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

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.

I. 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.

II. 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)

A. 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 historically followed. Although these bills may relieve municipalities from CERCLA liability, such action does not address the congressional and EPA policy objective of reducing the amount of HHW entering the waste stream.

B. Waste Reduction Policy

With the enactment of the Hazardous and Solid Waste Amendments (HSWA)(42) to RCRA, Congress adopted a policy of hazardous waste minimization and reduction in order to reduce the "threat to human health and the environment."(43) Included in the list of objectives is the need "to promot[e] a . . . program for improved solid waste management and resource conservation techniques . . . and new and improved methods of collection, separation, and recovery, and recycling of solid wastes and environmentally safe disposal of nonrecoverable residues."(44) While the policy focuses particularly on facilities generating a relatively large quantity of hazardous waste,(45) it extends to all levels of hazardous waste generation, including HHW.(46) A representative of the Office of Technology Assessment stressed in 1988, "whereas HHW collections are important for addressing waste management needs in the short run, hazardous-waste prevention is the key to addressing concerns in the long run."(47) Although EPA advocates HHW reduction, little effort has been made at the federal level to curb HHW generation.

In addition to reducing the amount of HHW entering the waste stream, waste reduction is cost effective. One study estimates that the cost of collecting and disposing of one ton of HHW is approximately $1400, while the estimated cost of reducing one ton of HHW is $350.(48) Another study shows that while the disposal cost per participant is $53. If approximately 78% of the waste is disposed through reuse, recycling, and home treatment, the cost is reduced to $12.(49) Clearly, waste reduction not only conserves resources, but is also economically efficient.

At the federal level, tougher laws reducing the toxicity of products are needed. This goal is attainable. For example, the amount of lead in paint has been greatly reduced, and even eliminated in some products due to federal regulation.(50) In some circumstances, industries have taken the initiative. For example, the 3M Company has developed a water-based paint stripper.(51) Although private industries may have the technological capacity to minimize toxicity in their products, large scale reductions in toxicity are unlikely to occur without the incentive of a federal mandate.

Efforts at the federal level to target and educate the consumer are also needed. Advocates of HHW reduction agree that Congress must legislate a federal labeling law addressing the hazardous constituents of the product, their impact on the environment, and proper disposal of the product and its container.(52)

III. Household Hazardous Waste Collection Programs

EPA defines HHW as any solid waste discarded from households or similar sources that contain listed hazardous wastes or exhibit characteristics of hazardous waste as set forth in RCRA.(53) Products containing hazardous waste include oven cleaners, drain openers, automobile maintenance products, cosmetics, batteries, household cleaners, yard maintenance products, and paint strippers and thinners.(54) Over 100 listed hazardous wastes are found in household products.(55) The average home contains an estimated fifty to one hundred pounds of HHW.(56)

HHW collection programs first emerged in the early 1980a.(57) These programs were primarily one-day events.(58) Despite high recovery costs and low participation, these early programs represented an important first step toward raising public awareness of HHW concerns.(59) Today, state and local governments recognize the need for comprehensive management plans to continuously deal with HHW.(60)

In addition to managing proper storage and treatment, these programs emphasize waste reduction and recycling. For example, several programs recycle collected latex paint to create new paint,(61) while others reuse the paint for community projects,(62) and some are "drop and swap" programs.(63) Education is also emphasized, and typically consumes a large part of a program's budget

A. CERCLA liability and Household Hazardous Waste

Programs

Simply establishing a HHW collection program does not automatically remedy the problem of potential CERCLA liability. Once the waste is collected, it must be properly disposed to avoid liability. Exposing a sponsor of a HHW collection program to the same liability as if the HHW was dumped in a landfill would eviscerate the purpose of such programs.

From the inception of collection programs, their sponsors recognized these concerns. When asked for guidance concerning CERCLA liability in the mid-1980s, EPA considered adopting a "no action" policy. Under this policy, EPA would not bring any enforcement action against the municipality itself if any problems arose in the transportation and disposal of the collected HHW.(64) This principal was applied in at least one instance by a regional office,(65) but EPA has since abandoned the "no action" policy.

It is now unclear whether municipalities that participate in HHW management programs will be held liable under CERCLA for improper disposal of collected HHW. While there is potential liability, as seen in a literal reading of the statute,(66) properly managed HHW programs may reduce potential liability.(67) What "properly managed" means, however, is an open question. Only when EPA determines what constitutes proper management can a policy on CERCLA liability be consistently applied. Hence, the need for a HHW management regulatory scheme is reinforced by the necessity of a clearer policy for CERCLA municipality liability.

Beyond EPA policy, Congress should consider HHW management while addressing the issue of CERCLA liability. Although Congress is currently considering liability of municipal, Subtitle D landfills,(68) it has not addressed the potential for HHW management. Congress should condition municipal liability on the municipalitys' efforts to minimize, as well as manage, HHW disposal. Including HHW management as a factor in determining CERCLA liability creates a tremendous incentive for municipalities to establish HHW management programs.

B. Household Hazardous Waste and RCRA Regulation

1. Household Hazardous Waste Management Facilities

Policing individual households to determine how citizens dispose of HHW is virtually impossible. Similarly, policing transporters of Municipal Solid Waste (MSW), which may contain HHW, would be extremely difficult. However, HHW management could be regulated at the point of collection, and it seems appropriate that HHW management be subjected to some regulation at the collection facility level to ensure proper disposal.

