Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

Product stewardship is definitely in vogue. The Daily Environment Report has just noted that the United State Conference of Mayors has adopted a resolution calling for “Extended Producer Responsibility For Products.” I understand the arguments in favor of product stewardship. From an economic point of view, the disposal costs associated with products and product packaging can be seen as an externality. Internalizing those costs would give manufacturers and distributors incentives to minimize those costs, through reduced packaging or changes in design/manufacturing that would reduce the costs associated with product disposal.

Nonetheless, I’m skeptical of the USCM resolution and wonder about how “producer responsibility” will actually get implemented on the ground. The USCM resolution describes the “costs paid by local governments to manage products,” traditionally seen as a core governmental function, to be “in effect, subsidies to the producers of hazardous products and of products designed for disposal.” Language like this might reasonably lead one to conclude that the Mayors’ concern isn’t product stewardship, but just reducing local DPW budgets.

Taxes on the cost of disposal might cause manufacturers to change their processes to reduce the amount of waste associated with the end of their products’ life, but what if the most efficient way to handle such waste is still through centralized collection and disposal by municipalities? Perhaps one of my more informed readers will tell me how product stewardship can be operationalized to provide the appropriate incentives on manufacturers to reduce the life-cycle cost of their products while still leaving the handling and disposal of waste products where they can still be performed most efficiently. 

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Last week, EPA’s Office of Solid Waste and Emergency Response announced release of its Community Engagement Implementation Plan. Who could be against community engagement? It’s as American as apple pie. It’s environmental justice. It’s community input into decisions that affect the community. It’s transparency and open decision-making.

Call me a curmudgeon, but I’m against it. Study after study shows that, in terms of the actual risks posed by Superfund sites, we devote too many of our environmental protection dollars to Superfund sites, when we should be focusing on air and water. Why do we keep doing this? Because the community demands it. As Peter Sandman has noted, perceptions of risk are driven only partly by the actual hazard posed. To a significant degree, those perceptions are more driven by outrage over the situation. In some circumstances, what Sandman calls outrage management makes sense, but I’m skeptical that EPA’s community engagement initiative is really about outrage management.

In any case, here’s the public policy question of the day. Does it really make sense to spend scarce environmental protection resources, not to reduce risk, but to reduce outrage?

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Environmentalists have been pushing for years to overturn the Bevill Amendment and get coal combustion residuals (CCR) regulated as a hazardous waste. The failure of an impoundment at the TVA facility in Kingston, Tennessee, in 2008 almost guaranteed that EPA would do something to regulate CCR. Like Hamlet, however, EPA seems to be having trouble making up its mind. Earlier this week, EPA announced two different potential regulatory approaches, one regulating CCR as a hazardous waste under RCRA Subtitle C and one regulating CCR as non-hazardous waste under Subtitle D of RCRA.

Entities with coal generating assets have two problems, broadly speaking, with regulating CCR as a hazardous waste. The first is just the sheer magnitude of the costs required to address existing surface impoundments and find alternatives to impoundments going forward. I realize that there are significant scientific questions regarding whether migration of contamination from existing impoundments in fact poses any significant risk. However, this question was answered at a political level once the Kingston impoundment failed. It’s difficult to see any regulatory regime going forward that doesn’t strictly regulate impoundments.

The second significant issue is beneficial reuse. A very substantial amount of CCR is safely and economically reused. Strict regulation of CCR as a hazardous waste would, to put it mildly, put a crimp in the CCR recycling market. EPA, at least based on its public pronouncements to date, appears to get it, though time will tell whether the program the agency ultimately implements will nonetheless create needless obstacles to recycling CCR.

Thus, if I had to guess – and to paraphrase the Bard – recycling of CCR is to be, disposal of CCR in surface impoundments is not to be.

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Yesterday’s New York Times had a very interesting article regarding the use of advanced municipal waste combustor technology in Europe. As the article notes, such plants are relatively commonplace in Europe, whereas literally no new waste-to-energy plants are being built in the United States. Ian Bowles, our own Secretary of Energy and Environmental Affairs – and someone who has generally been a very successful promoter of renewable energy technology – acknowledged that “Europe has gotten out ahead with this newest technology.” 

