Time to Walk the Walk: U.S. Hazardous Waste Management andSustainable Development

Joel A. Mintz

The author is a Professor of Law, Nova Southeastern University Law Center. He received his B.A. 1970, Columbia University; J.D. 1974, N.Y.U. School of Law; LL.M. 1982, Columbia University Law School; J.S.D. 1989, Columbia University Law School. The author acknowledges, with gratitude, the very helpful scientific/technical assistance of Shannon Estenoz, the student research assistance of Alexandra Espinosa, and the secretarial help of Jesse Monteagudo.

[32 ELR 10307]

Introduction

The basic structure of the domestic laws of the United States with respect to hazardous waste was established in the mid-and late 1970s and the mid-1980s. In the face of widespread public concern over the risks to health and the environment posed by improper hazardous waste disposal during that period, the U.S. Congress enacted (and also amended) two pieces of voluminous and comprehensive legislation: the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or the Superfund Act)¹ and the Resource Conservation and Recovery Act (RCRA).² The former statute created a multifaceted scheme for eliminating dangerous conditions created by hazardous waste spills and past mis-disposal of hazardous waste. The latter legislation focused primarily on "cradle-to-grave" regulation of ongoing hazardous waste generation, transportation, and disposal.

In 1992, at the Rio Summit, our country pledged to go still further. By agreeing to the Rio Declaration on Environment and Development³ and Agenda 21⁴, the United States promised to adopt an "overall cleaner production approach," with the goal of preventing or minimizing further hazardous waste generation. It also urged ratification of another international agreement, the Basel Convention on the Control of Transboundary Movements of Hazardous Waste,⁵ which set forth more effective rules with respect to the transboundary shipping of hazardous wastes.

Over the past 10 years, however, the United States has done relatively little to implement the "sustainable development" approach to regulating hazardous waste that it agreed to in Rio de Janeiro. Although CERCLA has been very modestly amended in the decade since the Rio accords (and also subject to some intermittent administrative "fine-tuning") those legal changes have either diminished or left unimproved the statute's overall environmental effectiveness. Similarly, RCRA has never been comprehensively amended with a view to implementing sustainable development in the hazardous waste area. Moreover, the United States remains one of a handful of nations that has still not ratified the Basel Convention.

This Article considers, in a more detailed fashioned, the ways in which U.S. domestic laws concerning hazardous waste do or do not conform with international norms of sustainable development.⁶ It begins with a discussion of what sustainable development means for hazardous waste, as guided by (but not necessarily limited to) the policies, principles, objectives, targets, and goals set forth in the Rio Declaration and the hazardous waste portion of Agenda 21. It then summarizes some basic features of CERCLA and RCRA programs (with particular emphasis on the changes that have occurred since the Rio Summit), and assays the extent to which these aspects of U.S. law measure up to pertinent notions of sustainable development. The Article considers the critical aspects of the Basel Convention and the actions (and inactions) of the United States with regard to that important international accord.

Finally, this Article advances some specific recommendations to reform U.S. hazardous waste laws in light of sustainable development objectives. In particular, it urges that CERCLA be amended so as to narrow the statute's secured creditor exemption, eliminate the statute's "petroleum exclusion," and provide a stable source of funding for the Superfund program, at realistic levels, for at least another decade. This Article further recommends that RCRA (and CERCLA) be altered to mandate phased decreases in the generation of hazardous wastes (by dates certain) at U.S. industrial facilities, that toxic-containing domestic sewage and irrigation return flow deposits be made subject to RCRA regulation, and that RCRA's current regulatory definition of "hazardous waste" be replaced with a consistent, straightforward, and comprehensive definition; and it calls upon Congress at long last to ratify the original version of the Basel Convention and amend domestic hazardous waste laws to conform with the convention's sound provisions and rules.

The Rio Declaration, Agenda 21, and Sustainable Development in the Hazardous Waste Context

On its face, the Rio Declaration is relatively silent with respect to the unique dangers posed to the world's environment, [32 ELR 10308] and the public health, by hazardous wastes. Notwithstanding the agreement's sensible language with respect to such matters as the needs of present and future generations, the precautionary approach, the interdependent nature of the earth, the special situation and needs of developing nations, the polluter-pays principle, and the need for peaceful resolution of disputes, the Rio Declaration contains only two "principles" that seem at least arguably related to hazardous waste contamination. Nonetheless, these two principles do appear to provide a useful frame of reference that may animate our understanding of the pertinent provisions of Agenda 21.

At Principle 4, the Declaration states: "In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it."⁷ Moreover, Principle 8 provides: "To achieve sustainable development and a higher quality of life for all people, States should reduce and eliminate unsustainable patterns of production and consumption. . . ."⁸ To the extent that one considers the generation, transport, and disposal of hazardous waste materials to be an aspect of "the development process"—as it certainly is in many developed (and some less developed) nations—and so long as the production and consumption of certain industrial products create hazardous waste byproducts whose environmental dangers are contrary to accepted notions of sustainable development, these principles may be said to apply to the hazardous waste activities of signatory states. Undoubtedly, these aspects of the Rio Declaration provide a valuable substantive prologue to the more specific portions of Agenda 21 that squarely address hazardous waste issues.

In contrast with the more abstract, generalized notions set forth in the Rio Declaration, Agenda 21 provides a somewhat more straightforward framework for assessing hazardous waste management. Chapter 20 of Agenda 21 begins with a candid and sound finding: "Effective control of the generation, storage, treatment, recycling and reuse, transport, recovery and disposal of hazardous wastes is of paramount importance for proper health, environmental protection, and natural resource management, and sustainable development."⁹ Chapter 20 also perceptively describes "prevention of the generation of hazardous wastes and the rehabilitation of key sites," as being "the key elements,"¹⁰ and it expressly recognizes that those activities require "knowledge, experienced people, facilities, financial resource, and technical and scientific capabilities."¹¹

Chapter 20 of Agenda 21 includes the "overall objective" of preventing and minimizing the generation of hazardous wastes, as well as managing those wastes "in such a way that they do not cause harm to health and the environment."¹² Moreover, one of the stated "overall targets" of Chapter 20 is "preventing or minimizing the generation of hazardous wastes as part of an overall integrated cleaner production approach."¹³

To attain the overall objectives and targets, Agenda 21 includes a "programme area" entitled Promoting the Prevention and Minimization of Hazardous Waste. The "programme area" has three stated objectives:

(1) to reduce the generation of hazardous wastes, to the extent feasible, as part of an integrated cleaner production approach;

(2) to optimize the use of materials by utilizing, where practicable and environmentally sound, the residues from production processes; and

(3) to enhance knowledge and information on the economics of prevention and management of hazardous wastes.¹⁴