While a facility that treats or stores hazardous waste is usually subject to Subtitle C regulations, under section 3001(i) of RCRA, a collection facility that only collects and treats HHW is exempt from the hazardous waste status, and is therefore exempt from Subtitle C regulations.(69) However, whether Subtitle C regulations apply is unclear when a collection facility accepts CEG hazardous waste in addition to HHW.(70) Under the "Mixture Rule," promulgated by EPA in 1980,(71) any hazardous waste mixed with otherwise nonhazardous waste renders that mixture hazardous and subject to Subtitle C regulations. Under the Mixture Rule, therefore, HHW mixed with CEG waste is not exempt from regulation under Subtitle C. The D.C. Circuit recently struck down the Mixture Rule, because EPA failed to promulgate the rule correctly.(72) As a result, EPA is currently considering amending the procedure for identifying hazardous wastes.(73) While the new identification rules will not affect the exemption for HHW, it will be certain to affect mixed wastes.

However, in Environmental Defense Fund v. Wheelabrator Technologies Inc.,(74) the court held that accepting CEG waste did not affect the exempt status of the facility. The facility could therefore accept CEG waste without being subject to Subtitle C regulations. Any other result, the court reasoned, would vitiate the CEG's right to dispose of his waste at a municipal solid waste facility, thereby contradicting the purpose of the regulation.(75)

EPA recently issued an internal memorandum to address the concerns of HHW collection program sponsors about the consequences of accepting CEG waste.(76) According to EPA interpretation of its regulations, merely mixing CEG waste with HHW does not automatically subject a state-approved HHW collection program to Subtitle C regulation.(77) This interpretation is a departure from that expressed previously by EPA representatives,(78) but is a positive step toward encouraging the collection and management of CEG waste.

2. Used Oil Regulation

While HHW management requires some RCRA regulation, subjecting HHW to the rigid Subtitle C hazardous waste regulations at the point of collection may create disincentives for facilities to accept HHW. Recovery and recycling compliance with the comprehensive TSD guidelines is costly and creates potential RCRA enforcement liability.

To illustrate this problem, consider EPA's longstanding dilemma over whether used oil should be listed as hazardous waste under RCRA. A decade after the issue was first raised, the controversy surrounding the listing of used oil has yet to be resolved. Used oil from households, or Do-It-Yourself (DIY) used oil, has played an influential role in EPA'S view of this issue. The adverse impact of DIY used oil on the environment is significant. EPA estimates that seventeen

percent of the total generation of used oil in the United States comes from DIY used oil(79) and that only ten percent of DIY used oil is recycled. As a result, 180 million gallons of DIY used oil are being improperly disposed annually.(80)

Pursuant to a provision of the Used Oil Recycling Act of 1980,(81) EPA was required to determine whether automotive used oil, including DIY used oil, should be listed as hazardous waste under RCRA (82) After receiving numerous comments, EPA announced in 1985 that used oil would not be listed.(83) This decision was not based on the hazards of used oil, but instead on the "belie[f] that listing would discourage recycling of used oil and could have an environmentally counterproductive effect."(84) This decision was challenged in 1988(85) and the court reversed EPA's decision, holding it could not consider the stigmatic effect in making a determination of listing used oil.(86)

Although EPA has recently announced a preliminary decision to list certain kinds of used oil not including DIY used oil, as hazardous waste,(87) the battle over whether used oil should be listed continues to rage.(88) Opponents argue that listing used oil as hazardous waste would be environmentally counterproductive, because listing "could subject hundreds of thousands of businesses to costly new or different permitting, reporting, management, and other requirements;" subject TSD facilities to "onerous corrective action;" and "result in a costly and wasteful misapplication of the nation's environmental resources."(89)

Subjecting HHW to the full RCRA regime could have negative consequences as well. So far, Congress has not considered regulating HHW collection facilities, as they have not played a significant role in solid waste management in the past. Yet, if HHW management were to be mandated, RCRA concerns would need to be addressed. As illustrated above, subjecting collection facilities as well as contracted treatment facilities to the full RCRA regime could adversely impact HHW management.

IV. State Programs

Once granted the authority, EPA should adopt a regulatory scheme that delegates the development of HHW management programs to the states.(90) Giving states autonomy in the HHW management arena would allow flexibility at the local level, thus accommodating the diverse needs of individual municipalities. Such state programs could then delegate the development and implementation of HHW management plans to individual counties.

In Washington and California, for example, the states provide technical and financial assistance, leaving solid waste programs to be developed and implemented by local governments. In each case, HHW management plays a significant role in the overall municipal solid waste reduction plan.

