8

Waste Management
and Hazardous
Releases
Chemicals and other agents that exhibit hazardous properties are widely used
throughout modern society. As discussed earlier, regulatory programs are in place
governing the introduction of these agents into commerce (in particular, see
Chapter 7). However, these regulatory programs are insufficient to guarantee that
chemicals are used or disposed of properly. Thus, major regulatory programs have
emerged to maximize resource use, manage resulting hazardous and nonhazardous
wastes, and provide remedies when hazardous wastes are released into the
environment in inappropriate ways. These programs contribute to both prevention
and response—encouraging proper management and providing remedies for the
inevitable failures of management systems.
In 1976, the U.S. Congress adopted the Resource Conservation and Recovery Act
(RCRA). For the first time, the federal government was actively taking responsibility for
promoting the proper disposal of hazardous and nonhazardous wastes and the recovery
and reuse of wastes as resources. However, as with other environmental management
strategies, progress was slower than many in the environmental community believe is
reasonable. Today, we still have unresolved questions of how to implement reasonable
resource management (not just waste disposal) strategies that are economically and
technologically feasible yet fully protect human health and the environment.
Major federal efforts governing the management and remediation of uncontrolled
hazardous material releases did not start until 1980 with the passage of the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
CERCLA provides a complex regulatory system dealing with a continuum of activities
ranging from spill prevention through final cleanup of contaminated sites.
This chapter proceeds chronologically, first discussing waste control and RCRA,
and then describing CERCLA and management of uncontrolled releases and related
management issues. Throughout this chapter, consider that a regulatory distinction
often is made between hazardous wastes and hazardous materials. Remember that
this distinction is not clear and that the regulatory structures often overlap.

270
 Chapter 8 • Waste Management and Hazardous Releases 271

Waste Control Techniques

When you throw something away, where is “away”? In the United States, away often
means in the ground (in a landfill), to be stored indefinitely. However, using landfills as
the preferred waste management option has many disadvantages. Waste entering a land-
fill may be, or become, hazardous and migrate from the site to the groundwater, surface
water, or air. Material placed in landfills as waste probably has lost its potential use as
a resource (although there is some interest in mining landfills to recover heavy metals
and other resources). Furthermore, people do not want landfills in their neighborhoods.
Landfills typically decrease property values and are perceived of as a threat to health and
quality of life. As the amount of waste increases and available open space decreases, it
becomes increasingly difficult to find acceptable sites for landfill development.
Rather than throwing waste in the ground (which often minimizes short-term
costs to the generator), it is better to prevent it from being generated (which often
minimizes long-term costs to society). Reducing waste generation at its source (source
reduction) is the highest priority in the EPA’s waste management strategy. When
practical, the best strategy to manage waste is never to produce it. After production,
reuse of the material is the preferred management strategy. Taking an old computer
(perhaps too slow or memory limited to meet industrial needs) and giving it to an
­elementary school (where only simple programs are used) provides a good example
of reuse solving a waste problem.
Recycling also can be an effective management tool, although it is less prefer-
able than source reduction or reuse. Recycling typically is a reprocessing of a waste
product to recover its inherent resource value. For example, recycling of aluminum
cans entails recovering the aluminum to manufacture new cans. Not only does this
keep aluminum cans out of landfills, but it reduces the need to mine for new alu-
minum. Keep in mind that recycling usually (although not always) requires more
energy and other resources than reuse. For example, refilling (reusing) water bottles
is a more environmentally friendly activity than recycling plastic water bottles. The
municipal waste management systems in the United States tend to focus more on
­recycling than on reuse or waste reduction. In contrast, some interesting governmen-
tal requirements in parts of Europe promote reduction and reuse.
Various methods are available to change waste into less hazardous forms, reduce
it in quantity, or otherwise cause desirable transformations. For example, nontoxic
organic waste may be degraded biologically. This can take forms such as reapplying
yard waste to land as compost. An example dealing with hazardous waste would be
an acidic waste that is neutralized and transformed into waste without hazard poten-
tial. Waste transformation can reduce the quantity or hazardous characteristics of the
waste, and sometimes both.
Resource recovery also can take the form of incineration, in which some of the
potential energy of a waste can be captured and used as heat or transformed into
­electricity. However, this form of resource recovery has less potential to fully maxi-
mize the resource value than a reprocessing (recycling) process. Often the goal of
incineration is limited to waste destruction (particularly when destroying hazardous
waste), and no attempt is made to harness the waste’s potential energy. ­Substantial
concern exists about the by-products of incineration, which may include toxic chemi-
cals such as dioxins in the exhaust gases. Ashes resulting from incineration also may
272 Part II • The Environmental Laws

cause disposal problems, particularly if the waste material contains substantial quanti-
ties of heavy metals. Although incineration has more potential for productive use or
final destruction of waste than does landfilling, incineration may be no more desir-
able than landfilling (historically the worst legal waste management option) b ­ ecause
of incineration’s relatively high costs and potential environmental impacts.
Traditionally, waste management has been a local issue. When consumer goods
were scarce and people did not live in large communities, the relatively small quanti-
ties of waste being produced presented little threat. However, the industrial revolution
led to growing urban centers and increased amounts of waste material. Individuals
could no longer easily dispose of their waste without threatening the health of their
communities. Beginning in the late 1800s, cities began to assume some responsibil-
ity for waste collection and disposal to counter this threat to public health. By 1880,
43 percent of U.S. cities provided some form of garbage collection.1
Both the generation and the recovery of municipal solid waste increased
­between 1960 and 1988. However, the overall rate of growth was much higher than
the increased rate of recovery. Concurrent with this growth in waste was a growing
concern that waste management practices were inadequate. In developing RCRA, the
Subcommittee on Transportation and Commerce of the U.S. House of Representatives
indicated that 48 major cities were projected to have insufficient landfill capacity by
the year 1982.2 A 1986 EPA study indicated that 45 percent of all operating municipal
landfills would reach capacity by 1991.3 Furthermore, the annual municipal waste
stream was estimated to grow to 216 million tons by the year 2000.4 It was becoming
increasingly apparent that something needed to be done.
In 1989, the EPA published a national strategy for municipal solid waste man-
agement that identified three goals:
1. Increase source reduction and recycling
2. Increase disposal capacity and improve secondary material markets
3. Improve the safety of solid waste management facilities
The first two goals deal with issues pertaining to waste quantities: How to
r­ educe generation and how to provide enough capacity to properly manage waste.
The third goal recognizes that municipal solid waste properly managed from a regu-
lated perspective still may retain substantial environmental and health risks. The EPA
strategy clearly stated that the current municipal waste management system was inad-
equate and that major changes were needed.
Following passage of this strategy, waste generation continued to increase. The
EPA reported that there were more than 209 million tons of municipal solid waste gen-
erated in 1996 (4.3 pounds per person per day!)––an increase of about 29 million tons
from 1988. Total national waste generation continued to grow through the 1990s, and
then started to level off at approximately 50 million tons annually in the early part of this
decade (Figure 8-1). The lack of an increase in waste generation from the growing pop-
ulation means that per capita generation must be reducing. Per capita generation in the
United States peaked at 4.6 pounds per day in 2007 and decreased slightly to 4.5 pounds
per day in 2008.5 Waste reduction practices may be beginning to have a meaningful
­impact—albeit almost 20 years after the EPA ­published its waste management strategy.
Clearly the trend of rapidly increasing waste production has stopped, although signs are
not yet evident of a rapid reversal and return to lower levels of generation.
 Chapter 8 • Waste Management and Hazardous Releases 273

300 100%
90%
Millions of tons generated 250
80%

Percent recovered
200 70%
60%
150 50%
40%
100
30%
20%
50
10%
0 0%
1960 1970 1980 1990 2000 2005 2007 2008 2009 2010
Year

Millions of tons generated Percent recovered

Figure 8-1 Municipal Solid Waste Generation and Recovery, 1960–2010.

