Solid Wastes, Hazardous Substances, and Toxic Pollutants

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SOLID WASTES, HAZARDOUS SUBSTANCES, AND TOXIC POLLUTANTS

Millions of homes and residential neighborhoods contain hidden killers such as lead, mercury, and cyanide. These harmful substances can cause cancer, neurological damage, and even death. They can also hurt various aspects of the environment, including the wilderness, wildlife, and aquatic life.

In many instances, these harmful substances cause environmental and residential damage by migrating through the soil from nearby landfills. Both state and federal governments regulate landfills and the pollutants deposited there. Federal regulation comes in the form of legislation; state regulation comes through state and local legislation as well as common-law principles.

Legislation

Solid Wastes Solid waste is useless, unwanted, and discarded material lacking sufficient liquid content to be free-flowing. More than 10 billion tons of solid waste is generated each year in the United States, most of it from agricultural activities. This waste is primarily produced by farm animals, slaughterhouses, and crop harvesting. The mining industry is another major producer of solid waste, generating over 2 billion tons a year. Its solid waste comes from the extraction, beneficiation (preparation for smelting), and processing of ores and minerals. But residential and commercial wastes are probably more familiar to the average person. These include everything from plastic bottles, aluminum cans, and rubber tires to yard trimmings, food wastes, and discarded appliances.

Solid waste management, which involves the storage, collection, transportation, processing, recovery, and disposal of solid waste, has been a daunting task. The United States spends more than $6 billion a year on it, most of which goes to collection and transportation. Most solid waste is transported to dumps and landfills; the rest is incinerated. In 1970, when Congress began studying solid waste, as many as 90 percent of the dumps and 75 percent of the municipal incinerators were considered inadequate, and were major polluters of air, land, and water.

Disposal sites pose two chronic problems for communities. First, they are an aesthetic nuisance, or an "eyesore." The federal Highway Beautification Act of 1965 (23 U.S.C.A. §§ 131 et seq.) targeted this problem with some success. The second, more vexatious problem is created by disease-carrying agents that transmit bacteria from landfills to nearby human populations. Such agents include water, wind, soil, birds, insects, and rodents.

In the late 1980s and early 1990s, state and federal attention turned to productive uses for landfills, such as resource recovery. Resource recovery, sometimes called reclamation or salvage, is the process by which energy and other resources are extracted from solid waste for recycling or reuse. Aluminum cans and plastic bottles are two forms of solid waste that can be both recycled and reused. Energy extracted from solid waste has been used to generate steam, electricity, and fuel.

Federal regulation of solid waste is governed by the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.A. §§ 690 et seq., sometimes called the Solid Waste Disposal Act. When enacting the RCRA, Congress stated that "land is too valuable a national resource to be needlessly polluted by discarded materials, [yet] most solid wastes are disposed of on land in open dumps and sanitary landfills." At the same time, Congress determined that millions of tons of solid waste were being buried each year that could have been treated and salvaged. Better technology must be developed, Congress concluded, to recover useful resources from solid wastes.

The RCRA defines solid waste as garbage, refuse, and sludge generated by treatment plants and air pollution control facilities. Other discarded materials, such as semisolid and some liquid materials, are also included within the RCRA's broad definition of solid waste. Excluded from this definition are solid and dissolved materials from domestic sewage and irrigation systems, both of which are regulated at the state and local levels.

Under the RCRA, the administrator of the environmental protection agency (EPA) is required to publish guidelines for the collection, storage, transportation, treatment, and disposal of solid waste. During the first several years after the RCRA's enactment, particularly during President Ronald Reagan's administration, the EPA was slow to enact any guidelines whatsoever. In 1987, four environmental groups sued the EPA in an effort to compel the agency to fulfill its responsibilities under the RCRA. After that case was settled, the EPA began promulgating a number of guidelines concerning solid waste management, three of which govern the management of paper products, oil lubricants, and retread tires.

Paper is the largest single component, by both weight and volume, of municipal solid waste. More than 50 million tons of such waste are discarded

each year, primarily in solid waste landfills. Oil lubricants are also discarded in massive amounts. Of the more than 1.2 billion gallons of oil generated each year, 30 percent is discharged into sewers and land. The numbers of discarded tires is equally staggering. Over 4 billion tires have been dumped into landfills and stockpiles around the country, and that number grows by 200 million each year. Because tires do not biodegrade, they provide enduring shelter for many rodents and insects, both carriers of disease.

The guidelines drafted by the EPA were designed to diminish the magnitude of these problems by encouraging technological innovation, recycling, and reuse. In particular, the guidelines require that such waste be treated through new or available technology so that valuable resources can be identified and separated from materials that are truly waste. These guidelines may be enforced by the state or federal governments, as well as by private individuals through so-called citizen suits. Criminal and civil penalties are imposed on offenders who fail to comply with the guidelines. Violators may also face additional penalties imposed by state and local governments that have enacted solid waste regulations of their own.

Hazardous Substances and Toxic Pollutants The alarming dangers posed by hazardous substances and toxic pollutants were brought to the fore in Niagara Falls, New York, where the infamous Love Canal incident took place. The canal was originally excavated in the 1890s as part of an unsuccessful scheme to divert the Niagara River for hydroelectric power. Between 1942 and 1953, Hooker Chemical Corporation filled the canal with drums containing 21,800 tons of hazardous and toxic chemicals. Later, Hooker sold the dump site to the Niagara Falls School Board for $1, with a deed containing a provision that relieved the chemical company of liability for any harm resulting from hazardous and toxic materials deposited at the canal.

