EPA Issues RCRA's 'Cradle-to-Grave' Hazardous Waste Rules

Two months ago, the Environmental Protection Agency (EPA), under pressure from the courts, Congress, and the public, issued final regulations¹ implementing the complex hazardous waste regulatory program of Subtitle C of the Resource Conservation and Recovery Act (RCRA).² These regulations provide for the identification of wastes that are subject to regulation, establish a "manifest system" to track the waste from generation to final disposal, and establish standards for storage, treatment, and disposal facilities. In conjunction with the standards for generators and transporters of hazardous waste promulgated earlier this year³ and certain requirements of the consolidated permitting program issued on May 19,⁴ the regulations provide the first federal regulatory scheme to control hazardous waste, an environmental problem whose true dimensions are only now beginning to be understood.

Background

The magnitude of the hazardous waste problem is not fully understood. EPA has estimated that in 1980 United States industry will produce 57 million metric tons of hazardous waste⁵ and that but for the new regulatory program, 90 percent of this waste would be disposed of in an environmentally damaging manner.⁶ In 1976, Congress passed the Resource Conservation and Recovery Act⁷ in an effort to bring this problem under control. The Act aims not only to recover resources and energy from many kinds of waste but to assure disposal of hazardous waste in ways that do not endanger human health and the environment. Specifically, Subtitle C of RCRA directs EPA to promulgate regulations that establish a program to identify and track hazardous waste from "cradle to grave" and to ensure that disposal sites are and will remain environmentally sound.⁸

The May 19 regulations are the fruit of long labor by EPA. RCRA set a deadline of April 21, 1978 for promulgation of the final regulations, but for a variety of reasons,⁹ the Agency failed to meet it. Publicity surrounding the Love Canal disaster and a lawsuit brought by environmental groups and the State of Illinois¹⁰ injected a sense of urgency into the situation, however, and EPA stepped up its tempo by issuing the major portion of its proposed regulations in December 1978.¹¹ The decision in the lawsuit set a deadline of December 31, 1979 for the final regulations, but in response to continued pleas from EPA that it was understaffed to deal with the mountain of comments it had received on the proposed regulations, the court extended the deadline to April 1980. EPA justified its two-year delay in promulgating the final regulations on the basis of staff shortages and the unexpected technical complexity of the problem. Although the Agency has done a highly commendable job in many respects, several compromises on tough issues indicate that a certain sense of expediency colored its interpretation of RCRA's mandates.

Overview: RCRA Subtitle C

Section 3001 of the Subtitle C program requires EPA (1) to develop "criteria for identifying the characteristics of hazardous waste" and for listing hazardous waste and (2) to identify the characteristics of hazardous waste and to list wastes on the basis of those characteristics.¹² Under § 3002, generators of hazardous waste must comply with certain recordkeeping, labeling, packaging, reporting, and manifest system requirements. Transporters of hazardous waste must follow § 3003's requirements,¹³ which mandate that they may carry only waste that is properly labeled and must comply with the manifest system and the requirements of the Hazardous Materials Transportation Act. The standards of § 3004 apply to owners and operators of hazardous waste treatment, storage, and disposal facilities and cover (1) recordkeeping, (2) compliance with the manifest system, (3) treatment, storage, and disposal of waste, (4) location, design, and construction of facilities, (5) contingency plans, (6) maintenance, and (7) financial responsibility.¹⁴ The permit program outlined in § 3005 of RCRA establishes the information required on the permit application, states when permits will be granted or revoked, and provides for a period of interim status during which a permit applicant will be treated as having been issued one until final action has been taken.¹⁵ Section 3006 calls for federal approval of state programs that are determined by the Administrator to be equivalent to the federal program, consistent with the programs in force in neighboring states, and adequately enforceable.¹⁶

EPA has now issued most of its hazardous waste regulations. Last February, the Agency promulgated final standards governing waste generators and transporters.¹⁷ On May 19, these standards were repromulgated with minor amendments and the standards for the identification and listing of hazardous waste were issued.¹⁸ In [10 ELR 10131] addition, the Agency issued the first set of standards applicable to owners and operators of waste treatment, storage, and disposal facilities.¹⁹ These waste management practices have been categorized as interim standards and will be superseded as more detailed requirements are developed.²⁰ Financial responsibility requirements were reproposed²¹ and will be issued in final form later this year, as will regulations governing recycling of such wastes.

Hazardous Waste Identification, § 3001

The first step under the regulatory program is identifying whether a particular waste is hazardous. RCRA defines hazardous waste to be solid or liquid waste that may cause or contribute to an increase in serious illnesses or deaths and that "pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed."²² While ultimately the responsibility for determining whether a given waste is subject to the regulatory program falls upon the generator, EPA has simplified the identification process substantially by listing over 400 substances that are presumptively covered. Most generators can expect that their wastes, if covered, will be found on the lists. If a given waste is not listed, however, the generator must conduct tests to ascertain whether the substance is nevertheless covered by the program.

