CHARACTERISTIC “HAZARDOUS” WASTES: EDISON ELECTRIC INSTITUTE v. EPA (645) FACTS

1. CHARACTERISTIC “HAZARDOUS” WASTES: EDISON ELECTRIC INSTITUTE v. EPA (645)FACTS • “HAZARDOUS” WASTES ARE IDENTIFIED BY CHARACTERISTICS OR LISTING (“PER SE HAZARDOUS”) • THIS CASE CHALLENGES EPA RULE REVISING THE TOXICITY CHARACTERISTIC (TC) • PRIOR 1980 PROTOCOL TO DETERMINE TC: • “EXTRACTION PROCEDURE” BASED ON MISMANAGEMENT IN MUNICIPAL – I.E. NON HAZARDOUS WASTE —LANDFILL (MSW LANDFILL) • INCLUDES 100 TIMES DILUTION & ATTENUATION FACTOR

2. EDISON ELECTRIC 1986 TOXICITY CHARACTERISTIC REVISION • RESPONSE TO 1984 STATUTE • TCLP (TOXICITY CHARACTERISTIC LEACHING PROCEDURE) • BASED ON GENERIC MISMANAGEMENT SCENARIO

3. EDISON ELECTRICTHE CHALLENGE • CHALLENGE TO APPLICABILITY OF TCLP GENERIC MISMANAGEMENT PROCEDURE TO MINERAL WASTES • BASIS OF CHALLENGE: VIOLATES STATUTORY MANDATE FOR MORE ACCURATE TCLP. 42 U.S.C § 6921 (g)

4. EDISON ELECTRIC42 U.S.C. § 6921(g) EP TOXICITY • Not later than twenty-eight months after November 8, 1984, the Administrator shall examine the deficiencies of the extraction procedure toxicity characteristic as a predictor of the leaching potential of wastes and make changes in the extraction procedure toxicity characteristic, including changes in the leaching media, as are necessary to insure that it accurately predicts the leaching potential of wastes which pose a threat to human health and the environment when mismanaged.

5. EDISON ELECTRICPLAINTIFF’S ARGUMENT • GENERIC SCENARIO BASED ON ASSUMPTIONS THAT DON’T APPLY TO MINERAL WASTES • UNLIKELY MINERAL WASTES WILL BE DEPOSITED IN MSW LANDFILLS • TCLP ELEMENTS TOO SEVERE (BOTTOM p 647)

6. EDISON ELECTRICRATIONALE FOR EPA RULE • EPA REJECTED “MANAGEMENT BASED” APPROACH • SEPARATE TOXICITY TEST FOR EACH CATEGORY OF WASTE TYPICALLY MANAGED IN A PARTICULAR WAY • EPA: INSTEAD, MOST EFFECTIVE TO DEFINE WASTE PROPERTIES • ENFORCEMENT OF “MANAGEMENT BASED” APPROACH DIFFICULT • GENERIC MISMANAGEMENT SCENARIO (HAZARDOUS WASTES IN MSW LANDFILL) IS A PREVALENT ENVIRONMENTAL HAZARD

7. EDISON ELECTRICHOLDING & RATIONALE • STATUTE DOESN’T REQUIRE MANAGEMENT APPROACH • MSW LANDFILL GENERIC MISMANAGEMENT SCENARIO IS A REASONABLE INTERPRETATION (CHEVRON) • PREVALENT HAZARD; • STATES HAVE FEW RESTRICTIONS; • LONG TERM LEACHING NOT FULLY UNDERSTOOD

8. EDISON ELECTRICHOLDING & RATIONALE • REASONABLENESS OF APPLYING TCLP TO MINERAL WASTES • APA ISSUE (E.G. ARBITRARY & CAPRICIOUS?) • COURT: TCLP MUST BEAR REASONABLE RELATIONSHIP TO MINERAL WASTES • EPA FAILED TO DEMONSTRATE • NO EVIDENCE LOW VOLUME MINERAL WASTES EVER DEPOSITED IN MSW LANDFILLS • NO EVIDENCE MINERAL WASTES EXPOSED TO MSW LANDFILL CONDITIONS