Chapter 20 also states that to achieve those three laudable objectives, "countries that can afford to adopt the requisite technologies without detriment to their development," should establish policies that include at least the following elements:

a. Integration of cleaner production approaches and hazardous waste minimization in all planning, and the adoption of specific goals,

b. promotion of the use of regulatory and market mechanisms;

c. establishment of an intermediate goal for the stabilization of the quantity of hazardous waste generated;

d. establishment of long-term programmes and policies including targets, where appropriate, for reducing the amount of hazardous waste produced per unit of manufacture;

e. achievement of a qualitative improvement of waste streams, mainly through activities aimed at reducing their hazardous characteristics; and

f. facilitation of the establishment of cost-effective policies and approaches to hazardous waste prevention and management, taking into consideration the state of development of each country.¹⁵

Agenda 21 directly urges governments to "stimulate industrial innovation towards cleaner production methods, to encourage industry to invest in preventive and/or recycling technologies so as to ensure environmentally sound management of all hazardous wastes, including recyclable wastes, and to encourage waste minimization investment."¹⁶ Similarly, it requires governments to intensify their research and development activities regarding "cost-effective alternatives for processes and substances that currently result in the generation of hazardous wastes that pose particular problems for environmentally sound disposal or treatment."¹⁷ Moreover, Agenda 21 calls upon governments to work with industry, "on sector-by-sector cleaner production and hazardous waste minimization campaigns."¹⁸

Another very significant focus of Agenda 21 is "promoting and strengthening international cooperation in the management of transboundary movements of hazardous wastes." Among its specific objectives, the agreement mentions facilitating and strengthening "international cooperation in the environmentally sound management of hazardous wastes, including control and monitoring of the [32 ELR 10309] transboundary movements of such wastes,"¹⁹ prohibition of "the export of hazardous wastes to countries that do not have the capacity to deal with those wastes in any environmentally sound way"²⁰ and development of "control procedures for the transboundary movement of hazardous wastes destined for recovery operations."²¹ It expressly "urges" governments to ratify the Basel Convention²²; and it declares that governments should: (1) adopt and implement national legislation to prevent their illegal import and export of hazardous wastes, and (2) develop appropriate national enforcement programs to monitor compliance with such legislation.²³

Nearly all of Chapter 20 of Agenda 21 is premised on the well-founded notion that, in the Agenda's words, "human health and environmental quality are undergoing continuous degradation by the increasing amount of hazardous waste being produced."²⁴ It is thus entirely consistent with the Agenda to conclude that in this context, the notion of sustainable development should be defined as a "zero level" of hazardous waste generation. Indeed this state of affairs does appear to be a worthwhile long-term goal. At the same time, however, Agenda 21 seems to tacitly note that immediate implementation of a ban on all generation of hazardous waste materials will likely have undesirable economic impacts.²⁵ The agreement therefore declares "minimization," as opposed to total elimination, to be "one of the first priorities in hazardous waste management . . . as part of a broader approach to changing industrial processes and consumer patterns through pollution prevention and cleaner production strategies."²⁶

Notably, not all of the benefits of sustainable development (as it pertains to hazardous wastes) are purely environmental. To the extent that changes in U.S. law succeeds in stimulating a cleaner production approach, U.S. industries are likely to transform raw materials into finished products in a less costly, more efficient fashion. The minimization of hazardous waste may well also reduce the economic and social burdens created by diseases caused or encouraged by human exposure to such waste. Moreover, phased, mandated hazardous waste prevention will have the added social benefit of improving the occupational health and safety of workers in numerous U.S. industries who currently handle hazardous substances in performing their job-related duties.

Whether one chooses to focus on the environmental benefits of sustainable development for hazardous waste or on its very real, potential economic and social advantages, however, one conclusion seems inescapable: it is particularly important for the United States to move steadily and expeditiously toward full sustainable development in the hazardous waste area.

Basic Features of the CERCLA Program

On December 2, 1980, President Jimmy Carter signed into law the so-called Superfund legislation, i.e., CERCLA of 1980.²⁷ The statute, which was substantially amended in 1986, is a very complex piece of legislation that is intended to foster extensive cleanup of hazardous substances (other than petroleum) that are released to the environment, as well as cleanup of inactive waste disposal sites.

In its original form, the Superfund statute that Congress enacted included several, complimentary (but distinct) types of programs and provisions. One such program is the Removal Program, which is aimed at making quick governmental responses to situations that involvea release (or threatened release) of hazardous substances to the environment, or a threatened hazardous substance release that may present an "imminent and substantial danger" to public health or welfare.²⁸

In contrast to the Removal Program, Superfund's Remedial Program is aimed at the cleanup of long-term health and environmental problems created by hazardous substance contamination. Congress furnished the U.S. Environmental Protection Agency (EPA) with two broad mechanisms for achieving long-term remedial cleanups: the Superfund trust fund and the statute's strict, far-reaching liability scheme. The Agency is authorized to use the trust fund to finance the cost of cleaning up "orphan sites," i.e., abandoned hazardous waste sites at which no financially solvent responsible party can be found, and also to initiate cleanup actions at sites where the responsible parties are (for whatever reason) resistant to taking cleanup actions themselves. In the latter situation, the Agency may subsequently recoup its expenses from the responsible parties and replenish the trust fund.²⁹

The Superfund statute also provides EPA with extensive authority to issue administrative orders and to bring legal actions against potentially responsible parties.³⁰ CERCLA provides broad liability for any person who owns or operates a facility where hazardous wastes are or were disposed of, or who arranges with a transporter for the disposal or treatment of such wastes, or any person who accepts or has previously accepted hazardous substances for transport to a disposal or treatment facility.³¹ Moreover, as the Act has been construed, Superfund liability is strict, joint and several, and retroactive. The only available defenses include acts of God, acts of war, or third-party responsibility; and in the case of the defense of third-party responsibility, the presumptively liable party must exhibit by a preponderance of evidence that he exercised due care and took precautions against such third-party acts or omissions.

In response to its extensive statutory authorities, EPA established an administrative program to deal with CERCLA [32 ELR 10310] site response.³² Under that program, Agency representatives first perform a preliminary assessment/site investigation (PA/SI) at hazardous waste disposal sites they become aware of. Where that assessment indicates a short-term need to protect public health or the environment, the Agency may initiate a removal action to remove surface drums, fence the site in question, provide temporary supplies of clean drinking water, or otherwise prevent or limit the immediate threat posed by the site.

Where appropriate, EPA will also conduct a remedial PA/SI at the site to determine (based on standardized criteria) whether the site is an appropriate candidate for long-term remedial response. If that is the case, the site will be placed on the national priorities list (NPL) and the Agency will undertake a remedial investigation/feasibility study (RI/FS) with regard to it. During this study, EPA will examine the nature and extent of the threat posed by the site's contamination problem and it will develop alternative approaches for managing that problem. The Agency will establish a preliminary remediation goal, it will review and screen a broad list of alternatives, and it will conduct a detailed analysis of a small sub-set of those alternatives using some nine pre-set remedy selection criteria.³³

Following this, EPA will select a remedy for the site that will be documented in a record of decision (ROD). The Agency will design, construct, and carry out the remedy it has chosen. Finally, when EPA's response action is complete, it will delete or reclassify the site in question on the NPL (whether or not continuing operation and maintenance activities are needed there).

