4 Legislative and Regulatory Issues Toni K. Ristau Public Service Company of New Mexico, Albuquerque, New Mexico 1 OVERVIEW In many respects, pollution prevention and waste minimization are less creatures of legislative fiat than are many other areas related to waste management. In part, this is due to the way that the legislative and regulatory waste management framework developed in the United States (1). In the United States, the major regulatory strategy for addressing wastes, particularly hazardous or toxic wastes, is a “command-and-control” system imposed upon the regulated community from the top down. By contrast, many pollution prevention initiatives are voluntary efforts initiated by companies that seek to improve the “bottom line,” rather than requirements imposed by a regulatory agency. To understand the current emphasis on pollution prevention, one must have an understanding of the history of the regulation of hazardous and toxic wastes. Now that environmental management is maturing as a discipline, there is an increasing recognition that pollution prevention and appropriate waste manage- ment (including minimizing waste streams wherever possible) during a facility’s operational life can greatly reduce the potential for costly remediation and cleanup after operations are discontinued. Copyright 2002 by Marcel Dekker, Inc. All Rights Reserved. 2 HISTORY Much of the early legislative effort related to waste disposal or releases of toxic substances was engendered by incidents such as Love Canal in New York State, or the release of toxic gas from a factory in Bhopal, India. These incidents, which were widely reported by the media, outraged the public and caused a demand for Congressional action (2). 2.1 Love Canal and the Enactment of the Comprehensive Environmental Response, Compensation and Liability Act (“Superfund”) The Love Canal hazardous waste disposal site became the center of attention of the media, as well as the regulatory agencies, in the late 1970s and early 1980s, and inspired the passage of the Comprehensive Environmental Response, Com- pensation and Liability Act (CERCLA), also known as “Superfund.” The Love Canal site was not originally constructed to be a waste disposal facility. Originally, the Love Canal was to be the centerpiece of a “model city,” and the use of the canal for waste disposal was not contemplated. The canal was originally constructed by William T. Love at the easternmost edge of the town of Niagara Falls, New York, in 1893. The canal was to be used to supply water to generate a cheap and essentially unlimited supply of hydroelectric power for this model community. The discovery and adoption of the use of alternating current in the mid-1890s, which allowed electricity to be generated at some distance from the point where the electricity was to be used, rendered Love’s plans for the canal uneconomic, and Love’s dream for the canal was never realized. The abandoned canal filled with rainwater and was used as a swimming hole and for winter ice skating by the local community. In the 1940s, Hooker Chemical Company obtained rights to the canal, and began to use the old canal as a dump for chemical wastes from Hooker’s chemical manufacturing operations. Hooker Chemical drained the old canal, lined it with clay, and used the old canal as a waste dump. Between 1942 and 1953, an estimated 22,000 tons of chemical wastes, as well as municipal wastes, were dumped at the site. When Hooker Chemical discontinued active use of the site, the company capped the old canal with a thick layer of clay, and covered the entire site with sod (3). Hooker Chemical sold the dump site to the local board of education in 1953 for a nominal sum (one dollar), on the condition that the company would not be liable for any problems related to the wastes that were disposed at the site. Though the board of education was aware that the site had been used for the disposal of hazardous and toxic wastes, a school was constructed at the site, as were numerous houses. Though Hooker Chemical tried to stop the development on the contaminated land, local governmental authorities ignored the warnings, and allowed the construction at and adjacent to the old disposal site. Copyright 2002 by Marcel Dekker, Inc. All Rights Reserved. High groundwater levels in the Love Canal area, resulting from unusually heavy rains and snowfalls during the 1970s, caused an increasingly serious situation at the old disposal site. Drums and other containers began to surface as the area over the old disposal facilities subsided, and ponded areas and other surface waters near the site exhibited high levels of contamination. Residents of some of the nearby houses noted that the basements were oozing an oily residue, and there were numerous complaints of noxious chemical odors. An engineering firm was hired to perform a study of the problems noted by the residents in the Love Canal area, and to formulate recommendations on how to address the problems. The engineering company recommended that the canal be covered with clay, that sump pumps used by nearby residents to prevent