Source: EPA. 2011. Municipal Solid Waste Generation, Recycling, and Disposal in the
United States Detailed Tables and Figures for 2010. Office of Resource Conservation
and Recovery. http://www.epa.gov/osw/nonhaz/municipal/pubs/2010_MSW_Tables_
and_Figures_508.pdf

The rate of recovery of wastes has slowly increased to a bit above 30 percent of
the total waste stream in almost all sectors, with the one major exception being alumi-
num (Table 8-1). It may be of interest to look at the contents of the waste stream and
conjecture what strategies might be best in minimizing future municipal solid waste
problems. Waste management practices of 2008 put about 55.5 percent (138 million
tons) of the municipal waste stream into landfills, 12.5 percent (32 million tons) into
incinerators, and the remaining 33 percent (83 million tons) into recycling.
Providing for the proper management of hazardous waste, a particular kind
(or subset) of solid waste, also presents major challenges to the legal and regula-
tory system. Before 1975, government paid little attention to hazardous waste; only
25 states even had hazardous waste programs. There was no consistency among
states regarding these limited programs, so companies faced different requirements
depending on where they were doing business.
The significance of the problem of hazardous waste production has never been
clear. There have been numerous “official estimates” of the volume of hazardous
waste production in the United States, but none are conclusive. Moreover, it is sur-
prisingly difficult to provide meaningful long-term measures of generation. For ex-
ample, the EPA changed its original listing methodology and now excludes from its
listing of RCRA hazardous waste generation those hazardous wastes received from
off-site for storage/bulking and subsequently transferred off-site for treatment or dis-
posal, and those hazardous wastes that are stored, bulked, and/or transferred off-site
with no prior treatment/recovery, fuel blending, or disposal. This change exemplifies
the difficulty of determining trends because past analysis often considers a different
274 Part II • The Environmental Laws

Table 8-1 Generation and Recovery of Materials in Municipal Solid Waste, 1990 and 20105

Weight Weight Percentage of

Generated Recovered Generation
(million tons) (million tons) Recovered

Waste Constituent 1990 2010 1990 2010 1990 2010

Aluminum 2.8 3.4 1.0 0.7 35.9 19.9
Ferrous Metals 12.6 16.9 2.2 5.7 17.6 33.8
Food Scraps 20.1 34.8 * 1.0 * 2.8
Glass 13.1 11.5 2.6 3.1 20.1 27.1
Miscellaneous Inorganic Waste 2.9 3.8 * * * *
Other Materials 3.2 4.8 0.7 1.4 21.3 29.4
Other Nonferrous Metals 1.1 2.1 0.7 1.5 66.4 70.5
Paper and Paperboard 72.7 71.3 20.2 44.6 27.8 62.5
Plastics 17.1 31.0 0.4 2.6 2.2 8.2
Rubber and Leather 5.8 7.8 0.4 1.2 6.4 14.3
Textiles 5.8 13.1 0.7 2.0 11.4 15.0
Wood 12.2 15.9 0.1 2.3 1.1 14.5
Yard Trimmings 35.0 33.4 4.2 19.2 12.0 57.5
Total Municipal Solid Waste 205.2 249.9 33.2 85.1 16.2 34.1
* Less than 5,000 tons or 0.05 percent.
Source: EPA. 2011. Municipal Solid Waste Generation, Recycling, and Disposal in the United States
Detailed Tables and Figures for 2010. Office of Resource Conservation and Recovery. “http://www.
epa.gov/osw/nonhaz/municipal/pubs/msw2008data.pdf”>http://www.epa.gov/osw/nonhaz/municipal/
pubs/2010_MSW_Tables_and_Figures_508.pdf

universe of data than what is currently being used. Shown on Table 8-2 is the most
current listing of those states with the greatest hazardous waste generation.
Perhaps more importantly, estimates of quantity do little to identify the resultant
risk. The EPA estimated that 235,473,584 tons of hazardous waste had been generated
nationally in 1993, from a total of 22,615 generators. More recent estimates indicate
substantially less waste—data from 2009 indicate the generation of “only” 35,331,398
tons from a total of 16,220 generators. These data do little to indicate the likelihood
of environmental or human exposure to these wastes, or the impact should exposure
occur. For example, Texas ranks first nationally in terms of hazardous waste genera-
tion (more than a third of the entire generation of the nation) but only three facilities
in the state are responsible for more than half of the generation. At the other extreme,
more generators are in California (2,578) than in any other state although it only
ranks 11th in terms of hazardous waste generation (699,612 tons). Is risk higher in
a state characterized by a few, large generators or in a state characterized by many,
smaller generators? (Might it be easier to avoid living by a generator if there were
fewer of them?) A single facility in Georgia is responsible for about 11 percent of
the national total hazardous waste generation (in fact, this single facility generates
 Chapter 8 • Waste Management and Hazardous Releases 275

Table 8-2 Ten States with Greatest Generation of RCRA Hazardous Waste, 20096

Thousands of Percentage of Number of

State (rank in 2007) Tons Generated National Total Generators
Texas (2) 13,462 38.1 878
Georgia (26) 4,024 11.4 318
Louisiana (1) 3,879 11.0 357
Alabama (15) 2,064 5.8 238
Mississippi (4) 1,702 4.8 121
Ohio (5) 1,301 3.7 896
New Mexico (10) 1,079 3.1 34
Illinois (7) 1,045 3.0 813
New York (6) 1,033 2.9 1,190
Indiana (9) 778 2.2 487
Source: EPA. 2011. Office of Solid Waste and Emergency Response. National Analysis. The National
Biennial RCRA Hazardous Waste Report. (Based on 2009 data) http://www.epa.gov/wastes/inforesources/
data/br09/index.htm

more waste than the total generated in any of 47 states), certainly presenting different
regulatory challenges than controlling many smaller facilities. Output from this facility
is largely responsible for Georgia becoming the state with the second most hazardous
waste generation, a large difference from its 26th place position just two years earlier.
This rapid change provides another signal that simply accounting for generation does
not provide comprehensive data on risk.
However, quantifying risk from hazardous waste may be unnecessary; simply
knowing that the risk is substantial was sufficient for Congress to demand (through
RCRA and its subsequent amendments) a national hazardous waste management pro-
gram. We began to understand by the early 1970s that our industrialized society was
producing large amounts of hazardous waste and that much of it was being managed
improperly. Locations became widely known where improper disposal of hazardous
waste had caused, or had the potential to cause, severe health problems. We now
have a comprehensive regulatory system that manages and limits at least some of the
risks from hazardous wastes.