A. Washington

The Washington State Legislature adopted a program aimed at both HHW and CEG waste, which together are termed "moderate-risk waste."(91) Under Washington state law, local governments are required to prepare and implement hazardous waste plans addressing the "fate of moderate-risk wastes in the jurisdiction."(92) These plans must include assessment of the moderaterisk waste, ongoing involvement and public education, analysis of the potential hazards due to improper use and disposal, and an inventory of all existing moderate-risk waste generators.(93)

The Washington Department of Ecology (DOE) prepared guidelines in 1987 to assist local governments in preparing the plans.(94) In addition, DOE provides technical, procedural, and financial assistance.(95) Currently, every county in the state has submitted local plans to DOE. Over one-half have been approved and are somewhere in the process of implementation.(96)

Washington law sets the priority of hazardous waste management techniques, with waste reduction taking top priority;(97) local plans must follow this scheme.(98) The ultimate objective of each plan must be to completely eliminate moderate-risk waste from the waste stream."(99)

The local plans must also employ programs aimed at educating the generator. For example, in 1990, King County's (Seattle) local plan called for twenty-nine percent of the budget for households and forty-two percent of the budget for CEGs to be spent on education.(100)

The Guidelines also require local governments to adopt "[a] moderate risk waste ordinance(s) that addresses proper handling and disposal of household and commercial wastes through the solid waste stream and sanitary sewer."(101)

B. California

The California Environmental Protection Agency approaches HHW management at two levels. At the policy level, the California Integrated Waste Management Board oversees the management of solid waste, including HHW programs. The Board assists local governments in developing and funding HHW reduction plans. At the technical level, the Department of Toxic Substances Control regulates the operation of HHW facilities.

Faced with "the impending crisis of too much garbage, too few regulatory controls, and no long-term planning effort," California legislators created the Board to develop means to reduce the amount of solid waste, including HHW, entering the waste stream.(102) The Board requires that counties submit integrated waste management plans covering all types of solid waste, including HHW, with a "primary emphasis on reduction and recycling strategies."(103) Like Washington, California requires that these plans also emphasize education. The Board assists in developing these plans and provides funding for their implementation.(104)

At the technical level the Department of Toxic Substances Control is currently developing regulations for Temporary HHW Collection Facilities (THHWCFs).(105) Pursuant to the California Code of Regulations, HHW is not exempted from the hazardous waste definition.(106) However, households are exempt from the regulations pertaining to hazardous waste generators.(107) Transporters of Municipal Solid Waste are also exempt from hazardous waste regulations.(108) Bulking(109) and filtering of certain types of waste is conducted at the THHWCF.(110) The THHWCFs can also accept waste from Small Quantity Commercial Sources (SQCS).(111) The emphasis of HHW management is thus on handling the waste at the collection facilities.

The draft THHWCF regulations incorporate some of the management provisions applicable to Interim Status TSD Facilities, although the THHWCF regulations do not match the Interim Status regulations in scope. A THHWCF operator(112) must obtain a permit from the California Environmental Protection Agency, develop and maintain an operation plan, manage waste storage properly, notify the public by publication at least thirty days before the collection event, and obtain liability insurance to cover sudden accidental occurrences.(113) The operator must also comply with sections of the Code pertaining to generators,(114) and some of those pertaining to interim status facilities.(115) Regulations for permanent collection facilities will be promulgated within the next few years.(116)

California has also implemented innovative laws regulating the purchase and disposal of certain household products. For example, oil-based paints may only be purchased in very limited quantities.(117) At the other end of the spectrum, the disposal into any solid waste facility of lead acid batteries, including those discarded from households, is strictly prohibited.(118)

V. Conclusion

Municipal liability under CERCLA is an increasing concern. While minimizing or eliminating liability may temporarily pacify municipalities, it would not serve to reduce the amount of hazardous substances entering the nation's landfills. The liability limitations now being considered will only exacerbate and perpetuate the solid waste dilemma; instead, HHW must be attacked at the source.

The need for congressional and EPA participation in HHW management is apparent in light of the fact that HHW continues to plague the nation's landfills. Congress' goal of hazardous waste reduction requires a comprehensive approach toward solid waste management. HHW is only one component of the solid waste stream. A comprehensive approach toward solid waste management requires Congress and EPA to consider other unregulated hazardous wastes such an CEG waste and municipal solid waste. Some states, such as California, already require that HHW be included in local solid waste plans.(119) Congress should follow the example of thus states. With the impending reauthorization of RCRA, Congress has the opportunity to incorporate HHW into an integrated and comprehensive solid waste reduction policy.

