Hazardous Chemicals and Hazardous Waste

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					Hazardous Chemicals and Hazardous Waste
1970: Clean Air Act, OSHAct
1972-3: Clean Water Act, ESA
   Love Canal, Times Beach

1980: Superfund
  Burford apptmt; Congressional hearings on haz waste
  programs; indictments; Ruckleshaus apptmt.

1984: HSWA
               Bhopal, “Dumping in Dixie”
1986: SARA

   • waste tracking, cradle to grave
   • complexity and cost  why?
   • “reduce, reuse, recycle” [treat, dispose]
          RCRA: Waste Tracking
• Manifest system    • Biennial reporting
American Mining Congress v. EPA (D.C. Cir. 1987)

What is the source of EPA‟s 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).
2. 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.
American Mining Congress v. EPA (D.C. Cir. 1987)

What is the alleged legal defect in EPA‟s rule on
To be a hazardous waste, it must first be a solid
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”?
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
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 EPA‟s interpretation of this
  statutory term (solid waste)?
    RCRA Hazardous Waste definition:
1. Is it a “solid waste”?
2. Is the waste a “hazardous waste”?
Is the waste a “hazardous waste”?
Statute: The term ''hazardous waste'' means a
solid waste, or combination of solid wastes, which …
   (A) cause, or significantly contribute to an
   increase in mortality or an increase in serious
   irreversible, or incapacitating reversible, illness;
   (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.
    RCRA Hazardous Waste definition:
1. Is it a “solid waste”?
2. Is the waste a “hazardous waste”?

 Characteristic wastes      Listed wastes
    • Ignitability          • nonspecific sources
    • Corrosivity           • specific sources
    • Toxicity              • acutely hazardous
    • Reactivity            • non-acutely
  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
  • 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
     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.
    RCRA Hazardous Waste definition:

• mixture rule             Listed
• derived-from rule        wastes only

• “exit”
• exclusions (examples):

   • Household wastes      • Coal combustion ash
   • Certain fertilizers   • Petroleum exploration
   • Mining wastes
City of Chicago v. EDF (1994)
 City of Chicago v. EDF (1994)

         MSW/trash                MSW INCINERATOR
                            (a/k/a “RESOURCE RECOVERY

for sale
                                    Incinerator Ash
    Air pollution (stack)           Landfill
City of Chicago v. EDF (1994)
Does household waste contain hazardous wastes?
What is the household hazardous waste
   • 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.”
City of Chicago v. EDF (1994)
So if Chicago‟s 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 EPA‟s opinion?
City of Chicago v. EDF (1994)

What do Stevens/O‟Connor 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?
“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
             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
RCRA LQGs & TSDs: central Texas
TRI releases + RCRA LQGs/TSDs
All RCRA-regulated HW facilities: Austin
RCRA LQG/TSDs: New Jersey

Generators:                Transporters:

• Waste analysis           • Waste analysis
• Manifesting, reporting   • Labelling
• LQGs vs. SQGs            • State permits?
• Treatment                • Manifesting
• Storage/labelling
              RCRA: TSD Facilities

• Types                    • Training
• Permits                  • Contingency
• Waste analysis             planning

• Technical standards      • Corrective action

• Reporting, manifesting   • Closure plan

• Labelling                • Post-closure plan
                           • Financial Assurance
1. “In truth, the system can be horrible and most
   of the fear-mongering is fair.”
2. “EPA‟s regulation for determining what is a
   „waste‟ contain some of the most puzzling
   English word patterns ever devised.”
3. “[I]mportant RCRA interpretations appear in
   strange places.”
        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