After years of contentious debate, Congress amended Superfund in 1986 by enacting the Superfund Amendments and Reauthorization Act of 1986 (SARA).³⁴ These amendments maintained intact the fundamental structure established in the Superfund statute. They also strengthened and clarified certain aspects of the Act with regard to the degree of cleanup to be attained at Superfund hazardous waste sites, the role of state agencies in the Superfund program, the redress of damage to natural resources, the settlement of enforcement cases, judicial review of the adequacy of response actions, and various other matters.

Under SARA, EPA was compelled to apply legally "applicable or relevant and appropriate" standards to determine the level of cleanup at particular hazardous waste sites.³⁵ The Agency was also encouraged to seek voluntary settlements with potentially responsible parties (PRPs),³⁶ to provide PRPs with information regarding sites, and to allow a grace period for negotiations.³⁷ Moreover, as further incentives to settlement, EPA was empowered to engage in "mixed" governmental/private funding at hazardous waste sites, to provide PRPs with Nonbinding Preliminary Allocations of Responsibility (NBARs), and to enter into "de minimis" settlements with minor PRPs.³⁸

Notwithstanding some intermittent administrative "fine-tuning," the Superfund program has changed relatively little in the years sincethe United States signed Agenda 21 and the Rio Declaration. For purposes of considering its contribution to substainable development, the two most important changes in CERCLA since 1992 are congressional in origin.

In 1996, the Superfund statute was amended to revolve conflicting judicial decisions to the extent to which the legislation's "secured creditor exemption" affords protection to lenders who foreclose on contaminated properties. Under the Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996,³⁹ it is now clear that a lender who holds indicia of ownership in a contaminated facility primarily to protect its security interest is not an "owner or operator," subject to CERCLA liability, so long as the lender does not "actually participate in the facility's management." Lenders may undertake a variety of activities relating to the facility without incurring liability as PRPs. After foreclosure, a lender may maintain business at a contaminated facility where that lender divests itself of the property "at the earliest practicable, commercially reasonable time, on commercially reasonable terms."⁴⁰ Moreover, lenders are protected from post-foreclosure liability when they undertake certain response actions to abate or prevent hazardous substance releases.

The second significant set of post-Rio amendments to Superfund were passed in 1999. Under the Superfund Recycling Equity Act,⁴¹ the legislation was amended with the aim of promoting reuse and recycling of scrap materials. Persons who arrange for the recycling of scrap paper, plastic glass, textiles, or rubber (other than whole tires) are not to be considered PRPs under the statute so long as they can demonstrate that their transactions met five criteria set forth in the Act.⁴² Transactions involving scrap metal or spent batteries are also exempt from CERCLA's liability provisions, so long as the five criteria for other scrap materials are met, the party involved complied with applicable standards associated with scrap metal or spent battery recycling, and the scrap metal or batteries in question had not been melted prior to the transaction.⁴³

A third post-1992 change to the Superfund program has been the advent of federal (and state) "brownfields programs," intended to encourage the re-use and redevelopment of urban industrial sites that have been abandoned—or remain undeveloped—because their owners and operators fear the uncertainties of liability (and the high costs of environmental cleanups) that are often associated with redevelopment. These programs typically promote "brownfield redevelopment" [32 ELR 10311] in several ways. They provide technical and economic remedial assistance to redevelopers and prospective purchasers of "brownfield sites." They limit liability exposure (through agency-initiated covenants-not-to-sue, and other means). They also relax and streamline cleanup standards to help reduce transaction costs.⁴⁴

Despite these legislative and administrative changes, however, in the period since 1992 Congress did not see fit to amend one long-standing limitation on the scope of the statute's coverage. CERCLA thus continues to contain a "petroleum exclusion" that expressly excludes petroleum from the statute's definition of hazardous substance, including "crude oil, or any fraction thereof which is not specifically listed or designated as a hazardous substance."⁴⁵

The Superfund Statute and Sustainable Development

How much, then, does the current version of CERCLA conform to the objectives and principles of Agenda 21 and the internationally accepted norm of "sustainable development"? At a minimum, the Superfund Act appears responsive—on its face—to the Agenda's express call for "the rehabilitation of contaminated sites." By creating a comprehensive scheme for identifying, investigating, and redressing problems of hazardous waste contamination, along with a relatively strict and extensive regime of private-party liability, the Superfund statute appears to have gone at least some distance toward inducing the management of hazardous wastes "in such a way that they do not cause harm to health or the environment."

Recent data, compiled by EPA through September 2000, with respect to the Superfund program's accomplishments, tends to support that conclusion.⁴⁶ At the 1,509 Superfund sites listed on the NPL, all cleanup construction activity had been completed on 757 hazardous waste sites. Moreover, long-term cleanup construction activities are underway at an additional 410 sites; and, since January 1993, the Agency has taken more than 6,400 removal actions to reduce immediate, direct threats to public health and the environment.⁴⁷

Additionally, CERCLA's scheme of retroactive, strict, joint and several liability—when combined with the relatively high cost of cleanups at some sites—may have a beneficial indirect impact as well. In order to avoid the strictures of Superfund liability, private firms appear to have a clear incentive (at least in some circumstances) to prevent and minimize the generation of hazardous wastes in their facilities and operations.

In other respects, however, the U.S. Superfund program falls well short of achieving sustainable development in the hazardous waste area. In the decade since the United States signed the Rio Declaration and Agenda 21, CERCLA has never been responsively modified by Congress so as to comply more fully with the international agreements made in Rio. Moreover, nothing in the Superfund legislation (as originally adopted and subsequently amended), or in the Act's extensive implementing regulations, squarely requires hazardous waste generators to reduce the volume of their waste generation in response to Agenda 21's call for "an integrated cleaner production approach."

In a recent analysis of EPA's voluntary pollution prevention efforts (including but not limited to hazardous waste contamination) the U.S. General Accounting Office (GAO) concluded that while some U.S. industrial companies have indeed chosen to use pollution prevention methods to reduce the volume of contaminants they generate and discharge numerous "additional opportunities exist for pollution prevention."⁴⁸ Several barriers hinder the wider use of pollution prevention by U.S. industries, according to the GAO. These include the "technical challenges" associated with new and unproven production techniques, the preference among industrial decisionmakers for "tried and tested" industrial methodologies, the insufficient profitability of pollution prevention methods, and EPA regulations that prescribe the use of specific techniques to meet required pollutant emission limits.⁴⁹

To improve the success of pollution prevention efforts, the GAO recommends that EPA systematically review its regulatory proposals to determine their effects on pollution prevention and that it improve the quality and quantity of its data gathering to ascertain better the extent to which private companies use pollution prevention practices.⁵⁰

Unquestionably these reforms would be steps in the right direction. Given the entrenched, intrinsic "barriers" to voluntary pollution prevention that the GAO has identified, however, one may well question whether the modest measures that the GAO has suggested will suffice to make the prevention of pollution, including hazardous waste contamination, a rule rather than an exception in industrial practice.