flooding of basement areas be sealed off, and that a tile drainage system be installed to control the migration of wastes. As these measures would be costly, the city elected not to implement the engineering recommendations. However, in some homes where the levels of chemical residues and problems related to noxious odors were found to be very high, the city had window fans installed. Despite these minimal efforts by the city to address residents’ complaints, evidence was mounting that the contamination from the old Love Canal disposal site was causing more than just inconvenience for the residents of the area. In March 1978, the New York State Department of Health initiated the collection of air and soil samples from the homes and other facilities located at and near the site. The department also conducted a health study of the 239 families who lived nearest to the old canal. Alarmed at the preliminary results from the study, in August 1978 the department issued a health order calling for the evacuation of pregnant women and children under the age of two, recommending that residents minimize the amount of time spent in the basements of their homes, and also recommending that residents not eat vegetables and fruits grown in their home gardens. Residents found themselves in the difficult situation of being unable to continue occupying their homes, but, because of the increasing publicity regard- ing the contamination, they were also unable to sell or rent their homes. Shortly after the issuance of the health order, the State of New York agreed to purchase the 239 homes closest to the old canal. In 1979, subsequent to the evacuation of the 239 families living closest to the old disposal areas, the Love Canal Homeowners Association commissioned another study (the 239 families who had already been evacuated were not included in this study). This study indicated that there were increases in miscar- riages, still births, crib deaths, birth defects, hyperactivity, nervous breakdowns, epilepsy, and urinary tract disorders in families living in the area. When the Homeowners Association presented its study findings to state health authorities, the significance of the findings were downplayed due to potential flaws in the study methodology. However, the resultant public outcry ultimately caused action to be taken at the national level. In October 1980, President Jimmy Carter Copyright 2002 by Marcel Dekker, Inc. All Rights Reserved. ordered a total evacuation of the community. The Love Canal residents had the option of selling their houses to the government at fair market value, and moving to a new location. The public outrage related to the situation in which the hapless residents of the Love Canal neighborhood found themselves resounded through the halls of Congress, and Congress responded in 1980 by passing the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. 9601 et seq.), also known as “Superfund.” Superfund, or CERCLA, provides a mech- anism for investigating threatened or actual releases of hazardous substances into the environment, identifying potentially responsible parties, and funding the requisite technical and engineering studies to address the problems caused by the hazardous substance release. In addition, the Superfund provides a means of funding cleanup activities through the imposition of a tax upon petro- chemical industries. And what was the final outcome for the Love Canal neighborhood? In 1982, the U.S. Environmental Protection Agency (EPA) completed studies of the contamination residing in the soils, water, and air near Love Canal, and initiated appropriate remedial action. The 239 homes that were located nearest the old canal were demolished. The remaining homes that were purchased by the government, and the neighborhood school, were renamed Black Creek Village, and the sale of the decontaminated homes to new families commenced in 1990. There are still approximately 22,000 tons of waste buried in the center of the community; periodic testing of the air, water, and soils in the community assure the safety of the new residents. Today, the Love Canal neighborhood has been “recycled,” and Black Creek Village is again a vital, living neighborhood. 2.2 The Incident at Bhopal and the Emergency Planning and Community Right-to-Know Act In December 1984, about four years after the enactment of CERCLA, an incident involving the release of the volatile and highly toxic gas, methyl isocyanate, occurred in Bhopal, India. Methyl isocyanate gas was produced and used at the Union Carbide plant there as an intermediate product in the manufacture of pesticides. The pesticides manufactured at the facility were important in several ways to the local and national economy; they are and were used to aid nations such as India to increase crop yields and improve conditions for their populace by providing a means to control insect pests (4). When the Bhopal incident occurred in 1984, the gas, which burst from a tank at the Union Carbide plant, spread over a large, densely populated area near the plant. Many people died in their beds, and others died trying