Criteria for Identifying Relevant Characteristics

The regulations provide that a substance falls within the statutory definition if it possesses one of four characteristics: ignitability, corrosivity, reactivity, and toxicity. Whether reliance on these four characteristics alone assures that all hazardous wastes will be brought within the ambit of the program is problematic. Indeed, EPA originally proposed a larger group of characteristics, including carcinogenicity, mutagenicity, radioactivity, bioaccumulation, and organic toxicity. At the urging of industry and Administration commenters, however, it withdrew these characteristics. The Agency concluded, not without justification, that testing for these characteristics would be beyond the ken of all but the largest and best-heeled generators and abandoned those that could not be identified fairly simply and without undue cost. In the preamble to the regulations, the Agency explained that it chose to limit the characteristics in such a manner because "unless generators were provided with widely available and uncomplicated test methods for determining whether their wastes exhibited the characteristics, the system would prove unworkable."²³ Nevertheless, the limited scope of characteristics to be tested by generators has been criticized for creating an unfortunate gap in the regulatory scheme.²⁴

In large part, the choice of these four characteristics was determined by the Agency's selection of "criteria." Section 3001(a) of the Act requires EPA to promulgate criteria that are to be used in choosing characteristics. First, a characteristic must be such that if it is possessed by a waste, the waste may cause an increase in mortality or illnesses or pose a substantial threat to health and the environment if improperly managed. In addition, the criteria adopted call for the selection of characteristics that can be:

(i) Measured by an available standardized test method which is reasonably within the capability of generators of solid waste or private sector laboratories that are available to serve generators of solid waste; or

(ii) Reasonably detected by generators of solid waste through their knowledge of their waste.²⁵

Of the four characteristics, only the toxicity standard attracted controversy or underwent significant alterations between the proposed and the final regulations.²⁶ As the only test used to assess toxicity, the Agency developed an "extraction procedure (EP)." The test attempts to duplicate leaching of toxic substances from landfills toward ground water, one of the most prevalent ways that toxic substances contaminate the environment. Specifically, the EP is intended to identify wastes likely to leach hazardous concentrations of toxic constituents into the ground water through improper management. A sample extract is analyzed to determine whether it contains a specific quantity of any of the toxic contaminants listed in the Safe Drinking Water Act's national primary interim drinking water standards. If the extract does contain such a quantity, the waste is then labeled as hazardous. The proposed regulations provided that a substance would be considered hazardous if a sample extract contained 10 times the Safe Drinking Water Act's (SDWA's) standard for a given toxicant.²⁷ Many commenters, however, asserted that this multiplication factor was too conservative in that it failed to take account of natural filtration and absorption as chemicals leach through soil. In the final regulations the Agency recanted and set the multiplier at 100 times the SDWA levels.²⁸

The EP possesses significant defects. Even EPA admits that the procedure itself is crude and leads to inconsistent results.²⁹ Another shortcoming is that the Safe Drinking Water Act sets standards for only 14 toxic substances. Furthermore, the Act sets standards to protect health,³⁰ whereas RCRA requires EPA to set standards to protect health and the environment.³¹

Criteria for Listing Hazardous Wastes

Section 3001(b) of RCRA also requires EPA to develop [10 ELR 10132] a second set of criteria that are to be used by the Agency in compiling the lists of hazardous wastes. In the proposed regulations EPA advanced criteria calling for the listing of any substance that met the statutory definition of hazardous waste³² but opted against this approach in response to comments that this criterion was too broad.³³ In the final regulations the Agency established two sets of criteria for listing wastes: those for listing acutely hazardous wastes that are dangerous regardless of how they are managed³⁴ and those for listing toxic waste that are hazardous only when improperly managed.³⁵

In determining to list a toxic waste, EPA does not generally initiate a testing regime. Instead, it simply determines if the substance contains one or more constituents that have been shown by existing scientific studies to have toxic, carcinogenic, mutagenic, or teratogenic effects on humans or other animals.³⁶ Thus, the current lists are supported mainly by the literature and some EPA test results.³⁷

This approach is not without problems. One identified by environmental commenters is that the reference list of toxic constituents is too arbitrary and incomplete a tool for the purpose.³⁸ Second, even though it will do little testing, the Agency has assumed a massive burden in analyzing and evaluating the characteristics of thousands of wastes for which it feels it is not yet possible to define testing protocols sufficiently standardized for use by generators.