A school was built near the site, and a residential neighborhood grew up surrounding the canal. But as the drums holding the chemicals gradually corroded, their contents migrated from the canal through the neighboring residential soil. In the late 1970s, following several years of heavy rainfall, the presence of the chemicals became more apparent as sludge seeped into basements and emitted toxic fumes. Numerous lawsuits soon followed.

Regulation of hazardous and toxic materials is marked by its nomenclature. Hazardous substances are defined by federal law as "solid wastes" that "cause, or significantly contribute to an increase in mortality or illness" or "pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed" (42 U.S.C.A. § 6903). Toxic pollutants, a subset of hazardous substances, include pollutants that "after discharge and upon exposure, ingestion or inhalation … [by] any organism" will "cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions, … or physical deformations in such organisms or their offspring" (33 U.S.C.A. § 1362).

Because toxic pollutants are a subset of hazardous materials, a pollutant may be hazardous without being toxic, but not vice versa. The EPA has published a list of pollutants it deems toxic, including arsenic, asbestos, benzene, cyanide, DDT, lead, mercury, nickel, and silver. Pollutants not included on this list, such as acetic acid, ammonia, and cobalt, may still be considered hazardous if they pose a substantial threat to human health or the environment.

Myriad federal and state regulations govern the management of hazardous and toxic materials. The manufacturing of hazardous chemicals is governed at the federal level by the Toxic Substance Control Act (TSCA), 42 U.S.C.A. § 9604. The purpose of the TSCA is to identify potentially harmful substances before they are manufactured and placed in the market, in order to protect the public from any "unreasonable risk." Pursuant to the TSCA, the EPA has adopted rules requiring manufacturers to test chemicals that "enter the environment in substantial quantities" or present a likelihood of "substantial human exposure." The TSCA also requires manufacturers to give the EPA notice 90 days before they begin manufacturing any new chemicals.

Facilities that transport, store, and dispose of hazardous and toxic substances, also called TSDs, are governed by the RCRA. The RCRA provides "cradle-to-grave" regulation of toxic and hazardous substances based partly on their persistence, degradability, corrosiveness, and flammability. TSDs must obtain a permit under the RCRA before they are allowed to manage toxic or hazardous materials. To obtain a permit, the applicant must demonstrate the ability to manage such materials in compliance with stringent standards. One of these standards requires TSDs to take corrective action immediately after any improper release of toxic chemicals.

The RCRA makes landfills the last alternative for the disposal of hazardous and toxic materials. Before land disposal is permitted under the RCRA, TSDs must comply with treatment standards that mandate the use of certain technology to minimize the harmfulness of particular substances. When land disposal is authorized, new landfills must use double liners and groundwater monitoring systems unless the EPA finds that an alternative design or practice would be equally effective in preventing hazardous and toxic materials from migrating through the soil. The EPA has broad powers under the RCRA to inspect TSDs for violations.

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.A. § 9622, is the third major piece of federal legislation governing hazardous and toxic materials. Congress established CERCLA in 1980 to deal with thousands of inactive and abandoned hazardous waste sites in the United States. CERCLA directs the EPA to identify sites at which hazardous or toxic substances may have been released, and ascertain the parties potentially responsible for cleaning up these sites. Potentially responsible parties (PRPs) include the owners and operators of sites where hazardous material has been discharged, as well as the dischargers themselves.

CERCLA imposes joint and several liability on responsible parties, which means that once liability is established among a group of owners, operators, and dischargers, any one of them could be held liable for the entire cost of cleanup. Although responsible parties can seek reimbursement from each other, the wealthiest defendants are usually stuck with the CERCLA cleanup bills.

Some responsible parties escape liability because they cannot be identified or located. Others have become insolvent or bankrupt. In such situations, CERCLA's Superfund provisions are triggered. The Superfund creates a multibillion-dollar hazardous substance trust fund for cleaning up seriously contaminated sites in which the responsible parties avoid liability. Revenue for the Superfund is raised through federal appropriation and taxes paid by some TSDs.

The sale and distribution of pesticides is governed at the national level by a separate piece of legislation known as the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.A. §§ 136 et seq. Under FIFRA, no pesticide may be introduced into the stream of commerce without approval by the administrator of the EPA. A pesticide will not be approved if the administrator finds it is likely to "cause unreasonable adverse effects on the environment." The reasonableness of an adverse environmental effect is measured by taking into account the economic, social, and environmental costs and benefits of the pesticide.

Common Law

In addition to the remedies provided under federal and state legislation for injuries caused by solid waste, hazardous substances, and toxic pollutants, common-law principles of nuisance, trespass, and negligence provide alternative avenues of recourse against landfill owners. The common-law doctrine of nuisance gives injured landowners a cause of action when "substantial" injuries result from an "unreasonable" use of a particular landfill. The gravity of the injury and the reasonableness of the use are measured by a cost-benefit analysis in which the utility and appropriateness of the landfill's activities are balanced against the value of the landowner's interests.

Under the common law of trespass, landowners can recover for any unlawful interference with their rights or interests. Trespass requires proof that the landfill owner intentionally or knowingly interfered with the land-owner's rights or interests. Mere accidental or inadvertent interferences will not suffice.

Landowners suffering injuries from accidents and inadvertence can turn to the common law of negligence, which allows recovery for injuries caused by a landfill owner's failure to act with reasonable care.