 2002 President Bush signed the Small Business Liability Relief and Brownfields Revitalization Act (the "Act"), often referred to as the CERCLA "Brownfields Amendments". EPA Administrator Christine Whitman described the passage of this legislation as a top environmental priority for the Bush Administration and believes the new law will make the cleanup of brownfields sites a more effective and cooperative effort. The Act is designed to facilitate the cleanup and revitalization of abandoned brownfield sites. It has several key provisions. First, the Act contains small business and municipal solid waste liability exemptions to federal Superfund liability. Businesses may be shielded from Superfund liability if they did not contribute a significant amount of non-hazardous waste to the site, and did not add any hazardous wastes.
Second, the Act increases funding to state and local governments and provides some regulatory flexibility. $200 million will be provided annually over the next five years to states to clean and revitalize brownfields properties. States will receive additional assurances that the federal government will not later override brownfields cleanup decisions under state programs.
Third, protections are afforded to innocent parties, such as the owners of property adjacent to contaminated sites, prospective site purchasers, and landowners who did not contribute to the contamination of their property.
Small Business Liability Protection
Title I of the Act, the Small Business Liability Protection Act, provides some liability relief for certain categories of PRPs at CERCLA sites.
De Micromis PRP Exemption. The new de micromis PRP exemption applies to generators or transporters who arranged for the disposal, treatment or transportation of less than 110 gallons of liquid waste or 200 pounds of solid waste before April 1, 2001. The exemption does not apply if the PRP's hazardous substances contributed significantly or could contribute significantly to the cost of the response action or natural resource damages, if the person is impeding a response action, or the person has been convicted of a criminal violation relating to the conduct to which the exemption would apply. EPA's decision to withdraw the de micromis exemption will not be subject to judicial review.
Municipal Solid Waste ("MSW") Exemption. The new MSW exemption applies to MSW that was generated prior to April 1, 2001. The exemption does not apply to transporters of municipalities that own or operate an MSW landfill. MSW is defined as waste material generated by a household (including a single or multifamily residence); and generated by a commercial, industrial, or institutional entity, to the extent the waste material is essentially the same as waste normally generated by a household. The waste must be collected and disposed with other MSW as part of normal MSW collection services and contain a relative quantity of hazardous substances similar to that contained in waste generated by a typical single-family household.
The MSW exemption applies to an owner, operator, or lessee of residential property that generated municipal solid waste. Also exempt are businesses generating MSW that employed 100 or fewer workers during the three taxable years preceding receipt of a PRP notice and qualify as a small business concern under the Small Business Act; and 501(c)(3) non-profit organizations that employed fewer than 100 paid individuals during the taxable year preceding the PRP notice at the location that generated all of the MSW attributable to the organization.
The MSW exemption will not apply if EPA determines that the PRP's hazardous substances contributed significantly or could contribute significantly to the cost of the cleanup or natural resource damages, if the person is impeding the response action, or the person has been convicted of a criminal violation relating to the conduct to which the exemption would apply.
Inability To Pay Settlements. The Brownfield Amendments essentially codify the EPA policy on ability to pay determinations. A PRP that can demonstrate an inability or a limited ability to pay response costs may enter into an expedited settlement to resolve its CERCLA liability. EPA must take into account the ability of the person to pay response costs and still maintain its basic business operations. The PRP requesting the settlement must promptly provide EPA with all relevant information needed to determine the ability to pay response costs. The PRP will be required to waive all claims against other PRPs unless EPA determines that requiring a waiver would be unjust. The settlement does not relieve the responsibility to provide any information or access requested in accordance with the settlement or a CERCLA section 104(e) request for information. EPA's decision to enter or refuse to enter into a limited ability to pay settlement will not be subject to judicial review"
Grants May Be Provided To Fund Brownfields Redevelopment
"In order to aid brownfields redevelopment, the amendments make federal grants available to states with voluntary cleanup programs that include a process for verifying and certifying that sites have been cleaned up to the appropriate state standard. Once a property receives state certification, its owner is no longer subject to enforcement actions or cost recovery claims initiated by EPA for past releases. Currently, about forty states have voluntary cleanup programs granting certification to sites that, although contaminated, have been cleaned up to suitable levels. With federal funds now available for such programs, more states may develop voluntary cleanup programs, more sites may be listed as brownfields, and more brownfields may be available for future development."
