CERCLA & RCRA: Tossing Toxic Trash

CERCLA & RCRATossing Toxic Trash

Craig Collins, Ph.D.

Love Canal: Toxic Wake Up Call

After decades of neglect & denial, Love Canal finally forced the nation to take toxic waste seriously.

By then, industry had dumped over 100 trillion pounds of hazardous waste in unknown locations…enough to create a highway to the moon 100 feet wide & 10 feet deep.

2 Laws Cover Hazardous Waste Clean-up & Disposal

CERCLA--Superfund*• CERCLA is NOT a

regulatory statute; it is a cleanup & liability law.

• It cleans up abandoned or “orphaned” toxic sites by imposing strict clean-up liability on those parties responsible for creating them.

* CERCLA (Comprehensive Environmental Response, Compensation, & Liability Act, 1980)

RCRA (Resource Conservation & Recovery Act, 1976)

• RCRA is a regulatory law.

• It gives EPA “cradle-to-grave” oversight over the generation, transport, treatment & disposal of hazardous waste.

RCRA & CERCLAReinforce Each Other

• To prevent future superfund sites, RCRA requires industry to dispose of its hazardous waste in licensed disposal facilities, instead of just dumping it anywhere.

• CERCLA imposes heavy cleanup liability on illegal disposal (“midnight dumping”). This encourages industry to obey RCRA’s disposal regulations, resulting in fewer superfund sites.

Superfund: Liability & Cleanup• CERCLA makes PRPs

(potentially responsible parties) liable for cleaning up their hazardous waste messes.

• If the culprits cannot be identified; have gone out of business; or fight to avoid clean-up in court, the EPA can use the superfund to clean-up the toxic site.

• This “superfund” was created by taxing dangerous industrial chemicals & crude oil.

Clean-up Liability• CERCLA liability is not

criminal; it is clean-up.• It is based on “the polluter

pays” principle.• This liability is:

– Strict:• It applies whether or not the

disposal was negligent.

– Joint & Several:• Any identified PRP is

responsible for the entire clean-up, unless he can identify & sue other PRPs.

– Retroactive:• CERCLA applies to hazardous

sites created both BEFORE & after the law was passed.

Potentially Responsible Parties

• CERCLA imposes this heavy liability on 3 kinds of PRPs:– Generators– Transporters– Disposal sites

• This includes future owners & the companies who insured them.

Two Types of Cleanup(1) Remedial Cleanup– More thorough &

expensive.

– Requires NPL listing

(2) Removal Cleanup– Less thorough

– Containment is the primary goal.

3 Common Criticisms of CERCLA• Ineffective

– Only a fraction of all superfund sites have been remediated.

• Wasteful– CERCLA wastes lots

of money on litigation.

• Unjust– Small PRPs can be

liable for the liable cleanup.

• Remediation can take decades--especially groundwater.

• Insurers spend about 88% of their CERCLA costs on legal fees; Industrial firms spend 21%; Government spends only 11%.

• SARA’s de minimus settlements addressed this problem.

CERCLA’s Main Weaknesses• The Petroleum Exclusion shields

oil companies from clean-up of drilling/extraction wastes.

• The Superfund is broke.– Taxes expired in 2004.– This weakens EPA’s legal leverage.– EPA cannot:

• Initiate clean-ups; respond to emergencies; leverage PRP suits with the threat of triple charges.

• Cleanup procedures discriminate against poor communities sites:– They are harder to get listed– Clean-up standards are lower– They take longer to get cleaned-up– There are less resources for:

• Health monitoring, buy-outs & relocations

RCRA: The Problem Historically, dumps & landfills have been the primary waste management "solution" in the US.

Yet landfills have many dangers & disadvantages:

– Land-filled material has lost any potential use as a resource.

– Toxic & non-toxic wastes stored there may become a hazardous mix & migrate from the site to groundwater, surface water or the air.

– Evidence is growing that living near a landfill can pose significant health risks, especially on unborn children.

– Health investigations of communities around hazardous waste sites have found increases in birth defects, neurotoxic disorders, leukemia, cardiovascular abnormalities, respiratory &

sensory irritation & skin disorders. Sanitary Landfill

Unregulated Dump

RCRA’s Goals• Make states mainly

responsible for enforcement.• Avoid direct regulation of

production.– Don’t force industries to adopt

source reduction, just make disposal more expensive.

• Use latest technologies to safely transport, treat & dispose of hazardous waste.– Permitted waste disposal sites

& incinerators managed by the Waste Management Industry.

• Minimize creation of hazardous waste.– Encourage source reduction &

recycling.

Source Reduction—> Zero WasteZero Waste is a whole system

approach that aims to fundamentally change the way materials flow through society. It strikes at the heart of the waste problem by changing the way products are made.

Its goals are to:

1) minimize waste.

2) make products last longer.3) make them with non-toxic materials that can be reused & recycled.

BUT…EPA Resists Source Reduction

RCRA discourages direct regulation of production.• This means it must resort to high disposal costs & penalties to discourage use of toxics.Waste management profits from MORE hazardous waste, not less.• EPA has a corrupt, revolving door relationship with waste the management industry.• Waste management’s disposal monopoly makes it hard to control.

“Cradle-to-Grave” Regulation• The manifest system

requires a paper trail to follow hazardous materials from the generator, to the transporter, to the permitted Treatment, Disposal & Storage Facility (TDSF).

• Then a confirmation receipt is sent back to the generator & state/EPA regulators.– Violators can be subject to

civil & criminal penalties.*

* Criminal penalties are only imposed upon “knowing” violators.

RCRA’s Persistent Problems• The petroleum exclusion

allows toxic oil waste to be discarded as NON-hazardous waste.

• Modern incineration & land disposal units are still very dangerous.

• Fake “recycling” allows toxic waste to be sold as fuel & burnt in unregulated boilers & industrial furnaces (BIFs).– Toxic incinerator ash is used in

cement & other products.