Exemptions

In an effort to ease the impact of the regulations and simplify their administration, EPA included within the proposed regulations an exemption for any generator who produced 100 kilograms of hazardous waste per month or less.³⁹ Considering that one environmental group called this exemption "contrary to the statutory intent and wholly unacceptable,"⁴⁰ the final regulations are likely to please environmentalists even less: they increase the exemption to 1,000 kilograms per month.⁴¹ EPA justified the loophole on the grounds that there are approximately 760,000 generators and that its resources are too limited to regulate such an enormous number.⁴² By exempting the small generators, EPA claims to be better able to focus, at least initially, on regulating the large generators. Moreover, the Agency claims, although the 695,000 generators falling within this exemption represent 91 percent of all generators, they produce only one percent of the total waste.⁴³ Additionally, EPA promises to phase the general exemption back to 100 kilograms per month within the next three to five years.⁴⁴ In addition, EPA has lowered the exemption for specific acutely hazardous wastes to between one kilogram and 100 kilograms monthly, depending on the substance.⁴⁵

Several commenters on the proposed regulations encouraged EPA to exempt generators not according to the amount but rather by the degree of the hazard of the waste.⁴⁶ Others suggested that EPA determine the level for each waste below which it does not prove a health or environmental risk if mismanaged.⁴⁷ In response to these comments, the Agency explained that it did not have the knowledge to make precise determinations of de minimis levels. In addition, the Agency felt unable to establish a degree-of-hazard system because it is unwilling to make the largely subjective risk/benefit determinations that would be required.⁴⁸ Yet there are actually very few aspects of the Agency's approach to implementing RCRA that are free of the so-called "subjective determinations"

EPA initially proposed to exempt from the Subtitle C program wastes that were intended for reuse, recycling, or reclaiming unless the wastes were likely to pose "significant health and environmental hazards." Many commenters argued that EPA must include all hazardous wastes in the management system in order to make it workable.Other commenters suggested, however, that the regulation of hazardous wastes that are intended for reuse would discourage recycling by making it prohibitively expensive and would thus thwart EPA's objective of resource recovery.⁴⁹

In light of all the comments challenging its approach to the recycling of hazardous waste, the Agency has decided to reevaluate this part of the regulatory program. As a result, the May 19 issuance contains neither final nor reproposed recycling standards. It contains instead of promise [10 ELR 10133] that the standards will be issued later this year.⁵⁰ EPA defends this postponement by pleading the need to decide "more pressing" issues.

Although the Agency postponed publication of reuse regulations, it did take the time in the preamble to discuss the issue in some detail and solicited further comment on how to shape the final standards.One point of note is the Agency's determined rejection of the argument that the recycling regulations, when they do eventually come out, will make reuse of resources prohibitively expensive. Rather, EPA noted, the rise in the disposal costs expected as a side effect of these regulations will make recycling of hazardous waste "profitable or more profitable."⁵¹

Standards for Generators and Transporters

Generators of waste deemed hazardous must, as a first step, notify EPA and receive an identification number from the Agency.⁵² Should the generator choose to send the waste off-site for storage, treatment, or disposal, it must prepare a manifest form that will accompany the waste from "cradle-to-grave." The manifest contains information identifying the nature and the quantity of the waste as well as the generator. The regulation also requires that the waste be packaged and labeled in accordance with the Department of Transportation's hazardous materials regulations.⁵³ Wastes kept on-site are not subject to the manifest requirement but must be handled in accordance with other standards.⁵⁴

The manifest system is one of the key components in EPA's regulatory program. It is designed to prevent any dumping or loss of wastes during the crucia stage when they are at large in the environment. The manifest system also serves to delineate lines of accountability among the participants in the process.

Each person in the chain of custody of the waste, principally generators, transporters, and owners/operators of storage, treatment, or disposal facilities, must sign and keep one copy of the manifest. In addition, facility owners/operators at the end of the chain must send a copy of the manifest back to the generator. If the generator does not receive this copy within 45 days, it must attempt to trace the shipment and notify EPA in an "exception report."

Transporters are subject to a separate set of regulatory requirements.⁵⁵ They must also obtain an EPA identification number, comply with the manifest system in delivering all designated waste to the facility, and follow the Department of Transportation's requirements for reporting spills of hazardous materials.⁵⁶

Although the generator and transporter regulations did not arouse controversy, the Agency did make several significant changes from the proposed version. Rather than allowing a generator to designate on the manifest any number of facilities to receive the waste, as was originally proposed,⁵⁷ the final regulations require that the generator designate only one permitted facility and one alternative.⁵⁸ EPA justified the change, which greatly tightens the controls on the waste shipments, on the basis of congressional intent to encourage generators to take responsibility for the ultimate disposition of their wastes and not simply pass the buck to transporters. This revision limits the discretion of the transporter and makes clear the duty of the generator to choose and be answerable to EPA for the disposal site of the waste.

