The Toxic Time Bomb: Municipal Liability for the Cleanup of Hazardous Waste

Abstract

This article analyzes how the United States Environmental Protection Agency may be mis-allocating the monumental clean-up burden under the Superfund statute and thereby increasing the burden on other potentially liable parties. At issue is municipal and regional governmental liability for the handling and disposal of municipal solid waste. This article analyzes a widespread EPA non-prosecution practice and argues that under the current statute it violates federal hazardous substances laws.

This article dissects the municipal waste stream, assessing the volume, toxicological, and hazardous constituents of those substances America discards as waste. On a per capita basis, each American is responsible for the creation of approximately 2.5 to 4 pounds of MSW each day. Municipal garbage collected from households is designated as municipal solid waste (MSW) and is appropriately disposed of in sanitary landfills. Approximately 1% by volume of MSW is hazardous, instead of non-hazardous, waste.

The article unravels the intertwined double helix of the Resource Conservation and Recovery Act (RCRA) and the Superfund. The article analyzes the federal Superfund/CERCLA treatment of MSW, as well as the developing federal common law strictly defining liability associated with the disposal of hazardous substances, with particular emphasis on municipalities and the constituents in their municipal solid waste. The article analyzes the exercise of EPA prosecutorial discretion in federal hazardous waste enforcement, which creates a "Catch-22" bind that grips hazardous waste law and disadvantages a class of parties who are left with no interlocutory judicial review. In conclusion, the article sets out criteria for the administration of an environmental decision rule that would allow a flexible and fair approach to municipal liability for the hazardous substances in MSW.