This shouldn’t be surprising given that states such as Massachusetts have moratoria on new municipal waste combustors. It’s difficult to keep up with Europe when you order people not to try. In fairness to Secretary Bowles, the article pretty much makes clear why it is that Massachusetts has a moratorium in place and why we’ve fallen behind Europe. Laura Haight, at New York PIRG said that

Incinerators really are the devil.

Glad that there’s no rhetorical excess at NY PIRG. In any case, it’s difficult for regulators to move forward when one of their prime constituencies thinks that the technology is the devil.

Is it possible that the U.S. environmental community is letting the perfect be the enemy of the good on this issue? NY PIRG wants to get to a “zero waste” economy. I think we’ll get to a zero carbon economy before we get to a zero waste economy.

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As I have previously noted, Cass Sunstein, now head of the Office of Information and Regulatory Affairs at OMB under Obama, has called the precautionary principle “deeply incoherent.” Why? Because, as Sunstein notes, “costly precautions inevitably create risks.”

I hope that Sunstein is as troubled as I am by the news, reported recently by Inside EPA, that Mathy Stanislaus, head of EPA’s Office of Solid Waste & Emergency Response, has said that implementing the precautionary principle is a key to EPA’s environmental justice efforts.

When Stanislaus says that “we can’t wait until we have all the conclusive interpretive science to make a decision,” I agree with him, but that’s not the precautionary principle, that’s just a willingness to regulate under uncertainty, which has been a bedrock of environmental law.

However, the precautionary principle is something different and much more insidious. It’s not “regulate in spite of uncertainty” – it’s “regulate because of uncertainty.” It seems to stem from an almost Luddite fear of new technology and, as Sunstein points out, a philosophical view that nature is good and man-made is bad.

Stanislaus is head of OSWER. Is he going to oppose use of new cleanup technologies based on nanotechnology, because the precautionary principle says that we don’t know that nanomaterials are safe?

Stanislaus wants to “operationalize the precautionary principle.” Be worried, be very worried.

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As most of my Massachusetts readers know, on Friday, Secretary of Energy and Environmental Affairs Ian Bowles and DEP Commissioner Laurie Burt announced that Massachusetts would retain its moratorium on new construction or expansion of municipal waste combustors. Although the overall outcome is not really a surprise from this administration, a few points are worth noting.

The announcement says nothing about new technologies, such as plasma arc gasification. Arguably, such a technology is not “incineration” or “combustion,” so we’ll have to see whether the administration remains open to such alternatives to traditional incineration.

The administration emphasized that it is committed to decreasing the volume of the waste stream and noted some specific initiatives that it intends to pursue:

Comprehensive producer responsibility legislation for discarded electronics – The announcement did not refer to any specific legislation (see here for a helpful table summarizing the current state of e-waste legislation nationwide, including in MA), but the administration is clearly going to be pushing for some kind of E-waste bill.

Expansion of the bottle bill to cover water and sports drinks. Since I have joined those who consider bottled water use a pet peeve, I can’t complain about this one.

Finally, the Secretary stated that he had directed DEP to cease permitting any use of construction and demolition, or C&D, waste as fuel in any energy facility until a comprehensive review can be completed.  The announcement specifically called out the Palmer Renewable Energy facility as being affected by the halt.

It is clear that the current economy is not discouraging the Patrick administration from its aggressive environmental agenda.

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This week, the practice of mountaintop removal – chopping the tops off mountains in order extract the coal – received two blows: one from EPA and one from Congress. First, EPA offices Region 3 and Region 4 announced that they plans to assess the Central Appalachia Mining's Big Branch project in Pike County, Ky., and the Highland Mining Company's Reylas mine in Logan County, W.Va., before permits are issued for those projects. 

Although the broad brush is important here, so are some of the details. First, both letters raise concerns about the cumulative impacts of multiple mountaintop removal projects. Second, the Region 3 letter raises the possibility that EPA might use its authority under section 404(c) of the Clean Water Act to prohibit issuance of the required permit, noting that the “extensive cumulative and other impacts give this proposed project high potential” for action under § 404(c).  

