1970: Clean Air Act, OSHAct

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Hazardous Chemicals and Hazardous Waste
1970 Clean Air Act, OSHAct 1972-3 Clean Water
Act, ESA 1976 TSCA, FIFRA, RCRA, HMTA 1980
Superfund 1984 HSWA 1986 SARA
Love Canal, Times Beach
Burford apptmt Congressional hearings on haz
waste programs indictments Ruckleshaus apptmt.
? Bhopal, Dumping in Dixie
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RCRA Objectives

• waste tracking, cradle to grave
• complexity and cost ? why?
• reduce, reuse, recycle treat, dispose

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RCRA Waste Tracking

• Manifest system

• Biennial reporting

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American Mining Congress v. EPA (D.C. Cir. 1987)
What is the source of EPAs dispute with the AMC?
1. Whether materials destined for on-site
recycling are hazardous wastes under RCRA. EPA
wanted to assert jurisdiction over materials
destined for recylcing (that is, to regulate
recycling).

• EPA rule claimed jurisdiction over off-site
  recycling and on-site recycling (reclamation
  combustion) except for immediate reuse of
  material as a substitute for a raw material.

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American Mining Congress v. EPA (D.C. Cir. 1987)
What is the alleged legal defect in EPAs rule on
recycling?
To be a hazardous waste, it must first be a solid
waste. Statutory definition The term ''solid
waste'' means any garbage, refuse, sludge from a
waste treatment plant, water supply treatment
plant, or air pollution control facility and
other discarded material What is discarded
material?
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American Mining Congress v. EPA (D.C. Cir. 1987)
Discarded Material Regulatory definition any
material which is abandoned, recycled, considered
inherently waste-like

• When is a recycled byproduct a waste?
• When it no longer resembles (or serves as) an raw
  material/independent production input?
• When it no longer has any value to the producer?

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American Mining Congress v. EPA (D.C. Cir. 1987)
Dictionary definition of discarded abandoned,
disposed of, thrown away Why not use the
dictionary definition, according to EPA?
Should the court defer to EPAs interpretation of
this statutory term (solid waste)?
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• RCRA Hazardous Waste definition
• Is it a solid waste?
• Is the waste a hazardous waste?

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Is the waste a hazardous waste?
Statute The term ''hazardous waste'' means a
solid waste, or combination of solid wastes,
which may (A) cause, or significantly
contribute to an increase in mortality or an
increase in serious irreversible, or
incapacitating reversible, illness or (B) pose a
substantial present or potential hazard to human
health or the environment when improperly
treated, stored,transported, or disposed of, or
otherwise managed.
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• RCRA Hazardous Waste definition
• Is it a solid waste?
• Is the waste a hazardous waste?

• Characteristic wastes
• Ignitability
• Corrosivity
• Toxicity
• Reactivity

• Listed wastes
• nonspecific sources
• specific sources
• acutely hazardous
• non-acutely hazardous

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RCRA Hazardous Waste definition

• Characteristic wastes
• Ignitability A liquid which has a flash point
  less than 140 degrees F is regulated as an
  ignitable hazardous waste. Examples include most
  organic solvents.
• Corrosivity A waste aqueous solution having a
  pH of less than or equal to 2, or greater than or
  equal to 12.5 is considered to be a corrosive
  hazardous waste.

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RCRA Hazardous Waste definition

• Characteristic wastes
• Toxicity Toxicity is determined by a laboratory
  test known as the "Toxicity Characteristic
  Leaching Procedure", or TCLP. The TCLP test must
  be conducted on any waste which contains any of
  the specified TCLP contaminants.
• Reactivity Any chemical waste which reacts
  violently with air and/or water or liberates
  toxic gases is considered to be a reactive
  hazardous waste.

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RCRA Hazardous Waste definition

• mixture rule
• derived-from rule
• exit
• exclusions (examples)

Listed wastes only

• Household wastes
• Certain fertilizers
• Mining wastes

• Coal combustion ash
• Petroleum exploration wastes

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City of Chicago v. EDF (1994)
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City of Chicago v. EDF (1994)
HOUSEHOLD MSW INCINERATOR (a/k/a
RESOURCE RECOVERY FACILITY)
MSW/trash
Electricity for sale
Incinerator Ash Landfill
Air pollution (stack)
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City of Chicago v. EDF (1994)
Does household waste contain hazardous wastes?
What is the household hazardous waste exemption?

• originally created by EPA, and exempted even HHW
  that had been treated, disposed, or recovered
• 1984 statutory clarification

A facility shall not be deemed to be
managing hazardous wastes if such facility
receives and burns only household waste and
nonhazardous industrial waste.
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City of Chicago v. EDF (1994)
So if Chicagos MSW incinerator is not a TSD,
what is this litigation about? Why does Chicago
care about this issue?
If incinerator burning HHW is not a TSD, how can
it ever be a generator of hazardous waste?
If the statute is silent on this issue, is the
resolution of this issue up to EPA? Or is the
Court engaging in a definitive interpretation of
the statute irrespective of EPAs opinion?
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City of Chicago v. EDF (1994)
What do Stevens/OConnor say is the purpose and
meaning of the 1984 clarification?
To clarify that mixing HHW with other
non-hazardous waste does not constitute
treatment of hazardous waste not does it
remove the mixture from the category of (exempt)
HHW. Which interpretation seems most plausible to
you?
What should owners of MSW incinerators do in the
wake of this decision?
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STATUTORY/REGULATORY DEFINITION Treatment means
any method, technique, or process, including
neutralization, designed to change the physical,
chemical, or biological character or composition
of any hazardous waste so as to neutralize such
waste, or so as to recover energy or material
resources from the waste, or so as to render such
waste non-hazardous, or less hazardous safer to
transport, store, or dispose of or amenable for
recovery, amenable for storage, or reduced in
volume. TSD regulation
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• RCRA Other Elements
• Capacity Assurance Planning
• NIMBY/LULU/env. Justice/preemption
• HSWA Land disposal restrictions
• Spill Reporting parties covered process
• RCRA Sec. 7003 tort-like cause of action for
  imminent and substantial endangerment
• Subtitle C vs. Subtitle D ? interstate shipments
• State delegation
• Data accumulation RCRIS and BRS

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RCRA LQGs TSDs central Texas
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TRI releases RCRA LQGs/TSDs
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All RCRA-regulated HW facilities Austin
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RCRA LQG/TSDs New Jersey
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DEGREES OF REGULATION
Generators
Transporters

• Waste analysis
• Manifesting, reporting
• LQGs vs. SQGs
• Treatment
• Storage/labelling

• Waste analysis
• Labelling
• State permits?
• Manifesting

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RCRA TSD Facilities

• Types
• Permits
• Waste analysis
• Technical standards
• Reporting, manifesting
• Labelling

• Training
• Contingency planning
• Corrective action
• Closure plan
• Post-closure plan
• Financial Assurance

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• STOLL on RCRA
• In truth, the system can be horrible and most of
  the fear-mongering is fair.
• EPAs regulation for determining what is a
  waste contain some of the most puzzling English
  word patterns ever devised.
• Important RCRA interpretations appear in
  strange places.

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Hypothetical 3 Gamma Co. Statement in Federal
Register (preamble to rule) Letter to Wisconsin
Co. ruling that generators may treat HW in
containers for no more than 90 days without
triggering TSD status.