Second, the requirement that the generator file an exception report each time that a manifest is not returned within 45 days⁵⁹ represents a significant tightening of the proposed requirement that generators file a quarterly report of shipping manifests that have not been returned.⁶⁰ Third and perhaps most significant, in response to a number of comments citing the potentially high cost of requiring a generator to conduct tests to determine whether the wastes are hazardous, the final regulations permit a generator to apply his "knowledge" of any waste not on EPA's master list to ascertain whether it is hazardous.⁶¹

A generator's belief that waste is hazardous or nonhazardous must be based on "an objective review of the materials and processes involved in the generation of the waste."⁶² Although many commenters lamented the size of the loophole, EPA's view is that a generator's knowledge of the waste was obtained through applying EPA's prescribed tests for characteristics to similar waste in the past. By relying on previous experience with the characteristics of a given waste, EPA feels that the generator is identifying the waste essentially in accordance with RCRA.⁶³ But if EPA challenges such a determination, the generator bears the burden of testing the challenged waste.

The only visible opening in the otherwise closed-loop cradle-to-grave regulatory program concerns international shipments of hazardous wastes.⁶⁴ Generators who ship hazardous waste abroad must still prepare a manifest identifying the transporter and designating main and alternate disposal sites, but there can be no tracking of the waste beyond United States borders. Two amendments to the proposed international shipment requirements endeavor to tighten EPA's control over these shipments. The first requires that the generator notify EPA four weeks prior to the shipment so that the Agency can notify the foreign government; the second directs the foreign [10 ELR 10134] consignee to notify the generator within 90 days of receipt of the waste. In part because of the potential for abuse, however, an interagency task force is considering whether the United States should ban certain shipments abroad of hazardous waste or place additional safeguards on such exports.⁶⁵

Standards for Facility Owners/Operators

In December 1978, EPA proposed detailed national standards governing hazardous waste storage, treatment, and disposal facilities.⁶⁶ The proposed regulations called for extensive controls upon site location, design, operation, monitoring, security, closure, post-closure care, and owner/operator financial responsibility. The Agency received many comments on the proposal not only raising technical questions for which EPA lacked sufficient data to respond but generally highlighting the absence of a solid scientific foundation for the requirements. Knowing that this information shortage would continue for many years yet feeling the urgency of its statutory mandate as well as court-imposed pressure to provide facility management standards, EPA devised a plan for issuing standards piecemeal.

Phase I of the facility standards sets out a limited number of nontechnical administrative requirements and "good housekeeping practices" for storage, treatment, and disposal facilities. These standards have been promulgated at two places within the regulations and have two functions. First, those appearing at Part 264 of 40 C.F.R.⁶⁷ will be used by EPA and appropriate state agencies as the basis for issuing facility permits.At present, though, the Agency considers itself technically unprepared to issue the full range of standards necessary for this purpose and is in a sense storing the Phase I standards there. Until Part 264 has been fleshed out and enters into the permit issuing process, the standards it contains have no legal significance.

In Part 265,⁶⁸ however, EPA has also promulgated, in the form of "interim status" requirements, standards identical to the Phase I standards. These requirements, which are self-executing and thus need not beincluded in a permit to be enforceable, apply immediately to all facilities that have applied for a permit and are awaiting EPA action. In addition to the standards in Part 264, the interim status standards in Part 265 include certain other requirements, such as ground water monitoring, that are expected to improve facility management substantially at only modest cost to owners/operators. They are intended to give the owners/operators enough guidance to improve their management of hazardous waste during the period after they have applied for a permit and until they receive their final permit.

Later this year EPA will issue Phase II regulations under Part 264, which will provide further specific technical performance standards to enable either EPA or the state permit writers to use them in granting or denying permit applications. These regulations will set standards for specific types of facilities, industries, and wastes that require special management standards. Phase III of these regulations, as they are issued over the next few years, will be based upon the resolution of the most complex technical issues of hazardous waste management. They will require revision of some of the Phase II standards and possibly effect improvements in the permitting process itself.

Interim Status

In order to receive wastes legally, a facility must either be permitted or attain interim status. To qualify for interim status, a facility must meet the following requirements of § 3005(e) of the Act: it must be in existence on the date of the enactment of RCRA⁶⁹ and the owner/operator must have notified EPA of its existence within 90 days of the promulgation of the § 3001 regulations and have applied for a permit. A facility having so qualified keeps its interim status from the date it applies for a permit until EPA or a qualified state agency takes final administrative action on its permit application.⁷⁰

Although § 3005(e) clearly provides for the establishment of interim status, many commenters protested that RCRA does not give EPA the authority to set standards with which facilities must comply during the interim period. EPA's response is that given the magnitude of its obligation to generate the Phase II and III regulation and then issue some 26,000 permits, the interim status period will extend for several years. The Agency feels that it was the intent of Congress in RCRA to regulate hazardous waste through some degree of national standards as quickly as possible.⁷¹

In choosing the interim status standards EPA favored those for which compliance could be attained (1) without substantial interpretation or negotiation, (2) without undue cost, and (3) within the six months after the promulgation of the regulations.⁷² Although the standards that resulted form only a bare outline of the final standards, they fill a regulatory void with vitalcontrols on waste management.