Municipal Solid Waste

RCRA establishes the framework for a national system of solid waste control. Subtitle D of
the Act is dedicated to nonhazardous solid waste requirements and Subtitle C ­focuses
on hazardous solid waste. Remember that solid waste includes solids, liquids, and
gases; it is defined in RCRA as

any garbage, refuse, sludge from a waste treatment plant, water supply treatment
plant, or air pollution control facility and other discarded material, including
solid, liquid, semi-solid, or contained gaseous material resulting from industrial,
­commercial, mining and agricultural operations, and from community activities.7
276 Part II • The Environmental Laws

Note that it must be discarded material to be considered waste. Thus, if eco-

nomics warrant the purification of an industrial by-product for reintroduction into a
process, then that material may not be a waste. The same by-product will be a waste
if the recycling economics are less favorable. Some material is specifically excluded
from being classified as solid waste, including domestic sewage sludge, industrial
discharges that are point source discharges regulated under the Clean Water Act,
irrigation return flows, and radioactive waste regulated by the Nuclear Regulatory
Commission (NRC).8 In August 2011 the EPA proposed also excluding from RCRA
regulations carbon dioxide streams sequestered underground as an encouragement
for development of carbon capture and storage technology.
RCRA directs most of the responsibility for active municipal solid waste
­management to state and local governments. The federal role is to set nationwide
standards, provide technical and financial assistance, and provide regulatory ­oversight
and e­ nforcement. States are encouraged to seek primacy over their solid waste
­programs, and all states have authority over the initial, or base, RCRA program.9 As
new elements of RCRA are promulgated, states have obtained authority at varying
rates, so the scope of RCRA authority varies on a state-by-state basis.
Resource conservation is specified as an important goal of the Act, although most
attention has focused on waste disposal. A key condition is that “no reasonable prob-
ability of adverse effects on health or the environment” results from solid waste disposal
practices. A land-based disposal facility meeting this requirement is called a sanitary
landfill, whereas a facility failing to provide this protection is classified as an open dump.
In 1984, Congress passed RCRA amendments called the Hazardous and Solid Waste
Amendments (HSWA) of 1984. Each state is required to prepare a solid waste manage-
ment plan. These plans must include methods for encouraging resource conservation or
recovery. Each state also must implement a permit program for its solid waste manage-
ment facilities that receive hazardous waste. Thus, sanitary landfills, which accept such
waste as household hazardous waste, must have a permit and meet federal design and
operational standards. Substantial flexibility is allowed in the federal standards, however,
to allow states to develop specific criteria best suited to the local situation.
Existing regulations had been found to be inadequate, in part, because ­hazardous
wastes from small-quantity generators and households could be disposed of ­(legally) as
part of the municipal waste stream. Rather than trying to limit the types of waste intro-
duced into sanitary landfills to exclude all waste with hazard potential, the EPA elected
to require additional landfill controls inhibiting off-site migration. On ­October 9, 1991,
the EPA promulgated its rule specifying criteria for municipal sanitary landfills, or
­Municipal Solid Waste Landfills (MSWLFs). These regulations increase requirements
on landfill construction, operations, monitoring, and closure. However, they do not
duplicate requirements on hazardous waste landfills (specified in Subtitle C of the Act),
contrary to the expectations of a number of commentators to the proposed rule. Inter-
est in having MSWLFs meet the same criteria as hazardous waste landfills is based on
concern that the two types of disposal facilities share a common potential for damage
to human health and the environment.
In establishing the new rules, the EPA requires MSWLFs to meet more strin-
gent requirements than previously demanded but less stringent than required for
hazardous waste landfills. This distinction is based on the EPA’s determination
that MSWLFs ­intrinsically represent a smaller threat than hazardous waste landfills.
 Chapter 8 • Waste Management and Hazardous Releases 277

The EPA argued that the congressional intent of distinguishing between levels of
protection at hazardous waste landfills and MSWLFs is evident in RCRA language.
For h ­ azardous waste landfills, standards shall be those “necessary for protection of
human health and the environment.” However, for a facility to be classified as a
sanitary landfill, it must show only “no reasonable probability of adverse effects on
health or the environment.” Reasonable probability is interpreted as allowing a less
severe standard (which may include economic considerations) than allowed for haz-
ardous waste landfills.
The philosophy behind landfill design is that the landfills must prevent move-
ment of any of the waste constituents away from the site (Figure 8-2). Landfills must
be lined with either plastic or clay (usually both) as a barrier to waste migration.
­Liquids must be minimized because if liquids build up inside a facility, they result
in a force (hydraulic head) that pushes dissolved waste products through the bar-
riers. To keep out water from rain and runoff, closed facilities must have surface
liners of the same type as that used on the bottom and sides. Collection systems
must underlie the landfills to facilitate collection of residual liquids (leachate) that
percolate through the waste. In the resulting oxygen-deficient, dry environment,
little degradation of waste occurs. Modern landfill design effectively preserves the
wastes. Closure plans must ensure that landfills will not fail (allow leakage from the
site) for an extended period. A 30-year postclosure care period is specified in the
federal rule, although either a reduction or an extension is allowed depending on
local conditions.
These regulations effectively result in the long-term storage of waste in landfills
rather than the waste being degraded. Concern is emerging that after the postclosure
care period, water will inevitably leak into landfills. Formation of hazardous waste
by-products and migration from the sites would occur after owners and operators no
longer have responsibility. Some efforts are beginning to provide long-term waste
­stabilization by pumping leachate back into the landfill—the water enhances biological
and chemical waste degradation and provides an inexpensive waste ­destruction sys-
tem. In some designs, air is also provided to the landfill to further stimulate degrada-
tion. In this “bioreactor” landfill, degradation occurs during the active site-­monitoring
period when a responsible party is available to actively manage and r­ emediate the
­facility. Long-term storage in a nonreactive containment landfill presents a risk of

Ground water Liner Leachate collection Explosive gas

monitoring well system monitoring well

Figure 8-2 Municipal Solid Waste Landfill

Source: EPA. 2006. RCRA Orientation Manual. EPA530-R-06-003.
278 Part II • The Environmental Laws

later failure when responsibility for control probably would need to revert to the gov-
ernment. Regulatory flexibility has been provided to a few demonstration bioreactors
to research the potential of this approach for solid waste management.
The EPA identifies four tools to encourage the states to ensure that their state
solid waste management plans comply with federal guidelines. The simplest is the
denial of federal funding or technical assistance to noncompliant states. The EPA may
seek injunctive relief when solid waste disposal presents an imminent threat to health
or the environment, although this authority is somewhat limited because Congress
wanted municipal solid waste problems to be solved through local efforts.10 How-
ever, the EPA’s power to intervene directly is enhanced by its ability to use hazard-
ous waste enforcement authority in states that do not provide a permit program for
MSWLFs receiving household hazardous waste or hazardous waste from conditionally
exempt small-quantity generators (generators producing less than 100 kg of hazard-
ous waste per month).11
The fourth enforcement tool is the citizen suit. Any citizen may bring suit against
any government agency or individual alleged to be violating any requirement of the
law or the state plan. Suits can be brought against the EPA for failure to perform re-
quired duties, as well as for violations of specific facility requirements.12
In addition to its regulatory role, the EPA advocates a number of voluntary waste
management approaches to encourage government and industry to reduce waste gen-
eration and dependence on landfills. Information on these approaches can be found
in its Office of Solid Waste home page Web site (provided at the end of this chap-
ter). An interesting federal opportunity, led by the EPA, to encourage recycling is the
Comprehensive Procurement Guideline Program authorized under Section 6002 of
RCRA and strengthened by Executive Order 13101 (signed September 14, 1998). The
EPA is required to designate products that are or can be made with recovered mate-
rials. Federal procuring agencies are then required to purchase those products with
the highest recovered material content level practicable. However, it is important to
remember that, although federal efforts have been supportive, local and state efforts
predominate in providing innovative solid waste management tools to communities
and businesses.