Incentive for effective management of HHW hinges on congressional legislation regarding CERCLA liability. This, in effect, requires new RCRA legislation mandating HHW management in a comprehensive solid waste reduction plan. Moreover, federal laws must be implemented addressing mandatory education and labeling of household hazardous products. EPA must develop a regulatory scheme for HHW management at collection facilities. Once issues of RCRA and CERCLA liability are clarified for municipalities which implement HHW management programs, HHW reduction can be achieved. (1.) U.S. EPA, Proceedings of the Fourth National Conference on Household Hazardous Waste Management. 4 (1989) [hereinafter Fourth Conference]. (2.) 42 U.S.C. [sub-section] 6901-6987 (1988). (3.) See infra notes 18-27 and accompanying text for a discussion of HHW and RCRA. (4.) A recent study indicates that this figure may be higher. Of the 1200 National Priority List sites, one-third may involve local governments as generators, transporters, or site owners. 22 Env't Rep. (BNA) 2330 (Feb. 7, 1992). (5.) The NPL in defined as "the lint compiled by EPA pursuant to CERCLA section 105, [42 U.S.C. [sections] 9605 (1988) of uncontrolled hazardous substance releases in the United States that are priorities for long-term remedial evaluation and response." 40 C.F.R. [sections] 300.5 (1991). The EPA updates this list of priority sites annually. 42 U.S.C. [sections] 9605(a)(8)(b). (6.) See infra notes 28-31 and accompanying text for a discussion of HHW and CERCLA. (7.) 42 U.S.C. [sub-section] 9601-9675 (1988). (8.) The average clean-up cost for a Superfund site is approximately $24 million. William H. Rodgers, Jr., A Superfund Trivia Test: A Comment on the Complexity of the Environmental Laws, 22 Envtl. L. 417, 422 (1992). (9.) B.F. Goodrich Co. v. Murtha, 754 F. Supp. 960 (D. Conn. 1991), aff'd, 958 F.2d 1192 (2d Cir. 1992); Transportation Leasing Co. v. California, [1982] 21 Envtl. L. Rep. (Envtl. L. Inst.) 20826 (C.D. Cal. Dec. 5, 1990). (10.) Superfund Program; Interim Municipal Settlement Policy, 54 Fed. Reg. 51,071 (1989). See infra notes 32-37 and accompanying text for a discussion of this policy. (11.) For a discussion of Congress' waste reduction policy, see infra notes 42-47 and accompanying text. (12.) House Bill 3865 was introduced in November 1991, addressing the solid waste portion of the RCRA package. H.R. 3865, 102d Cong., 1st Sess. (1991). 22 Env't Rep. (BNA) 1821 (Nov. 29, 1991). A bill is not expected to reach the Senate floor during the 102d Congress. 23 Env't Rep. (BNA) 681 (June 19, 1992). (13.) Current bills emphasize municipal solid waste reduction and recycling goals. See generally 23 Env't Rep (BNA) 4 (May 1, 1992); 23 Env't Rep. (BNA) 756 (July 10, 1992). (14.) E.g., California: Cal. Health & Safety Code [sections] 25135 (West 1992); District of Columbia: D.C. Code Ann. [sections] 6-3202 (1989); Florida: Fla. Stat. ch. 403.7265 (1991); Hawaii: Haw. Rev. Stat. [sections] 342G-25 (1990 & Supp. 1991); Illinois: Ill. Rev. Stat. ch. 111 1/2, para. 7057 (1992); Indiana: Ind. Code [sections] 13-9.5-4-7.5 (1991); Iowa: Iowa Code [sections] 455B.488 (1991); Kentucky: Ky. Rev. Stat. [sections] 224.10-610 (1991); Maryland: Md. Envir. Code Ann. [sections] 9-1802 (1991); Massachusetts: Mass. Gen. L. ch. 21H, [sections] 1 (1991); Michigan: Mich. Comp. Laws [sections] 124.508a (1991); Minnesota: Minn. Stat. Ann. [sections] 473.149 (West 1991); Mississippi: Miss. Code Ann. [sections] 17-17-221 (1991); Missouri: Mo. Ann. Stat. [sections] 260.432 (Vernon Supp. 1992); Montana: Mont. Code Ann. [sections] 75-10-104 (1991); Nebraska: Neb. Rev. Stat. [sections] 81-15,161 (R.S.Supp. 1991); New Hampshire: N.H. Rev. Stat. Ann [sections] 147-B:6 (1991); New Mexico: N.M. Stat. Ann. [sections] 74-9-6 (Michie 1992); New York: N.Y. Envtl. Conserv. Law [sections] 54-0603 (McKinney 1992); North Carolina: N.C. Gen. Stat. [sections] 153A-427 (1991); Oregon: Or. Rev. Stat. [sections] 459.413 (1991); Pennsylvania: Pa. Stat. Ann. tit. 53, [sections] 4000.1512 (Supp. 1992); Tennessee: Tenn. Code Ann. [sections] 68-31-815 (1991); Texas: Tex. Health & Safety Code Ann. [sections] 361.021 (West 1991); Washington: Wash. Rev. Code [sections] 70.105.220 (1992); Wisconsin: Wis. Stat. [sections] 144.75 (1991). (15.) Dana Duxbury & Assoc., Management of Household and Small-Quantity-Generator Hazardous Waste in the U.S. 22 (Dec. 1989) [hereinafter Management Study]. (16.) Id at 25. (17.) Id. (18.) 42 U.S.C. [sub-section] 6941-6949a. (19.) 42 U.S.C. [sub-section] 6921-6939b; 40 C.F.R. [sub-section] 261-265 (1991). (20.) 40 C.F.R. [sub-section] 261.5(f)(3), .5(g)(3). To qualify as a CEG, a facility cannot generate more than 100 kilograms per month of hazardous waste. 40 C.F.R. [sections] 261.5(a). (21.) See generally 40 C.F.R. [sub-section] 264-265. (22.) 40 C.F.R. [sections] 261.5. (23.) 42 U.S.C. [sections] 6921(i). (24.) 40 C.F.R. [sections] 261.4(b)(1) unconditionally exempts household wastes, even when accumulated in large quantities. (25.) The statute also exempts facilities that incinerate HHW. 42 U.S.C. [sections] 6921(i). (26.) While municipalities have the option of separating out HHW and sending it to TSD facilities, they have not done so historically because of the huge cost such a practice would incur. (27.) Recognizing the problem of landfill contamination, Congress added a provision to RCRA in 1984 requiring the EPA to study and implement guidelines to protect groundwater at landfills that accept HHW and CEG waste. 42 U.S.C. [sections] 6949a (1988). The EPA recently promulgated such guidelines, mandating measures such as groundwater monitoring wells and liners. Solid Waste Disposal Facility Criteria, 56 Fed. Reg. 50,978 (1991) (to be codified at 40 C.F.R. if 257-258). (28.) 