21 ELR 10254 | Environmental Law Reporter | copyright © 1991 | All rights reserved

An Overview of RCRA: The "Mind-Numbing" Provisions of the Most Complicated Environmental Statute

Editors' Summary: This Article opens with a brief discussion of RCRA's passage and implementation; it then discusses EPA's rules for determining whether a material is a solid waste and a hazardous waste. The Article then outlines the requirements for generators and transporters of hazardous waste. The standards applicable to facilities that treat, store, or dispose of hazardous waste (TSDFs), including the specific rules and regulations for the land disposal of hazardous wastes, are also discussed, as are the standards and procedures for obtaining a TSDF permit under subtitle C. The subtitle C analysis ends with an explanation of the role of state hazardous waste programs in the subtitle C regime and the provisions for federal and private enforcement of the hazardous waste regulations.

The Article next discusses the basic requirements for disposal of nonhazardous solid waste under RCRA's subtitle D, and then outlines the newly implemented program for control of underground tanks storing oil or hazardous substances pursuant to RCRA's subtitle I. The Article concludes with predictions concerning RCRA's reauthorization, which is expected in the 1991-92 legislative session.

Mr. Hill is an attorney and adviser in the Office of General Counsel of the U.S. Environmental Protection Agency. Mr. Hill holds a J.D. and an M.P.P. from the University of California at Berkeley, and a B.A. from the University of California at San Diego. Mr Hill would like to thank Christina Kaneen, Caroline Wehling, Jon Averback, and Lee Tyner for their helpful comments on earlier drafts. The views expressed in this Article are Mr. Hill's and do not necessarily represent the opinions of EPA or its Office of General Counsel.

[21 ELR 10255]

List of Acronyms

CERCLA — Comprehensive Environmental Response, Compensation, and Liability Act

BDAT — best demonstrated available technology

EPA — Environmental Protection Agency

FWPCA — Federal Water Pollution Control Act

HSWA — Hazardous and Solid Waste Amendments of 1984

LDRs — land disposal restrictions

MSWLFs — municipal solid waste landfills

MTRs — minimum technology requirements

NPDES — national pollutant discharge elimination system

PCBs — polychlorinated biphenyls

POHC — principal organic hazardous constituent

POTWs — publicly owned treatment works

RCRA — Resource Conservation and Recovery Act of 1976

SDWA — Safe Water Drinking Act

SQGs — small-quantity generators

SWMU — solid waste management unit

TCE — trichlorethylene

TSDFs — [facilities that] treat, store, or dispose of hazardous wastes

TCLP — Toxicity Characteristic Leaching Procedure

UIC — underground injection control

UST — underground storage tank

Introduction

The "waste crisis" is upon us. How to minimize the amount of wastes we produce and how to more safely manage the wastes that are unavoidable are among the most significant issues in the environmental policy arena. But developing integrated schemes for responsible waste management will not occur on a blank slate, since the Resource Conservation and Recovery Act of 1976 (RCRA)¹ and later amendments to it have already put in place a detailed, stringent, and frequently confusing scheme for federal regulation of all wastes, and hazardous waste in particular. This Article outlines that scheme.

A federal circuit judge called a walk through RCRA's myriad complicated provisions a "mind-numbing journey."² This Article removes some of that numbness by summarizing both RCRA's key statutory provisions and the Environmental Protection Agency's (EPA's) regulations implementing them.³ The Article is organized in essentially the same order as RCRA is organized. Since subtitle C's provisions are of most concern to practitioners, the Article discusses those provisions in detail.

A Brief History of RCRA's Passage and Implementation

Congress adopted the basic outlines of RCRA in 1976. Included in the Act were the key provisions of subtitle C (i.e., a program for federal regulation of hazardous wastes) and subtitle D (i.e., a separate program for state regulation of other (nonhazardous) wastes pursuant to federal guidelines). Congress instructed EPA to develop regulations within 18 months to put the subtitle C program in place and to set similar deadlines for new criteria under subtitle D.

Despite the congressional mandate, funding for the RCRA program under the Carter Administration was a low priority.⁴ As a result, EPA failed to meet the initial statutory deadlines for promulgating regulations under both subtitles C⁵ and D.⁶ EPA's failure to promulgate timely subtitle C regulations led to a citizens suit to compel their issuance.⁷ The Agency eventually issued the subtitle C regulations in three phases pursuant to court order: February 1980,⁸ May 1980,⁹ and July 1982.¹⁰ The subtitle D regulations were issued in 1979.¹¹

Soon after the first subtitle C regulations were promulgated, the Reagan Administration took office, with its plan for the significant deregulation of U.S. industry.¹² Environmental standards were at the top of the list of the regulations to be relaxed or eliminated. Under the Reagan appointees, EPA continued to delay developing additional subtitle C regulations and failed to develop an adequate enforcement [21 ELR 10256] scheme for the program.¹³ In addition, top EPA officials became embroiled in a huge scandal over alleged mismanagement and political favoritism in their handling of the hazardous waste and Superfund programs.¹⁴ It was no surprise that Congress became dubious of EPA's ability to develop and implement an effective program for regulating hazardous wastes.¹⁵

The Hazardous and Solid Waste Amendments of 1984

The climate created by the Reagan Administration's handling of the hazardous waste program led to Congress' response: the Hazardous and Solid Waste Amendments of 1984 (HSWA, or the 1984 Amendments).¹⁶ HSWA significantly expanded the size, complexity, and detail of subtitle C, and severely curtailed EPA's discretion to implement congressional mandates. HSWA addressed four key congressional concerns with the subtitle C program: delays in regulatory development, loopholes in the regulations, inadequate enforcement, and an unclear direction for overarching hazardous waste policy.¹⁷ HSWA addressed these problems by establishing many overlapping and tight regulatory deadlines and by setting detailed minimum standards to be implemented by EPA through regulations or very stringent standards that would take effect if EPA failed to adopt the required regulations (through use of statutory "hammers," which are tight deadlines for regulatory development).¹⁸ Today, the solid and hazardous waste program focuses almost exclusively on implementing the HSWA requirements.¹⁹ Thus, this Article focuses primarily on HSWA's new statutory and regulatory requirements and their impact on the RCRA regulatory regime.

