POL 661: Environmental Law
Lecture 10: Waste Introduction
The concept of waste is really dependent on perspective. For example, from a system standpoint, there is really no waste in a thermodynamic sense of the term; energy is neither created nor destroyed, it simply changes form. Recall our previous discussion about our natural system and the concept of equilibrium. A visual representation of a system is copied here for recollection purposes:

If we think about Planet Earth as a natural system that is ‘closed,’ then our definition of waste is, practically speaking, really about moving things from one part of the system to another (transmuting energy from one form to another).1 However, we do know there can

For example, the creation of plastic includes taking chemicals (combinations of elements) that already exist in the Earth system and combining those chemicals in a way that creates a particular combination resulting in a product – plastic. Thus, the plastic is not something that adds to the Earth system, but rather it is a transmutation of existing chemicals into a combined form that results in something new (the plastic). Waste

Page 2 of 9 be consequences to shifting around energy in different forms. Recall our discussion about moving carbon from storage in the ground to the atmosphere, thereby increasing the concentration of atmospheric carbon. This process does not create new carbon, but even so it has potentially significant impacts on our wellbeing (climate change). This is particularly true if the addition of carbon into the atmosphere results in a shift in the equilibrium state of the Earth system. The visual representation of such a shift noted previously is copied here for recollection purposes:

From an environmental policy standpoint, we are systematically concerned with actions/events that can result in a shift in the equilibrium of our natural system, particularly when that shift can result in harm to human wellbeing. So maybe when we think about waste, we are not thinking about adding new materials to the system, but rather altering the background energy flows of the system in a way that potentially harms our wellbeing.2 So if we think of waste patterns as the focus of our discussion, we can begin to explore how those patterns might have an impact on human wellbeing through disruptions to background conditions of our Earth system. In order to do this we can bring forward our

products can be said to be combinations of existing things that are no longer desired for human use.

We can certainly include in our discussion here waste patterns that result in ecological harm as this harm can certainly impact human wellbeing when we connect our wellbeing to the background environmental conditions that allowed for human development and prosperity.

Page 3 of 9 concept of systems thinking and the use of box models as a way of identifying waste problems. A visual representation of a box model is copied here:

Understanding waste patterns, including the effects of waste, is really about understanding the flows (inputs, outflows, feedbacks) and interactions within a system component. The box model provides a way of modeling these flows in order to understanding the causes and effects of certain waste patterns. For example, waste we identify as hazardous (because of its characteristics) can have a potentially significant impact on human wellbeing; certain hazardous wastes allowed to seep into groundwater has been the source of contamination of drinking water leading to the development of cancer in human beings. Often the impacts of certain waste patterns (like hazardous wastes) can be understood by utilizing a box model approach (thinking systematically). The events usually go something like this: • • There is a background condition of the system component (the groundwater is usually free of toxic chemicals and safe for human consumption). An input into the system component alters the system component (a hazardous waste is added to the groundwater, mixing with it and causing a chemical change in the groundwater). The output is groundwater that is no longer safe for human consumption. The feedback loop is a higher incidence of cancer rates among humans who consume the contaminated groundwater.

• •

By utilizing a systems approach, the problem (contaminated groundwater) can be sourced back to the initial input, the hazardous waste. Once identified, the source of the problem needs to be controlled; the basis for the control is the impact the waste is having on the environment, particularly the connection (nexus) between the waste and human health dangers.

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Through this example we can see how waste (particularly certain wastes) requires regulation (monitoring and special handling). Even non-hazardous waste can require special attention because the problems that can arise from the aggregation of the waste over time. Indeed, it is because of the impact of waste flows, both hazardous and nonhazardous, that public intervention through regulation is required. In a world where the costs of waste production, handling, and disposition were completely internalized by each individual, there may be less of a need for government intervention (public statutory controls). However, we have yet to create such incentives and internalization of the costs of waste generation and disposal. Thus, private controls (like nuisance and negligence) are an incomplete method of waste regulation; this is particularly true where toxic tort actions (for example suing for exposure to contaminated water) are wholly reactive in nature, allowing the harm to occur before the law offers a remedy. For these reasons, much of waste regulation falls to public control mechanisms, and our focus is on understanding the statutory mechanisms involved in controlling waste patterns.

Waste and Resource Recovery Overview
Waste is something we Americans have become very good at doing. After World War II, we developed certain habits regarding waste, mostly due to technological innovations. One prime example is the development of plastic. Since its inception, plastic has become the preferred method of carrying, concealing, holding, and storing our expanding material collections. Most of the time, it is created in a form that is readily disposable; think of plastic bags at the supermarket. Plastics have become an issue onto itself recently as certain areas of the U.S. and abroad have begun experimenting with the regulation of plastic bags through prohibiting their use.3 All of this plastic, and our inheritance of a throwaway society, has led to an everincreasing amount of waste generation. Early in our career as a throwaway society, the answer was simple: build more dumps. However, as land has become scarce (and expensive), building more dumps has become less attractive. Also, we have had to deal with the environmental consequences of waste generation. The purpose of this module is to look at the laws used to deal with waste, and more recently, resource recovery.