42 U.S.C. [sections] 9607(a). (29.) 42 U.S.C. [sections] 9601(21). (30.) 42 U.S.C. [sections] 9601(14). "Hazardous substance" includes not only those hazardous wastes listed in RCRA, but any substance having the characteristics of a hazardous waste in RCRA. HHW in defined as any solid waste discarded from households or similar sources that contain listed hazardous wastes or exhibit characteristics of hazardous waste as set forth in RCRA. See infra note 53 and accompanying text. Thus, many household wastes contain hazardous substances but still do not fit the definition of HHW. (31.) See, e.g., Steven Ferrey, The Toxic Time Bomb: Municipal Liability for the Cleanup of Hazardous Waste, 57 Geo. Wash. L. Rev. 197 (1988). (32.) Superfund Program; Interim Municipal Settlement Policy, 54 Fed. Reg. 51,071. (33.) This holds true unless the hazardous substance is derived from a commercial, institutional, or industrial process. Id. at 51,072. This policy also applies to HHW collection day programs. Id. at 51,075. EPA did not discuss permanent HHW programs in this policy. (34.) Id. at 51,072. "The EPA expects this exception to be sparingly applied." Id. (35.) Id. at 51,073. Under the interim policy, EPA treats municipal owners and operators the same as any private party during the settlement process. Id. at 51,072. This policy was challenged in United States v. Kramer, 757 F. Supp. 397 (D.N.J. 1991), on the ground that it violates the Equal Protection Clause of the Constitution. U.S. Const. amend. V. The court dismissed this claim. "[P]ursuit of private entities responsible for generating or transporting hazardous waste to Superfund sites is rationally related to CERCLA's aim of imposing liability for the cost of cleaning up such sites upon those who have profited from trafficking in and improperly disposing of hazardous substances." Kramer, 757 F. Supp. at 434. (36.) This is because EPA does not have statutory authority to relieve municipalities from CERCLA liability. (37.) Superfund Program; Interim Municipal Settlement Policy, 54 Fed. Reg. 51,071. In B.F. Goodrich Co. v. Murtha, the court considered the interim policy in holding the municipalities liable. It stated, "The EPA's Interim Municipal Settlement Policy . . . acknowledges that [municipal solid waste] may contain hazardous substances . . . and responsible parties, including municipalities, will be notified as PRPs [Potentially Responsible Parties]." 754 F. Supp. 960, 966 (D. Conn. 1991), aff'd, 958 F.2d 1192 (2d Cir. 1992). (38.) 754 F. Supp. 960 (D. Conn. 1991), aff'd, 958 F.2d 1192 (2d Cir. 1992). (39.) [1991] 21 Envtl. L. Rep. (Envtl. L. Inst.) 20,826, 20,827 (C.D. Cal. Dec. 5, 1990). (40.) The new policy was announced July 17, 1991. 22 Env't Rep. (BNA) 647 (July 19, 1991). The policy proposes guidelines encouraging early settlement with EPA, thus avoiding third party contribution actions. (41.) For example, Senate Bill 1557 "would give [the] EPA exclusive authority to bring contribution actions against municipalities." S. 1557, 102d Cong., 1st Sess. (1991). House Bill 2767 would exempt municipalities from Superfund liability altogether. H.R. 2767, 102d Cong., 1st Sess. (1991); 22 Env't Rep. (BNA) 828 (August 2, 1991). Another bill was offered to the House Public Works and Transportation Subcommittee on Investigations and Oversight on November 13, 1991. House Bill 3026 would block all third party actions against municipalities that contribute "ordinary garbage and sewage sludge" to a site, but would allow EPA to bring action in "exceptional circumstances." H.R. 3026, 102d Cong., 1st Sess. (1991); 22 Env't Rep. (BNA) 1765 (November 15, 1991). American Communities for Cleanup Equity, a coalition of one hundred municipalities in California, urged the subcommittee to enact legislation as soon as possible, before the 1994 CERCLA reauthorization date. Id. (42.) Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, 98 Stat. 3221 (codified at 42 U.S.C. [sub-section] 6901-6987 (1988)). (43.) 42 U.S.C. [sections] 6902(b) states: The Congress hereby declares it to be the national policy of the United States that, wherever feasible, the generation of hazardous waste is to be reduced or eliminated as expeditiously as possible. Waste that is nevertheless generated should be treated, stored, or disposed of so as to minimize the present and future threat to human health and the environment. EPA defines waste minimization as "Any source reduction or recycling activity undertaken by a generator that results in (1) the reduction of total volume of hazardous waste or (2) the reduction of quantity and toxicity of hazardous waste, that is either generated or subsequently treated, stored, or disposed." Robert F. Blomquist, Beyond the EPA and OTA Reports: Toward a Comprehensive Theory and Approach to Hazardous Waste Reduction in America, 18 Envtl. L. 817, 819 n.3 (1988) (quoting Office of Technology Assessment, U.S. Congress, Pub. No. OTA-ITE-317, Serious Reduction of Hazardous Waste: For Pollution Prevention and Industrial Efficiency 160 (1986)). (44.) 