Oregon's Toxics Use Reduction and Hazardous Waste Reduction Act: A Bellweather for Pollution Prevention Regulation

Larry Edelman and David K. Rozell

Mr. Edelman is an attorney with the Oregon Department of Justice. He previously served as an attorney with the U.S. Environmental Protection Agency and the Environmental Defense Fund. Mr. Rozell is Waste Reduction Manager with the Oregon Department of Environmental quality.

[20 ELR 10093]

One principal shortcoming of traditional environmental regulation has been its general ineffectiveness to advance more environmentally benign manufacturing, production, and product use practices in the economy. This results partly from failing to meaningfully evaluate and prevent environmentally harmful or wasteful practices in commerce and instead merely attempting to control resulting pollution through technological fixes at the "end of the pipe."¹

A new toxics use reduction law in Oregon may be a bell-weather for an approach to environmental regulation that addresses pollution at its origin as well as at the discharge pipe.² The Oregon Toxics Use Reduction and Hazardous Waste Reduction Act³ (the Act) establishes a statewide policy of encouraging reduction in use of toxic substances⁴ and generation of hazardous waste whenever technically and economically practicable. Significantly, the Act gives priority to reducing toxics use rather than simply reducing hazardous waste generation.⁵

Reduction Requirements

To implement the legislative policy, the Act takes a three-pronged approach:

(1) Technical assistance to toxics users and generators (§ 12);

(2) Comprehensive planning and development of measurable toxic use reduction performance goals (§§ 7, 8);

(3) State monitoring of the use of toxic substances and the generation of hazardous waste (§§ 9, 10).⁶

The second prong in § 7 of the Act, mandatory planning and performance goals for toxics users, marks the departure from traditional end-of-pipe pollution regulation, and points toward a preventive regulatory approach to environmental protection.

Section 7 directs the Oregon Environmental Quality Commission (EQC) to establish guidelines by September 1990 for the toxics use reduction and hazardous waste reduction plans required of regulated entities.⁷ The statute provides for including in the guidelines specific minimum requirements targeting production processes, a focus markedly different from previous pollution control laws. The guidelines will require regulated businesses and governmental units to formulate:

(a) A written policy articulating upper management and corporate support for the toxics use reduction and hazardous [20 ELR 10094] waste reduction plan and a commitment to implement plan goals; and

(b) Plan scope and objectives, including the evaluation of technologies, procedures and personnel training programs to insure unnecessary toxic substances are not used and unnecessary waste is not generated . . . .

Further, the guidelines will require that those entities subject to the Act conduct a comprehensive internal toxics use audit.⁸ The guidelines also will require that regulated entities (1) implement a toxics use accounting system identifying toxics use and waste management as well as liability and compliance costs,⁹ (2) develop employee awareness and training programs to involve employees in toxics use reduction and hazardous waste reduction planning and implementation to the maximum extent feasible, and (3) implement technically and economically practicable toxics use reduction and hazardous waste reduction options according to an implementation plan.

All large users and fully regulated generators in Oregon must complete a toxics use reduction and hazardous waste reduction plan by September 1, 1991, and all small quantity generators must have a plan by September 1, 1992.¹⁰ Toxics users must certify to the Oregon Department of Environmental Quality (DEQ) that they have completed their plans. Users need not submit their plans to DEQ, but DEQ is authorized to inspect them at the facility. For certain relatively large toxics users meeting specified statutory thresholds of toxics use or hazardous waste generation, specific performance goals for reduction of both toxics use and waste are required components of the waste reduction plans.¹¹

Technical Assistance

The Oregon Act is delicately drafted so that the state is not in a position of dictating specific management decisions regarding materials usage. Instead, each affected business is to develop its own plan to achieve toxics use and waste reduction within the framework of state guidelines. The law also offers incentives, such as state technical assistance (including on-site assistance in toxics use and waste reduction plan preparation) and public recognition programs for businesses that develop and implement successful programs.

Enforcement

Enforcement authority was a controversial aspect of negotiating the Act's passage, and the resultant enforcement provisions are a compromise. If a toxics user fails to complete an adequate plan or annual progress report, the DEQ may notify the user of the deficiency and provide up to 90 days for completion of a modified plan. If the DEQ finds the modified plan deficient, it may either informally require further modification or issue an administrative order requiring submission of an adequate plan within 90 days. The statute provides that if the toxics user fails to comply with an order, the DEQ shall conduct a public hearing on the plan, a somewhat novel form of enforcement through threat of public exposure. The statute, however, does not directly provide for judicial enforcement or civil penalties, and it is unclear from the statute itself whether the administrative order is judicially enforceable.

