The solid waste dilemma: municipal liability and household hazardous waste management.

• Author: Meske, Paula J.

Household hazardous waste is exempted from the hazardous waste regulations imposed under the Resource Conservation and Recovery Act, yet municipalities that dispose of household hazardous waste into municipal landfills may still be held liable for Superfund costs under the Comprehensive Environmental Response, Comprehension, and Liability Act (CERCLA). While federal statutes do not currently require any comprehensive regulation of household hazardous waste, a growing number of states and local governments are implementing household hazardous waste management programs. Congress should mandate regulation of household hazardous waste and should condition CERCLA liability on whether municipalities effectively manage their household hazardous waste. This would not only create an equitable basis on which to base CERCLA liability, it would also further Congress' goal of waste reduction.

1. Introduction

   Americans dispose of 160 million tons of solid waste in municipal landfills each year. This includes household hazardous waste (HHW), which contributes about one percent, or 1.6 million tons.(1) Household hazardous waste is not regulated as a hazardous waste under the Resource Conservation and Recovery Act(2) (RCRA), and, therefore, need not be treated and disposed of as hazardous waste.(3) As a result, HHW is disposed into municipal landfills, which comprise approximately twenty percent(4) of all sites listed on the National Priority List (NPL).(5)

   Household hazardous waste does, however, fall within the definition of a hazardous substance(6) under the Comprehensive Environmental Response, Compensation, and Liability Act(7) (CERCLA). Under CERCLA, any person who contributes to contamination of a designated Superfund site is liable for cleanup and recovery costs. Because CERCLA includes HHW in its definition of hazardous substances and municipalities in its definition of "persons," municipalities which have disposed of HHW into municipal landfills are now facing the possibility of paying costs incurred to clean up contaminated landfills. Considering the cost of a CERCLA cleanup,(8) potential liability is a formidable concern.

   In two recent district court cases, municipalities which had disposed of HHW into landfills later identified for Superfund cleanup challenged their liability under CERCLA.(9) While the decisions uphold municipal liability, the cases illustrate the concerns created by the existing statutory scheme.

   In 1989, the U.S. Environmental Protection Agency (EPA) developed a settlement policy(10) in an attempt to minimize municipal liability under CERCLA. While the policy potentially lessens the financial burden on municipalities, it does not resolve the liability issue. The EPA lacks the authority to relieve municipalities of potential liability, leaving municipalities open to liability for indemnification. Moreover, the EPA's policy manifesto an end-of-the-pipe approach. Instead of attacking at the point of generation, the EPA only attempts to remedy the problem once it has been dumped into municipal landfills. No effort has been made to prevent further disposal of HHW into municipal landfills, thereby avoiding liability in the future.

   This author argues that Congress and EPA must consider HHW at the point of generation through the implementation of HHW management programs. Management programs provide an opportunity for municipalities to minimize their disposal of hazardous waste into landfills, as well as divert HHW from improper disposal into sewers and groundwater. Effective programs can also further Congress' waste reduction strategy.(11) Most important, HHW management programs could provide a logical and uniform basis to determine a municipality's liability under CERCLA.

   This author argues further that Congress and EPA must take a more aggressive approach toward HHW management. Under the current RCRA, regime, EPA does not have the authority to mandate state participation in HHW management. Congress has recently taken the first steps to reauthorize RCRA.(12) There has been talk of developing comprehensive solid waste management plans, but Congress has not mentioned HHW management so far in this process.(13)

   Congress must direct EPA to establish a regulatory scheme for HHW management. Regulating the management of HHW would facilitate the adoption of statutes relating to CERCLA municipal liability which could be consistently and uniformly applied.