Hazardous Waste

Identification For material to be regulated as a hazardous waste, first it must be

found to be a solid waste or a combination of solid wastes. RCRA then specifies that
solid waste meeting the following criteria will be considered hazardous waste:
1. Waste that causes or significantly contributes to an increase in mortality or an
increase in serious irreversible or incapacitating reversible illness; or
2. Waste that poses a substantial present or potential hazard to human health or
the environment when improperly treated, stored, transported, disposed of, or
otherwise managed
The definitions of hazardous waste and solid waste clearly reflect the intent of
Congress but are too nonspecific to incorporate directly into a regulatory program.
Subsequently, the EPA developed language to provide specific direction in deter-
mining whether materials need to be regulated as solid and hazardous wastes. The
 Chapter 8 • Waste Management and Hazardous Releases 279

EPA originally defined solid waste in 1980 as “any garbage, refuse, sludge, or any
other waste material” except for material specifically excluded from consideration.
Difficulty with this definition arose because other waste material was interpreted to
mean ­material that sometimes is discarded, by anyone in a similar industry, after serv-
ing its original purpose. This interpretation led to confusion regarding the status of
­intermediate products that were used for later processes and to difficulty in compar-
ing processes to determine when similar materials were sometimes discarded. The
EPA expanded and simplified its definition of solid waste in 1985 to include any
­discarded material not exempted from such classification. Discarded material consists
of material disposed of in landfills, injection wells, or other facilities where the waste
is placed in land or water such that there is potential for migration away from the
site. It also includes material that is burned or incinerated and many materials that are
recycled.
Recycled materials pose a difficult problem for regulation. Recycling hazardous
material is more desirable than disposing of it as waste, but recycling also may pres-
ent threats to human health and the environment that need careful control. Removal
of management obligations through conversion of hazardous wastes into recyclable
materials might prove valuable as a recycling incentive system but also might be mis-
used as a mechanism to avoid regulatory control. The EPA addresses this issue by
exempting three kinds of materials (that ordinarily would be considered solid waste)
from the definition of solid waste (and thus potentially hazardous waste) based on its
subsequent use: (1) directly in a production product, (2) as a direct substitution for a
commercial product, or (3) if it is returned to the production process as a feedstock.
In all three cases, the material must be used without reclamation. Nonexempted
wastes for which some resource value is recovered, such as by incineration and en-
ergy recovery, remain classified as solid wastes.
In 2008, the EPA further expanded opportunities to recycle materials that other-
wise would have been regulated as hazardous wastes.13 Conditions were specified for
materials that are transferred to another company for reclamation to not be classified
as solid wastes (and thus not hazardous wastes). Additionally, a petition process is
available to identify specific nonwastes to be used in recycling. To qualify as recycla-
ble materials (rather than hazardous wastes), the materials must contribute in a useful
way to the recycling process and the production of a valuable product. Burning to
capture the energy content of the materials is not allowed under this rule.
Although at first examination facilitation of the ability to recycle might be con-
sidered to be thought of favorably by environmental interest groups, in this case sev-
eral groups were concerned that these exclusions resulted in significantly increased
risk from hazardous waste exposure. In January 2009 the Sierra Club submitted an
administrative petition requesting the EPA to amend this new rule. In March 2009 a
coalition of industry groups requested that the EPA deny the Sierra Club’s petition.
In June 2009 the EPA held a public meeting providing an opportunity for the Sierra
Club, industry groups, and other interested parties to testify on behalf of retaining
or changing this rule. Following this meeting and subsequent negotiations, the EPA
decided to modify the new rule to provide additional protections, with the modi-
fications proposed in July 2011 with final action (following additional opportunity
for comment) targeted for December 2012. These modifications provided additional
safeguards while retaining more flexibility in recycling. For example, instead of
280 Part II • The Environmental Laws

being excluded as hazardous waste if being recycled, an alternate hazardous waste

standard was enacted for such wastes with streamlined requirements for the genera-
tor. This review and modification of the hazardous waste recycling rule is unusual in
proceeding so quickly, but provides an illustrative example of how the public review
process can allow input from multiple parties and meaningfully impact regulatory
decisions.
Hazardous wastes are identified either by characteristic or by listing. It is the
responsibility of the generator to determine whether it is producing solid waste and
whether the solid waste has a hazardous waste characteristic of ignitability, corrosivity,
reactivity, or toxicity. (Notice that toxicity is only one of the characteristics for hazardous
waste—many people incorrectly use toxic waste synonymously with hazardous waste.)
Solid waste must be evaluated for ignitability, corrosivity, and toxicity following specific
EPA-designated test procedures. Ignitability is the characteristic of catching fire.14 Most
ignitable wastes are liquids (e.g., organic solvents and oils), although solids that can
catch fire spontaneously or through friction or moisture ­absorption and burn vigorously
also are included. Solid wastes are considered ­hazardous because of corrosivity if their
pH is equal to or greater than 12.5 (a strong base) or equal to or less than 2 (a strong
acid), or if they have the ability to corrode steel under prescribed conditions.15
Toxicity may be the most difficult characteristic to assess. Almost everything is
toxic in great enough concentrations, so the regulatory definition cannot include all
potentially toxic wastes. The EPA had to develop a definition useful as an indicator of
potential toxicity, rather than one directly related to all plausible toxic agents. Waste
is evaluated for toxicity by conducting a testing procedure that somewhat simulates
conditions found in a landfill.16 Liquids in a landfill usually are acidic, a condition
favorable to the leaching of many heavy metals and other materials from solids. Be-
cause liquids are more mobile than solids, the risk of migration of toxics away from
landfills is greatly enhanced when they are solubilized. The required test procedure,
called the Toxicity Characteristic Leaching Procedure (TCLP), puts the solid waste in
a liquid acidic solution under rigidly defined operating conditions. At the end of the
test period, the acid is tested for 32 organic and 8 inorganic chemicals. If any of those
chemicals are found at concentrations above regulatory levels, that waste is classified
as hazardous because of its potential toxicity.
Reactive wastes are those that are unstable under normal conditions and can
form toxic fumes or explode.17 It is difficult to develop a specific (and safe!) test
procedure that adequately tests reactivity; therefore, the EPA has promulgated a nar-
rative description of reactivity characteristics to assess waste rather than requiring the
­generator to perform a particular test procedure.
Solid wastes also are considered hazardous wastes if the EPA has them listed
on one of the four lists it developed to identify hazardous wastes. The EPA deter-
mines whether a particular waste stream belongs on an EPA hazardous waste list,
with the generator responsible for looking at the lists to determine if its waste is
­included. A source-specific list identifies wastes from specific industrial processes
(such as p ­ etroleum refining) in which operation is known to produce wastes of
known ­hazards (K-wastes). A non-source-specific list contains hazardous wastes com-
monly found from various sources, such as degreasing solvents (F-wastes). Discarded
­commercial chemical products are identified on the final lists, which include off-
specification chemicals, containers, and spill residues (P- and U-wastes). P-wastes are
 Chapter 8 • Waste Management and Hazardous Releases 281