No matter how much EPA improves its data gathering and sharpens its rulemaking, it is difficult to imagine most industrial firms voluntarily overcoming their deep-seated aversion to technically challenging (and sometimes less profitable) methods of production in favor of more environmentally friendly approaches, with the primary goal of protecting the environment and public health. Voluntary pollution prevention programs are not devoid of environmental benefits. Our nation's commitment to sustainable development however—as expressed in Agenda 21 and the Rio Declaration—clearly requires more. In fact, in the "real world" of industrial production and innovation, "the law frequently lags behind the science" in the sense that new hazardous wastes and substances (along with varying quantities and forms of familiar materials) are being introduced to the environment on a regular basis.

One means by which the United States may achieve the "integrated cleaner production approach," contemplated in Agenda 21, which would ameliorate this problem, is to amend CERCLA, RCRA and other federal environmental legislation to require industrial facilities to decrease their generation of hazardous wastes, in phased increments, by dates certain. Such requirements (which might include waste generation cap and trading programs in their early phases, in order to promote economic efficiency) would be [32 ELR 10312] roughly parallel to the "technology-forcing" provisions of the Clean Air Act (CAA) and the Clean Water Act (CWA). They would set numerical goals as to hazardous waste generation without mandating specific techniques (such as changes in raw materials, modification of production methods, etc.) to be employed by industrial firms to meet those goals.

Such phased mandatory hazardous waste reductions may be costly and technically challenging in a number of instances. At the same time, however, they will affirm U.S. commitment to sustainable development in a fashion that is practical, straightforward and in the long-term likely to succeed.

Mandatory hazardous waste minimization will very likely further the sustainable development objective (Agenda 21's overall target) of preventing or minimizing the generation of hazardous waste.⁵¹ If done sensibly and skillfully, moreover, such an approach will induce U.S. hazardous waste generators to meet other agreed upon objectives and policies which appropriately define sustainable development. As noted above, these include making optimum use of materials "by utilizing . . . the residues from production processes,"⁵² integrating cleaner production approaches and hazardous waste minimization in all [industrial] planning,⁵³ stabilizing (on an immediate basis) the quantity of hazardous waste generated,⁵⁴ establishing "long-term programs and policies" to reduce the amount of hazardous waste produced per unit of manufacture,⁵⁵ achieving a "qualitative improvement of waste streams"⁵⁶ and establishing "cost-effective policies and approaches to hazardous waste prevention and management."⁵⁷ Mandatory, technology-forcing reductions in the volume of hazardous wastes generated in this country will also conform U.S. law and policy with other precepts of sustainable development set forth in Agenda 21, including stimulation of "industrial innovation toward cleaner production methods" and "sector-by-sector cleaner production and waste minimization campaigns."⁵⁸

The 1996 extension of the Superfund "secured creditor exemption" appears to have been a modest step away from the achievement of sustainable development. By affording banks (and other lending institutions) more potential opportunities to avoid CERCLA liability, this change in the law appears to have removed a significant source of private institutional pressure on hazardous waste site operators/creditors to manage their facilities in an environmentally sound manner.⁵⁹ As noted earlier, in the hazardous waste context "sustainable development" appears to contemplate (at a minimum) the environmentally benign management of hazardous wastes. Private institutional pressure (by lenders and financial institutions) can do a great deal to hasten and facilitate the adoption of appropriate hazardous waste management techniques. These effective tools should be putto use. Thus, U.S. efforts to achieve sustainable development and conform fully with Agenda 21 will be improved very meaningfully if CERCLA is amended to deny secured creditor exemption status to lending institutions that have the capacity to influence hazardous waste management practices at borrower facilities in which they hold a security interest.

Moreover, the statute's continuing "petroleum exclusion" carves an environmentally significant gap, for a highly toxic waste, into the Act's otherwise extensive coverage. The potential environmental dangers of oil and petroleum products are very well known. In the CWA, Congress openly declared it to be "the policy of the United States" that "there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States."⁶⁰ To fulfill the commitments our nation made in Rio, that "zero discharge" policy should be extended to provide for the minimization or elimination of oil-based wastes cleanup of petroleum products and oil spills on land. This gap must be eliminated before Superfund can be said to conform fully to Agenda 21 and its objectives.

Finally, both before and subsequent to the Rio Summit, the Superfund Program has suffered from periodic financial shortfalls and uncertainties. At this writing, EPA's tax-based Superfund trust fund has not been replenished with new tax monies since the authorization of such taxes expired in 1995. Unless significant changes are made, the fund will likely run out of money entirely in 2003.

Nonetheless, a recent report by Resources for the Future has estimated that, at constant mid-2001 dollar values, the Superfund program will continue to cost between $ 14 billion and $ 16.4 billion over the next decade. The report concludes that "after 20 years spent cleaning up old mines, chemical plants, landfills, rivers, and other areas of the country contaminated by hazardous waste, [EPA] still has a lot of work to do—enough to ensure the agency's Superfund costs will not decline before 2006 at the very earliest, and then only by a small amount."⁶¹ If the Superfund program is to help the United States succeed in meeting its commitments to achieving sustainable development, placing that program on a firm and secure financial footing must clearly become a high priority for our nation's lawmakers and policy experts.

Regrettably, despite the need for the Superfund revisions and revitalizations noted above, some of the most recent congressional proposals for amendment of CERCLA go in precisely the opposite direction. They entail a broad retreat from the U.S. commitment to sustainable development. As described by Charles Openchowski, the major Superfund amendment bills introduced in the 106th Congress contained provisions that would mandate allocations of liability at hazardous waste sites, limit the federal use of Superfund authorities at sites addressed by state cleanup programs, eliminate the current preference for waste treatment and permanent remedies at sites, and provide liability relief for several specific classes of PRPs.⁶² Each of these changes [32 ELR 10313] would create hurdles and loopholes that would hamper the efficiency and effectiveness of the Superfund program and dramatically slow the pace of hazardous waste site cleanups. In addition, the last, full crop of Superfund "reform bills" were strikingly and discouragingly devoid of the bolstering and strengthening provisions (recommended above) that are needed to bring that Act into conformity with the provisions of Agenda 21.

Essential Elements of RCRA—Hazardous Waste Management Program

Initially enacted (in modern form) in 1976—and subsequently broadened, both in scope and impact, in 1980 and 1984—RCRA contrasts sharply with the retroactive, cleanup-focused approach of CERCLA.⁶³ Rather than seeking to abate the contamination caused by the past misdisposal and/or spillage of hazardous substances, RCRA is primarily intended to regulate current handling of hazardous wastes "from cradle to grave."⁶⁴

Somewhat anomalously, the Act defines "hazardous waste" to mean:

a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may—(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.⁶⁵

In criteria documents to be prepared by EPA, the Agency was required to give meaning to this definition by listing hazardous wastes and identifying their characteristics. The criteria were to take into account toxicity, persistence and degradability in nature, potential for accumulation in tissue, and other such factors as flammability, corrosiveness, and other hazardous characteristics.⁶⁶

EPA's RCRA regulations impose accountability on all parties that have any significant role in waste generation or management. Standards for waste management include groundwater monitoring within one year of a surface impoundment, closure and post-closure procedures to minimize public danger, maintenance requirements, and the use of containers closed and lined with nonreactive or compatible materials. Wastes may not be placed on land unless made less hazardous by biodegradation. Proper runoff must be ensured for landfill sites. In addition, extensive recordkeeping and manifest requirements will track shipments of waste.

