• Hazardous and low-level radioactive wastes: the basic framework and a note on brownfields

    A part of the waste map that gets less public attention these days than in the 1980s and 1990s, hazardous and radioactive waste are primarily regulated at the federal and state levels of government. The relative lack of media attention to these wastestreams so far in the 2000s and 2010s should not obscure their importance to the structure of environmental law in the United States. The large body of federal and state laws that regulate hazardous waste management has been central in forming the general public understanding of how environmental law works as a “command and control” system. Ironically, the national and state successes in getting hazardous and radioactive waste problems off of the front page of the newspapers blogs and off of television news has, in my opinion, also contributed to the lack of awareness of how useful, important, and yes, efficient government regulation can be.

    For hazardous and low-level radioactive waste, the federal government sets the basic goals, standards, and procedures, and state governments provide much of the machinery to achieve federal objectives.  “Low-level” radioactive waste means radioactive waste that doesn’t fit certain categories (primarily intermediate-level, high-level, spent nuclear fuel, transuranic, and uranium mill tailings) made up largely of materials that are radioactive from the get-go, as opposed to radioactive due to exposure to other radioactive materials. These other categories, notably including the spent fuel rods from nuclear power reactors and waste from military facilities, are regulated more directly by the federal government.

    One of the principal federal statutes is RCRA (the Resource Conservation and Recovery Act, 42 U.S.C. sec. 6901 et seq.) which is also integral to municipal solid waste handling.  RCRA regulates the generation, transportation, treatment, and storage of hazardous wastes under a so-called cradle-to-grave system, which monitors the wastes from the time they are generated through ultimate disposal, relying on a manifest that follows the materials and is filed with regulatory agencies.

    Another fundamental federal statute is the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA, or Superfund), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA) and the Small Business Liability Relief and Brownfields Revitalization Act of 2001 (42 U.S.C. §§ 9601-9675).  It established two funds to help finance removal and disposal of hazardous substances released to the environment, especially substances disposed of to the ground through dumps or otherwise. As it was interpreted by the numerous courts who reviewed it in the 1980s and 1990s, CERCLA also made those responsible for these releases as well as owners of property contaminated by the releases jointly, severally, strictly, and retroactively liable for all costs of removal or remedial action and for damages to natural resources, subject to a few narrow exceptions. North Carolina has statutes that parallel RCRA and CERCLA (G.S. 130A-290 through -309, and 130A-310 through -310.40) and rules that parallel the federal rules that implement RCRA (primarily 15A NCAC chap. 13A).

    Legislation in the 1980s made the state a party to the Southeast Interstate Low-Level Radioactive Waste Compact and established state boards to seek sites for disposal of hazardous wastes and low-level radioactive wastes. These boards also had general responsibility for state hazardous waste management policy. After nearly a decade of intensive, tumultuous, and ultimately fruitless searching for hazardous and low-level radioactive disposal sites in the state, and after the Southeast Compact stopped further funding of site assessment, North Carolina withdrew from the compact and eliminated these special-purpose state boards in the mid-1990s.

    In 2002, the Compact Commission and several of its member states brought suit against North Carolina in the U.S. Supreme Court pursuant to U.S. Const., Art. II, §2, cl. 2 and 28 U.S.C. § 1251. They alleged that North Carolina breached its obligations under the Compact by failing to construct a facility before withdrawing from the Compact. After proceedings before a special master and oral argument before the Supreme Court in 2010, North Carolina won and the case was dismissed. Alabama v. North Carolina, No. 132 (Orig) (2010). Footnote to legal history: at the time, North Carolina was involved in two original jurisdiction cases before the U.S. Supreme Court, the other being South Carolina v. North Carolina, No. 138 (Orig) (2010) (over water withdrawals from the Catawba and Yadkin Rivers). These original jurisdiction cases (meaning the Supreme Court acts as the “trial” court) are rare, as shown by the sequential numbering–these cases were numbers 132 and 138 respectively since the founding of the United States. I had a great interest and a small hand in both of them, and here give a tip of the hat to the attorneys in the N.C. Department of Justice who successfully litigated both. The SEC may still be the country’s powerhouse football conference, but when it comes to U.S. Supreme Court original jurisdiction cases, North Carolina can fairly and squarely say to the SEC states: “in your face.”