42 U.S.C. [sections] 6902(a)(9). (45.) See generally Blomquist, supra note 43. (46.) "The national government's front-end, hazardous-waste-prevention approach is carried over into the area of HHW." Management Study, supra note 15, at 22. (47.) Id. at 22 (citing Howard Levenson, Panel on Future Trends in Household Hazardous Waste Management, Address at the Third National Conference on Household Hazardous Waste Management (Nov. 2-4, 1988), in Proceedings of the Third Nat'l Conf. on Household Hazardous Waste Mgmt., 1988, at 157 [hereinafter Third Conference). (48.) Martha Burke, Waste Reduction as a Component of an Integrated Waste Management Program, Address at the Fourth National Conference on Household Hazardous Waste Management (Nov. 6-8, 1989), in Fourth Conference, supra note 1, at 41. (49.) Ned Brooks, Report on Waste Exchanges and Telephone Hotlines, in Third Conference, supra note 47, at 45-46. (50.) Burke, supra note 48, at 48. (51.) Id. (52.) See, eg., Mass. State Rep. Barbara Gardner, Need for Additional Laws: Government Perspective, Address at the Third National Conference on Household Hazardous Waste (Nov. 3, 1988), in Third Conference, supra note 47, at 147-48; Office of Technology Assessment, U.S. Congress, Facing America's Trash: What Next for Municipal Solid Waste 24 (1989) [Hereinafter Facing America's Trash]. Iowa has codified a permitting and shelf-labelling system applicable to the retailers of household products. "A retailer shall affix a display area label, as prescribed by rule of the commission, in a prominent location upon or near the display area of a household hazardous material." Iowa Code [sections] 455F.3.1 (1991). Pesticide labelling is already in effect under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). 7 U.S.C. [sections] 136 (1988). FIFRA labelling is not aimed at household consumers, although six percent of all pesticides are used by households annually. Tracy Bone, Impact of FIFRA |88 on Household Hazardous Waste, Address At the Fourth National Conference on Household Hazardous Waste Management (Nov. 6-8, 1989), in Fourth Conference, supra note 1, at 130. (53.) Office of Solid Waste, U.S. EPA, A Survey of Household Hazardous Wastes and Related Collection Programs 3-2. (1986) [hereinafter HHW Survey]. (54.) Id at 1-2. See generally Management Study, supra note 15. (55.) Facing America's Trash, supra note 52, at 87. (56.) Fourth Conference, supra note 1, at 4. (57.) Two collection program events occurred in 1980. By 1990, this number increased to 855 collection programs nationwide. HHW in 1991, Household Hazardous Waste Mgmt. News, March 1991, at 1. (58.) HHW Survey, supra note 53, at 6-4. (59.) Id. at 1-1. (60.) David Galvin, Developing a Comprehensive Household Hazardous Waste Management Program, Address at the Fourth National Conference on Household Hazardous Waste Management (Nov. 6-8, 1989), in Fourth Conference, supra note 1, at 35 ("One of the themes of this . . . conference is to promote the concept of a comprehensive approach to HHW management, to look beyond one-time-only collection events toward the big picture."). The implementation of permanent HHW programs is quickly increasing. Permanent programs in 1990 increased by 40% from 1989. HHW in 1991, Household Hazardous Waste Mgmt. News, March 1991, at 1. (61.) Seattle-Metro, in Washington, has created "community pride" latex paint. Telephone Interview with David Galvin, Supervisor of Hazardous Waste Management for Seattle-metro (Nov. 5, 1991). (62.) Florida has created a reuse program whereby HHW collection program sponsors donate water-based paints for community projects. Telephone interview with Jan Clayman, Environmental Specialist, Florida Department of Environmental Regulation (Oct. 30, 1991). (63.) In Vermont, collected latex as well as oil-based paints are offered to the public in their original containers. Brian C. Rimar, U.S. Household Hazardous Waste Collection Methods, Address at the Sixth National Conference on Household Hazardous Waste Management (Dec. 3-7, 1991), in Proceedings of the Sixth National Conference on Household Hazardous Waste Management 65 (1991) [hereinafter Sixth Conference] . (64.) Letter from John P. Lehman, Director Waste Management and Economics Division, EPA to Basil G. Constantelos, Director, Waste Management Division, EPA Division V (January 28, 1986) (on file with Environmental Law). ("[W]e have considered the concept of "no action" as a possible general policy for sponsors of household hazardous waste collection programs."). (65.) Letter from Michael R. Deland, Regional Administrator, U.S. EPA Region 1, to Dana Duxbury, Natural Resources Director, League of Women Voters of Massachusetts (May 4, 1984) (on file with Environmental Law) ("the EPA has no intention of taking an enforcement action against the town under the circumstances described in your letter."). (66.) 42 U.S.C. [sections] 9601. (67.) Third Conference, supra note 47. See also Jeffery Denit, Keynote Speech: Fourth Annual Conference on Household Hazardous Waste, Address at the Fourth National Conference on Household Hazardous Waste Management (Nov. 6-8, 1989), in Fourth Conference, supra note 1, at 13. (68.) See supra note 41. (69.) See supra note 25 and accompanying text. (70.) As mentioned earlier, CEG waste is considered hazardous waste, but RCRA allows this waste to be disposed of in Subtitle D landfills. See supra note 22. As a result, CEG waste greatly contributes to municipal landfill contamination. Moreover, unlike municipalities, industrial CEGs are not insulated from CERCLA liability under EPA's settlement policy. See supra notes 32-37. Although a comprehensive discussion of CEG waste is beyond the scope of this paper, it should be emphasized that, in addition to HHW, CEG waste must also be addressed in any comprehensive solid waste reduction plan. Indeed, several states have incorporated CEG management into their solid waste management plans. See infra notes 91-119 and accompanying text on California and Washington programs. (71.) 45 Fed. Reg. 33,084 (1980) (codified at 40 C.F.R. [sections] 261.3(a)(2). (72.) Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). The court held that EPA failed to provide adequate notice and opportunity to comment during rulemaking, pursuant to the Administrative Procedure Act, 5 U.S.C. [sections] 553(b) (1988). Concerned with the danger posed by a discontinuity in the regulations, EPA reinstituted the Mixture Rule on an interim basis, set to automatically terminate on April 28, 1993. 