Separate regulations and standards were authorized to be issued under RCRA relating to owners and operators of hazardous waste treatment, storage, and disposal facilities.⁶⁷ The standards and regulations promulgated by EPA include requirements related to recordkeeping, satisfactory reporting, monitoring, inspection, and compliance with the manifest system; treatment, storage, or disposal of wastes received by the facility pursuant to methods and techniques and practices satisfactory to the Administrator; the location, design, and construction of such facilities; contingency plans for effective action to minimize unanticipated damage from any treatment, storage, or disposal of hazardous wastes; and regulations relating to the maintenance of the operation of such facilities. The regulations also require additional qualifications as to ownership, continuity of operation, training of personnel, and financial responsibility.⁶⁸

RCRA also established a permit system for the maintenance of facilities for the treatment, storage or disposal of hazardous wastes⁶⁹; and individual states were encouraged under RCRA to operate their own hazardous waste programs,⁷⁰ which have received substantial federal funding and are required to conform with the basic regulatory features of RCRA.

In 1984, following a period of scandal and upheaval at EPA that gave rise to a profound congressional distrust of the Agency's willingness to regulate hazardous wastes effectively,⁷¹ Congress enacted the Hazardous and Solid Waste Amendment (HSWA). This far-reaching set of amendments to RCRA expanded the reach of RCRA at the same time as it restricted the EPA's regulatory discretion.⁷² Among other things, HSWA contained specific directions to the Agency as to new regulations it was required to publish, the content of those regulations, the number of RCRA permits it was to issue, and the substantive restrictions those permits were to contain.

The 1984 Amendments contained a preliminary finding that

certain classes of land disposal facilities are not capable of assuring long-term containment of certain hazardous wastes, and to avoid substantial risk to human health and the environment, reliance on land disposal should be minimized or eliminated, and land disposal, particularly landfill and surface impoundment, should be the least favored method for managing hazardous wastes.⁷³

Consistent with that finding, HSWA prohibited the land disposal of certain hazardous wastes. Specifically, it required that (within 24 months for one category of wastes and within 32 months for another such category) hazardous wastes not be land disposed unless EPA determined that their land disposal need not be prohibited in order to "protect human health and the environment for as long as the waste remains hazardous." In making that determination, EPA was required to take into account, among other factors, the "long-term uncertainties associated with the land disposal" and the "persistence, toxicity, mobility and propensity to bioaccumulate of such hazardous wastes and their hazardous constituents."⁷⁴

Under HSWA, EPA was required to submit a schedule to Congress under which the Agency would review all hazardous [32 ELR 10314] wastes for possible prohibition from land disposal⁷⁵; and HSWA attempted to expedite EPA's issuance of RCRA permits to hazardous waste management facilities.

One important aspect of HSWA was its requirement that all RCRA permits require "corrective action" to halt all environmental releases of hazardous waste from any solid waste management unit subject to the permit, regardless of the time at which waste was placed in that unit.⁷⁶ Beyond that, HSWA also:

(1) expanded the applicability of RCRA by subjecting people, communities or firms that generate more than 100 kilograms per months of hazardous waste to RCRA generator standards⁷⁷;

(2) created a new program for the regulation of underground storage tanks that contain an accumulation of regulated substances⁷⁸; and

(3) authorized EPA to promulgate standards that apply to people who produce, transport, distribute and/or use fuels which contain hazardous waste.⁷⁹

As is true of the Superfund program, RCRA's hazardous waste management program has not undergone dramatic and significant changes in the 10 years since the United States agreed to the Rio Declaration and Agenda 21. To be sure, the RCRA program has not stagnated in the past decade. Thus, for example, in September 1992, EPA promulgated an extensive set of oil management standards that extend to used oil generators, collection stations, processors and other parties.⁸⁰ In the 1990s, the Agency (together with the U.S. Department of Justice) increased its emphasis on criminal enforcement of RCRA standards and attempted to clarify its policies with respect to which cases merit criminal investigation and prosecution.⁸¹ EPA also attempted to encourage environmental auditing by regulated entities,⁸² and to create additional "compliance incentives" for small businesses subject to RCRA requirements.⁸³ There is little evidence, however, that either these post-1992 regulatory changes, or any other alterations in the RCRA program during the past decade, were directly motivated or extensively influenced by the U.S. decision to agree to the Rio accords.

RCRA Subtitle C and Sustainable Development

As the foregoing partial description reflects, the RCRA hazardous waste program is detailed, comprehensive, and complex. The program covers a relatively wide variety of hazardous waste materials; and its "cradle-to-grave" regulatory scheme includes numerous requirements whose unmistakable purpose is to prevent harm from the mismanagement of hazardous wastes. Nonetheless, in some significant respects, the RCRA Subtitle C program does not comport with international norms of sustainable development.

One set of problems arises from the program's convoluted and archaic definitional scheme. As William H. Rodgers Jr. has perceptively observed:

The legal search for hazardous wastes must proceed through an "impenetrable jungle" of rules and requirements . . . . Wastes can be "hazardous" for purposes of one section of RCRA but not for another. Wastes can be functionally "hazardous" but legally exempt under various exclusioins from the law. Wastes can slip in and out of the "hazardous" category as a result of initiatives by state authorities, or by individual parties making use of the listing or delisting process.⁸⁴

This definitional morass has led to regulatory uncertainties, disputes, and delays that have blunted or diverted the statute's thrust.

Another problem, with respect to sustainable development, has resulted from RCRA's self-imposed limitations on regulatory coverage. Two statutory exclusions are particularly troubling in this respect. In its definition of "solid waste" (of which hazardous waste is a sub-set, for statutory purposes) RCRA excludes "solid or dissolved material in domestic sewage" and "solid or dissolved materials in irrigation return flows."⁸⁵ These two seemingly innocuous exceptions are illogical and environmentally unsound.

Although domestic sewage is nominally regulated under the CWA, there is strong evidence that significant environmental harm has been caused by hazardous materials discharged to publicly owned treatment works and inadequately treated there. As Rodgers has aptly noted:

Obviously, toxics that ride along with the sewage are subject not only to the caprice of the chosen host—wet weather overflows, erratic diversions, improper treatment; they also can pass through the treatment plant, or remain there to corrupt, poison and disable the system. Putting the stuff into the sewers is not a guarantee that it will be treated.⁸⁶

Similarly, RCRA's express exclusion ofirrigation return flows has provided comfortable "legal shelter" for concentrated accumulations of toxic wastes, in the dry beds of evaporated lakes and reservoirs, that have proven both attractive to and deadly for many species of water fowl.⁸⁷ Like the domestic sewage exclusion, the continued exemption of irrigation return flow wastes thus remains an immense, environmentally detrimental loophole in the statute's scheme of hazardous management.