HSWA represented a turning point in the relationship between Congress and EPA. No longer does Congress rely on the Agency to set regulatory priorities or to exercise a large degree of expert judgment on setting and enforcing requirements. Rather, hammers and limited discretion are likely to characterize environmental legislation for some time to come.

What Is a Solid Waste and What Is a Hazardous Waste?

To determine which hazardous waste provisions apply under RCRA, one must first ascertain whether one has a hazardous waste to manage. Making that determination is one of the most complicated and confusing aspects of the subtitle C program.

The Solid Waste Definition

According to EPA, the first question that the operator of a facility must ask is: "Is the material I handle a solid waste?"²⁰ This simple question has engendered an amazing amount of controversy and litigation. RCRA defines "solid waste" as "any garbage, refuse, sludge from a waste treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities."²¹ It goes on to exclude certain materials from the definition of solid waste.

Regulation of Recycling Activities. The problem that has plagued EPA is defining when a material is "discarded," and therefore a solid waste under RCRA's definition. Originally, EPA defined solid waste as "any garbage, refuse, sludge or any other waste material" not otherwise excluded by statute or regulation.²² The Agency later defined "any other waste material" to include any material that had "served its originally intended use and sometimes is discarded."²³ This language was an attempt to balance the need to regulate all potentially hazardous wastes yet not regulate industrial products or intermediates.²⁴ However, the difficulty in determining whether a material is sometimes discarded forced EPA to develop a more workable scheme.

The Agency promulgated a new solid waste definition in 1985.²⁵ Under the revised definition, "solid waste" is any discarded material not otherwise excluded by regulation or by a variance.²⁶ The regulations go on to define "discarded material" as any material that is "abandoned," "recycled," or "inherently waste-like."²⁷ "Abandoned" materials include those that are disposed of, burned or incinerated, or accumulated, stored, or treated before or in lieu of abandonment, a fairly straightforward definition.²⁸

When one moves to regulation of recycling activities, however, the complications start. The only "recycled" materials that are regulated as solid wastes are those used in a manner that constitutes disposal, burned for energy recovery, reclaimed, or speculatively accumulated.²⁹ Yet, not all types of waste materials are regulated when reclaimed or speculatively accumulated.³⁰ By contrast, "inherently [21 ELR 10257] waste-like" materials also refers to recycled materials, but since these materials are either predominantly abandoned or contain hazardous constituents (particularly dioxins) not normally found in raw materials for which the wastes substitute, they are always regulated regardless of the type of recycling or the material involved.³¹ As a further source of confusion, EPA subjects certain recycled materials and recycling activities to limited requirements, rather than to the full subtitle C regulatory system;³² other recycled materials are subject to all subtitle C requirements.³³ The exemptions in § 261.6 of title 40 of the Code of Federal Regulations further reflect the difficulty EPA has experienced in simultaneously ensuring that (1) regulation of all waste management practices that may pose a threat to human health and the environment are regulated and (2) legitimate recycling and industrial production are not hindered by RCRA.

The issue is more than academic. Hazardous solid wastes are regulated under the very onerous subtitle C requirements;³⁴ but materials that are not solid wastes are not in the subtitle C system at all. Thus, an industrial facility has a great economic incentive to avoid creating any material called a "solid waste."

This issue was brought clearly to the surface in the 1987 decision in American Mining Congress v. EPA³⁵ (AMC I). In AMC I, the American Mining Congress and the American Petroleum Institute challenged EPA's definition of solid waste in the 1985 regulations as improperly subjecting materials that were not discarded or intended for discard to regulation as solid wastes (e.g., vapors or sludges recovered from oil refining and re-refined or metal-bearing dusts recaptured and reinserted into a metal smelter).³⁶ The D.C. Circuit held that to the extent the 1985 definition purported to regulate in-process secondary materials (i.e., industrial process residuals destined for reuse) used in an ongoing industrial process, the definition exceeded congressional intent to regulate only discarded materials.³⁷ The court found Congress' intent to regulate only materials that are disposed of, abandoned, or thrown away to be clear and unambiguous.³⁸ The AMC I decision appeared to be a major blow to EPA's attempts to regulate industrial recycling activities.

EPA interpreted the AMC I court's holding very narrowly. The Agency proposed minor changes to the definition of solid waste to exclude from regulation only recycling activities in which the secondary materials are part of a continuous, ongoing manufacturing process; recycling in which "the recycling activity itself is characterized by discarding as defined by the court" was not to be excluded.³⁹ Thus, if a recycled material is used in a manner constituting disposal, is managed in a land disposal unit (e.g., a surface impoundment) before being reinserted into the industrial process, or is frequently land-disposed on an industrywide basis, EPA proposed to continue to regulate that material as a solid waste.⁴⁰