57 Fed. Reg. 7628 (codified at 40 C.F.R. [sections] 261 (1992). (73.) Under the proposed Hazardous Waste Identification Rule, EPA is considering two approaches to determine when a solid waste should fall under the purview of the Subtitle C regulations. One approach would base the determination on concentration levels, while the other approach would base the determination on "characteristic" levels. Under both approaches, the new identification rule would apply to mixed wastes, as well as listed hazardous wastes, waste derivatives, and contaminated media. 57 Fed. Reg. 21,450 (1992). (74.) 725 F. Supp. 758 (S.D.N.Y. 1989), aff'd, 931 F.2d 211 (2d Cir. 1991), cert. denied, 112 S. Ct. 453 (1991). (75.) Wheelabrator, 725 F. Supp. at 772-73. But see Environmental Defense Fund v. City of Chicago, 727 F. Supp. 419 (N.D. 111. 1989) (ash remaining from the incineration of household waste and nonhazardous commercial waste is exempt from Subtitle C regulations provided that the facility does not accept any hazardous waste). (76.) Letter from Sylvia K. Lowrance, Director, Office of Solid Waste, EPA, to Waste Management Division Directors, EPA Regions I-X (July 22, 1992) (on file with Environmental Law). (77.) Id. (78.) "If both HHW and [CEG] wastes are collected, they must not be mixed. If mixed, a new waste is created . . . [and] the program sponsor may be considered to be a waste generator, subject to some or all of the Subtitle C requirements, and fully liable on that basis." John Fogarty, Federal Liability Issues for HHW Collection Programs, Address at the Sixth National Conference on Household Hazardous Waste Management (Dec. 3-7, 1991), in Sixth Conference, supra note 63, at 168. "[S]ponsors of HHW collection programs must not mix HHW and conditionally exempt wastes, thereby triggering all or some of the Subtitle C requirements for management of this waste." Kathy Margolis, HHW with SQGS and Conditionally Exempt Generators: RCRA Issues, Address at the Fourth National Conference on Household Hazardous Waste Management, in Fourth Conference, supra, note 1, at 352. (79.) Sarah Carney, An Overview of Used Oil Recycling Issues, Address at the Fourth National Conference on Household Hazardous Waste Management (Nov. 6-8, 1989), in Fourth Conference, supra note 1, at 103. This statistic considers used oil generation in 1984. (80.) EPA predicts that by 1997, 230 million gallons of DIY used oil will be generated each year. Carney, supra note 79, at 103. (81.) Pub. L. No. 96-463, 94 Stat. 2055 (1980). (82.) 42 U.S.C. [sections] 6935(b). (83.) Identification and Listing of Hazardous Waste; Used Oil, 51 Fed. Reg. 41,900 (1986). (84.) Id. at 41,901. (85.) Hazardous Waste Treatment Council v. EPA, 861 F.2d 270 (D.C. Cir. 1988). (86.) Id. at 277. (87.) Supplemental Rule-Making on Decision to List Used Oil as Hazardous Waste, 56 Fed. Reg. 48,000 (1991). (88.) For example, during recent testimony before the Subcommittee on Transportation and Hazardous Materials of the House Energy and Commerce Committee, an American Petroleum Institute representative claimed that California legislation listing used oil as hazardous waste "placed stricter restrictions on its disposal, has increased the cost of recycling and discouraged [recycling]." 22 Env't Rep. BNA).488 (June 21, 1991). (89.) James Baller, Opinion, 17 Chem. Waste Litig. Rep. 1, 6-7 (Dec. 1988); James M. Hoeksema, Listing Oil as a Hazardous Waste Would Affect the Oil Recycling Industry, 22 Envtl. L. 1579 (1992). (90.) Under section 3006 of RCRA, the EPA Administrator can authorize states to administer and enforce a hazardous waste regulatory program, so long as the state programs are as stringent as the federal program. 42 U.S.C. [sections] 6926. Requirements under state programs may be more stringent or more extensive than those requirements under the federal program. 40 C.F.R. [sections] 271.1(i)(1). (91.) Telephone Interview with David Nightingale, Moderate Risk Waste Planner, Washington Dept. of Ecology, (Nov. 6, 1991) [hereinafter Nightingale Interview). Similar to federal RCRA guidelines, moderate waste is exempt from state hazardous waste regulations. See generally Wash. Admin. Code [sections] 173-303 (1990). Washington has adopted regulations whereby HHW and CEG waste can be mixed together without becoming regulated by the state's Dangerous Waste Regulations. Thus, a facility can accept and bulk these wastes together in the same container without subjecting the wastes to the hazardous waste regulations. Washington Dep't. of Ecology, Implementation Guidelines for Local Hazardous Waste Plans 8 (1992). (92.) Wash. Rev. Code [sections] 70.105.220(1)(a) (1992). (93.) Id. [section] 70.106.220. (94.) See generally Washington Dep't. of Ecology, Planning Guidelines for Local Hazardous Waste, Plans (1987) [hereinafter Washington Guidelines). (95.) Local governments may receive up to 75% funding from a state grant. Id at 15. (96.) Several plans include multiple counties, which is encouraged by the Guidelines Id. at 2. Of the 33 plans submitted, 18 plans have been approved by DOE so far, accounting for 21 of the 39 counties in Washington. Nightingale Interview, supra note 91. (97.) "[T]he legislature finds that the following priorities in the management of hazardous waste are necessary and should be followed in order of decending priority as applicable: (a) Waste reduction; (b) Waste recycling; (c) Physical, chemical, and biological treatment; (d) Incineration; (e) Solidification/stabilization treatment; (f) Landfill." Wash. Rev. Code [sections] 70.105.150. (98.) Washington Guidelines, supra note 94, at 6-7. (99.) Id. at 11.