From the standpoint of sustainable development, however, the most glaring shortcoming of RCRA appears to be [32 ELR 10315] the fact that it (like CERCLA) lacks any enforceable regulatory provisions directly intended to decrease or eliminate the generation of hazardous wastes. As noted previously, preventing and minimizing the generation of hazardous wastes, through pollution prevention and cleaner production strategies, is a fundamental aspect of sustainable development and a recurrent theme of Agenda 21's hazardous waste management chapter. Regrettably, RCRA and its regulations place no limitations on the volume of hazardous wastes that may be generated in the United States.

In November 1994, EPA released a Hazardous Waste Minimization National Plan that focused on reducing the generation (and subsequent environmental release) of the most persistent, bioaccumulative and toxic constituents in hazardous waste. Relying mostly on voluntary measures, the plan had five entirely sound and workable objectives, from the standpoint of substainable development:

1. Develop a framework for setting national priorities; develop a flexible screening tool for identifying priorities at individual facilities; identify constituents for source reduction and recycling;

2. Promote multimedia environmental benefits and prevent cross-media transfers;

3. Demonstrate a strong preference for source reduction; shift attention to the nation's hazardous waste generators to reduce hazardous waste generation at its source;

4. Clearly define and track progress; promote accountability for EPA, states, and industry; and

5. Involve citizens in waste minimization implementation decisions.⁸⁸

Unfortunately, however, in the months and years that followed the announcement of its plan, EPA expended relatively few of its resources on follow-up activities. The Agency did, to its credit, make technical information available to industries interested in minimizing their hazardous wastes. However, embroiled as it was in political controversies with a number of states (and with a Congress that had a newly elected Republican majority), EPA substantially failed to define and track measures of progress and accountability for carrying out the plan's components.

As a result of these shortcomings (and other factors), EPA's own biennial Hazardous Waste Reports reflect relatively little recent progress toward decreasing the generation of U.S. hazardous wastes. In 1997, for example, the Agency reported that (after controlling for the exclusion of waste waters from 1997 reporting) "large quantity generators" of hazardous waste had generated approximately 11% more hazardous waste than the same group had generated two years earlier.⁸⁹ EPA's 1999 data was somewhat more sanguine: from 1997-1999, the quantity of hazardous waste generated by large quantity generators decreased by 650,000 tons, or 1.5%.⁹⁰ However, this very recent, relatively small, decrease may very well be unrelated to any direct EPA efforts to foster voluntary pollution prevention and minimization of hazardous wastes. Further legal measures beyond the encouragement of voluntary waste reduction—like those advocated above—clearly seem needed to make significant decreases in the overall amounts of hazardous waste generated in this country.

The Basel Convention

As noted above, Agenda 21 expressly urges all states to sign and ratify the Basel Convention. This convention, negotiated in 1989 and entered into force in 1992, has been ratified by 148 parties.⁹¹ The U.S. failure to date to ratify this sensible convention—and to enact the domestic legislation needed to comply with its provisions—represents another important piece of unfinished business for our country in the hazardous waste area.

The Basel Convention was a broad international effort to craft a new set of rules governing the transboundary shipment of hazardous wastes. Some of its provisions, modeled in part on RCRA, require appropriate written notification (to importing states) of the nature of transboundary hazardous waste shipments, and advance consent, by importing states, that such shipments may take place.⁹² Other Basel Convention provisions call for "appropriate measures" to reduce the generation of hazardous wastes "to a minimum, taking into account social, technological and economic aspects,"⁹³ and to ensure the availability of "adequate disposal facilities for the environmentally sound management of hazardous wastes and other wastes."⁹⁴

Beyond this, the Basel Convention includes a number of items that go beyond the scope of current U.S. domestic law. Thus, the convention requires that each party refrain from allowing hazardous wastes to be exported to a state "if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner."⁹⁵ Each party must require that hazardous wastes to be exported are managed in an environmentally sound manner "in the state of import or elsewhere."⁹⁶ Each party must also ensure that transboundary movements of hazardous wastes will not occur unless the exporting state lacks "the technical capacity and the necessary facilities, capacity or suitable disposal sites" to dispose of those wastes in an environmentally sound and efficient manner, or in the event that the wastes in question are required as a "raw material for recycling or recovery industries in the state of import."⁹⁷

These provisions are augmented by hazardous waste "take-back" requirements that impose, upon waste-importing nations, a "duty to re-import" transboundary hazardous waste shipments that cannot be completed in accordance with the terms of the contract that governs those shipments (assuming that alternative arrangements cannot be made for [32 ELR 10316] their environmentally sound disposal).⁹⁸ Moreover, if hazardous waste is illegally exported as a result of fraud or intentional failure to comply with the requirements of the convention, the state of export must promptly ensure that the wastes in question are repatriated or otherwise disposed of properly.⁹⁹

To date (despite our tacit reindorsement of the Basel Convention when we agreed to Agenda 21) the United States has still not ratified the convention.¹⁰⁰ One stumbling block to ratification has been the ongoing need to change domestic hazardous waste law so as to squarely authorize compliance with the terms of that agreement. In particular, the United States must (and should) expand RCRA's classification of hazardous wastes to include what the Basel Convention refers to as "other wastes" (which are also subject to the requirements of the convention).¹⁰¹ RCRA must also be amended to give EPA (or some other designated federal agency or department) clear legal authority to control U.S. waste exports consistent with the Basel Convention's provisions, to track imported hazardous wastes so as to ensure their appropriate handling, storage and disposal, and to mandate hazardous waste "take-back" requirements by hazardous waste generators or exporters.

A second obstacle to U.S. ratification of the Basel Convention has been the political unacceptability (within Congress) of a nonbinding international decision—formally approved at a Third Conference of the Parties to the Basel Convention in 1995—to ban all exports of hazardous wastes from Organization for Economic Cooperation and Development (OECD) countries (plus Lichtenstein) to less developed nations.¹⁰² This so-called ban amendment, also called the Basel ban, may well act as a useful safeguard against corruption and a lack of sound decision making capability among public officials in developing nations.¹⁰³ At the same time, however, the Basel ban would impose absolute restrictions on trading in recyclable wastes that would needlessly preclude much environmentally beneficial waste trading and slow or halt the creation of an open, efficient international system of waste management. More significantly, as a practical matter, immediate U.S. adoption of the ban amendment might well preclude U.S. ratification of the entire set of rules included in the original Basel Convention. That result would be most unfortunate.