Ground-Water and Leachate Monitoring

EPA has made several changes from the proposed interim status regulations concerning ground-water monitoring at facilities.⁷³ In the initial proposal, the Agency called for both ground-water and leachate monitoring at landfills and surface impoundments where one or both of [10 ELR 10135] these systems were already in place.⁷⁴ In the final interim status regulations, EPA decided to require leachate monitoring only at land treatment facilities and to require ground-water monitoring at all facilities where hazardous waste is placed in or on the ground. EPA deleted the requirement for leachate monitoring at landfills and surface impoundments because the installation of such systems within six months would be technologically infeasible. EPA has not totally abandoned the idea, however, and is attempting to solve the technological problems in time to require leachate monitoring during Phases II and III.⁷⁵

Financial Requirements

The interim standards for facilities require each permit applicant to submit a plan for eventually closing the facility and providing post-closure security and monitoring over a number of years, including an estimate of the cost.⁷⁶ Many other financial requirements that were proposed originally in December 1978 were reproposed on May 19 to provide an opportunity for public comment on extensive changes from the earlier proposal.

Among the December 1978 provisions that was significantly altered in May was the requirement that owners and operators provide post-closure care for 20 years.⁷⁷ Some commenters objected that 20 years was too long to require monitoring and too economically burdensome, especially, they argued, in light of the fact that only a few wastes remain hazardous for more than a few years. EPA, however, sided with those commenters who held that the hazard posed by many wastes exists for an extremely long time⁷⁸ and extended the period for monitoring to 30 years.⁷⁹ Case-by-case determinations on the final permits, however, may allow for shorter, as well as longer, periods of post-closure care. Furthermore, permittees would be required to submit revised cost estimates to reflect changes in the original closing and post-closure monitoring plans.

In December 1978 EPA proposed a fairly exacting post-closure financial responsibility standard that it expected to issue in final form in May. Industry commenters blasted the proposal and counter-proposed a variety of alternative financing mechanisms.Because of the complexity of the matter, the Agency decided not to issue this part of the regulations in final form but instead to take another round of comments on a new set of proposals.

In essence, the 1978 proposal required the creation of a prepaid trust fund to assure availability of closure funds as well as a second trust fund to be built up over the expected life of the facility or 20 years, whichever is shorter, to provide funds for post-closure monitoring.⁸⁰ The May 19 reproposal of these regulations expanded the options for financial guarantees by allowing the use of surety bonds, letters of credit, tests of individual net worth, and a revenue test for municipalities. State and federal owners or operators are exempt from the financial requirements.⁸¹ An additional change in the reproposed regulations would allow the facility owner/operator to reduce the guarantees on an incremental basis as each individual step of the closure is completed. The earlier proposal required the trusts to be maintained in full until the entire closure process in completed. One weakness of the proposed financial requirements is the extent to which they rely on the cost estimates prepared by the owner or operator. Because the size of the trust funds and other guarantees are based on these estimates, owners or operators might be led to underestimate these figures in order to reduce the cost of establishing the guarantees.

The financial responsibility requirements could well be the most costly portion of the Subtitle C program. Although EPA has restructured the requirements to lighten the burden, the Agency recognizes that many owners and operators of facilities may still be unable to cover these expenses. Indeed, it is likely that the financial requirements will drive some facilities out of business. Further leniency might nevertheless be unwise as many of the recent hazardous waste crises have resulted from inadequate closure plans and a failure to monitor the site after closure, often due in part to a lack of funds.

State Programs

Congress' clear intent in RCRA was for the states to at least have an opportunity to assume responsibility for managing hazardous waste. Section 3006 of the Act provides for EPA-authorized state programs and Part 123 of the Agency's consolidated permitting regulations⁸² implement that section by outlining minimum requirements for state programs in order to obtain EPA authorization to manage hazardous waste in lieu of the federal program.

The state program requirements are similar to elements of the federal program. To receive interim authorization from EPA, a state must have hazardous waste management legislation in place within 90 days after promulgation of the federal regulations, and it must establish a program that is "substantially equivalent" to the federal program. The term "substantially equivalent" means that a state program must (1) control a nearly identical universe of wastes, (2) regulate the same types of facilities, (3) set standards that protect health and the environment to the same extent, and (4) be administered through procedures equivalent to those used in the federal program. In an effort to speed state entry into the system, EPA will allow a state to operate an interim, Phase I program even if it covers only the identification of wastes [10 ELR 10136] and standards for storage, treatment, and disposal facilities, provided that the state plan "delineates the steps necessary" to extend the program to cover generators and transporters.⁸³ Until the state establishes a manifest system, the applicable federal regulations will control.

