RCRA and EJ Overview Environmental Law 2008

RCRA Overview Brief chronology of RCRA: Mid-’70s--RCRA enacted; mainly solid waste management (trash and garbage) Starts out as a kind of EPA “backwater” 1978: Love Canal inspires a media “feeding frenzy”

RCRA Overview The Love Canal dilemma FEMA can help only the victims of natural disasters This is a manmade disaster So, go bring a tort action

RCRA Overview Love Canal’s Lessons Learned There needs to be a program for dealing with hazwaste—an unknown (but large) number of “ticking time bombs” RCRA imminent hazard provision pressed into service Superfund (CERCLA) enacted in 1980, states follow suit with parallel programs

RCRA Overview Hazwaste Politics Jan. 1980—lame-duck administration approves Superfund; incoming Reagan team says “No son of Superfund!” Sweetheart settlements, scandals RCRA landfill regs approved despite admitted concerns over leakage of dumps, because it was cost-effective

RCRA Overview RCRA’s General Approach: Command-and-control (to the point of micromanagement) Permitting of parts of waste disposal industry Post-closure liability (CERCLA and PCLFs) Hierarchy of preferred options for hazwaste

RCRA Overview Features of HASWA ‘84: Land bans Increased regulation of TSDFs “Hammer” provisions Tighter small generator exemptions “Nondelegation run riot”

RCRA Overview What is hazwaste? Listed Wastes (Rulemaking but we won’t go there) Characteristic wastes Ignitable Corrosive Reactive (old) Extraction Potential Toxicity (EP tox) (current) TCLP (toxic constituent leachate potential)

RCRA Overview What can be done with hazwaste? Incineration Deep-well injection Chemical alteration (e.g., neutralization)-- sometimes Landfilling Re-use or recycle (or incorporate in product) Avoid generating (toxics use reduction) Which of these alternatives should we prefer? What incentives should we create so better alternatives will be used?

RCRA Overview RCRA and the MSW Incineration Problem Incineration (“energy recovery”) emerges as the solution to solid waste--1980s Dioxins and furans, other complex chemicals are produced by incineration of plastics and other wastes Some materials (e.g., mercury) volatize Toxins rain down and enter food webs Ash left after incineration concentrates metals Materials that are burned can’t be otherwise recycled

RCRA Overview Environmental Justice in New York (CP-29) Environmental justice means the fair treatment and meaningful involvement of all people regardless of race, color, or income with respect to … environmental laws, regulations, and policies Fair treatment means that no group of people, including a racial, ethnic, or socioeconomic group, should bear a disproportionate share of the negative environmental consequences ….

RCRA Overview EJ in NY: ECL f requires that the Hazwaste Siting plan include “a determination of the number, size, type, and location by area of the state of new or expanded industrial hazardous waste treatment, storage, and disposal facilities which will be needed for the proper long- term management of hazardous waste consistent with... an equitable geographic distribution of facilities.”

RCRA Overview How should New York State decide what distribution of hazwaste facilities is equitable?