The Scope of the Waste Problem
As noted in the text, waste is a significant issue, which is increasing over time. There are a few tables at the beginning of the chapter that show a significant increase in the amount of waste generation since 1960. However, you can see that increased recycling over recent times has lowered the net impact of waste generation. From a big picture, we can think of waste generation in the following diagram:

There are also economic and psychological factors that influence and reinforce a consumptive society. For a good summary of these factors (while discounting any bias in its presentation) please see the following video:

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Mathematically, the net amount of waste can be seen in the following equation

Wn = Wi - Wr
Where Wn = Net Waste (the dependent variable) Wi = Waste Input (independent variable) Wr = Recycling (independent variable) In English, this should tell us that we can control the total amount of waste (Wn) by altering how much waste we generate (Wi), and how much recycling effort we engage in (Wr). There are many ways to accomplish this goal, and we can see from the table that increases in recycling efforts does indeed lower the amount of net waste in society.

Not All Waste Is Equal
Waste comes in many forms, which makes the issue more than one of just quantity. As stated in the text, most waste is categorized legally as solid waste. A sub-category of solid waste is hazardous waste, which is generally defined as the kind of waste that has the potential to severely harm human beings or the environment. An acronym that is sometimes used to define what is hazardous waste contains the following properties: corrosive, reactive, ignitable, toxic (CRIT). A clear example is radioactive waste, generally the result of uranium or plutonium enrichment for energy generation (nuclear power plants) and weaponry development. No one would seriously argue the hazardous nature of radioactive material. Also, many household goods (especially cleaning agents) exhibit the CRIT properties, and are therefore classified legally as hazardous substances. Conceptually we may understand how waste is divided between hazardous and

Page 6 of 9 nonhazardous materials based on a relationship between probability and magnitude of harm. This can be visually represented in the following figure:

Hazardous waste has a high probability and magnitude of harm, whereas nonhazardous waste has a low probability and magnitude of harm.4 Aside from the obvious humanhealth issues associated with hazardous waste, non-hazardous solid waste makes up the bulk of the waste problem today. It is the sheer mass of waste, with the attendant problems of collection, storage, transportation, and disposal that is the main focus of the public controls on waste.

Legal Mechanisms for Controlling Waste
Historically, waste issues were dealt with locally under the 10th Amendment police power of zoning and ordinances. Private disputes regarding waste retention were generally dealt with under the common law nuisance doctrine. Beginning in the 1960s, the federal government began to centralize (take over) waste control from the state governments. Remember, the federal government has authority to regulate matters that affect interstate commerce under its Commerce Clause power granted by the U.S. Constitution. Waste is transported over state lines, and even where it is a wholly intrastate activity, it has an effect on interstate commerce.


Of course, nonhazardous waste can still create significant harm, depending on how ‘harm’ is being defined. One way of thinking about this is to consider the aggregation of nonhazardous waste and the conditions this can create for both human and nonhuman aspects of the environment.

Page 7 of 9 Two major federal laws have been enacted to deal with waste: the Resource Conservation and Recovery Act (RCRA); and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

RCRA is the major federal waste management statute. RCRA controls both hazardous and non-hazardous wastes. For non-hazardous wastes, RCRA creates a federal incentive plan that provides federal funds for states and regions that adopt federal waste management guidelines. The major enhancement in the federal RCRA law is the lining of dumps to ensure the waste material does not escape into the soil as it decomposes. Such escape has been shown to contaminate groundwater, which can be a major threat in rural areas where wells provide the main source of water consumption. The lining is a hard plastic material that resists tears and bio-degradation; it works by trapping the waste material (most importantly seepage) in the lining body. Much of this material can be converted to energy, such as utilizing the gases that are created from the decomposition process to create electricity.5 This is one example where technology is working to make waste disposal a more efficient process while also taking advantage of the energy flows in the waste itself to generate another form of energy - electricity. RCRA also manages hazardous wastes. It does so by providing a manifest system that monitors the waste from cradle-to-grave. The purpose is to closely monitor the creation, transportation, and ultimate storage of hazardous material. Through such monitoring, the law aims to limit the amount of hazardous waste that may escape into the environment. Under this accounting system, a creator of waste (let’s say a chemical manufacturing plant that has toxic chemicals as a waste product) must account for every ounce of hazardous material created; if they store the material on-site (unusual), then they will complete a federal form that shows exactly where the material is being stored, in what manner it is being stored, and the exact amount of material being stored. In the end, the amount generated must equal the amount stored on any given day. If the material is being stored off-site, then the ledger is signed by the chemical plant, and counter-signed by the transportation company. At the destination, the transportation company signs off on delivery, and the holding facility signs a receipt. At each point, every entity is confirming the amount being handed-off and/or received. Through such a process, the cradle-tograve accounting of the hazardous waste has been conducted. Federal authorities engage in surprise inspections and testing of storage facilities to ensure the quantities of the hazardous substance actually stored mirror the amount stated on the manifest document. If they do not, both civil and criminal penalties can apply. One point mentioned in the text (and worth repeating here) is the environmental justice issue attached to areas that house hazardous waste storage facilities. Imagine living in a community that stores hazardous waste; what do you think the presence of this facility might do to property values? The general term given to such areas is LULUs (Locally