    One unintended result of hazardous waste programs such as the Superfund has been to deter the reuse of many properties that are stigmatized because of known or suspected contamination, properties sometimes known as brownfields. National and state policy is now encouraging a new look at this subject, with a view to encouraging productive reuse of some brownfields properties. North Carolina joined the ranks of states that are participating in this reappraisal by enactment in 1997 of a brownfields program as well as a similar, special program for sites contaminated by dry cleaning solvents. G.S. 130A-310.30 promotes the reuse of brownfields by developers under procedures overseen by the Department of Environment and Natural Resources (DENR).  Anyone interested in the original thinking behind North Carolina’s brownfields statutes may find useful material in a couple of my early texts at the School of Government: R. Whisnant, Cleanup Law of North Carolina (Chapel Hill, N.C.: Institute of Government, The University of North Carolina at Chapel Hill, 2003); Whisnant, “Brownfields in a Green State,” Popular Government 64(2) (Winter 1999).

    The basic idea is that the State gives property owners protection from liability in exchange for the owners’ agreement to take some measures to make the property safe. G.S. 130A-310.3 and 143-215.84 establish procedures by which an owner who does not want contaminated property to be used may place enforceable restrictions on current and future use of the property. A county may want to take advantage of the state brownfields program as part of its economic development strategy, and the registers of deeds must be familiar with the recording requirements spelled out in G.S. 130A-310.8 and G.S. 143-215.85A.  I have not done a formal evaluation of the brownfields program in North Carolina, and as one of the principal original authors of the statute I would have a hard time being impartial about it. With that caveat, I’ll say that I’m extremely proud of the successes of the program and its staff, who have done wonders with very few State resources. This is another example of a North Carolina state environmental program that has worked very well and ought to be lauded much more widely than it has been.

    Federal legislation goes beyond the regulation of hazardous wastes to the regulation of useful but toxic chemicals that have not reached the waste stream. The lead federal statute on this subject is the Toxic Substances Control Act (TSCA) (15 U.S.C. §§ 2601-2629 ) which establishes a system for regulatory review and clearance of new chemicals that are proposed to be placed on the market, and review of existing chemicals, as well as special regulations concerning PCBs (polychlorinated biphenyls). At age forty, TSCA is looking particularly haggard–not that I have any better claim to aging gracefully–but most commentators agree that it has failed to fulfill its original purposes by a wider margin than most other environmental laws. I suspect the public would be shocked to discover how few chemicals in daily use in the United States have actually been reviewed for toxicity by government regulators (as opposed to self-regulation by their creators and owners, who have a strong proprietary interest in keeping them on the market).

    In addition to TSCA, the 1986 SARA amendments contain complex chemical right-to-know and emergency planning provisions. This subject was already addressed by state legislation in some states, including North Carolina (G.S. Ch. 95, Art. 18, under the Department of Labor).

    A final important federal law in this area is the Oil Pollution Act of 1990 (OPA) (33 U.S.C. §§ 2701-2761).  Enacted in the wake of the wreck of the Exxon Valdez, which released millions of gallons of oil into the coastline of southern Alaska, OPA set up a system for recovering damages from oil spills. North Carolina has its own oil spill act, which is broader than OPA in that it also serves as a basis for liability for spills of hazardous substances other than oil. The Oil Pollution and Hazardous Substances Control Act of 1978 (OPHSCA) creates strict liability for those who control oil or hazardous substances immediately prior to their release (G.S. Ch. 142, Art. 21A. The primary liability-creating statute is G.S. 143-215.84).  Local ordinances aimed at discharges of oil or hazardous substances to sewers or waste disposal systems are specifically preserved by OPHSCA (G.S. 143-215.82). In 2015, with North Carolina’s Governor pressing for the opening of oil and gas drilling off the coast of the State (as opposed to the State’s opposition to the same back in the 1980s and 1990s), there will surely be renewed interest in the legal remedies available to businesses and citizens in the event of a major oil spill.