to escape the foglike cloud of poison gas. There were thousands of dead and injured in the poor and crowded neighborhoods near the plant; though local officials were unable to Copyright 2002 by Marcel Dekker, Inc. All Rights Reserved. immediately determine the total number of deaths, the official death toll was ultimately computed to be almost 10,000. Though this incident occurred in India, it garnered much attention within the United States. An analysis of the factors that caused the inordinate number of deaths and injuries indicated that much, if not all, of the suffering of the local population could have been prevented had there been appropriate emergency procedures and evacuation plans in place. Further, it appeared that many of the local populace may have been able to protect themselves had they but known what kinds of substances were being produced at the plant, and what measures they themselves might be able to take in case of a leak or a release at the plant. As was the case when the Love Canal situation was brought to light by the media, there was a huge public outcry, and demands for legislation to assure that an incident like the tragedy at Bhopal would never happen in the United States. Congress was considering amendments to CERCLA at this time, and Congress responded by adding a new Title III to CERCLA as a part of the Superfund Amendments and Reauthorization Act (SARA) (42 U.S.C. 11001 et seq.) This new Title III was also separately titled as the “Emergency Planning and Commu- nity Right-to-Know Act,” or EPCRA. EPCRA, unlike the other portions of CERCLA, which are largely oriented toward cleanup of abandoned hazardous or toxic waste sites, focuses on commu- nity preparedness and reporting by industrial facilities to assure that national, state local response authorities, as well as local communities, are aware of the substances that are being utilized at industrial facilities within the community and are prepared to respond if there is a release, spill, or leak from such facilities. 2.3 Solid and Hazardous Waste Management and the Resource Conservation and Recovery Act In contrast to legislation enacted as a reaction to environmental crises or catastrophes, the regulation of facilities and activities related to solid wastes (and of hazardous wastes as a subset of solid wastes), is conducted under the provisions of the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. 6901 et seq.). The RCRA is designed in substantive part to regulate the day-to-day operation of solid and hazardous waste management facilities and activities through a permitting and standards system. The RCRA also contains provisions related to response from releases from active or inactive waste management units. Though the RCRA contains provisions related to both solid waste and hazardous wastes, much of the regulatory attention in recent years has been on the hazardous waste component of solid waste streams. A particularly impor- tant set of provisions in the RCRA gave the EPA the authority to control Copyright 2002 by Marcel Dekker, Inc. All Rights Reserved. hazardous waste from “cradle to grave.” The EPA thus has regulatory authority and control over the generation, transportation, treatment, storage, and disposal of hazardous waste. In 1984 and 1986, Congress passed major amendments to the RCRA. The 1984 amendments were known as the Hazardous and Solid Waste Amendments (HSWA). The HSWA required phasing out land disposal of untreated hazardous wastes. The HSWA also added increased enforcement authority for the EPA, provided for more stringent hazardous waste management standards, and pro- vided for a comprehensive underground storage tank program. The HSWA also provided for corrective action for releases from solid and hazardous waste management units (both active and inactive) at operational solid and hazardous waste management facilities. 2.4 The Pollution Prevention Act of 1990 and a New Way of Managing Hazardous/Toxic Waste Streams In response to many commentators, who noted that the existing RCRA and CERCLA regulatory frameworks in many cases provided disincentives to recycling and other waste minimization activities, Congress passed the Pollution Prevention Act (42 U.S.C. 13101 et seq.) in 1990. Opportunities for source reduction as a method of minimizing pollution are often not realized because the industries responsible for compliance with RCRA necessarily focus on treat- ment and disposal of the hazardous wastes generated by their processes, rather than on reducing the overall use of hazardous or toxic chemicals in their processes. Unlike the RCRA and CERCLA, which provide at best indirect liability- driven disincentives to the use and production of toxic and hazardous sub- stances and wastes, the Pollution Prevention Act attempts to focus public, governmental, and industry attention on reducing the amount of pollution produced, by encouraging cost-effective changes in production, operation, and raw materials use (known as “source reduction”). Source reduction requires solid and hazardous waste generators to concentrate on fundamental process