Discard, Storage, and Set-Out
The third and fourth installments in some legal considerations in residential organics recycling
Editor’s note: This article first appeared in the May 2016 edition of MSW Management.
In the previous installment, we discussed the food management hierarchy, which includes: source reduction, buying wisely, and donating; feeding people, and the protection of the Good Samaritan Law; feeding animals, market considerations/regulatory constraints; and industrial uses.
Here in Part 3, we will talk about food waste, discharge, storage, and set-out.
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Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), municipalities are liable for hazardous waste contained in the municipal solid waste generated in their jurisdictions. Broadly, municipalities are “arrangers” under the law and “potentially responsible parties” for Superfund cleanup. (The most-cited case is B. F. Goodrich Company v. Murtha, 958 F.2d 1192). Subsequently, EPA established policy that it will not generally name municipalities’ potentially responsible parties (PRPs). It allows municipalities to settle claims by other PRPs and limits municipalities’ liability to a portion of the remediation costs: the relative percentage of municipal waste originating in the municipality times a fixed rate per ton established by EPA. (EPA Policy for Municipality and Municipal Solid Waste; CERCLA Settlements at NPL Co-Disposal Site.) Warning: PRPs have been trying to challenge this Policy. Cautionary Note: Require your contract or permitted hauler to keep disposal records and take possession of copies so that you can establish your relative disposal tonnage in a Superfund cleanup action.
Generator to Collector. Many (maybe most) municipalities nevertheless use every possible means in an attempt to avoid being the denominated “owner” of MSW and “arranger” of disposal service. For example, many local government codes provide that the generator remains the “owner” of the generator’s discards until the authorized hauler collects the waste at the generator’s set-out site, or, if there is not authorized collection (such as with respect to litter), until the generator legally discards the materials. Most local governments probably take this approach for source-separated food waste, perhaps not to avoid CERCLA liability, but suits by consumers of products from processed food waste such as compost used for food crops.
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Generator to Local Government to Collector. Sometimes, though, local governments intentionally take ownership of waste when the generator places containers at the set-out site. One reason may be that they are resigned to liability for their waste under CERCLA/Murtha, so they might as well strengthen their right to recyclables and recovered recyclable revenues through ownership. They may use the same reasoning with respect to revenues from food waste products. (In either case, alternatively—or in addition—they could contract with the materials processor to share revenue regardless of the ownership.)
Another reason local governments may take ownership of waste is so that they can prosecute scavenging of recyclables or other materials from set-out sites as theft of public property.
You may be thinking: “So what? Who’s going to scavenge food waste except animals?” Read on.
Scavenging. Writing about scavenging yucky food waste may seem to you to be another example of attorneys’ professional paranoia. But especially in commercial areas, human beings may scavenge for food: “dumpster diving.” Homeless dumpster divers have received deep cuts, embedded glass shards, injuries from falling or jumping out of the dumpster; probably viral and bacterial illnesses, and food poisoning; and actually, death: a homeless man fell asleep in the dumpster and was compacted with the trash the next morning.
Some local governments prohibit sleeping in dumpsters to prevent such tragedies. The legal prohibition allows law enforcement to force people out of dumpsters for their own safety. Continue your public outreach for food donations and consider adopting not only a no-scavenging prohibition, but also include the following provisions in your local code or ordinances:
- Broadly prohibit tampering with any waste container without permission of the container’s owner.
- Explicitly prohibit sleeping in dumpsters.
On a lighter note, recall Alice P. Schwartzman and Elmont in Gary Trudeau’s Doonesbury comic strip (July 7, 2009). An attractive young woman named “Missy” sits at a soup kitchen table. Alice, the elderly, frowzled, and batty homeless woman joins her. Alice remembers (ironically) that Missy is the same ritzy lady who organized a charity ball for the homeless several years earlier. Elmont, Alice’s equally disheveled male counterpart, arrives.
“Hear that, Elmont?” Alice enthuses. “A charity ball! For us!”
Elmont is skeptical: “No way! I never got an invitation!”
“Well,” interjects Missy uncomfortably, “not ‘for’ you in that sense.”
Alice is confused: “How many senses are there?”
“Six,” Elmont replies confidently. “And you’ll need ’em all to dumpster-dive! Let’s go, young lady!”
“Excuse me?” Missy asks, bewildered.
Alice cuts in: “No trouble at all—it’s his way of giving back!”