EPA's narrow reading was effectively ratified by the D.C. Circuit in 1990. In American Petroleum Institute v. EPA⁴¹ (API), the court held that EPA had the authority (and the responsibility) to regulate hazardous steel slag dusts that are sent to a metal smelter to reclaim the zinc contained in the dust. EPA had argued that although it could regulate the dusts between the time they left the steel producer and their arrival at the smelter, that pursuant to AMC I, its authority ended when the dusts were inserted into the smelting process, since the smelter constituted a production unit, not a waste management unit.⁴² The court held that EPA's authority was not constrained by AMC I, since the dusts were no longer part of an ongoing manufacturing process and that AMC I could not be read to cut off EPA's authority once the secondary material had become a waste.⁴³ Two weeks later, the D.C. Circuit again limited the reach of AMC I by ruling that EPA could regulate as hazardous various wastewater treatment sludges from primary metal smelters that were frequently resmelted by the industry to obtain additional metals.⁴⁴ The court found that "[n]othing in AMC [I] prevents the agency from treating as 'discarded' … wastes … which are managed in land disposal units that are part of wastewater treatment systems, which have therefore become 'part of the waste disposal problem,' and which are not part of ongoing industrial processes."⁴⁵ The fairest reading of API and AMC II is that the court has overruled AMC I sub silentio, in that EPA's authority to regulate all the recycled materials it ever intended to regulate in 1985 has been strongly ratified. Practitioners should therefore consider the 1985 solid waste definition as fully in effect.⁴⁶

Exclusions. As stated in the previous section, certain materials that would otherwise be solid wastes are excluded from regulation by statute or by EPA exemption. RCRA exempts four types of materials, three of which are regulated under other statutes: (1) solid or dissolved materials in domestic sewage (which are subject to requirements of § 307 of the Federal Water Pollution Control Act (FWPCA)⁴⁷ ), (2) solid or dissolved materials in irrigation return flows, (3) wastewater discharges subject to permitting under § 402 of the FWPCA,⁴⁸ and (4) source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954.⁴⁹ As for domestic sewage, EPA also exempts indus- [21 ELR 10258] trial wastes that are discharged through a sewer system to a publicly owned treatment works (POTW) to be treated and mixed with domestic sewage (which is defined as "untreated sanitary wastes").⁵⁰ EPA has made it clear that an industrial facility cannot take advantage of the domestic sewage exemption simply by flushing sanitary wastes from the plant into the waste lines; there must be domestic sewage (i.e., sanitary wastes from residential sources) in the system.⁵¹ EPA also exempts, by regulation, wastes from in situ mining activities,⁵² and certain recycled materials.⁵³

The Hazardous Waste Definition

Once the operator of a facility determines that his facility is managing a solid waste, he must then ask "[i]s the solid waste I handle a hazardous waste?"⁵⁴ Again, the question is simple; but the answer can be complicated. EPA defines hazardous wastes using two different methods: the waste is hazardous either because it exhibits a "characteristic" of hazardous waste or because the Agency has specifically designated it (i.e., "listed" the waste) as hazardous by rulemaking. In addition, certain wastes that would otherwise be regulated as hazardous are exempt by statute or by regulation.

EPA's dual method of determining whether solid wastes are hazardous originates in the statutory language of RCRA. In adopting subtitle C, Congress instructed EPA to undertake two tasks. First, it ordered EPA to "develop and promulgate criteria for identifying the characteristics of hazardous waste, and for listing hazardous waste, … taking into account toxicity, persistence, and degradability in nature, potential for accumulation in tissue, and other related factors, such as flammability, corrosiveness, and other hazardous characteristics."⁵⁵ Congress then instructed EPA "[to] promulgate regulations [based on the criteria developed] identifying the characteristics of hazardous waste, and listing particular hazardous wastes (within the meaning of § 1004(5) [of RCRA]),⁵⁶ which shall be subject to [subtitle C]."⁵⁷ In its 1980 regulations, EPA adopted criteria both for determining hazardous characteristics⁵⁸ and for listing wastes as hazardous.⁵⁹

Characteristic Wastes. "Characteristic" wastes are wastes that are hazardous because their inherent properties satisfy one or more tests developed by EPA for evaluating solid wastes. There are four such "tests" for determining whether a solid waste exhibits a characteristic: ignitability, corrosivity, reactivity, and toxicity.⁶⁰ Ignitable wastes are essentially any liquid wastes with a flash point less than 60 degrees centigrade (140 degrees fahrenheit) or nonliquid wastes that are capable of ignition at standard temperature and pressure.⁶¹ Corrosive wastes are liquid or aqueous wastes with a pH of less than 2 or greater than 12.5 or that can corrode steel at a rate faster than specified by EPA regulation.⁶² Reactive wastes are wastes that are qualitatively unstable (i.e., could explode or release toxic gas) under normal conditions.

Most characteristic wastes are hazardous due to toxicity, and EPA specifies a detailed procedure for determining whether a waste exhibits the toxicity characteristic.⁶³ If the waste is a nonliquid, it is subjected to a leaching procedure that extracts the toxic constituents from a sample of the waste. The concentration of toxic constituents in the leachate (or for liquids, in the liquid itself) is then compared to established regulatory levels set by EPA. If the waste extract concentrations exceed the regulatory levels, the waste is hazardous.⁶⁴ The test is designed to model the leaching that would occur if the waste were disposed of in a RCRA subtitle D municipal landfill (one would expect that, unregulated, a facility will dispose of its wastes as cheaply as possible).⁶⁵

When EPA first promulgated its hazardous waste regulations, its toxicity characteristic was limited to eight specified heavy metals andsix pesticide products. However, the list of toxic constituents in EPA's hazardous waste regulations contained in Appendix VIII to Title 40, part 261, of the Code of Federal Regulations, numbers well over 200, and includes several key toxic organic substances such as benzene or trichlorethylene (TCE). A waste containing these constituents had to either be listed as a hazardous waste or exhibit one of the other characteristics to be regulated,⁶⁶ because EPA's extraction procedure toxicity (EP toxicity) test did not measure for them.⁶⁷