The second blow was the introduction in Congress of legislation that would prohibit mountaintop removal. Of course, introduction doesn’t guarantee passage, but it does seem notable that one of the two sponsors is Lamar Alexander, both a Republican and a Senator from a coal mining state. Senator Alexander’s support suggests that a tipping point may have been reached on this issue.

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Although it appeared initially as though Congress might be the first to move towards greater regulation of coal ash following the TVA spill, EPA has seized the initiative. Yesterday, Administrator Jackson announced a two-pronged initiative. First, EPA has issued information requests to facilities maintaining coal ash impoundments in order to gather information necessary to support new regulations. Second, she confirmed that EPA will indeed then promulgate regulations designed to prevent future spills.

In response to the Administrator’s announcement, Nick Rahall, Chairman of the House Natural Resources Committee withdrew his own coal ash regulation bill, H.R. 493, from mark-up.

EPA has not yet tipped its hand regarding the likely nature of such regulations, including whether coal ash would be handled as hazardous waste under RCRA or whether it would instead be handled as a solid waste.  Facilities operating coal-fired power plants have likely resigned themselves to increased regulation of coal ash, but could be expected to fight tooth and nail against efforts to regulate ash as a hazardous waste.  Such regulation would greatly increase management/disposal costs and would preclude many current reuses of coal ash.

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The magnitude of the recent release of coal ash from the TVA dam is hard to fathom, though the pictures certainly give some sense of its magnitude. Now, as regulators and Congress attempt to get their collective arms around the import of the release, some of the regulatory implications of the release are starting to emerge. According to a report in yesterday’s Greenwire, Congressional hearings this week may include a discussion regarding whether coal ash should continue to be exempt from regulation as a hazardous waste under RCRA

The exemption of coal ash is critical to coal-fired power plants. According to the article, 130 million tons of fly ash were generated last year, 42 percent of which were beneficially reused. Moreover, there are approximately 600 landfills and containment ponds holding fly ash. Having helped a coal-fired power plant defend a law suit involving an on-site ash landfill some years ago, I can tell you from personal experience that placing fly ash within the ambit of RCRA hazardous waste rules would be a major headache for coal-fired power plants – and a major new weapon in the armory of those who want to shut down coal plants any way possible.

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In a recent decision, the 7^th Circuit Court of Appeals confirmed that neither CERCLA nor RCRA provide convenient ways for the buyer of a building containing asbestos to finance the abatement of that asbestos. In Sycamore Industrial Park Associates v. Ericsson, the seller of the building replaced the old heating equipment shortly prior to sale, but left the old system, including piping, in place. The buyer sought to make the seller pay for the asbestos abatement on the ground that the seller has disposed of the old equipment by abandoning it in place when it installed the new system. The 7^th Circuit didn’t buy it.

The Court acknowledged that there might be a close question as to whether the asbestos constituted a solid or hazardous waste or RCRA and CERCLA. However, the Court concluded that it need not answer the question, because the seller had not “disposed” of the material. The Court concluded that, where all of the asbestos was either inside the building or inside a pipe chase, there “is no real threat that asbestos ‘or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters….” 

The Court did indicate that the intent of the seller may be relevant; it gave the example that a person looking to avoid liability for a toxic retaining pond, could not sell the entire property, including the pond, as a means of avoiding such liability. It described this situation as the “malicious motive case.” Absent such a malicious motive, however, sale of property including toxic or hazardous material does not put a person into the category of potentially responsible parties.

Similar to its analysis of the “disposal” question, the Court also concluded that there was no release or threat of release that would subject a person to CERCLA liability. “We reaffirm that when there is no emission into the outside environment,… there is no release or threatened release, and thus there can be no liability under CERCLA. 

The Court reached the same conclusion under RCRA. First, utilizing the same analysis as under CERCLA, it found that there had been no disposal by the seller. It also rejected the allegation that the seller had handled or stored the asbestos, concluding that “RCRA requires active involvement in handling or storing of materials for liability.”

In short, if the asbestos isn’t walking out the door, it may be a problem inside a building, but CERCLA and RCRA won’t help the building owner pay to fix that problem.

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