In carrying out this analysis, bear in mind that the plan must ultimately set specific objectives for removal of moderate risk waste from the waste stream . . . Plan objectives must be based on a percentage reduction of moderate risk waste in the waste stream, with an ultimate goal of no targeted moderate risk waste intended for landfill or wastewater discharge. Id. (100.) Burke, supra note 48, at 41. (101.) Washington Guidelines, supra note 94, at 13. "Ordinances should address such factors as the definition of moderate risk waste, illegal disposal, landfill or waste discharge bans on specific chemicals and products, penalties, and assignment of enforcement responsibility." Id. (102.) Caren Trgovcich, State Oversight of Household Hazardous Waste Programs, Address at the Fourth National Conference on Household Hazardous Waste Management (Nov. 6-8, 1989), in Fourth Conference, supra note 1, at 80. (103.) Id. See also Cal. Health & Safety Code [sections] 25135 et seq. (West 1992). (104.) Trgovcich supra note 102, at 82, (105.) Cal. Health & Safety Code [sections] 25158.1 (West 1992). The proposed regulations will amend Cal. Code Regs. tit. 22, [sub-sections] 66260.10, 66270.1, 66270.60, 67450.4, 67450.16 (1990). See Proposed Regulations, Permit by Rule Regulations for Temporary Household Hazardous Waste Collection Facilities, California Environmental Protection Agency, Dept. of Toxic Substances Control (1992) [hereinafter proposed regulations]. (106.) Cal,. Code Regs. tit. 22, [sections] 66261.4 (1990). (107.) Id. [sections] 66262.10(h) ("This article does not apply to generators handling only hazardous waste produced incidental to owning and maintaining their own place of residence.") (108.) Telephone, Interview with Jan Smith, Associate Hazardous Materials Specialist, California Environmental Protection Agency, Dept. of Toxic Substances Control (November 7, 1991) [hereinafter Smith Interview]. (109.) The definition of bulking will be added to the Code. "|Bulking' means the process of consolidating various quantities of the same type of waste by placing them into a single, larger container," Proposed Regulations, supra note 105, [sections] 66260.10. (110.) Id. (111.) Small Quantity Commercial Sources (SQCSs) are similar to CEGs. The definition will be amended in the Code; [SQCS] means a business which generates less than 100 kilograms of household waste as defined in [40 C.F.R. [sections] 261.4(b)(1)] or which meets the criteria for conditionally exempt small quantity generators specified in [40 C.F.R. [sections] 261.5]." Id. [sections] 66260.10. The proposed regulations do not limit the quantity of hazardous waste a THHWCF can accept. However, SQCS wastes must be handled separately from household wastes. See Proposed Regulations supra note 105, [sections] 67450.4. (112.) "Operator" refers to the public local agency responsible for the THHWCF. The term "owner" will not be used in the THHWCF regulations. Id. (113.) Proposed Regulations, supra note 105, (sections] 67450.4. (114.) Id. (115.) These include standards for personnel training, contingency plan and emergency procedures, and preparedness and prevention. Id. (116.) Smith Interview, supra note 108. (117.) Id. (118.) Cal. Health & Safety Code [sections] 25215.2 (West 1992). (119.) E.g., California: Cal. Health & Safe Code [sections] 25135 (West 1992); District of Columbia: D.C. Code Ann. [sections] 6-3202 (1989); Hawaii: Haw. Rev. Stat. [sections] 342G-25 (1990 & Supp. 1991); Illinois: Ill. Rev. Stat. ch. 111 1/2, para. 7057 (1992); Indiana: Ind. Code [sections] 13-9.5-4-7.5 (1991); Massachusetts: Mass. Gen. L. ch. 21H, [sections] 1 (1991); Michigan: Mich. Comp. Laws [sections] 124.508a (1991); Minnesota: Minn. Stat. Ann. [sections] 473.149 (West 1991); Mississippi: Miss. Code Ann. [sections] 17-17- 221 (1991); Missouri: Mo. Ann. Stat. [sections] 260.320 (Vernon Supp. 1992); Montana: Mont. Code Ann. [sections] 75-10-104 (1991); New Mexico: N.M. Stat. Ann. [sections] 74-9-6 (Michie 1992); New York: Envtl. Conserv. Law [sections] 54-0603 (McKinney 1992); Tennessee: Tenn. Code Ann. [sections] 68-31-815 (1991); Texas: Tex. Health & Safety Code Ann. [sections] 361.021 (West 1991).