The Solid Waste Dilemma: Municipal Liability and Household Hazardous Waste Management

Article excerpt

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. …