changes to prevent waste (particularly hazardous waste) from being generated in the first place, rather than regarding hazardous waste streams as a necessary concomitant to industrial production and focusing on the treatment and dis- posal of that waste. Pollution prevention, as opposed to hazardous waste treat- ment and disposal, emphasizes the use of production practices that increase efficiency in the use of energy, water, or other natural resources. Pollution prevention practices include recycling and internal reuse of waste streams, source reduction through the minimization or elimination of hazardous or toxic sub- stances as industrial inputs, and revision of industrial processes to minimize thermal and other energy losses. Copyright 2002 by Marcel Dekker, Inc. All Rights Reserved. 3 APPROACHING POLLUTION PREVENTION AS A “SYSTEMS MANAGEMENT” PROBLEM There has been growing recognition that treating pollution prevention and energy efficiency as fundamental process inputs, rather than as “add-on” or “end-of- pipe” systems, is a much more effective way of minimizing the environmental impact of industrial operations. This approach requires a refocusing of environ- mental management efforts from a reactive, compliance-based mode to a pro- active, preventative approach. This model, which recognizes and works within productive industrial processes, rather than working against fundamental indus- trial process and adding operational complexity as well as costs, is beginning to find acceptance not only within industry, but within the EPA and equivalent state and local regulatory agencies in the United States. Alternative approaches (such as the systems management approach) have been increasingly embraced by the international economic community as a more rational method of assuring that pollution effects are minimized but that needed industrial growth and development is not hindered. These alternative approaches are increasingly seen as a way of assuring that industry is not only economically efficient, but is “environmentally efficient” as well. The new emphasis on resource conservation and waste minimization accomplishes both goals—it minimizes the use of raw materials and energy required to maximize production (and thus lowers production costs), and it minimizes the environmen- tal impacts from the extraction and production of energy and other raw materials as well as minimizing the impacts from waste disposal (and thus lowers the overall environmental impact of industrial development and growth). 3.1 The Environmental Management System Approach The development and use of an environmental management system within a company, a facility, or an activity is one method of treating environmental management as a systems management/systems optimization approach. One such method that is gaining increasing acceptance in the United States as well as internationally is the environmental management system development and certi- fication process embraced by the International Standards Organization (ISO). The environmental management system standards are codified in the ISO 14000 standards (5). The standards are developed by internationally based technical committees. Each nation is free to adapt the standards as appropriate to fit each country’s unique political and resource considerations. Within the United States, the stan- dards, once adopted, are modified and implemented through U.S based organi- zations such as American National Standards Institute (ANSI) Copyright 2002 by Marcel Dekker, Inc. All Rights Reserved. Underwriters Laboratories (UL) American Standard Testing Methods (ASTM) These U.S based standard-setting organizations conform the international standards with U.S. regulatory requirements and assure that the overall objectives of the standards can be met within the constraints of the U.S. political and regulatory system. The environmental management systems approach is beginning to make headway in the United States. However, the “drivers” for adoption of ISO performance standards and/or certification are not as well developed as in other countries, where ISO certification may be a prerequisite for doing business in that country. The basic principles of environmental management systems are not unique to any one type of business or industrial activity, but have applications in all activities where the environment may be affected. The definition of an “environ- mental management system” (EMS) is: “ . . . that part of the overall management system which includes organizational structure, planning activities, responsibili- ties, practices, procedures, processes and resources for developing, implementing, achieving, reviewing, and maintaining the environmental policy.” The basic principles of environmental management systems include: Integration of environmental issues with other business issues Looking at the environmental conundrum as an interactive system, rather than as “add-ons” of discrete activities The ISO 14000 Environmental Management Standards include several standards that can be applied in the management of any company’s environmental aspects