   Over the past decade, state and local governments have initiated and implemented HHW collection programs on their own. In fact, the majority of states have enacted statutes to implement HHW collection program$.(14) There is a growing body of information on how to implement such programs, and new ideas on how to effectively reduce HHW generation. EPA asserts that it "enthusiastically endorses HHW collection programs,"(15) yet it has not played an assertive role in the evolution of these programs. EPA offers technical assistance and some funding to states and local governments who wish to implement HHW collection programs, but implementation of such programs is left to states and local governments. Thus, participation is strictly voluntary.(16) According to at least one study, the EPA's role in collection programs is not likely to expand.(17)

   Section II of this Comment discusses the current status of HHW, explaining how HHW fits into the current RCRA and CERCLA statutory frameworks. The EPA's 1989 settlement policy is discussed, as well as recent congressional attempts to limit municipal liability. In addition, Section II discusses Congress' waste reduction policy. Section III discusses the history of HHW collection programs, and considers how HHW collection and treatment facilities fit into the RCRA and CERCLA regimes. Section IV explores the HHW management programs of two states, Washington and California, which provide excellent examples of effective HHW management. Both states have developed comprehensive solid waste management plans which strongly emphasize household waste reduction and education. Finally, the author concludes that legislation incorporating HHW into a comprehensive solid waste plan is essential in order to effectively implement policies to relieve municipalities of CERCLA liability.

2. Current Status of Household Hazardous Waste

   Under RCRA, EPA is responsible for the management of all solid wastes, both hazardous and nonhazardous. Nonhazardous solid wastes fall under the purview of the "Subtitle D" regulations.(18) These wastes, including municipal solid wastes, may be disposed in municipal, Subtitle D landfills. Hazardous wastes are regulated under the much more stringent "Subtitle C" regulations.(19) With the exception of conditionally exempt generators(20) (CEGs), generators of hazardous waste must send their wastes to treatment, storage, and disposal (TSD) facilities.(21) Hazardous wastes from CEGs may be disposed in Subtitle D landfills.(22)

   Under section 3001(i) of RCRA,(23) a facility that receives household waste is not considered to be managing hazardous waste,(24) and is thus exempt from the stringent Subtitle C regulations.(25) Instead, HHW is included in the definition of municipal solid waste (deemed nonhazardous) and may be disposed in Subtitle D landfills.(26) Once it reaches the landfill, hazardous constituents of the HHW leach into and contaminate the groundwater.(27)

   Under section 107(a) of CERCLA,(28) any owner or operator of a facility, or any person who arranged for the disposal of a hazardous substance at a facility from which there is a release or threatened release, is potentially liable for Superfund clean-up costs. A "person," as defined in the statute, includes any municipality.(29) "Hazardous substance" is broadly defined and includes HHW.(30) Thus, the potential for municipal liability for hazardous waste clean-up costs has been present since the enactment of CERCLA.(31)

   1. Efforts to Exclude Municipalities from Liability

      In December 1989, EPA published the Interim Municipal Settlement Policy to address the issue of municipal liability under CERCLA.(32) THE policy generally excludes from the settlement process municipal wastes discarded from households, regardless of whether such wastes contain HHW.(33) This policy does not apply where EPA determines that the municipal waste contains household-derived hazardous substances in disproportionately high levels compared to any private commercial, institutional or industrial waste.- According to EPA, pursuing municipalities that contribute very little to the contamination of a site is not cost effective.(35) However, municipalities may still be held legally liable under CERCLA.(36) Furthermore, the policy does not address third party contribution actions.(37)

      Municipal liability under CERCLA was recently challenged in two district court actions. In B.F. Goodrich Co. v. Murtha,(38) the owner of a contaminated landfill brought third party actions against several municipalities for their generation and transportation of household municipal solid waste to the site. The municipal defendants sought summary judgment claiming that their actions did not subject them to CERCLA liability. The court denied the motion, considering the EPA's settlement policy and the fact that CERCLA did not make an explicit exemption for municipal solid waste. Similarly, in Transportation Leasing Co. v. California,(39) the court relied on the fact that CERCLA did not provide a HHW exemption in holding the municipalities liable.

      Since these decisions, EPA has announced it is drafting a new policy to protect municipalities from third party contribution suits.(40) Because CERCLA does not include a municipal liability exemption, municipalities are currently seeking federal legislation to address this issue. Several bills are currently under consideration that would minimize municipality liability.(41) These bills, however, epitomize the end-of-the-pipe approach Congress and EPA have...