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In response to congressional mandate,⁶⁸ EPA recently revised the toxicity characteristic to adopt a test procedure that can account for toxic organic constituents and added 25 new organic and other constituents to the list of constituents subject to the toxicity characteristic, including benzene, TCE, chloroform, and vinyl chloride.⁶⁹ EPA has predicted that this rule will greatly increase the size of the subtitle C program and that an additional 730 million metric tons per year of wastewaters and between 0.8 and 1.8 million metric tons of waste solids or sludges will now be classified as hazardous under the new toxicity characteristic.⁷⁰ As many as 15,000 new generators of hazardous waste could be added to the subtitle C system, and up to 250 new TSDFs could obtain interim status, and later, a RCRA permit.⁷¹

Listed Wastes. Basis For and Types of Listed Wastes. A solid waste may also be treated as hazardous if EPA, by rule, places it on one of four "lists" of hazardous wastes. By its own regulations, EPA has established three independent criteria for deciding whether to list a waste: (1) the waste exhibits one of the four characteristics (i.e., ignitability, corrosivity, reactivity, or toxicity);⁷² (2) the waste is acutely hazardous (i.e., shown to be fatal in low doses to humans or in animal studies);⁷³ or (3) the waste contains one or more of the RCRA "Appendix VIII" constituents and poses "a substantial present or potential hazard to humanhealth and the environment when improperly … managed."⁷⁴

As noted above, EPA divides its hazardous waste listings into four categories. The first are spent chemicals, wastes, and by-products generated in a variety of industrial sectors (i.e., "nonspecific source wastes," or the "F-listed wastes")⁷⁵ The "K-listed," or "specific source," wastes are primarily sludges and by-products generated by a single industrial sector.⁷⁶ Finally, EPA lists two categories of off-specification commercial chemical products and pesticides or their residues as hazardous wastes when discarded (or accidentally spilled) (i.e., the "P" or "U" wastes).⁷⁷ As of December 1990, there are 23 different F-listed wastes, including five categories of spent solvents, almost 100 different K-listed wastes, and over 250 P or U wastes.

EPA promulgated most of the hazardous waste listings as part of its original 1980 RCRA regulations.⁷⁸ In 1984, Congress ordered the Agency to list within no more than one year after the statute's passage, any additional dioxin-containing wastes⁷⁹ and, within 15 months, to determine whether to list 17 other specific wastes or classes of wastes as hazardous.⁸⁰

Mixture/Derived-From Rules and Delistings. The key difference between characteristic and listed wastes is the effect of the so-called mixture and derived-from rules. A waste that is not listed is hazardous only as long as it exhibits the characteristic. If a characteristic waste is mixed with another solid waste or treated in a way that the mixture or treatment residual is noncharacteristic, the waste may then be managed (i.e., transported, further treated, stored, or disposed of) as a nonhazardous solid waste.⁸¹ By contrast, EPA's basic rule for listed wastes is: once hazardous, always hazardous. In other words, a listed waste, once generated, retains its classification as a RCRA hazardous waste regardless of what is done to it, including mixing it with nonhazardous wastes or treating it. Indeed, if one mixes a listed waste with other solid wastes, EPA's mixture rule states that the entire mixture is a listed hazardous waste.⁸² In addition, residuals derived from treatment of a listed hazardous waste remain listed hazardous wastes.⁸³ Most importantly, the mixture and derived-from rules operate regardless of whether the mixing or treatment eliminates the properties (in that particular batch) that originally caused EPA to list the waste.⁸⁴

The only way a facility can avoid the mixture or derived-from rules is to obtain a "delisting" from EPA. A delisting is a special rulemaking whereby a facility petitions EPA to exclude a listed waste (or a mixture/treatment residual of a listed waste) from hazardous waste regulation at that facility.⁸⁵ To obtain a delisting, the facility must show (1) that the facility's particular waste does not meet any of $=P9991*10260the § 261.11(a)(3) criteria (typically, that it does not contain Appendix VIII constituents at levels of regulatory concern)⁸⁶ and (2) that the waste does not contain other Appendix VIII constituents or exhibit other factors that would cause EPA to conclude that the waste should remain listed.⁸⁷ EPA must conduct a notice and comment rulemaking procedure before it can delist a waste,⁸⁸ which makes the delisting process long and expensive for the regulated community.

EPA also regulates mixtures of hazardous wastes and nonwaste environmental media (e.g., groundwater or soils). EPA's "contained-in" policy states that a sample of such nonwaste media that "contains" a listed hazardous waste is itself a listed waste until the listed waste is removed from the nonwaste material (i.e., the soil or groundwater is decontaminated).⁸⁹ EPA further asserts that new generation of a previously disposed waste will trigger hazardous waste requirements if the regenerated waste fails to have a characteristic or to meet a listing description.⁹⁰ The practical effect of these two rules is that the cleanup of sites where hazardous wastes are disposed of will trigger subtitle C requirements for disposition of those cleanup wastes.

The effect of the mixture, derived-from, and contained-in rules and the difficulty of obtaining a delisting make the EPA hazardous waste listing program a powerful incentive for waste minimization and pollution prevention. (In fact, it may be much cheaper for a facility to change its process to minimize or to avoid generating a listed waste than to walk into the subtitle C system.) They also mean that any proposed hazardous waste listing will be controversial and a likely candidate for litigation.⁹¹

Used Oil Listing and Management. The regulation of used lubricating oils from engine crankcases, industrial machinery, and other equipment has raised particularly difficult issues for EPA and Congress. More than 10 years after the initial promulgation of hazardous waste regulations, EPA has still not decided how best to address used oil in the context of RCRA, particularly RCRA subtitle C.