    Some cities and counties have adopted ordinances that add local controls on hazardous wastes to the complex set of federal and state laws. These ordinances range from those that merely supplement state inspection and monitoring, to those that regulate small waste-producing sites below the minimum size for state regulation, to those that establish comprehensive procedures for reviewing proposed sites for hazardous waste or low-level radioactive waste treatment and disposal. At least one county has adopted an underground storage tank ordinance. Any local government unit that is considering a local ordinance on these subjects should closely examine the underlying statutory authority, the possibility of state or federal preemption of the field in question, and the constitutionality of the proposed ordinance. Unless the ordinance takes the form of zoning, the only source of local authority may be the general ordinance-making power (G.S. §§ 153A-121, 160A-174), specific local responsibility for sewer or other wastewater systems, the statute granting cities (and, by judicial interpretation, counties) the power to regulate emission of pollutants or contaminants, or the uncharted waters of the constitutional provision on the environment. These may or may not be legally adequate bases for this kind of local regulation. The general tests for preemption of local ordinances by state or federal laws are set forth in G.S. 160A-174, and several of the state regulatory statutes concerning hazardous waste management contain specific preemption or override provisions of their own that should be considered.
    The state has had a long-running debate on the methods for assessing the risks posed by cleanups that leave residual contamination at sites. The legislature required risk-based analysis in one program area, the cleanup of discharges from leaking underground storage tanks, to determine whether a discharge from a tank poses risks to human health or the environment that are greater than acceptable levels of risk established by the Environmental Management Commission (EMC). The objective is to avoid unproductive cleanup efforts that have threatened the stability of the underground storage tank cleanup fund. A cost-benefit analysis had previously been required under G.S. 143-215(c) and -215.107(f) for new water and air pollution control rules that were more stringent than federal rules. The 1984 amend¬ments to the federal RCRA contained special regulations concerning petroleum underground storage tanks, but the actual system of regulations for these tanks is largely driven by state priorities for using public funds to pay for clean¬ups.

    Risk-based analysis was also required in 1997 legislation concerning cleanup of contamination from dry cleaning solvents, a cleanup program modeled loosely on the underground storage tank program. Whether a more general and consistent method of risk assessment should be applied to contaminated property cleanup in the state was a hot topic of debate in the 1990s and 200s. In 2011, after years of debate and discussion, the General Assembly passed a comprehensive risk-based cleanup bill to allow site-specific risk assessment at all industrial properties. See S.L. 2011-186. The bill significantly changed the process for cleanup of contaminated property in North Carolina. It was legislation that was advocated for and negotiated by the business lobby formerly known as the Manufacturers and Chemical Industry Council (currently the North Carolina Manufacturers Alliance) for years. The essence of the bill was to give owners and other persons responsible for cleanup of contaminated property the option to present a risk-based remedy (including no action) based on site-specific risk information. In other words, a consultant hired by the responsible party produces a report recommending that the site, while contaminated, does not pose a major risk to health or the environment, or will not pose a risk if certain remedial steps are taken. It thus represents another step in the state’s long march to less cleanup of contaminated property than was occurring in the 1980s and 1990s.

     

    Richard Whisnant joined the School of Government (then the Institute of Government) in 1998. Prior to that, he was general counsel with the NC Department of Environment, Health & Natural Resources. He had previously practiced environmental law with Robinson, Bradshaw & Hinson, in Charlotte, North Carolina, and was a clerk for the Hon. Sam J. Ervin III on the US Court of Appeals for the Fourth Circuit. Whisnant earned a BA from the University of North Carolina at Chapel Hill and an MPP and JD from Harvard University.

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