As an example:

Page 8 of 9 Undesirable Land Uses). If we look historically, most of these facilities are located in socioeconomically depressed cities and towns. Thus, the poorest people are generally those who live in direct danger of hazardous waste storage facilities. Is this fair? We all benefit from the industrial advantages of the processes that generate hazardous waste, but we do not equally share in the costs. Under such a benefit/cost analysis, does it seem right that the poorest of our country take on the most direct burden for our prosperity? This is but one of the logical policy questions that derive from our generation and ‘disposal’ of waste products. Again, whether we find ourselves on the economist or ecologist side of the scale helps to inform our understanding (and likely answers) to these questions.

What happens when RCRA fails to account for hazardous waste, and a piece of land becomes contaminated? This is where CERCLA comes in. CERCLA’s purpose is to identify and clean up contaminated sites. You may be aware of the Superfund sites (Superfund refers to the financial program set up under CERCLA) around New Bedford. The harbor is a famous (or infamous depending on semantics) Superfund site.6 Superfund sites are lands that were operated during the earlier parts of our industrialization process. Since environmental laws were not prevalent, many of the sites became contaminated with hazardous materials. The contamination is of a kind where it poses a persistent and substantial hazard to the health and wellbeing of humans and the environment surrounding the site itself. Thus, the focus is to remediate the site based on the past actions that are not longer allowed under federal law (i.e., disposing of hazardous materials through dumping, burial, and similar means). In order to expedite cleanup, Congress provided initial funding (Superfund) of the CERCLA program, but the statute also allows for legal actions against responsible parties. So, if Company X owned a property that is deemed contaminated, CERCLA allows the federal government (working with the state) to seize the property and begin cleanup procedures. It also authorizes the government to file a federal lawsuit against the owners of the property to seek reimbursement for the costs of cleanup (as well as other damages outlined in the law).

Failures of Legal Mechanisms
The federal public laws regarding waste are largely disposal statutes; they do not directly address conservation and recovery of waste (remember our equation above on reducing total waste), which is left primarily to the states and local governments. In other words, the laws that deal with waste derive from a policy presumption of waste generation. However, there are other ways of dealing with waste patterns that do not presume the generation of waste, at least in terms of thinking about altering the net waste that results from human activity. Policy directions that focus on conservation are one way of accomplishing this goal.


Page 9 of 9 An example of encouraging conservation and recycling is the adoption by the Town of Dartmouth to impose a per bag garbage fee on garbage disposal in the Town. Admittedly, the reason behind the bag-fee program was not environmental (rather a money saving measure). Still, the effect has been to significantly reduce the amount of total waste received by the Town. How has this been possible? By charging a fee, residents have been given an incentive to reduce direct wastes because they are internalizing the costs of the waste generation by paying per unit of waste. Residents have thus reduced their waste inputs mainly through increased recycling efforts. Thus, the Wr in our equation has increased substantially. Because it has an inverse relationship with Wn, the more recycling you do, the less net waste you create. A good example of how small economic incentives (approximately $1/bag) can have an immense change on individual behavior, resulting in a reduced waste flow. In addition to conservation effort through recycling, policies can also focus on the initial generation of waste. For example, altering the design patterns in product manufacturing and packaging can limit the amount of waste that is inputted into the system, thereby reducing the overall concentration of potential waste product that is subject to recycling (and other similar efforts to mitigate net waste outflows).

Waste generation is an ongoing concern. Our regulations have done a pretty good job overall in controlling the amount of hazardous waste that exists in our environment; manifest systems like those found in RCRA do a good job of identifying the generation and ultimate storage (‘cradle-to-grave’) of hazardous waste. Nonhazardous waste generation is increasing over time, although efforts to internalize the costs of waste through discrete payment systems, recycling regulations, and product manufacturing standards are beginning to have an impact on the overall picture of waste management. Understanding the basic mechanisms that control waste (focusing on a systems approach to the problem) can help to better identify the cases and potential policy solutions. With federal public laws like CERCLA ensuring we clean up our legacy issues of waste from the past, and current regulations like RCRA to control the impacts of waste generation, we have the potential to look beyond the way in which we control waste today to a future where we alter our waste patterns so as to move towards the most efficient utilization of resources in respect to our larger environmental goals. END OF SECTION.

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