Originally, EPA proposed to list used automotive crankcase oil as a hazardous waste;⁹² later, however, it decided not to regulate used oil under subtitle C until it completed further studies.⁹³ Congress responded by adding § 3014(a) to RCRA,⁹⁴ instructing EPA to develop regulations to protect "public health and the environment from hazards associated with recycled oil" while ensuring that "such regulations do not discourage the recovery or recycling of used oil."⁹⁵

By the time Congress passed HSWA, EPA had neither issued recycled oil regulations nor decided whether to list used oil as a hazardous waste. Congress amended § 3014 to order EPA to make a final determination whether to list used oil as hazardous within two years of the amendment's passage.⁹⁶ Congress retained the provisions authorizing EPA to develop special management standards for used oil destined for recycling, and added provisions specifically authorizing relaxed standards for generators, transporters, and permitting of used oil recyclers if EPA listed used oil as hazardous.⁹⁷

EPA responded to the HSWA mandate with three separate rulemaking packages. First, the Agency issued interim standards for the burning of used oil for energy recovery in nonindustrial furnaces and boilers.⁹⁸ Second, EPA proposed more complete standards for generation, transportation, and recycling of used oil pursuant to RCRA § 3014.⁹⁹ Finally, EPA proposed to list used oil as a hazardous waste.¹⁰⁰

The following year, EPA decided not to list used recycled oil as a hazardous waste.¹⁰¹ The Agency determined that labeling used oil as hazardous would place a stigma on the handling of used oil, thereby discouraging households from taking it for recycling and recyclers from accepting it because of liability concerns.¹⁰² This decision was overturned, however, by the D.C. Circuit in Hazardous Waste Treatment Council v. EPA.¹⁰³ The court found that the "stigmatizing effects" of listing were not a permissible consideration under RCRA § 3001.¹⁰⁴ The court instructed EPA to reconsider [21 ELR 10261] its decision solely in light of the technical listing criteria in § 3001.¹⁰⁵

So, EPA is back at the drawing board. The Agency plans to make a new final decision whether to list used oil as hazardous by the end of 1991. It also plans to issue at least part of its § 3014 management standards for recycled oil at that time.

Exclusions. Certain solid wastes that might otherwise exhibit a characteristic (or meet a listing description) are excluded from subtitle C regulation by statute or regulation. Two major exemptions are discussed below.

Household Hazardous Wastes. EPA regulations exempt any household wastes from subtitle C regulation.¹⁰⁶ EPA regulations define "household waste" as "any material (including garbage, trash and sanitary wastes in septic tanks) derived from households" and broadly defines "households."¹⁰⁷ Similarly, agricultural wastes used as fertilizers are exempt.¹⁰⁸

Special Wastes. In 1980, Congress exempted five categories of large-volume, relatively low-toxicity wastes (i.e., "special wastes")¹⁰⁹ from hazardous waste regulation pending EPA study of whether regulation would be appropriate.¹¹⁰ EPA has completed the required studies and decided not to regulate oil and gas industry wastes or mineral extraction and beneficiation¹¹¹ wastes under subtitle C.¹¹² EPA has completed the studies of coal combustion wastes¹¹³ and mineral processing wastes,¹¹⁴ but has not yet made a decision on subtitle C regulation; these wastes remain under subtitle D pending the final decision. EPA does not expect to complete the study of cement kiln dust until 1995; therefore, it too, remains exempt.

Generation and Transportation of Hazardous Wastes

If a facility manager determines that he has a hazardous waste, he enters the RCRA subtitle C system. Subtitle C is often described as a "cradle-to-grave" regulatory scheme (i.e., subtitle C regulates the entire life of hazardous waste, from the point of generation to the point of disposal).¹¹⁵ For those who merely create the wastes or transport them for treatment, storage, or disposal, the requirements are straightforward and not burdensome.

Generator Requirements

Basic Standards. RCRA § 3002 instructs EPA to develop regulations applicable to generators of hazardous waste "as may be necessary to protect human health and the environment."¹¹⁶ Those standards are to include recordkeeping on the quantity and disposition of hazardous wastes;¹¹⁷ labeling and container standards for the storage, transport, or disposal of hazardous wastes;¹¹⁸ furnishing of waste characterization information to transporters and TSDFs;¹¹⁹ manifesting requirements;¹²⁰ and biennial submission of data on waste quantities, dispositions, and waste minimization efforts.¹²¹ In addition, since 1984, each generator must certify, on each shipment of hazardous waste, (1) that the generator has a program in place to minimize waste generation as much as economically practicable¹²² and (2) that the proposed method of treatment, storage, or disposal of the waste "minimizes the present and future threat to human health and the environment."¹²³

EPA's regulations match the § 3002 requirements almost directly. EPA first defines a "generator" as "[a]ny person, by site, whose act or process produces hazardous waste identified or listed in part 261 … or whose act first causes hazardous waste to become subject to regulation."¹²⁴ EPA then codifies the statutory requirements in title 40, part 262 of the Code of Federal Regulations.

In codifying the statutory requirements, EPA first requires that a generator must determine whether its solid waste is a hazardous waste under part 261.¹²⁵ In the case of characteristic wastes, EPA does not require the generator specifically to test the waste; rather, the generator may apply its "knowledge of the hazard characteristic of the waste in light of the materials or the processes used."¹²⁶ The generator will be liable for improper transport or disposal if it fails to properly identify a generated waste as hazardous. If the generator determines it has a hazardous waste, it must, if it has not done so already, obtain an EPA hazardous waste identification number.¹²⁷ This number is used on the hazardous [21 ELR 10262] waste manifest to track the waste from its generation to its disposal.¹²⁸

The next set of requirements involve preparing the waste for off-site transport. The generator must, of course, comply with the manifest system requirements.¹²⁹ Most importantly, the generator must designate a facility that is authorized on the manifest to accept the waste for treatment, storage, or disposal.¹³⁰ The generator then signs the manifest, retains a copy, and gives the manifest to the transporter.¹³¹ Each transporter or intermediate storage facility along the way signs the manifest, thereby creating a paper trail of the waste's journey. The generator must also properly package, label, and mark the waste in accordance with Department of Transportation requirements.¹³² A generator is allowed to accumulate and store hazardous wastes on site for up to 90 days before transport without triggering the RCRA storage requirements as long as the wastes are stored in containers or tanks that meet RCRA standards.¹³³