acutely toxic at low dose. Although U-waste may also be toxic, they also have other
hazardous characteristics such as ignitability or corrosivity.
Listed hazardous waste may be delisted from a particular facility. To accom-
plish this, the facility must demonstrate through petition that the waste does not
meet the criteria for which it was listed, does not exhibit any other hazardous waste
characteristics, and does not pose a threat to human health and the environment by
being ­hazardous for any other reason. For example, a K-waste that is listed for the
characteristic of being ignitable may be delisted if the waste stream from that par-
ticular facility is not ignitable because a different solvent is used than the norm for
that industry. The EPA reports that between 1980 and 1999, 136 waste streams from
115 different facilities were delisted. Electroplating waste (F006) was the most com-
mon waste delisted, with 45 million tons of waste having been excluded from man-
agement as hazardous waste. In 2000 the EPA streamlined the delisting process but
has not evaluated its impact in helping the hazardous waste management process.18
Certain solid waste is exempt from being classified as a hazardous waste. These
exemptions include household waste, mining overburden returned to the mine site
and other waste resulting from the extraction and processing of ores and minerals,
utility waste from coal combustion, waste from exploration drilling for oil and natural
gas, cement kiln dust waste, and waste from the growing and harvesting of crops, or
raising of animals, returned to the soil as fertilizer.19
To prevent waste generators from trying to manage hazardous waste by dilution,
listed hazardous waste mixed with nonhazardous waste is classified as hazardous waste
and must be managed following hazardous waste regulations. Mixing of a hazardous
waste with a nonhazardous waste is effectively discouraged because the mixing will
simply result in a larger hazardous waste stream requiring active (and ­expensive) man-
agement. In contrast, a mixture of characteristic hazardous waste and nonhazardous
waste that no longer has the hazardous characteristic (e.g., an acid waste mixed with a
basic waste to form a neutral waste) will lose its hazardous waste designations.

Cradle to Grave Passage of RCRA means that hazardous waste now needs to be
tracked and managed from the point of generation (cradle) to its ultimate fate in the
environment (grave). The generator is responsible for identifying whether a material
is a waste and whether the waste is hazardous. The generator must ensure that the
waste is handled appropriately even after it leaves the generating facility.
Each generator must obtain an identification number from the state agency re-
sponsible for maintaining the hazardous waste program (or the EPA if the state does
not have primacy over this aspect of the program). Waste being sent off-site must be
listed by the generator on a waste manifest. The waste is characterized following a
numerical coding system developed by the EPA. The manifest also contains informa-
tion on the waste quantity and identifies the generator, transporter, and receiving
facility. The generator also must certify that efforts have been taken to minimize the
waste quantity and associated hazard. On the manifest, the generator’s signature must
follow a required statement certifying that efforts have been taken to minimize the
waste quantity and associated hazard.
Generators using off-site waste management facilities must provide the h­ azardous
waste transporter with a manifest to accompany the waste. The manifest is then
­provided by the transporter to the waste treatment, storage, or disposal facility (TSDF)
282 Part II • The Environmental Laws

that checks to ensure that the waste can be properly handled at that facility. Also vital is
physically checking the waste to make sure it is the same as designated on the ­manifest.
A copy of the manifest is returned to the generator, who is supposed to ensure that
it has not been changed. The generator should know that the waste has arrived in an
­unaltered state at the intended destination, with any problems reported to the appro-
priate agency in an “exception report.” The generator is required to ­retain a copy of
the manifest for at least three years, although most generators will retain them indefi-
nitely. In 2006 the EPA adopted a modified Uniform ­Hazardous Waste Manifest form
to ­provide standardization of waste tracking and expanded ­access to the printed form.
Since 2001, the EPA has been exploring providing electronic manifests, but has
not yet submitted any regulatory proposals enabling the shift away from exclusive reli-
ance on paper forms. It has been working with industry and states to develop a system,
including various pilot programs. In 2009 the EPA held a series of four w ­ ebinars to
foster interaction with potential users about the design, development, and operation
of a national electronic manifest system, but no proposed rule has yet been published.
It is important to remember that although hazardous waste generators have sub-
stantial obligations under RCRA, if they do not treat, store, or dispose of waste they
do not have to obtain a permit. Because permit requirements can be burdensome
(see the following section), many facilities eliminate or avoid practices that would
turn them into a TSDF.
The evolution of disposal requirements being applied to ever-smaller ­hazardous
waste generators reflects an interesting dynamic between Congress and the EPA.
Early in the RCRA program, the EPA decided that its resources were insufficient to
effectively control all generators. In response, it exempted those facilities generating
less than 1,000 kg of hazardous waste per month from almost all hazardous waste
management requirements, concluding that this was a reasonable method of optimiz-
ing available resources because the great majority of the risk from hazardous waste
would come from the relatively few large generators. Congress did not condone this
practice and subsequently required in HSWA that the EPA also regulate small-quantity
generators (generating between 100 and 1,000 kg of hazardous waste per month).
Only conditionally exempt small-quantity generators, producing less than 100 kg of
hazardous waste per month, now escape the RCRA waste management regulatory
burdens. Hazardous waste from these conditionally exempt small-quantity generators
may continue to be legally deposited in municipal landfills (although municipal land-
fills are under no obligation to accept such waste).