Additional Elements Related to Cleanup Under CERCLA:
If a preliminary assessment of a contaminated site leads EPA to place the site on the National Priorities List, the site becomes subject to "remediation" (i.e., cleanup) under CERCLA's authority and rules. The next step at such a site involves a more detailed assessment-a "remedial investigation/feasibility study"-to characterize the extent of contamination. This study also uses a set of technical, social, and financial criteria to compare different alternatives for cleaning up the site. During the process outlined above, EPA also seeks to identify parties that can be held legally responsible for conducting the cleanup work
After the remedial investigation/feasibility study is completed, EPA decides what must be done by "potentially responsible parties" (see above) (PRPs) to remediate the site. EPA then formalizes this conclusion in a Record of Decision (ROD), which includes the cleanup levels to be met and the cleanup technologies to be used. In addition, EPA notifies PRPs of their liability and requests a good faith offer, i.e., a proposal describing how one or more PRPs plan to implement the work called for in the ROD.
If PRPs do not agree to conduct the work set out in the ROD, they may be placed under legally binding administrative orders specifying how and when the remedial measures should be implemented. Alternatively, EPA can complete the remedial actions and sue PRPs to recover cost. In either case, the final stage of the cleanup process involves the design and implementation of measures set out in the ROD. Work proceeds until the cleanup levels detailed in the ROD have been reached.
CERCLA specifies that any party that is potentially responsible for some or all of the pollution can be held liable under strict, joint, and several liability rules; i.e., any one PRP can be held liable for carrying out the entire cleanup operation. A PRP faces a fundamental choice. It can "settle," i.e., negotiate an agreement with EPA regarding specifics of how the remedial measures specified in the ROD will be carried out. Alternatively, the PRP can choose not to settle and risk being placed under legally binding administrative orders detailing its role in the remediation efforts. If there are multiple PRPs, some may choose to settle while others may risk being placed under orders.
There are pros and cons in settling. The main advantages of settling are (1) PRPs can influence decisions related to the implementation of the remedy such as how and when work is scheduled and when progress reports need to be filed. (2) Settlers obtain "contribution protection," which means they cannot be sued for cleanup costs by non-settlers. (3) In addition, they obtain a "covenant not to sue" from the government, which precludes suits by EPA for additional work on matters covered in the settlement. One disadvantage of settling is that a PRP agrees not to challenge in court the remedy to pay some or all of EPA's past and future oversight costs.
PRPs who choose not to settle can often avoid paying past and future oversight costs, and they may avoid having to pay any costs at all if neither EPA nor PRPs who settle take action against them. However, PRPs who do not settle risk being placed under EPA administrative orders to perform work, and penalties for violating such orders can be up to $25, 000 per day. Alternatively, EPA may perform cleanup work and sue non-settling parties for cost recovery. Because non-settlers do not obtain contribution protection, they may also be sued for cost-recovery by PRPs who perform the work."
Here is a look at how one lobbying organization (the Grocery Manufacturers Association (GMA)) in Washington, D.C. regards the issue of CERCLA reform:
"Background
Congress enacted the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) -- commonly known as Superfund -- in 1980, to cleanup the nation's worst hazardous waste sites. Superfund widely is considered to be our nation's most costly and ineffective environmental law. It is mired in finger-pointing, litigation and bureaucratic inefficiencies, rather than focused on cleanup and public health.
The food and consumer product companies of the Grocery Manufacturers of America (GMA) are classic examples of unintended victims of this failed government program. GMA members are being held liable for large volumes of non-hazardous waste that was legally deposited at sites in the past, but that has since been co-mingled and contaminated with hazardous waste.