Finally, the generator must comply with certain reporting and recordkeeping requirements.¹³⁴ These include filing a report when a manifest is not returned or does not agree with the generator's original manifest.¹³⁵

Small-Quantity Generator Standards. The standards discussed in the previous section apply only to so-called large-quantity generators. Since 1980, EPA has imposed relaxed requirements on facilities that generate and accumulate small quantities of hazardous wastes (i.e., small-quantity generators, or SQGs). EPA's initial 1980 regulations exempted from all RCRA requirements any generator that generated and accumulated less than 1,000 kilograms of hazardous waste in a calendar month (with lower cutoffs for acutely hazardous wastes or waste mixtures).¹³⁶

In the 1984 Amendments, Congress limited the SQG exemption.¹³⁷ It instructed EPA to develop standards for SQGs that generated more than 100 but less than 1,000 kg/month¹³⁸ and included a specific mandate that such generators participate in the hazardous waste manifest system.¹³⁹ Congress also reminded EPA that its responsibility to protect human health and the environment "may require the promulgation of standards" for the smaller SQGs (i.e., those generating less than 100 kg/month) as well.¹⁴⁰

EPA responded to the 1984 mandate by making virtually all of the part 262 standards applicable to generators of 100-1,000 kg/month of hazardous waste,¹⁴¹ relaxing certain reporting and recordkeeping requirements for these generators.¹⁴² In addition, these generators are allowed to accumulate hazardous wastes for up to 180, rather than 90, days.¹⁴³ SQGs managing less than 100 kg/month are still exempt from RCRA,¹⁴⁴ but they must make the initial determination whether the waste is hazardous¹⁴⁵ and must ensure that disposal will be either on site or to an off-site facility authorized under state law to accept the waste.¹⁴⁶

Transporter Requirements

The requirements for transporters of hazardous wastes from generators or TSDFs to other TSDFs are similar to those for generators. The statute requires that EPA transporter regulations include hazardous waste recordkeeping requirements,¹⁴⁷ standards for the use of proper containers and proper labeling of those containers for storage and transport,¹⁴⁸ requirements to furnish waste characterization information,¹⁴⁹ use of the manifest system,¹⁵⁰ and biennial reporting requirements.¹⁵¹ EPA regulations adopt Department of Transportation labeling and container requirements by reference.¹⁵² EPA regulations also require a transporter to obtain an EPA identification number¹⁵³ and to comply with manifesting¹⁵⁴ and recordkeeping¹⁵⁵ requirements. EPA also includes requirements to deal with hazardous waste spills during transport.¹⁵⁶

Basic Standards for Treatment, Storage, and Disposal Facilities

The most complicated provisions of the RCRA regulatory program involve the standards for the operation of TSDFs. All facilities that treat, store, and/or dispose of RCRA hazardous wastes must comply with the substantive standards issued by EPA under § 3004¹⁵⁷ and must either have a permit [21 ELR 10263] issued under § 3005(c)¹⁵⁸ or be operating under interim status (i.e., a form of temporary authorization) pursuant to § 3005(e).¹⁵⁹

Section 3004(a) requires EPA to develop TSDF standards that include hazardous waste recordkeeping;¹⁶⁰ use of the manifest system;¹⁶¹ TSDF facility operating criteria;¹⁶² standards for location, design, and construction of TSDFs;¹⁶³ contingency planning;¹⁶⁴ financial responsibility;¹⁶⁵ and permit requirements.¹⁶⁶ As with the generator and transporter provisions, EPA's regulations track almost directly the statutory requirements for subtitle C regulations. This section discusses the requirements that apply to all or most TSDFs.¹⁶⁷

Congress' initial mandate to EPA regarding the development of TSDF standards was in what is now § 3004(a).¹⁶⁸ In the 1984 Amendments, Congress significantly expanded § 3004 to include several detailed requirements for EPA to develop additional regulations and/or specific statutory requirements on TSDFs.¹⁶⁹ These new requirements (i.e., land disposal restrictions, minimum technology requirements, hazardous waste fuel requirements, and corrective action requirements) are discussed below.

General Facility Standards

EPA regulations contain certain basic requirements mandated by § 3004(a). Each TSDF, whether permitted or in interim status, must file a § 3010(a) notification and obtain an EPA identification number,¹⁷⁰ which must be used to comply with EPA's manifest system.¹⁷¹ TSDFs must comply with reporting and recordkeeping requirements similar to those for generators and transporters, and they must file a biennial report.¹⁷²

EPA requires TSDFs to engage in certain activities to minimize the risk of releases of hazardous wastes from the facility and accompanying threats to human health. EPA regulations contain a general requirement that TSDFs be operated and maintained to minimize releases and catastrophic events.¹⁷³ More specifically, the facility must put into place security measures and devices (including fences, gates, warning signs, and/or surveillance systems) to prevent unauthorized access to the facility.¹⁷⁴ The facility must conduct regular inspections for leaks, deteriorating equipment, etc., and correct the problems found.¹⁷⁵ The facility must also train its personnel on proper hazardous waste handling and emergency procedures.¹⁷⁶ In addition, the facility must have adequate emergency equipment, a written contingency plan, and signed agreements with local authorities in case of an accident that may cause a release of hazardous waste or other threats to human health.¹⁷⁷

New TSDFs, in addition to being well-operated, must be designed to minimize releases of hazardous wastes.¹⁷⁸ EPA also regulates the location of new TSDFs: they may not be sited in a 100-year floodplain nor within 200 feet of an active earthquake fault.¹⁷⁹ In the 1984 Amendments, Congress instructed EPA to review its location standards and to revise them if necessary.¹⁸⁰ EPA is presently working on developing new proposed location standards.