Interim authorization, which becomes effective six months after promulgation of the federal regulation, will last for two years. After EPA promulgates final Phase II standards for owners/operators of facilities in the fall, states may expand their interim authorization to include the Phase II standards in their programs. The interim state programs, like the interim federal program, may rely on self-executing standards rather than permits.

States may receive final authorization any time after the promulgation of the Phase I requirements if the state program is "equivalent to" the federal program, "consistent with the federal or state programs applicable to other states," and adequately enforceable. The task of evaluating state programs will not begin until after EPA's issuance of the Phase II, Part 264 permitting standards in the fall. In addition, EPA has recently issued general guidance to states that fail to qualify for interim authorization on how to establish cooperative agreements with EPA through which the states will be eligible to receive federal funds under § 3011 to set up final programs. Such funds are available only for the interim authorization period, however. If a state program fails to meet the requirements for receiving final authorization, EPA will instead administer the federal program in the state.⁸⁴

Conclusion

Although EPA's hazardous waste management regulations came out four years after the enactment of the statute and two years late, they are nevertheless a credit to the Agency. The proposed rules issued in 1978 were well thought out in most respects, and in those areas that drew fire from the commenters, EPA fielded in criticism deftly and objectively. On balance, most of the changes favored industry, but many of the detailed amendments to the regulations rendered the program stronger. A case in point is the changes to the proposed financial resonsibility requirements, which added an element of flexibility but left the requirements stringent enough to be protective. It also appears that EPA has rethought its position on the reuse/recycling exemption from the manifest system and will take care to prevent it from becoming a major hole in the fabric of the program.

EPA's program suffered from the lack of long-term data on management of hazardous waste. It was for this reason forced to adopt a phased approach to the facility standards to provide for the implementation of new storage, treatment, and disposal techniques as soon as they are developed. In addition, EPA is to be applauded for insisting on interim status standards during the period after a facility owner/operator has applied for an application and before final administrative action has been taken on it. Had the Agency capitulated to the critics who challenged its authority to set interim standards, the actual control of hazardous waste in the United States would still be several years off.

Not all of the Agency's responses are praiseworthy, however. The Agency's anxiety over its limited staff and resources has weakened the program in some ways. For instance, the adoption of a small generator exemption is largely the result of an inability to handle the paperwork that would arise without such an exemption. The postponement of the regulations governing recycling of waste is also due to staff shortages.

An evaluation of the new RCRA regulations, while necessarily somewhat premature at this, point, requires recognition of two key circumstances. First, the Act thrust the Agency into an area where the scope of the problem was unknown, the scientific issues largely underfined, administrative pitfalls uncharted, and the difficulties of industry compliance a matter of speculation. Second, in the 1980s the winds of the regulatory climate blow hostile. Given these conditions, the new regulations highlight the Agency's well-honed regulatory prowess. Further, they represent a crucial and effective first step in coming to grips with the nation's hazardous waste dilemma.

1. 45 Fed. Reg. 33066 (May 19, 1980), ELR STAT. & REG. 47301 (to be codified at 40 C.F.R. pts. 260-265).

2. 42 U.S.C. §§ 6921-6931, ELR STAT. & REG. 41907-09.

3. 45 Fed. Reg. 12722 (Feb. 26, 1980).

4. 45 Fed. Reg. 33290 (May 19, 1980), ELR STAT. & REG. 46408 (to be codified at 40 C.F.R. pts. 122-124).

5. ENVIRONMENTAL PROTECTION AGENCY, EVERYBODY'S PROBLEM: HAZARDOUS WASTE 1, SW-826 (1980).

6. Id. at 15.

7. 42 U.S.C. §§ 6901-6987, ELR STAT. & REG. 41901-21.

8. 42 U.S.C. §§ 6921-6931, ELR STAT. & REG. 41907-09.

9. One factor hindering the promulgation of final regulations to which EPA refers throughout the preambles to the regulations is the small staff that the Agency has to work on the regulations. In addition, it appears that, for a period after RCRA was enacted, EPA chose to make the hazardous waste regulations a low priority while it devoted most of its resources to implementing and enforcing air and water pollution control laws.

10. See Illinois v. Costle, 9 ELR 20243 (D.D.C. Jan. 3, 1979).

11. 43 Fed. Reg. 58946 (Dec. 18, 1978). See Comment, The Hazardous Waste Crisis: EPA Struggles to Implement RCRA; Amendments Needed, 9 ELR 10060 (1979).