Current Problems
Discriminatory Liability Approach -- Because of Superfund's most fundamental flaw, retroactive liability, thousands of parties are being held liable for past, legal waste disposal practices. Parties that deposited non-hazardous waste are equally liable as those who contributed hazardous waste. The lack of records prior to 1987 often exacerbates this inequity.
Costly and Excessive Litigation -- According to a Rand study*, one-third of the $11.3 billion spent by the private sector on Superfund sites through 1991 was for litigation. In fact, as much as 72 cents of every dollar spent on Superfund is used for non-cleanup costs.
"Deep Pockets" Targeted -- EPA targets "deep pockets" and allocates liability based on the presence or absence of solvent potentially responsible parties (PRPs) and inadequate disposal records for sites. Considered "deep pockets" by EPA, food and consumer product companies are at a particular disadvantage because their involvement in Superfund sites typically results from disposal of large volumes of waste with very low toxicity. Despite the fact that their waste's characterization is similar to municipal solid waste, food and consumer product companies are treated as polluters, and are often required to pay for cleanup based on the large volume -- not toxicity -- of waste disposed.
Legislative Status
Despite significant effort in the 104th and 105th Congress', comprehensive reform of this highly unpopular and controversial statute remains elusive. After the protracted and difficult debates that took place in both sessions, questionable interest and momentum much less political willpower exists now to reform the statute. Should the need for program funds compel members to reauthorize the law, GMA will continue to advocate comprehensive reform of the statute once again, focusing first on repealing retroactive liability for waste legally deposited prior to 1987. As in the past, GMA will continue to advocate its members' interests directly to members of Congress and staff as well as indirectly through the Food Industry Environmental Council and Superfund Reform Coalition. "
NIMBY "(Not In My Back Yard) is a pejorative acronym for the phenomenon in which residents oppose a development as being inappropriate for their local area but, by implication, do not have a blanket opposition to such developments elsewhere."
"Recycled Oil": "Recycled oil, as defined in section 6363(b)(2) of EPCA is either (a) used oil from which physical and chemical contaminants acquired through prior use of the oil have been removed by refining or other processing, or (b) any blend of re-refined or otherwise processed used oil and new oil or additives, that, for either (a) or (b), the manufacturer has determined, pursuant to the Commission's rule, is substantially equivalent to new oil for a particular end use."
Antecedent Moisture Conditions: (AMC I, AMC II; AMCIII): "Antecedent moisture condition is an indicator of watershed wetness and availability of soil moisture storage prior to a storm, and can have a significant effect on runoff volume. Recognizing its significance, NRCS developed a guide for adjusting CN [runoff "curve number" used for measuring the direct runoff from rainstorms] according to AMC based on the total rainfall in the 5-day period preceding a storm (USDA-SCS, 1985). Three levels of AMC are used in the CN method: AMC-I for dry, AMC-II for normal, and AMC-III for wet conditions."
Hazardous Waste: "Hazardous waste is a legal term defined in Subtitle C of RCRA that describes certain toxic, ignitable, corrosive, or reactive solid wastes generated by manufacturing or other processes."
Recycling: "Includes the use, reuse and/or recovery of waste residuals (that may be designated as a hazardous waste) or materials in a hazardous waste. A material is "used or reused" if it is used as an ingredient in an industrial process to make a product or if it is used as an effective substitute for a commercial product. A material is "recovered" if it is processed to recover a usable product, or if it is regenerated. This is known as materials recovery. In energy recovery, waste is converted into usable fuel."
Waste Minimization and Pollution Prevention: "Waste Minimization is a term found in the Resource Conservation and Recovery Act (RCRA) that refers to source reduction and environmentally sound recycling of RCRA hazardous waste. Pollution Prevention is a term found in the Pollution Prevention Act of 1990 that refers to source reduction of all toxic wastes, including those released to air, water and land resources. Source reduction includes any practice that reduces the quantity and/or toxicity of pollutants entering a waste stream prior to recycling, treatment, or disposal. Examples include equipment or technology modifications, reformulation or redesign of products, substitution of less toxic raw materials, improvements in work practices, maintenance, worker training, and better inventory control."
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