As Deborah Z. Grout has noted persuasively, U.S. acceptance of the original (unamended) version of the Basel Convention is "squarely in the national interest."¹⁰⁴ Adoption of the original treaty, combined with the enactment of the domestic statutory amendments discussed above, would give the U.S. government far more control than it currently has over both the importation and the exportation of hazardous waste. It would also benefit our domestic waste recycling and waste reclamation industries by giving them access to an international market in recyclable wastes, and it would strengthen our country's bargaining position in other multilateral environmental negotiations (including those that concern the future direction of the Basel Convention itself).

When the United States adopted Agenda 21 in Rio a decade ago, it formally joined the many other countries that urged adoption of the Basel Convention as a step toward sustainable development. The time has come for us to follow our own professed "urging" by ratifying (at minimum) the original form of the convention, and by enacting the domestic legislative changes needed to comply with international norms.¹⁰⁵

Conclusions and Recommendations: What Should the United States Do Now?

As the foregoing discussion has shown, in their cumulative impacts CERCLA and RCRA, the two principal hazardous waste statutes presently in effect in the United States, have partially satisfied a number of the important policy objective and priorities regarding such wastes, identified in Agenda 21, that appropriately define sustainable development. Since the Rio Summit, however, the U.S. has done all too little to strengthen the scope and coverage of those statutes and/or to place their administration on a sound, financially secure footing. Moreover, it has fallen short of international norms by failing to ratify the environmentally friendly Basel Convention.

As discussed more fully above, to move closer to attaining the goal of "sustainable development," and to fulfill its international commitments with respect to hazardous wastes, the United States should take the following additional steps:

(1) Amend CERCLA so as to deny secured creditor exemption status to lending institutions that have the capacity to influence hazardous waste management practices at borrower facilities in which they hold a security interest.

(2) Reinstate the pre-1995 Superfund tax on petroleum products (or some equivalent form of revenue raising) at an adequate level to finance the Superfund program for at least another decade at a stable and realistic level of funding.

(3) Eliminate the CERCLA "petroleum exclusion."

(4) Replace RCRA's current regulatory definition of "hazardous wastes" with a consistent, straightforward, and comprehensive definition.

(5) Amend RCRA to include both toxic-containing domestic sewage and irrigation return flow deposits as hazardous wastes, subject to RCRA regulation.

(6) Amend RCRA (and/or CERCLA and the current Pollution Prevention Act)¹⁰⁶ to require phased decreases in the generation of hazardous waste materials, by dates certain, at all facilities (through improvements in production processes, changes in raw materials, and other means); and

[32 ELR 10317]

(7) Ratify the original version of the Basel Convention, along with the changes in domestic hazardous waste legislation that the convention's provisions call for.

Undoubtedly, these suggestions may be criticized in some quarters as merely providing an excuse to further regulate, or even "overregulate" hazardous waste. That notion is false. Required pollution prevention goals need not be mandated simultaneously for all U.S. industries, on an across-the-board basis, with little regard for any potential economic impacts or dislocations that such legal reforms may engender. Instead, mandatory decreases in hazardous waste generation may be phased in on an industry group by industry group basis, with appropriate sensitivity to potential economic impact. Similarly, in particular instances, Congress may choose to create targeted tax credit incentives for industry groups or firms that encounter special difficulties in implementing pollution prevention measures.

The actions recommended above may not eliminate all generation of hazardous waste materials in the United States. Nor will they extinguish every last danger posed by past misdisposals. Taken together, however, these measures are likely to bring the United States far closer to a regime of sustainable development than has been the case to date in the crucial area of hazardous waste management.

Nearly a decade ago, in Rio de Janeiro, we "talked the talk" of sound and sustained environmental protection. Despite some progress since then with regard to our collective management of hazardous wastes, it is now time for us to "walk the walk."

1. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

2. Id. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11011.

3. Rio Declaration on Environment and Development, U.N. Conference on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1, 31 I.L.M. 874 (1992) [hereinafter Rio Declaration].

4. U.N. Conference on Environment and Development, Agenda 21, U.N. Doc. A/CONF.151.26 (1992) [hereinafter Agenda 21].

5. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, U.N. Doc. UNEP/WG.190/4 (1989) [hereinafter Basel Convention].

6. For the most part, this Article focuses on federal (as opposed to state) regulation of hazardous waste. This is because, since the 1970s, the federal government has taken the lead in this field and federal legislation tends to play a dominant role in shaping the national approach. At the same time, however, state efforts, including especially state Superfund laws, do still retain much importance in U.S. programs of hazardous waste control.

7. Rio Declaration, supra note 3, princ. 4.

8. Id. princ. 8.

9. Agenda 21, supra note 4, P20.1.

10. Id. P20.2.

11. Id.

12. Id. P20.6.

13. Id. P20.7(a).

14. Id. P20.11.

15. Id. P20.12.

16. Id. P20.13(b).

17. Id. P20.13(c).

18. Id. P20.19(c).

19. Id. P20.33(a).

20. Id. P20.33(b).

21. Id. P20.33(c).

22. Id. P20.35.

23. Id. P20.42(a), (b).

24. Id. P20.9.

25. See id. ("It is . . . crucial to enhance knowledge and information on the economics of prevention and management of hazardous wastes, including the impact in relation to the employment and environmental benefits . . . .").

26. Id.

27. Pub. L. No. 96-510, 94 Stat. 2767, 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405. The summary of CERCLA that follows is partially drawn from FRANK P. GRAD & JOEL A. MINTZ, ENVIRONMENTAL LAW: SOURCES AND PROBLEMS (4th ed. 2000). The publisher's permission to reproduce it here is gratefully acknowledged.

28. 42 U.S.C. § 9604(a), ELR STAT. CERCLA § 104(a). For a definition of removal action, see id. § 9601(23), ELR STAT. CERCLA § 101(23); U.S. EPA, National Contingency Plan, 40 C.F.R. § 300.5.

29. 42 U.S.C. § 9607(a)(4), ELR STAT. CERCLA § 107(a)(4).

30. Id. § 9606, ELR STAT. CERCLA § 106.

31. Id. § 9607, ELR STAT. CERCLA § 107.

32. For an excellent discussion of this program, see Lawrence E. Starfield, The 1990 National Contingency Plan—More Detail and More Structure But Still a Balancing Act, 20 ELR 10222 (June 1990).

33. These criteria include overall protection of human health and the environment, compliance with applicable or relevant and appropriate requirements (ARARs), long-term effectiveness and permanence, reduction of toxicity, mobility or volume through treatment, short-term effectiveness, implementability, cost, state acceptance, and community acceptance. See 40 C.F.R. § 300.430(e)(9).

34. Pub. L. No. 99-499, 100 Stat. 1613.

35. See 42 U.S.C. § 9621, ELR STAT. CERCLA § 121.

36. Id. § 9622, ELR STAT. CERCLA § 122.

37. Id. § 9622(e), ELR STAT. CERCLA § 122(e).

38. Id. § 9622(e)(3), ELR STAT. CERCLA § 122(e)(3).

39. See Subtitle E, The Omnibus Consolidated Appropriations Bill for Fiscal Year 1997, Pub. L. No. 104-208 (Sept. 30, 1996).

