A facility must meet design, operational, performance, insurance, and financial responsibility standards issued by the EPA or an authorized state to obtain a permit. RCRA specifically bans land disposal of uncontained liquid wastes and of specified wastes unless they are first treated to reduce their risk.3

At the Tooele Chemical Agent Disposal Facility (TOCDF) and the Umatilla Chemical Agent Disposal Facility (UMCDF), operations are known to include the destruction of certain mustard agent munitions that are contaminated with mercury. The processing of these munitions will cause some of the used carbon at these facilities to become contaminated with mercury. If the mercury concentration levels in a waste are found to exceed 0.2 mg/L by EPA’s toxic chemical leaching procedure (TCLP), the waste is hazardous based on its toxicity characteristic. Hazardous wastes containing mercury are covered by the land disposal restriction regulations, which establish two categories: low mercury (<260 mg/kg total mercury) and high mercury (≥260 mg/kg total mercury). Low mercury wastes require treatment to 0.20 mg/L for residues from retorting and 0.025 mg/L for all other wastes (using the TCLP) (40 CFR 268.40 and 268.48). EPA states that stabilization or solidification is generally used to meet these standards. High mercury wastes must generally be treated by retorting or roasting in a thermal processing unit capable of volatilizing the mercury and subsequently condensing the volatilized mercury for recovery (40 CFR 268.42). The residual waste from this treatment is then required to meet the above standards; if it does not, the same process must be repeated until there is compliance.

EPA authorizes states to regulate hazardous wastes within their borders under RCRA. A state must adopt a program that is no less stringent than the requirements adopted by the EPA (40 CFR 271). All of the states with operating chemical agent disposal facilities—Alabama, Arkansas, Indiana, Oregon, and Utah—have obtained such EPA authorization.

Each of the states has adopted laws and regulations essentially the same as the EPA hazardous waste management regulations, including regulations for identification and listing of hazardous wastes; requirements applicable to generators and transporters of hazardous waste; requirements for hazardous waste treatment, storage, and disposal facilities (TSDFs); and restrictions for the land disposal of some hazardous wastes. Each state grants permits for the construction and operation of TSDFs. Permits stipulate the general requirements governing the design, construction, and operation of a TSDF and also establish appropriate site-specific conditions for all aspects of hazardous waste management at the facility. Activated carbon waste from the chemical agent disposal facilities covered in this report is governed by the permits issued by the respective states in which these facilities are located.

In addition to regulation under RCRA, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or Superfund,4 requires a responsible party to clean up the release of any hazardous substance into the environment. A hazardous substance is defined to include any substance specifically designated by EPA, hazardous wastes as defined under RCRA, toxic pollutants listed under the federal Clean Air Act, and imminently hazardous substances under the federal Toxic Substances Control Act.5 Liability under Superfund is strict and joint and several and applies to the generator of the hazardous substance regardless of what treatment or disposal may have occurred.6 Thus, if any hazardous substance remains

3

 42 U.S.C. 6924(d)-(m).

4

 42 U.S.C. 9601-9675.

5

 42 U.S.C. 9601(14).

6

 Environmental regulatory law has its roots in common law tort law, particularly strict liability principles. This is a complex area of law. A few of the basic principles concerning liability are outlined below to provide context. In tort law, strict liability is the imposition of liability on a party without a finding of fault (such as negligence or tortious intent). The plaintiff needs to prove only that the tort happened and that the defendant was responsible. For example, in the context of a release of chemical agent, a plaintiff needs only to prove that an injury was caused by the chemical agent and the defendant’s actions resulted in a level of exposure that caused that injury. Strict liability is imposed for legal infractions that are malum prohibitum rather than malum in se; therefore, neither good faith nor the fact that the defendant took all possible precautions is a valid defense. Strict liability often applies to those engaged in hazardous or inherently dangerous ventures. In joint liability, parties are each liable up to the full amount of the relevant obligation. In several liability, the parties are liable for only their respective obligations. In joint and several liability, a claimant may pursue an obligation against any one party as if they were jointly liable, and it becomes the responsibility of the defendants to sort out their respective proportions of liability and payment. This means that if the claimant pursues one defendant and receives payment, that defendant must then pursue the other obligors for a contribution to their share of the liability.



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