Groundwater Monitoring and Corrective Action

In addition to the preventive requirements in the general facility standards, EPA regulations contain a detailed program for the detection (i.e., groundwater monitoring) and cleanup (i.e., corrective action) of groundwater aquifers contaminated by activities at a TSDF.

Groundwater Monitoring. The EPA groundwater monitoring requirements for interim status facilities are very different from those for newly permitted facilities. Interim status facilities operating surface impoundments, landfills, or land treatment units are required, within one year of obtaining interim status, to implement a groundwater monitoring program "capable of determining the facility's impact on the quality of ground water in the uppermost aquifer underlying the facility."¹⁸¹ To detect releases from it, the facility generally must install, maintain, and operate a groundwater monitoring system that includes wells both upgradient and downgradient of the facility.¹⁸² The facility must sample from the wells and test for certain specified parameters.¹⁸³ If a statistically significant increase is detected, the facility must notify EPA and begin a more extensive monitoring program to determine whether, and to what extent, contamination has occurred.¹⁸⁴ The penalty for failing to certify compliance with the groundwater monitoring requirements by November 1985, or within one year of obtaining interim status, whichever is later, is loss of [21 ELR 10264] interim status.¹⁸⁵ There are no specific regulatory requirements for corrective action at interim status facilities.

For permitted facilities, the groundwater monitoring requirements are more extensive and include corrective action provisions. As with interim status facilities, permitted facilities must first have in place a groundwater monitoring system to detect releases from the regulated units at the facility.¹⁸⁶ The facility must sample the wells regularly for any constituent or indicator parameter specified in the facility's permit.¹⁸⁷ As part of this program, the facility must establish a background concentration at the upgradient wells to determine possible contamination.¹⁸⁸

If contamination is suspected based on the initial monitoring data, the facility moves into the second phase of the regulatory requirements. It must obtain a modification of its permit to establish a compliance monitoring program, including, if necessary, a plan for corrective action.¹⁸⁹ The compliance monitoring program involves more detailed monitoring of hazardous constituents to determine whether the groundwater meets EPA's groundwater protection standard for that facility.¹⁹⁰ The groundwater protection standard specifies that the aquifer must not be contaminated above background levels or above EPA's national drinking water standards under the Safe Drinking Water Act (SDWA).¹⁹¹ EPA retains the discretion in a TSDF permit proceeding to establish an alternative groundwater protection level based on site-specific considerations.¹⁹² If the compliance monitoring program indicates that the groundwater protection levels are being exceeded, the facility must conduct corrective action.¹⁹³

Corrective Action. EPA regulations do not specify how a facility is to conduct a corrective action; they state only that the facility must eliminate the exceedance of the groundwater protection standard by treating or removing the hazardous waste constituents.¹⁹⁴

Before the 1984 Amendments, EPA required groundwater monitoring and corrective action only for releases of hazardous wastes from so-called regulated units (i.e., surface impoundments, waste piles, land treatment units, or landfills that received hazardous waste after EPA's land disposal regulations took effect on July 26, 1982).¹⁹⁵ Congress, however, has expanded the program to require that any TSDF required to obtain a subtitle C permit must clean up any release of hazardous constituents from any solid waste management unit (SWMU) at the facility, regardless of when the wastes were placed in the unit and whether they are or ever were RCRA hazardous wastes.¹⁹⁶ The permit issued to the facility must contain a schedule for compliance with the corrective action requirement and an assurance of financial responsibility for completing the corrective action.¹⁹⁷ The facility will also be required to clean up any contamination that has migrated beyond its boundaries, unless it cannot obtain permission from the owner of the affected land.¹⁹⁸ In addition, Congress gave EPA authority to issue an administrative enforcement order or to seek a judicial order requiring corrective action for a release from any SWMU at an interim status facility.¹⁹⁹

To implement the new corrective action requirements, EPA proposed regulations that specify how a facility is to identify potential releases from SWMUs and to clean up contamination at SWMUs where necessary,²⁰⁰ following a procedure similar to that used for investigations and cleanups at abandoned sites pursuant to the Comprehensive Environmental Resource, Compensation, and Liability Act of 1980 (CERCLA, or Superfund).²⁰¹ Nonetheless, since SWMU corrective action is a self-implementing provision of the 1984 Amendments, EPA has already begun to implement the program through the TSDF permit process or through administrative orders under § 3008(h).²⁰² EPA also plans to propose amendments to its groundwater monitoring and corrective action regulations for regulated units to conform to the new proposal for SWMUs.²⁰³

Closure and Postclosure Care

RCRA regulations also specify requirements for closing TSDFs and ensuring that releases of hazardous constituents after closure are minimized or eliminated. Regardless of the type of hazardous waste management unit, EPA requires that each facility close in a manner that minimizes the need for further maintenance and controls the escape of hazardous wastes, including contaminated runoff or leachate.²⁰⁴ In addition, the standards for specific types of units (e.g., landfills, waste piles, surface impoundments, and land treatment units) typically contain detailed closure standards.²⁰⁵ To implement the requirements, a facility must prepare a written plan for closing the facility, detailing how and under what schedule closure will occur, and submit it to EPA (or an authorized state) for approval.²⁰⁶ Previously, with certain minor exceptions, EPA allowed a facility only 180 days to complete all closure activities after it had received the last [21 ELR 10265] hazardous wastes.²⁰⁷ Now, EPA allows a unit that no longer receives hazardous wastes to "delay closure" and to continue receiving nonhazardous wastes while it still has capacity to accept them.²⁰⁸ Surface impoundments that are not in compliance with the "minimum technology requirements" of § 3004(o)²⁰⁹ must remove all hazardous wastes before continuing to receive nonhazardous wastes.²¹⁰