40. Id. For a cogent analysis of this set of amendments, see William Buzbee, CERCLA's New Safe Harbors for Banks, Lenders, and Fiduciaries, 26 ELR 10656 (Dec. 1996).

41. 42 U.S.C. § 9627, ELR STAT. CERCLA § 127. See Carol J. Miller, Retroactive Application of a New CERCLA Defense: The Superfund Recycling Equity Act, 31 ELR 10867 (July 2001).

42. See 42 U.S.C. § 9627(c), ELR STAT. CERCLA § 127(c).

43. Id. § 9627(d), (f), ELR STAT. CERCLA § 127(d), (f).

44. See MICHAEL B. GERRARD, BROWNFIELDS LAW AND PRACTICE (1995); FRANK P. GRAD, TREATISE ON ENVIRONMENTAL LAW § 4A.02[1][bb] (1973).

45. 42 U.S.C. § 9601(14), (33), ELR STAT. CERCLA § 101(14), (33).

46. See U.S. EPA, SUPERFUND CLEANUP FIGURES, available at http://www.epa.gov/superfund/action/process/mgmtrpt.htm (last visited Jan. 10, 2002).

47. Id.

48. U.S. GAO, EPA SHOULD STRENGTHEN ITS EFFORTS TO MEASURE AND ENCOURAGE POLLUTION PREVENTION 3 (2001) (GAO-01-283).

49. Id. at 34-44.

50. Id.

51. Agenda 21, supra note 4, P20.6.

52. Id. P20.11.

53. Id. P20.12.

54. Id.

55. Id.

56. Id.

57. Id.

58. Id. PP20.13, 20.19.

59. In contrast, the Superfund Recycling Equity Act, discussed above, contains sufficient regulatory safeguards that it seems unlikely to allow the type of "sham recycling" that could produce significant environmental harm.

60. 33 U.S.C. § 1321(b)(1), ELR STAT. FWPCA § 311(b)(1).

61. KATHERINE N. PROBST & DAVID M. KONISKY, SUPERFUND'S FUTURE: WHAT WILL IT COST? (2001)

62. Charles Openchowski, Superfund in the 106th Congress, 30 ELR 10648 (Aug. 2000).

63. See 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11011. The statutory summary that follows is partially drawn from GRAD & MINTZ, supra note 27.

64. EPA's RCRA regulations are set out in 40 C.F.R. pts. 260 to 279.

65. 42 U.S.C. § 6903(5), ELR STAT. RCRA § 1004(5).

66. Id. § 6921(a), ELR STAT. RCRA § 3001(a).

67. Id. § 6924, ELR STAT. RCRA § 3004.

68. Id.

69. Id. § 6925, ELR STAT. RCRA § 3005.

70. Id. § 6926, ELR STAT. RCRA § 3006.

71. For a detailed description of this period, see Joel A. Mintz, Agencies, Congress, and Regulatory Enforcement, 18 ENVTL. L. 683 (1988); JOEL A. MINTZ, ENFORCEMENT AT THE EPA: HIGH STAKES AND HARD CHOICES 40-59 (1995).

72. See Pub. L. No. 98-616, 98 Stat. 3221 (1984).

73. Id. § 101.

74. Id. § 201.

75. Id. § 101.

76. Id. § 206.

77. Id. § 221. The threshold level that had previously applied, under EPA regulations was 1,000 kilograms per month.

78. Id. § 601.

79. Id. § 204.

80. See 57 Fed. Reg. 41566 (Sept. 10, 1992); 58 Fed. Reg. 26420 (May 3, 1993).

81. Memorandum from Earl E. Devaney, Director, Office of Criminal Enforcement, U.S. EPA, The Exercise of Investigative Discretion (Jan. 12, 1994).

82. OFFICE OF REGULATORY ENFORCEMENT, U.S. EPA, AUDIT POLICY INTERPRETIVE GUIDANCE (1997).

83. U.S. EPA, Interim Policy on Compliance Incentives for Small Businesses, 61 Fed. Reg. 27984 (June 3, 1996).

84. WILLIAM H. RODGERS JR., ENVIRONMENTAL LAW 569-70 (2d ed. 1994). Unfortunately definitional inconsistencies with respect to hazardous substances under U.S. law are by no means limited to RCRA. As John Dernbach has thoughtfully noted, Congress has adopted or authorized the adoption of separate, and inconsistent, lists of toxic and hazardous pollutants under at least four other statutes as well: the CAA, the CWA, the Emergency Planning and Community Right-To-Know Act, and the Occupational Safety and Health Act. See John C. Dernbach, The Unfocused Regulation of Toxic and Hazardous Pollutants, 21 HARV. ENVTL. L. REV. 1 (1997).

85. 42 U.S.C. § 6903(27), ELR STAT. RCRA § 1004(27).

86. RODGERS, supra note 84, at 578.

87. See MARC REISNER, CADILLAC DESERT: THE AMERICAN WEST AND ITS DISAPPEARING WATER (1986).

88. U.S. EPA, RCRA HAZARDOUS WASTE MINIMIZATION NATIONAL PLAN (1994).

89. U.S. EPA, NATIONAL BIENNIAL RCRA HAZARDOUS WASTE REPORT ES-5 (1997) (based on 1997 data).

90. U.S. EPA, NATIONAL BIENNIAL RCRA HAZARDOUS WASTE REPORT ES-3 (1999) (based on 1999 data).

91. See http://basel.int/ratif/ratif/html (last visited Jan. 10, 2002). See David P. Fidler, Challenges to Humanity's Health: The Contributions of International Environmental Law to National and Global Public Health, 31 ELR 10048, 10065-67 (Jan. 2001); Zapa Lipman, The Basel Protocol on Liability and Compensation, ELR International News & Analysis (2001), at http://www.eli.org (last visited Jan. 10, 2002).

92. See Basel Convention, supra note 5, art. 6.

93. Id. art 4(2)(a).

94. Id. art 4(2)(b).

95. Id. art. 4(2)(e).

96. Id. art. 4(8).

97. Id. art. 4(9).

98. Id. art. 8.

99. Id. art. 9.

100. For a thoughtful discussion of the Basel Convention and past U.S. congressional attempts to ratify it, see Deborah Zamora Grout, The Benefits of Basel, ENVTL. F., Jan./Feb. 1999, at 19.

101. See Basel Convention, supra note 5, art. 1(2), Annex II. Such "other wastes," under the convention, include solid wastes and residues from solid waste incineration.

102. Id. Annex VIII.

103. For a recital of the arguments in favor of U.S. adoption of the Basel ban, see Jim Puckett, Another View: Beware U.S. Fox in the Basel Chicken Coop, ENVTL. F., Jan./Feb. 1999, at 20.

104. Grout, supra note 100, at 25.

105. Id. at 23-24.

106. 42 U.S.C. §§ 13101-13109, ELR STAT. PPA §§ 13101-13109.