The DEQ's standard of review for adequacy of a plan is limited to whether the plan is complete and prepared in accordance with the guidelines set by the EQC. The plans themselves are to be maintained at the facility. They may be reviewed by the DEQ but are otherwise treated as confidential unless the facility becomes the subject of an enforcement action. The EQC is directed to report to the legislature concerning the need for any additional enforcement provisions.

Notwithstanding the Act's minimal enforcement provisions, its potential to uniformly institutionalize a toxics use and waste reduction ethic in regulated Oregon businesses and governmental units is great. Like the environmental impact statement requirement of the National Environmental Policy Act, the toxics reduction planning process mandated by the Oregon Act is designed to force analysis of issues previously given little attention by many businesses and governmental agencies. Thus, while the initial planning process is primarily procedural, it is expected to foster significant substantive results. If it does not, the Oregon legislature is very likely to revisit the issues of enforcement and performance standards.

Failure of Voluntary Toxic Waste Reduction

Voluntary toxic waste reduction programs have been sporadic and inconsistent, failing to make toxics reduction a routine business practice. Though one might reasonably expect the increasing costs of compliance with end-of-pipe regulations to provide an impetus toward toxics use reduction, this has not happened to a significant degree. More often, voluntary reduction has simply led to transferring toxics among the various environmental media: air, land, and water.¹² In effect, businesses and government agencies [20 ELR 10095] engage in a toxics shell game. Several possible explanations exist:

(1) When competitive industries face increasing disposal costs equally, they are free to pass on these costs to purchasers, thereby negating some of the economic impetus to search for alternative products or processes;

(2) The potential benefits of toxics use and waste reduction still appear uncertain to many businesses and government agencies. The actual waste management costs, potential hazardous waste liability costs, and compliance and oversight costs are not at present routinely itemized in an accounting system as the Oregon Act will require. Within industry, these costs are often carried as corporate overhead expenses not charged back to product lines. Consequently, production managers have little incentive to reduce these costs;

(3) Many companies will not voluntarily make production process changes for fear of degrading their products, and in some cases, such as with government contracts, the contract specifications and/or least cost procurement requirements may actually impede process changes;

(4) The existing Resource Conservation and Recovery Act (RCRA) regulatory system still allows a narrow focus on technological fixes at the end of the process, such as treatment, neutralization, and incineration.¹³

Several alternative regulatory strategies have been suggested to combat "pollution prevention inertia" in the market. These include waste-end taxes, deposit-refund systems, and product labeling requirements.¹⁴ Each strategy has merit, but without mandatory planning and performance goals, each faces the four obstacles outlined above.

Toward an Integrated Approach

The Oregon Act's guidelines for toxics use reduction, coupled with the mandatory plan, break new ground in environmental regulation and are predictably controversial. Industry has traditionally regarded "in plant" production processes as sacrosanct and has resisted governmental intrusion into management decisions concerning product use and manufacturing. While several waste reduction bills have been introduced in Congress, as of this writing, none has been enacted and none appears to require detailed toxics use reduction planning as embodied in the Oregon Act.¹⁵

At present, the integrated process control and waste control approach to environmental regulation remains controversial at the federal level.¹⁶ Yet, it appears feasible for states to move forward as Oregon has done. To some, it may initially seem onerous to involve government in any aspect of commercial process decisionmaking, but it is equally onerous to leave decisions such as toxics use entirely to the vagaries of the marketplace. The balance reflected in the Oregon Toxics Use Reduction and Hazardous Waste Reduction Act is a hopeful sign for the future of environmental regulation as states and the federal government seek new pollution prevention strategies.¹⁷

1. Barry Commoner addresses this issue in the insightful and thought-provoking article Failure of the Environmental Effort, 18 ELR 10195 (June 1988).

2. The State of Massachusetts also enacted a toxics reduction act, H. 6161, in the 1989 legislative session. The Massachusetts law establishes extensive toxics reporting requirements and sets a statewide goal of 50 percent reduction in toxic waste generation by 1997. Implementation of actual toxic use reduction planning requirements will begin in Oregon in 1991, while the Massachusetts act defers plans until 1994.

3. Ch. 833, secs. 2-16, 1989 Or. Laws (codified at OR. REV. STAT. §§ 465.003-.034). The legislation is a compromise resulting from widely diverse concepts originally offered by industry, public interest representatives, and the Oregon Department of Environmental Quality (DEQ). For a discussion of the legislative development of the bill see Hansen, Pollution Prevention Planning, a New Mandate for Oregon's Environment, ENVTL. F., Sept.-Oct. 1989, at 30.