9. LAND DISPOSAL BAN:EDISON ELECTRIC V EPA (EDISON ELECTRIC II) (652) • 1984 BAN ON LAND DISPOSAL OF HAZARDOUS WASTE. § 3004(d)(1) • EXCEPTION FOR WASTES TREATED TO “SUBSTANTIALLY DIMINISH TOXICITY OR LIKELIHOOD OF MIGRATION.” § 3004(m) • EPA TO ESTABLISH TREATMENT STANDARDS • TO PREVENT FRUSTRATION OF BAN BY INDEFINITE STORAGE, 1984 AMENDMENTS PROHIBIT STORAGE OF WASTES SUBJECT TO THE LAND DISPOSAL BAN UNLESS . . . • “SUCH STORAGE IS SOLELY FOR THE PURPOSE OF THE ACCUMULATION OF SUCH QUANTITIES OF HAZARDOUS WASTE AS ARE NECESSARY TO FACILITATE PROPER RECOVERY, TREATMENT OR DISPOSAL”. § 3004(j)

10. EDISON ELECTRIC IIEPA REGULATION RE STORAGE • SHIFTED BURDEN • MAY STORE FOR UP TO 1 YEAR UNLESS AGENCY CAN DEMONSTRATE NOT SOLELY FOR PURPOSE OF ACCUMULATION TO FACILITATE PROPER TREATMENT OR DISPOSAL • BEYOND 1 YEAR, OPERATOR BEARS BURDEN

11. EDISON ELECTRIC IICHALLENGE • UTILITIES SEEK REVIEW OF EPA REGULATIONS IMPLEMENTING § 3004(j) • AT ISSUE: “MIXED WASTES” • NO CAPACITY TO RECOVER, TREAT OR DISPOSE OF WASTE • PETITIONER'S ARGUMENT: • WHEN NO CAPACITY TO RECOVER, TREAT OR DISPOSE OF WASTE . . . THE ONLY MEANS TO “FACILITATE PROPER RECOVERY, TREATMENT OR DISPOSAL” IS STORAGE UNTIL TREATMENT OR DISPOSAL CAPACITY BECOMES AVAILABLE

12. EDISON ELECTRICHOLDING & RATIONALE • CONGRESS SPOKE TO PRECISE QUESTION • PETITIONERS READ “ACCUMULATION” PHRASE OUT OF STATUTE • DESIGN OF STATUTE AS A WHOLE • CAPACITY VARIANCES • FURTHER EXTENSIONS • TECHNOLOGY-FORCING STATUTE • WHERE DOES THIS LEAVE INDUSTRY?

13. DILUTION:RCRA ETC.CHEMICAL WASTE MANAGEMENT INC. (655) • DILUTION CAN BE THE SOLUTION TO POLLUTION • FOR IGNITABLE, CORROSIVE OR REACTIVE “CHARACTERISTIC” WASTES “TREATMENT” MAY BE DILUTION • FOR TOXICITY WASTES, CUMULATIVE IMPACTS ARE CONCERN; THUS, TREATMENT REQUIRED, I.E. NO DILUTION • ALSO: TREATMENT CAN BE REQUIRED TO SAFER THAN “CHARACTERISTIC LEVEL”

14. DISCLOSURE PROGRAMS(674) • EMERGENCY PLANNING & COMMUNITY RIGHT TO KNOW ACT (1986) • ANNUALLY REPORT USAGE, PROPERTIES AND RELEASES OF HAZARDOUS MATERIALS (“TOXIC RELEASE INVENTORY” OR TRI). § 313. • TO ALL MEDIA: AIR, WATER INJECTION WELLS, LANDFILLS • CITIZENS SUITS • PURPOSES: • FACILITATE EMERGENCY PLANNING • MARKET INCENTIVE FOR REDUCTIONS

15. PROPOSITION 65SAFE WATER AND TOXIC ENFORCEMENT ACT OF 1986 • PURPOSE: PREVENT EXPOSURE TO TOXICS THROUGH WATER & OTHER MEANS • TWO APPROACHES TO MANAGING RISK: 1. WARNING REQUIREMENT 2. DISCHARGE PROHIBITION

16. WARNING REQUIREMENT:NICOLLE-WAGNER V. DEUKMEJIAN • HEALTH & SAFETY CODE § 25249.6 • “No person in the course of doing business shall knowingly and intentionallyexpose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in section 25249.10.” • § 25249.10: NO SIGNIFICANT RISK; BURDEN ON SOURCE

17. NICOLLE-WAGNER • LIST OF CHEMICALS. § 25249.8 • REGULATIONS • AGENCY MAY ADOPT REGULATIONS AS NECESSARY TO IMPLEMENT THIS CHAPTER AND FURTHER ITS PURPOSES. §25249.12(a)

18. NICOLLE-WAGNERAGENCY’S REGULATION • HUMAN CONSUMPTION OF FOOD IS NOT “EXPOSURE” IF PERSON RESPONSIBLE FOR EXPOSURE CAN SHOW CHEMICAL IS “NATURALLY OCCURRING” • “NATURALLY OCCURRING” IF — • NATURAL CONSTITUENT, OR • SOLELY RESULT OF ABSORPTION OR ACCUMULATION OF CHEMICAL NATURALLY PRESENT IN ENVIRONMENT. • NOT NATURALLY OCCURRING IF NOT GOOD AGRICULTURAL OR MANUFACTURING PROCESSES. TITLE 22 CCR § 12501