12. 42 U.S.C. § 6921, ELR STAT. & REG. 41907.

13. 42 U.S.C. § 6923, ELR STAT. & REG. 41907.

14. 42 U.S.C. § 6924, ELR STAT. & REG. 41907.

15. 42 U.S.C. § 6925, ELR STAT. & REG. 41908.

16. 42 U.S.C. § 6926, ELR STAT. & REG. 41908.

17. 45 Fed. Reg. 12722 (Feb. 26, 1980).

18. 45 Fed. Reg. 33119 (May 19, 1980).

19. 45 Fed. Reg. 33232 (May 19, 1980).

20. See 45 Fed. Reg. 33160 (May 19, 1980).

21. 45 Fed. Reg. 33260 (May 19, 1980).

22. 42 U.S.C. § 6903(5)(A)(6), ELR STAT. & REG. 41902-03.

23. See 45 Fed. Reg. 33105 (May 19, 1980).

24. See SUBCOMM. ON OVERSIGHT OF GOVERNMENTAL MANAGEMENT OF THE SENATE COMM. ON GOVERNMENTAL AFFAIRS, 96TH CONG., 2D SESS., HEARING, HAZARDOUS WASTE MANAGEMENT AND THE IMPLEMENTATION OF THE RESOURCE CONSERVATION AND RECOVERY ACT 5 (Comm. Print 1980).

25. 45 Fed. Reg. 33121 (May 19, 1980), ELR STAT. & REG. 47324 (to be codified at 40 C.F.R. § 261.10).

26. See discussion in preamble, 45 Fed. Reg. 33110-12 (May 19, 1980).

27. 43 Fed. Reg. at 58956 (Dec. 18, 1978).

28. See discussion in preamble, 45 Fed. Reg. 33110-12 and 45 Fed. Reg. 33122 (May 19, 1980), ELR STAT. & REG. 47325 (to be codified at 40 C.F.R. § 261.24).

29. See discussion in preamble, 45 Fed. Reg. at 33111-12 (May 19, 1980).

30. Safe Drinking Water Act § 1412, 42 U.S.C. § 300g-1(a)(2), ELR STAT. & REG. 41103.

31. 42 U.S.C. § 6902, ELR STAT. & REG. 41902.

32. 43 Fed. Reg. 58995 (Dec. 18, 1978).

33. See 45 Fed. Reg. at 33106 (May 19, 1980).

34. 45 Fed. Reg. 33121 (May 19, 1980), ELR STAT. & REG. 47324 (to be codified at 40 C.F.R. § 261.11(a)(2)).

35. EPA expects that most waste will fall within this category See 45 Fed. Reg. at 33107 (May 19, 1980).

36. The list of hazardous waste constituents is published in Appendix VII, 45 Fed. Reg. 33132 (May 19, 1980) (to be codified at 40 C.F.R. Appendix VII).

37. Significantly, the regulations leave EPA with discretion not to list a waste despite the fact that it contains a toxic constituent. If, after evaluating the type of threat posed by the waste, the concentration of the toxic constituent in the waste, its potential to migrate, its persistence and potential for degradation, its tendency to bioaccumulate in the ecosystem, the types of mismanagement to which it could be subjected, and quantity generated, EPA may decide that the waste does not pose a health or environmental threat. This approach provides the Agency with flexibility to "accommodate itself to complex determinations of hazard." 45 Fed. Reg. at 33107 (May 19, 1980).

38. Comments of the Environmental Defense Fund on the Environmental Protection Agency's Proposed Regulations Implementing Sections 3001, 3002 and 3004 of the Resource Conservation and Recovery Act at 6 (May 16, 1979) (hereinafter EDF's Comments). The weakness in the listing mechanism, as EDF pointed out in its comments, is that it includes only those wastes for which EPA has constituent information that was gathered from contract studies, damage reports, or other means. This limited approach does not cover the gamut of toxic constituents.

39. 43 Fed. Reg. at 58979 (proposed § 250.29) (Dec. 18, 1978).

40. EDF's Comments at 23.

41. 45 Fed. Reg. at 33120 (May 19, 1980) (to be codified at 40 C.F.R. § 261.5).

42. See 45 Fed. Reg. at 33102 (May 19, 1980).

43. Id.

44. 45 Fed. Reg. at 33103 (May 19, 1980).

45. 45 Fed. Reg. at 33120 (May 19, 1980), ELR STAT. & REG. 47323 (to be codified at 40 C.F.R. § 261.5).

46. See 45 Fed. Reg. at 33103 (May 19, 1980).

47. Id.

48. See 45 Fed. Reg. 33103-04 (May 19, 1980).

49. See 45 Fed. Reg. at 33092 (May 19, 1980).

50. Id.

51. Id.

52. 45 Fed. Reg. 33140 (May 19, 1980), ELR STAT. & REG. 47326 (to be codified at 40 C.F.R. pt. 262).