4. "Toxics" is defined in the Act as any substance listed under title III of the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. § 11023, ELR STAT. EPCRA 006 (SARA tit. III, § 313), and any substance added by the Oregon Environmental Quality Commission (EQC) by rule. At the first meeting of the advisory committee it was noted that the title III list is both underinclusive and overinclusive with respect to materials that are considered toxic by toxicologists and industrial hygienists.

5. While reduction in toxics use is one obvious way to minimize toxic waste, the concepts of use reduction, waste reduction, and waste minimization are not synonymous. Often, waste can be reduced or minimized through recycling, reuse, or treatment, which may require careful and expensive management. See, e.g., OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONG., OTA-ITE-347, FROM POLLUTION TO PREVENTION: A PROGRESS REPORT ON WASTE REDUCTION (June 1987) [hereinafter FROM POLLUTION TO PREVENTION]. The Resource Conservation and Recovery Act (RCRA) encourages hazardous waste minimization through the requirement that generators certify that they have waste minimization programs. RCRA § 3002(b), 42 U.S.C. § 6922(b), ELR STAT. RCRA 012. This RCRA provision, however, provides no guidelines and does not require actual toxics use reduction. In contrast, the new Oregon law establishes a strong emphasis on toxics use reduction.

6. Funding for implementation of the Act is to be based primarily on a fee placed on the single largest annual aggregate amount of a hazardous substance reported to the Oregon State Fire Marshal, under the Oregon Community Information on Hazardous Substances Act, OR. REV. STAT. § 453.307 (1989), by each Oregon facility where the substance is manufactured, stored, or used. Id. § 453.402.

7. The EQC is delegated rulemaking authority, and the Act creates an advisory committee to assist in developing rules. Ch. 833, sec. 13, 1989 Or. Laws.

8. Section 7(c) provides that the audit shall consist of:

(c) Internal analysis of toxic substances usage and hazardous waste streams, with periodic toxics use reduction and hazardous waste reduction assessments, to review individual processes or facilities and other activities where toxic substances are used and waste may be generated and identify opportunities to reduce or eliminate toxic substances usage and waste generation. Such assessments shall evaluate data on the types, amount and hazardous constituents of toxic substances used and waste generated, where and why those toxics were used and waste was generated within the production process or other operation, and potential toxics use reduction and hazardous waste reduction and recycling techniques applicable to those toxic substances and wastes.

9. As part of the guideline development process, the EQC will evaluate models for use by facilities in calculating the actual cost of toxics usage.

10. A large user is defined as a facility required to report releases of toxic chemicals under SARA, tit. III, § 313. A fully regulated generator is defined similarly to the RCRA definition of a hazardous waste generator. The DEQ originally estimated that approximately 1,000 Oregon businesses would be initially subject to the Act. Since that estimate, however, the State Fire Marshal has indicated substantial underreporting in Oregon pursuant to SARA, tit. III, § 313, and the DEQ has begun a hazardous waste generator identification program, which is likely to identify a larger universe of generators.

11. Performance goals apply (1) to toxics users who use more than 10,000 pounds a year of a toxic substance, (2) where any toxic substance used in excess of 1,000 pounds a year constitutes 10 percent or more of the total toxics used, and (3) to fully regulated generators for any waste representing 10 percent or more by weight of the cumulative waste stream generated each year. Ch. 833, sec. 7(2), 1989 Or. Laws.

12. See, e.g., PROJECT 88, HARNESSING MARKET FORCES TO PROTECT OUR ENVIRONMENT, at 72 (sponsored by Sens. Wirth and Heinz, Washington, D.C., Dec. 1988) [hereinafter PROJECT 88].

13. See FROM POLLUTION TO PREVENTION, supra note 5, at 16-70.

14. See, e.g., PROJECT 88, supra note 12.

15. See, e.g., H.R. 1457, 101st Cong., 1st Sess. (1989) and S. 585, 101st Cong., 1st Sess (1989), introduced by Rep. Wolpe (D-Mich.) and Sen. Lautenberg (D-N.J.), respectively; see also Reilly Criticizes Unintegrated Environmental Laws, INSIDE EPA, Dec. 1, 1989, at 3 (EPA Administrator William K. Reilly endorses Conservation Foundation draft multi-media environmental protection bill at the annual Marshall Lecture to the Natural Resources Defense Council (Nov. 27, 1989)).

16. See, e.g., INSIDE EPA, July 14, 1989, at 7. For a discussion of the view that administrative structures dealing with environmental protection should be capable of dealing with the environment as a whole, and that the environment should not be artificially divided into separate areas of air, water, and land, see Guruswamy, Integrating Thoughtways: Re-Opening of the Environmental Mind? 1989 WIS. L. REV. 463.

17. The Oregon Act is suggested as model state legislation by the Council of State Governments in its publication Suggested State Legislation (1990).