of “doing business.” The ISO 14000 substantive standards for environ- mental management include the following: ISO 14001, Environmental Management Systems: Specification with Guid- ance for Use ISO 14004, Environmental Management Systems: General Guidelines on Principles, Systems, and Supporting Techniques ISO 14010, Guidelines for Environmental Auditing: General Principles ISO 14011, Guidelines for Environmental Auditing: Audit Procedures for Auditing Environmental Management Systems ISO 14012, Guidelines for Environmental Auditing: Qualification Criteria for Environmental Auditors ISO 14024, Criteria for Certification Programs: Criteria for Self-Certification and Third-Party Certification Each company or facility is free to develop its own environmental manage- ment system. The company selects and develops its own environmental perform- Copyright 2002 by Marcel Dekker, Inc. All Rights Reserved. ance objectives. In the United States, regulatory agency participation is not required, but is encouraged. If the regulatory agency chooses to participate, the agency will provide advice to the company in the setting of overall environmental performance objectives. Ideally, the company then selects how to meet those objectives, rather than being subjected to prescriptive control technology require- ments (however, in the United States, this interactive systematic approach is not currently allowed for within the existing regulatory framework). Though the company is free to identify the components of its own environ- mental management system, certain components must always be present if the company wishes to seek certification of its environmental management system under ISO 14000. These required environmental management systems compo- nents are as follows. Environmental policy: Senior management must define the corporation’s environmental policy and ensure that the policy includes, among other matters, a commitment to continual improvement, to pollution preven- tion, and to compliance with relevant regulatory requirements. Planning: The company must establish and maintain a procedure to identify environmental impacts of its activities, as well as the legal and other requirements. The corporation must establish and maintain documented environmental targets and objectives, as well as environmental manage- ment programs for achieving its objectives. Implementation: Roles, responsibilities, and authorities must be defined, documented, and communicated. The corporation must provide appropri- ate training and must establish and maintain procedures for proper communication. The company must have proper documentation of pro- cedures, document control, operational control, and emergency prepared- ness and response (contingency planning). Corrective action: The company must establish and maintain documented procedures to monitor and measure operations and activities that impact on the environment, and must have documented procedures for investi- gating nonconformances and implementing appropriate corrective ac- tion. Procedures must be in place for identifying, maintaining, and disposing of environmental records, and for periodic audit of the EMS. Management review: Senior corporate management must review the EMS on a periodic basis (and document its review) to ensure that the EMS is suitable, adequate, and effective in meeting the company’s environmental performance goals. 3.2 Tools Available for Employing Alternative Approaches The EPA has, in recent years, become more interested in encouraging the voluntary development of systems approaches to environmental management, Copyright 2002 by Marcel Dekker, Inc. All Rights Reserved. including pollution prevention versus “end-of-pipe” controls. The EPA now provides Web-based information and tools for companies or entities that wish to pursue pollution prevention or environmental management systems initiatives (6). The EPA’s Office of Enforcement and Compliance Assistance has produced “Sector Notebooks” for the following industry sectors: Agricultural Chemical, Pesticide and Fertilizer Industry (1999) Agricultural Crop Production Industry (1999) Agricultural Livestock Production Industry (1999) Aerospace Industry (1998) Air Transportation Industry (1997) Dry Cleaning Industry (1995) Electronics and Computer Industry (1995) Fossil Fuel Electric Power Generation Industry (1997) Ground Transportation Industry (1997) Inorganic Chemical Industry (1995) Iron and Steel Industry (1995) Lumber and Wood Products Industry (1995) Metal Casting Industry (1997) Metal Fabrication Industry (1995) Metal Mining Industry (1995) Motor Vehicle Assembly Industry (1995) Nonferrous Metals Industry (1995) Non-Fuel, Non-Metal Mining Industry (1995) Oil and Gas Extraction Industry (1999) Organic Chemical Industry (1995) Petroleum Refining Industry (1995) Pharmaceutical Industry (1997) Plastic Resins and Man-made Fibers Industry (1997) Printing Industry (1995) Pulp and Paper Industry (1995) Rubber and Plastic Industry (1995) Shipbuilding and Repair Industry (1997) Stone, Clay, Glass and Concrete Industry (1995) Textiles Industry (1997) Transportation Equipment Cleaning Industry (1995) Water Transportation Industry (1997) Wood Furniture and Fixtures Industry (1995) The notebook contents, which can be viewed online and can also be downloaded and printed out, include the following types of information for each industry sector (7): Copyright 2002 by Marcel Dekker, Inc. All Rights Reserved. [...]