19. NICOLLE-WAGNERCHALLENGE • REGULATION UNLAWFUL • NO CATEGORICAL EXEMPTION IN PROP 65 • NO DISTINCTION MAN MADE & NATURAL SUBSTANCE • STATE’S POSITION: • REGULATION NOT IN CONFLICT WITH , AND IS REASONABLY NECESSARY TO EFFECTUATE, THE STATUTE • REGULATION INTERPRETS “EXPOSE” AND “EXPOSURE” IN § 25249.6

20. NICOLLE-WAGNERHOLDING RE CONSISTENCY WITH STATUTE • STATUTE SILENT RE NATURALLY OCCURRING TOXINS • THUS MUST SEARCH FOR “SUBTLE EXPRESSIONS” OF INTENT • ACT SOUGHT TO REGULATE SUBSTANCES DELIBERATELY ADDED OR PUT INTO THE ENVIRONMENT BY HUMAN ACTIVITY • RATIONALE” “KNOWINGLY & INTENTIONALLY” EXPOSE LANGUAGE SUGGESTS HUMAN ACTIVITY • BALLOT ARGUMENTS, FOR AND AGAINST • INDICATORS BOTH WAYS; “BETTER VIEW” DOES NOT SUPPORT PLAINTIFFS

21. NICOLLE-WAGNERCOURT’S REASONING RE EFFECTUATING STATUTORY PURPOSE • SUBSTANTIAL EVIDENCE TEST • MOST FOODS CONTAIN TRACE TOXINS; WE PRESUME HEALTHFUL • IF NOT EXEMPT, BURDEN ON MANUFACTURERS TO PROVE; SUCH EVIDENCE DOESN’T EXIST • THUS WARNINGS WOULD BE NEEDED ON ALMOST ALL FOOD • WARNINGS WOULD BE DILUTED TO MEANINGLESSNESS

22. NICOLLE-WAGNERHOLDING • EXCEPTION WILL FURTHER THE STATUTORY PURPOSE IN SAFEGUARDING THE EFFECTIVENESS OF WARNINGS . . . AND IN REMOVING FROM REGULATORY SCRUTINY THOSE SUBSTANCES WHICH POSE ONLY AN ‘INSIGNIFICANT RISK’ . . .” • REGULATION UPHELD

23. DISCHARGE PROHIBITION: PEOPLE EX REL. LUNGREN v SUP. CT. (AMERICAN STANDARD et al REAL PARTIES) • ENFORCEMENT ACTION • INJUNCTION & CIVIL PENALTIES • “No person in the course of doing business shall knowingly discharge or release a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any sourceof drinking water” § 25249.5

24. LUNGRENFACTS & CLAIMS • ALLEGATION: LEAD LEACHING FROM FAUCETS KNOWN FOR YEARS • DEFENDANT’S CLAIM: FAUCETS NOT A “SOURCE OF DRINKING WATER”

25. LUNGRENDEFINITION OF “SOURCE OF DRINKING WATER” • PRESENT SOURCE OF DRINKING WATER, OR • WATER WHICH IS IDENTIFIED OR DESIGNATED IN A WATER QUALITY CONTROL PLAN ADOPTED BY A REGIONAL BOARD AS BEING SUITABLE FOR DOMESTIC OR MUNICIPAL PURPOSES. § 25249.11

26. LUNGRENDEFINITION OF “SOURCE OF DRINKING WATER” • DICTIONARY • ULTIMATE ORIGIN, E.G. STREAM • DEFENDANTS SUPPORT • COURT: TOO NARROW SINCE DEFINITION COVERS RESERVOIRS ETC • PONT OF ORIGIN, PROCUREMENT OR EMANATION • AG SUPPORTS • DEFENDANTS ARGUE DISTINCTION BETWEEN FIRST & SECOND PART OF STATUTE DEFINITION IS TEMPORAL

27. LUNGRENCOURT’S REASONING • LEGISLATIVE PURPOSE • DEFENDANTS ARGUE NOSCITUR A SOCIIS • FAUCET MARKEDLY DISSIMILAR FROM BODIES OF WATER • COURT: PURPOSE TO PROTECT DRINKING WATER • DEFENDANTS ARGUE AGENCY INTERPRETATION • COURT: NO OFFICIAL INTERPRETATION