1970: Clean Air Act, OSHAct 1972-3: Clean Water Act, ESA 1976: TSCA, FIFRA, RCRA , HMTA 1980: Superfund 1984: HSW

1. 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”

2. RCRA Objectives: • waste tracking, cradle to grave • complexity and cost  why? • “reduce, reuse, recycle” [treat, dispose]

3. RCRA: Waste Tracking • Manifest system • Biennial reporting

4. 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). • 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.

5. American Mining Congress v. EPA (D.C. Cir. 1987) What is the alleged legal defect in EPA’s 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”?

6. 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?

7. 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)?

8. RCRA Hazardous Waste definition: • Is it a “solid waste”? • Is the waste a “hazardous waste”?

9. 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.

10. 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

11. 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.

12. 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.

13. 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

14. City of Chicago v. EDF (1994)

15. 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)

16. 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.”

17. 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?

18. 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?

19. 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

20. 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

21. RCRA LQGs & TSDs: central Texas

22. TRI releases + RCRA LQGs/TSDs

23. All RCRA-regulated HW facilities: Austin

24. RCRA LQG/TSDs: New Jersey

25. DEGREES OF REGULATION Generators: Transporters: • Waste analysis • Manifesting, reporting • LQGs vs. SQGs • Treatment • Storage/labelling • Waste analysis • Labelling • State permits? • Manifesting

26. RCRA: TSD Facilities • Types • Permits • Waste analysis • Technical standards • Reporting, manifesting • Labelling • Training • Contingency planning • Corrective action • Closure plan • Post-closure plan • Financial Assurance

27. STOLL on RCRA: • “In truth, the system can be horrible and most of the fear-mongering is fair.” • “EPA’s regulation for determining what is a ‘waste’ contain some of the most puzzling English word patterns ever devised.” • “[I]mportant RCRA interpretations appear in strange places.”

28. 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.