Permits All hazardous waste TSDFs are required to obtain a permit. Congress rec-
ognized a problem when implementing a permit requirement: If all TSDFs submitted
their applications at the onset of the program, the EPA would not have the resources
to provide timely permit review. Therefore, a system was specified to allow TSDFs to
operate under an interim permit until obtaining a final permit.
All TSDFs in existence on November 19, 1980, that had submitted a Part A
­application were given an interim permit. The Part A application contains only basic
information, including the facility location, estimates of waste quantities, and waste
management practices. This information was quite unreliable and of limited value.
To obtain a final permit, a Part B permit application needs to be approved by the EPA.
Part B permit applications require substantially more operational and organizational
 Chapter 8 • Waste Management and Hazardous Releases 283

detail than Part A permits and may run several volumes in length for major facilities.
Part B applications were submitted only after the EPA requested them from individual
facilities. This policy was established to maintain submission of permit applications at
a rate coincident with the EPA’s ability to provide permit review. However, Congress
did not agree with this approach because few final permits were being issued. After
the program’s 1980 inception, only 24 facilities (out of about 8,000) had been issued
final permits by July 31, 1983.20 Twenty of these permits had been issued to stor-
age facilities. From the more significant waste management units, only one landfill
and three incinerators had been issued permits. Congress tried to replace the EPA’s
program of calling up final permit applications at the EPA’s convenience by setting a
schedule for permit issuance. Land disposal facilities were required to submit by No-
vember 8, 1988, incinerators by November 8, 1989, and other facilities by November
1992. However, the EPA was unable to meet this schedule.
Subsequently, the EPA set a specific goal under the Government Performance
and Results Act (GPRA) to have 80 percent of all existing TSDFs in compliance with
permitting or closure standards by 2005. In July 2003, the EPA reported that a total of
2,752 facilities were in the TSDF system. Of these, 2,242 (81 percent) were fully per-
mitted or had met closure requirements, with 510 facilities (19 percent) not yet in full
compliance. The EPA met its goal for 2005 on a national level although not in every
state or region. A new goal was established for the end of 2008 for 95 percent compli-
ance, which it met on a national basis but not in every state or region. This goal was
later met (see Figure 8-3), with the EPA projecting 98 percent compliance by the end
of 2011.21 After what many critics saw as a very slow start, clearly most TSDFs now
have been fully permitted under the national regulatory program.
New TSDFs must obtain a permit before they begin operating. The permit-
ting process is quite complex. First, an informal public meeting is held in which
the f­acility is described, including identification of waste management practices and
wastes that will be handled. The public is given the opportunity to ask questions and

Regional Permitting Program Progress

Fiscal Year 2011, End of Year Results

I: 98.7%
VIII: 96.4% V: 97.9%
Cumulative percent of X: 97.6% II: 98.2%
baseline accomplished
VII: 96.7%
III: 99.6%
IX: 95.9%

VI: 99.2% IV: 98.7%

98.0% and above

97.0–97.9%
96.0–96.9%
National Cumulative Results: 98.2
94.0–95.9% 13 initial approved controls for FY11

Figure 8-3 Percentage of Treatment, Storage, and Disposal Facilities at the End
of 2008 with Final Permits or Meeting Closure Requirements
Source: EPA. 2009. EPA Regional Program Permitting Progress, Fiscal Year 2008, End
of Year Results. http://www.epa.gov/osw/hazard/tsd/permit/charts/charts.pdf
284 Part II • The Environmental Laws

make suggestions. Following this meeting, Part A and Part B of the permit application
is submitted. Upon receipt, the state permitting agency (or the EPA in states that do
not have an approved RCRA program) provides an opportunity for public review and
comment and reviews the permit for completeness. If it is complete, review begins for
satisfying technical requirements. Either a notice of intent to deny or a draft permit
will follow this review, depending on the acceptability of the facility. The decision is
made public and, in the case of a positive decision, the draft permit is made available
for public review. The permitting agency must respond to public comments and pro-
duce a final decision. The owner and the operator of the proposed facility have the
right to appeal an adverse decision through the EPA’s Environmental Appeals Board.
Further remedy is available through judicial review of the final permit decision. This
process is intended to provide substantial opportunity for public involvement through
the permitting process and a reasonable expectation that a project proponent can be
successful in obtaining a permit and beginning operation. However, in addition to the
formal permitting process, proponents typically also must anticipate the Not In My
Backyard (NIMBY) syndrome, in which local residents will strongly contest any land
use perceived as potentially undesirable regardless of regulatory controls.
In October 2005, a new permitting approach became available to facilities that
store or treat hazardous waste in tanks, containers, and containment buildings. These
­facilities have available to them a “standardized permit” that is intended to ­streamline the
permitting process. The EPA estimates that between 870 and 1,130 facilities will be able
to use this new standardized permitting approach, with a potential cost s­ avings of more
than $3 million. In May 2006, additional changes were finalized regarding paperwork
associated with TSDF permitting. The EPA estimates that the reduced ­paperwork re-
quirements will result in an annual savings of between $2 million and $3 million. These
regulatory initiatives demonstrate the complexity of the permitting process resulting in
relatively small changes resulting in meaningful cost savings. However, these savings
are very small compared with the overall costs of the permitting program (from the
­perspectives of both the regulated and the regulatory communities).

Facility Standards All TSDFs are governed by EPA minimum standards, which
may be further refined (but not weakened) by individual states. Specific design, con-
struction, and operating standards have been established for hazardous waste facilities
with containers, tanks, surface impoundments, drip pads (designed to catch pres-
ervation chemicals dripping from wood), containment buildings, waste piles, land
treatment units, landfills, incinerators, corrective action for solid waste management
units, hazardous waste munitions and explosives storage, and miscellaneous units.22
Interim standards have been established for thermal treatment units, chemical, physical,
and biological treatment units, and underground injection wells. 23 These standards
are technically complex, so their complete discussion is inappropriate in a book on
environmental law. It is vital to recognize, however, that those responsible for a TSDF
must follow these standards precisely.
Before RCRA, the federal system had little impact on disposal practices. H
­ azardous
waste commonly was disposed of in landfills that were not designed for long-term
containment of their hazardous constituents. Now, landfills must be highly engineered
units providing redundant barriers to waste migration. Furthermore, a comprehensive
monitoring program is required to ensure that these barriers are effective.
 Chapter 8 • Waste Management and Hazardous Releases 285

Landfilling generally does not reduce the intrinsic hazard associated with the
hazardous waste. Landfills keep people and wildlife away from the waste and keep
the waste from spreading to uncontrolled parts of the environment. The landfill
­itself must be designed as a facility that retains its hazardous potential in perpetu-
ity. ­Because landfills do not destroy waste, they can be viewed as the alternative
of choice (along with other land disposal techniques) only after determining that
­opportunities for waste reduction, reuse, recycling, and treatment are not available or
are not practical. In fact, HSWA banned land disposal of hazardous waste for which
alternatives are available. Before a hazardous waste can be landfilled, it must be
treated to immobilize or destroy hazardous components. Dilution is not considered
a treatment option. This restriction probably has been quite influential in diverting
a meaningful portion of the hazardous waste stream to other management options
(including waste reduction).
An elaborate procedure must be followed to close a hazardous waste land-
fill or a section of a landfill.24 A written closure plan is part of a facility applica-
tion, although it may be modified during the active life of the landfill. Technical
­r equirements include capping the top with another liner to ensure that water
does not infiltrate the site. Groundwater monitoring must continue, and the site
must remain secure from people or animals. However, perhaps the most impor-
tant part of the entire closure process is that someone must remain identifiable as
being responsible for a facility, with financial resources available to remedy any
problems.
The owner or the operator of a facility must provide an appropriate instru-
ment guaranteeing long-term financial ability to manage the site, even after it has
been closed. This instrument may be a trust fund, surety bond, letter of credit,
­insurance policy, or financial worth test. This financial guarantee became n­ ecessary
because a past practice of some unethical operators was to charge for waste dis-
posal services but then dump waste illegally and inexpensively. The company
would go bankrupt before the practice was discovered, so it could not be forced
to pay to clean up the mess. In the meantime, the company owners and operators,
having already taken the money for the waste disposal, were not easily found or
held culpable. Failure to p­ rovide appropriate financial assurance can result in sub-
stantial financial penalties. For example, in January 2012 the EPA announced that
a settlement was reached with the Southern Wood Piedmont Company on a fine of
$317,000 as penalty for lack of financial assurance on its hazardous waste facility.
Previously, as part of this negotiation, the company had provided future financial
assurance of $41.7 million.
Standards for TSDFs other than landfills also require redundant protection
­systems to guard against the release of hazardous waste. For example, new h­ azardous
waste storage tanks must have secondary containment systems that will contain a
leak from the primary tank. The standards consider release into multiple environmen-
tal media, including air emissions. These standards have added considerable cost to
the management of most hazardous wastes, providing incentive for waste reduction,
reuse, and recycling.
One measured success of RCRA may be the reduction in generation of ­hazardous
waste, as industry has found that the burden of hazardous waste m ­ anagement
­e ncourages increased use of waste reduction, reuse, and recycling techniques.
286 Part II • The Environmental Laws