53. 49 C.F.R. Subtitle C.

54. Such wastes are still subject to the interim requirements for owners/operators of storage, treatment, and disposal facilities. 45 Fed. Reg. at 33280 (May 19, 1980).

55. 45 Fed. Reg. 33150 (May 19, 1980), ELR STAT. & REG. 47331 (to be codified at 40 C.F.R. pt. 263).

56. 49 C.F.R. Subtitle C.

57. 43 Fed. Reg. 58977 (Dec. 18, 1978) (proposed § 250.22).

58. 45 Fed. Reg. at 33143 (May 19, 1980), ELR STAT. & REG. 47330 (to be codified at 40 C.F.R. § 262.20(b) & (c)).

59. 45 Fed. Reg. 12734 (Feb. 26, 1980), ELR STAT. & REG. 47331 (to be codified at 40 C.F.R. § 262.42).

60. 43 Fed. Reg. 58977 (Dec. 18, 1978) (proposed § 250.23).

61. 45 Fed. Reg. 33143 (May 19, 1980), ELR STAT. & REG. 47329 (to be codified at 40 C.F.R. § 262.11(c)(2)).

62. 45 Fed. Reg. at 12727 (Feb. 26, 1980).

63. Id.

64. 45 Fed. Reg. 12734 (Feb. 26, 1980), ELR STAT. & REG. 47331 (to be codified at 40 C.F.R. § 262.50).

65. The task force is composed of representatives of the State Department, the Commerce Department, the Council on Environmental Quality, and EPA. For further discussion of the export issue, see Rodgers, RCRA Regs: Enforcing EPA's Most Pervasive Statute, Legal Times of Washington, May 12, 1980, at 28.

66. 43 Fed. Reg. 58994-59022 (Dec. 18, 1978) (proposed subpart D).

67. 45 Fed. Reg. 33221 (May 19, 1980), ELR STAT. & REG. 47335 (to be codified at 40 C.F.R. pt. 264).

68. 45 Fed. Reg. 33232 (May 19, 1980), ELR STAT. & REG. 47349 (to be codified at 40 C.F.R. pt. 265).

69. This is the so-called "grandfather" clause of the Act. Legislation currently pending in Congress would push back the deadline by several years. See S. 1156 and H.R. 3994, 96th Cong., 1st Sess. (1979).

70. 45 Fed. Reg. 33233 (May 19, 1980), ELR STAT. & REG. 47350 (to be codified at 40 C.F.R. § 265.1(b)).

71. See 45 Fed. Reg. 33158-60 (May 19, 1980).

72. See 45 Fed. Reg. at 33159 (May 19, 1980).

73. The ground-water monitoring requirement is part of the general directive in RCRA § 3004, 42 U.S.C. § 6924, for facility standards.

74. 43 Fed. Reg. 59005 (Dec. 18, 1978) (proposed § 250.43-8).

75. See 45 Fed. Reg. at 33191 (May 19, 1980).

76. The interim status standards set minimum requirements for the closure plan, including the steps necessary to close and decontaminate the site, an inventory of the maximum average amount of wastes in storage or treatment during the life of the facility, and a closure schedule. This plan can be amended at any time during the life of the facility. See 45 Fed. Reg. 33242-43 (May 19, 1980), ELR STAT. & REG. 47359-60 (to be codified at 40 C.F.R. §§ 265.110-265.120).

77. 43 Fed. Reg. at 59006 (Dec. 18, 1978) (proposed § 250.43-9).

78. See 45 Fed. Reg. 33261-65 (May 19, 1980).

79. 45 Fed. Reg. 33243 (May 19, 1980), ELR STAT. & REG. 47360 (to be codified at 40 C.F.R. § 265.117).

80. 43 Fed. Reg. 59006 (Dec. 18, 1978) (proposed § 250.43-9).

81. 45 Fed. Reg. 33265-74 (May 19, 1980).

82. 45 Fed. Reg. 33290-33588 (May 19, 1980), ELR STAT. & REG. 46401-46494:13 (to be codified at 40 C.F.R. pts. 122-125). For a discussion of this new EPA program, see Comment, EPA's Consolidated Permitting Regulations: Miracle or Mirage?, 10 ELR 10092 (May 1980).

83. 45 Fed. Reg. at 33482 (May 19, 1980), ELR STAT. & REG. 46475 (to be codified at 40 C.F.R. § 123.128(d)).

84. 45 Fed. Reg. at 33484 (May 19, 1980), ELR STAT. & REG. 46478 (to be codified at 40 C.F.R. § 123.137(a)).