... laws and regulations that fall under EPA jurisdiction for compliance and enforcement The EPA home page, which contains an index and links to other sources of information, is found at http://www.epa.gov/epahome/rules.html 2 For a summary of major pieces of legislation related to hazardous and toxic substances and wastes, see http://www.ehsgateway.com/legislation.html 3 For a more detailed discussion of. .. regulatory reform effort, denominated “Project XL,” allowed companies and other entities to propose projects that substitute performance based standards for the prescriptive, one-size-fits-all, standards that are often imposed through the EPA’s media-specific regulatory programs The EPA required that pilot projects proposed by facilities, sectors, and government agency projects meet the following criteria (8)... the industry sector, and are a good source of information for managers who wish to implement pollution prevention or environmental management programs at their facilities 3.3 “Project XL” and EPA Regulatory Reinvention Efforts The EPA has long recognized that many of the media-specific environmental regulations (i.e., regulations applicable to the pollution of air, water, or land) can be counterproductive... International Standards Organization (ISO) was established in Geneva, Switzerland, in 1 947 The purpose of the ISO was (and is) to develop uniform, worldwide standards for the conduct of manufacturing and other industry, business, technical, and commercial activities At present, 92 countries belong to the ISO (representing more than 92% of the world’s industrial production) At the international level, more... detailed information for that sector Also, an excellent set of Web-based resources related to pollution prevention, waste minimization, and environmental management issues is maintained by the U.S Navy These resources are available to anyone, and are found at http://enviro.nfesc.navy.mil/p2library/ 8 See, for example, the Website for “Campus Pollution Prevention Information Resources,” at http://esf.uvm.edu/labxl/Background%20Information/campusp2links.html... history of the Love Canal, see http://www essential.org/orgs/CCHW/lovcanal/lcsum.html and http://enviro.gannon.edu/ EnvRegs/eli/Love%20Canal%20Project.html 4 For additional information regarding the incident at Bhopal, see http:// www.corpwatch.org/trac/bhopal/factsheet.html and http://www.prakash.org/issues/ environment/disasters/industrial/bhopal/envreu19 941 2 04_ 00.html 5 The International Standards... government oversight entities, and new projects are currently not being fielded Copyright 2002 by Marcel Dekker, Inc All Rights Reserved REFERENCES 1 A good source of statutory material related to regulation of the environment can be found on the Web at http://www4.law.cornell.edu/uscode /42 / The regulations associated with the various laws and statutes are found at http://www4.law.cornell.edu/cfr/ In addition,... environmental profile Industrial process information Pollution prevention techniques Pollutant release data Regulatory requirements Compliance/enforcement history Government and industry partnerships Innovative programs Contact names Bibliographic references Description of research methodology These sector notebooks focus on key indicators, including air, water, and land pollutant releases typical of the industry... more stringent standards or increasing regulatory scrutiny for one medium (such as air) may minimize the amount of pollution within that medium, but can actually cause increased releases to other media Several years ago, the EPA initiated a regulatory reform effort that allowed regulated companies to propose multimedia projects meeting certain criteria to allow trade-offs between media and to enable better... what would be achieved through compliance with current and reasonably anticipated future regulation “Cleaner results” can be achieved directly through the environmental performance of the project or through the reinvestment of the cost savings from the project in activities that produce greater environmental results Explicit definitions and measures of “cleaner results” should be included in the project . regulation of facilities and activities related to solid wastes (and of hazardous wastes as a subset of solid wastes), is conducted under the provisions of the Resource Conservation and Recovery. solid and hazardous waste management units (both active and inactive) at operational solid and hazardous waste management facilities. 2 .4 The Pollution Prevention Act of 1990 and a New Way of Managing. treatment and dis- posal of that waste. Pollution prevention, as opposed to hazardous waste treat- ment and disposal, emphasizes the use of production practices that increase efficiency in the use of