As shown on Table 8-3, hazardous waste generation has declined by more than
96 percent between 1995 and 2009, with a shift toward managing waste by processes
including energy recovery, metals recovery, and fuel blending. Landfilling h
­ azardous
waste has not decreased, however, even though the national regulatory program
has targeted the diminished use of this management technique.

Table 8-3 RCRA Hazardous Waste Management Methods Used in 199525 and 20096

Percentage
Thousands of of Total Number of
Tons Managed Tons Managed Facilities

Management Method 1995 2009 1995 2009 1995 2009

Deepwell/Underground 23,757 622 11.4 8.5 38 12
Injection
Other Disposal 663 78 0.3 1.1 31 29
Aqueous Organic 116,542 185 56 2.5 106 19
Treatment
Aqueous Organic and 27,658 — 13.3 — 30 —
Inorganic Treatment
Aqueous Inorganic 8,367 247 4 3.4 145 38
Treatment
Incineration 4,300 471 2.1 6.5 166 69
Landfills/Surface — 1,726 — 23.7 — 41
Impoundment
Landfill 1,249 — 0.6 — 68 —
Surface Impoundment 575 — 0.3 — 7 —
Energy Recovery 1,915 780 0.9 10.7 125 40
Other Treatment 17,905 220 8.6 3.0 320 92
Metals Recovery 610 960 0.3 13.2 71 87
Fuel Blending 2,441 518 1.2 7.1 100 134
Stabilization 1,018 425 0.5 5.8 85 70
Sludge Treatment 481 1 0.2 0.0 30 10
Other Recovery 422 251 0.2 3.5 62 40
Solvents Recovery 356 156 0.2 2.1 164 69
Land Treatment/ 11 2 0 0 10 9
Application/Farming
Storage and/or Transfer — 640 — 8.8 — 394

TOTAL 208,269 7,283 100 100 1,558 589

Source: EPA. 2011. Office of Solid Waste and Emergency Response. National Analysis. The National
Biennial RCRA Hazardous Waste Report. (Based on 2009 data) http://www.epa.gov/wastes/inforesources/
data/br09/index.htm
 Chapter 8 • Waste Management and Hazardous Releases 287

Enforcement of RCRA
HSWA greatly expands the scope of criminal liability for RCRA violations. The key
to criminal liability is that the violator must have committed the act knowingly; no
such requirement is necessary for civil action. Criminal actions can result in fines and
­imprisonment. Individuals can be penalized up to five years in jail and $5,000 per day
for (1) transporting waste to a nonpermitted facility; (2) treating, storing, or dispos-
ing of waste without a permit; (3) omitting information or making false statements
on a label, manifest, report, permit, or interim status standard; (4) generating, treat-
ing, storing, or disposing of ­hazardous waste without meeting RCRA’s reporting and
record-keeping requirements; (5) transporting hazardous waste without a manifest;
and (6) exporting a hazardous waste without the permission of the receiving country.
A much more severe penalty, up to 15 years in prison and a $250,000 fine for an indi-
vidual, or a $1 million fine for a company, can be imposed for transporting, treating,
storing, disposing of, or exporting waste in such a way to impose an imminent dan-
ger of serious bodily injury or death.
The EPA also may take civil action to obtain compliance with RCRA. Civil pen-
alties for Subtitle C noncompliance violations can be up to $27,500 for each day
of violation. The EPA may seek injunctive relief in court or issue compliance or-
ders ­directly. Failure to comply with administrative orders may result in a company
losing its h ­ azardous waste permit. Failure to comply with monitoring and analysis
orders carries a penalty of up to $5,500 per day for noncompliance. An individual
responsible for imminent and substantial endangerment also may be fined up to
$5,500 per day.
States (or the EPA in states without primacy over this element of their hazard-
ous waste programs) are required to inspect all privately operated TSDFs at least once
every two years. (Federal and state-operated TSDFs must be inspected annually.) This
requirement was made part of HSWA because of the lack of an effective existing
monitoring program; companies could take the gamble not to comply because there
was a good chance they would not be discovered.
RCRA also established a right for individuals to bring citizen suits against
­alleged violators or against the EPA for alleged failure to meet its responsibility. How-
ever, ­citizen suits are prohibited when dealing with the siting and permitting of a
TSDF, when the EPA is prosecuting an action, when the EPA or the responsible state
is c­ onducting a remedial action, or when the responsible party is carrying out the
­approved remedial action.
Before leaving this section on enforcement, consider why an elaborate ­program
for controlling hazardous waste is needed. Before RCRA, companies frequently
­disposed of waste by using inexpensive techniques. Complying with hazardous waste
regulations imposes a substantial financial burden, which may result in a compa-
ny’s product or service becoming economically noncompetitive (or in substantially
reducing the profit margin). One response to these new burdens is to ignore them.
Firms may gamble that illegal practices will not be detected, or, if they are, that the
­penalties will be less onerous than the compliance costs.
Much of the rationale for imposing criminal sanctions is to make illegal
­p ractices more personally expensive than compliance. Criminal prosecutions
have been r­ elatively few, and the significance of these sanctions is difficult to
288 Part II • The Environmental Laws

measure because success is more appropriately measured by prevention rather

than by ­s uccessful c­ riminal prosecutions. In concept, criminal penalties may be
particularly effective ­because the expense of a possible jail sentence—in terms of
personal lifestyle costs—would deter many people more than would a personal or
company fine.
A high-profile case resolved in late 2009 provides strong evidence that ­violation
of environmental laws can result in severe consequence. Larkin Bagget was found in
violation of RCRA and Clean Water Act regulations in being responsible for dump-
ing industrial wastes onto the ground and into a sanitary sewer in Utah. He was
sentenced to three years’ incarceration for the CWA crimes, five years for the RCRA
crimes, and an additional twelve years for illegal possession of firearms and as-
sault on law ­enforcement officers (he assaulted EPA and law enforcement officers
during his arrest). Although certainly an atypical case, it does illustrate the power
of these regulations, and may have a meaningful impact on others contemplating
the risks of illegal disposal. Other cases have been successfully prosecuted even
though the violation did not actually result in increased environmental harm. For
example, in 2009 inspections by the Occupational Health and Safety Administration
revealed that a ­facility owned by Franklin Non-Ferrous Foundry, Inc. was unlaw-
fully ­storing ­hazardous waste. In January 2012, the company president, John Wiehl,
pleaded guilty to these RCRA violations and agreed to a settlement of six months of
house arrest, two years of probation, and publishing a public apology. His maximum
sentence could have included two years in prison, certainly providing an incentive
for Mr. Wiehl to plead guilty and accept a negotiated penalty that did not include
time in prison.

Cercla: an Overview
The key law that brought active federal government involvement to emergency
­response, site remediation, and spill prevention is the Comprehensive Environmen-
tal Response, Compensation, and Liability Act of 1980 (CERCLA, or the Superfund
Act). Congress intended CERCLA to be comprehensive in its coverage, ­encompassing
both prevention of and response to uncontrolled hazardous substance releases.
The Act deals with environmental response, providing mechanisms for reacting to
emergency situations and to chronic hazardous material releases. In addition to
establishing procedures to prevent and remedy problems, it establishes a system
for compensating appropriate individuals and assigning appropriate liability. It is
designed to plan for and respond to failures in other regulatory programs and to
remedy problems resulting from action taken before the era of comprehensive regu-
latory protection.

Emergency Response Plans and Right to Know

This discussion of hazardous material releases begins with examination of the require-
ment to plan for emergencies, including consideration of prevention. The federal pro-
gram requiring comprehensive community planning was established in the Emergency
Planning and Community Right-to-Know Act of 1986 (EPCRA), which was passed as
Title III within the Superfund Amendments and Reauthorization Act of 1986 (SARA).
 Chapter 8 • Waste Management and Hazardous Releases 289

SARA Title III is organized into three subtitles: Subtitle A covers emergency plan-
ning, Subtitle B specifies hazardous chemical reporting requirements, and ­Subtitle C
describes how the public will have access to facility information.
State and local governments are required to develop emergency response and
preparedness plans. Every state must have an emergency response commission.
Each commission must appoint local emergency response–planning committees and
­designate emergency-planning districts. Each committee must include, at minimum,
representatives from “elected State and local officials; law enforcement, civil defense,
firefighting, first aid, health, local environmental, hospital, and transportation per-
sonnel; broadcast and print media; community groups; and owners and operators of
facilities subject to the requirements of this subtitle.”26 This requirement makes the
local committees fairly large and cumbersome but also ensures that most affected
­parties will be represented.
Each local planning committee was required to have prepared by October 17,
1988, its comprehensive emergency response plan. At a minimum, these plans are
designed to determine what extremely hazardous substances are located in or pass
through a community, who is responsible for them, what resources are available
to deal with spills, how spill information will be communicated so that the correct
­response is taken, and how the entire system has been integrated so that it will work.
Ideally, much of this planning will be preventive in nature.
Substantial burden is placed on facilities that use extremely hazardous sub-
stances. The EPA has published a list of extremely hazardous substances with
­associated threshold-planning quantities. Any facility that has at least 500 pounds or
the designated quantity of any of these substances (whichever is lower) must notify
the state planning commission and the local planning committee that it is subject to
provisions of this law. Note that there is a duplicative effort required of the facility
because there is not (by law or regulation) a uniform reporting system to ensure that
a single report will be transmitted to all involved agencies.
Facilities also are required to report to the local committee, the state com-
mission, and the local fire department if they have any chemicals regulated under
­OSHA’s hazard communication standard in quantities of 10,000 pounds or more.
For each ­r eportable chemical, the facility must submit either a material safety
data sheet (MSDS) or a list of the reportable chemicals providing the following
information:27
1. The chemical or common name of each chemical.
2. A list of the hazardous chemicals grouped by hazard category; whether the
chemical can be considered an “immediate health hazard,” chronic health h­ azard
(including carcinogens), fire hazard, hazard from sudden pressure release (such
as explosives and compressed gases), or a chemical reactive.
3. Identification of any hazardous component of each chemical as identified on the
MSDS.
Ordinarily, the chemical list and associated information will be more useful than
receiving MSDSs for all chemicals. These lists are intended to identify critical informa-
tion in an organized fashion. MSDSs typically provide such an overwhelming amount
of detail as to make them difficult to interpret for pertinent emergency planning and
response information.
290 Part II • The Environmental Laws

In addition to this initial reporting requirement, facilities must report annu-

ally on the quantities and locations of their hazardous chemicals. 28 To meet “Tier I”
­requirements, this information must include the following:
1. An estimate of the maximum amount of hazardous chemicals in each category at
any time during the year (these estimates do not have to be made on a chemical-
by-chemical basis, only by category).
2. An estimate of the average daily amount of chemicals in each category present
at the facility during the year.
3. The general location of chemicals in each category.
Local committees, state commissions, or local fire departments can also request
Tier II information. Although the Tier I data-reporting requirements identify catego-
ries of chemicals and their general locations, Tier II requirements identify individual
chemicals by names and report their specific locations and storage conditions. Com-
panies may elect to protect trade secrets by withholding specific names and locations
of chemicals from public reporting. However, community planning agencies must
have access to specific names and locations if they request it. Most states now require
the use of the EPA Tier II reporting form, and the EPA also has made available an
electronic Tier II form.
Another list of chemicals is used as the basis for reporting on the presence
of toxic materials. Facilities with chemical use greater than threshold quantities on
the Toxic Chemicals Subject to Section 313 of the Emergency Planning and Com-
munity Right-To-Know Act of 1986 (EPCRA) list must report to the EPA annually. In
addition to information identifying the facility, and chemical use at that facility, the
report must document the annual quantity of the toxic chemical entering each envi-
ronmental medium. The EPA collects this information and maintains a national toxic
chemical inventory available to the public. Facilities within the manufacturing sectors
(SIC codes 20–39) or certain industrial facilities (SIC code 10, except for SIC codes 1011,
1081, and 1094; SIC code 12 except for SIC code 1241 and extraction activities; and SIC
codes 4911, 4931, 4939, 4953, 5169, 5171, and 7389) are obligated to report, and the
information is compiled by the EPA. The EPA has encouraged industry to submit its
information electronically using specialized software (TRI-MEweb) made available for
this purpose. Industry has taken advantage of this software, with approximately 95
percent of TRI reports being submitted electronically. The EPA announced a pro-
posed rule in March 2012 to require all reporting to be made using this software.
Based on these data, a Toxic Release Inventory (TRI) is made available elec-
tronically over the Internet by the EPA, giving communities a simple tool to examine
the risk from chemicals in their neighborhoods. This information has sparked interest
in many communities about the activities of local industry. As these data are released
by the EPA and reported by local media, many companies have been faced with a
local population outraged by the vast quantities of toxic chemicals being discharged
regularly as part of their normal operating practices. A common response has been
for these companies to implement programs to reduce chemical release. Thus, volun-
tary reduction in chemical release has resulted from public pressure encouraged by
regulatory reporting requirements.
New laws and regulations that followed the passage of EPCRA expand on pre-
vention, response, and disclosure requirements. The CAA amendments of 1990 require