Facilities may exercise one of two options for closing most hazardous waste management units:²¹¹ (1) "clean close" surface impoundments or waste piles (i.e., remove or decontaminate all hazardous wastes, adjoining equipment or structures, and contaminated soils or leachates)²¹² or (2) closure with postclosure care. Operators of hazardous waste tanks are generally required to clean close the tank.²¹³ If clean closure is not achievable or allowed under the regulations,²¹⁴ the completion of closure does not signal the end of RCRA subtitle C regulation.²¹⁵ Rather, the facility must use the other closure option: closure with postclosure care. Under this scenario, the facility must develop a plan to care for each closed hazardous waste management unit for up to 30 years after closure (or longer, if necessary to complete corrective action).²¹⁶ Postclosure care includes continued groundwater monitoring and corrective action;²¹⁷ maintaining and monitoring caps, liners, covers, leachate collection systems, and similar structures;²¹⁸ and maintaining security procedures at the facility where necessary.²¹⁹

Financial Responsibility

To ensure that closure and postclosure care activities will be carried out and that damages caused by releases of hazardous wastes from TSDFs will be compensated, EPA requires TSDFs to demonstrate that financial resources and/or mechanisms exist to cover such costs.²²⁰ The facility must prepare and maintain on site an estimate of the cost to implement its closure and postclosure care plans.²²¹ It must also establish that it can meet the costs of the estimates, either through (1) a trust fund,²²² (2) a surety bond,²²³ (3) a letter of credit,²²⁴ or (4) an insurance policy,²²⁵ or by passing a financial test or providing a corporate guarantee.²²⁶ EPA regulations contain similar financial responsibility requirements for liability costs for personal injury or property damage due to accidental releases from TSDFs.²²⁷

Requirements for Specific Hazardous Waste Units

EPA regulations also establish specific operation, maintenance, closure, and other performance standards for specific types of hazardous waste management units.²²⁸

Tanks

EPA's hazardous waste tank requirements are designed to prevent and contain leaks or failures of the tanks. EPA required that all tanks in existence at the time the standards were issued (July 1986)²²⁹ be inspected, tested, and otherwise evaluated within one year by an independent professional engineer who would certify the tank's integrity.²³⁰ Facilities were required to decommission tanks that failed the assessment.²³¹ New tanks must be designed and constructed to pass a similar assessment and must also be certified by an independent professional engineer.²³² In addition, all new or existing tanks must be secondarily contained (i.e., double-walled or enclosed in a secondary liner or vault) to capture any leaks.²³³ Tanks must be regularly inspected and any spills that occur must be cleaned up.²³⁴ Finally, tanks must be closed by removing or decontaminating any remaining wastes and surrounding contaminated soils or structures (which is similar to the clean closure required for land disposal units); if all soils cannot be cleaned up, the facility must perform postclosure care.²³⁵

Incinerators and Industrial Boilers/Furnaces

EPA has developed detailed requirements for the incineration of hazardous wastes (i.e., the burning of hazardous wastes to destroy or treat the hazardous constituents in them).²³⁶ By [21 ELR 10266] contrast, burning hazardous waste for recovery of either energy or materials is currently almost unregulated.²³⁷

EPA's incinerator standards are designed to ensure that the incinerator is run properly and efficiently in order to avoid the creation of dioxins and other waste products or gases of environmental concern. To that end, EPA establishes a basic performance standard that dictates that 99.99 percent of the original concentration of each principal organic hazardous constituent (POHC) (99.9999 percent for dioxin wastes) in the feedstock to the incinerator shall be destroyed.²³⁸ To implement this requirement, the facility must identify in its permit application potential POHCs in its wastes and include an analysis of the composition of the wastes.²³⁹ The facility must then obtain a temporary permit and conduct a trial burn to show that the incinerator will meet the standards.²⁴⁰ Once the trial burn is successful and a final permit is granted (which includes the baseline levels for each POHC), the incinerator must be operated efficiently, frequently inspected, and the waste residuals sampled to ensure they meet the performance standards.²⁴¹ All ash or residuals must be removed at closure.²⁴²

The burning of hazardous waste fuels for energy recovery in boilers or industrial furnaces triggers few requirements. The burner must have an EPA identification number, comply with applicable TSDF storage requirements, and certify that the hazardous wastefuel will be burned only in a boiler or industrial furnace.²⁴³ In addition, the generator and transporter requirements apply to the hazardous waste or the fuel created from it.²⁴⁴ Finally, marketers of hazardous waste fuels (i.e., those who produce and/or sell hazardous waste fuels to the burners) must obtain an identification number and comply with storage and recordkeeping requirements.²⁴⁵

In the 1984 Amendments, Congress ordered EPA to promulgate additional regulations for those who produce, market, and burn hazardous waste fuels.²⁴⁶ EPA recently issued those regulations pursuant to a court order.²⁴⁷ Congress also established an interim labeling requirement for hazardous waste fuels; it will expire when EPA issues its regulations.²⁴⁸

Land Disposal Units

The standards for management units where hazardous wastes are put on the ground are more complicated than those for other units, due to the increased risk of release of hazardous constituents to the environment, especially to groundwater, which is a fragile resource and difficult to clean up effectively. Although EPA's regulations before 1984 reflected this concern, Congress significantly changed the nature of hazardous waste management in the 1984 Amendments by making land disposal more difficult and more costly.

Minimum Technology Requirements. The disposal of hazardous wastes onto the land was a significant concern of Congress, as reflected in the 1984 Amendments.²⁴⁹ In addition to the land disposal restrictions, which mandate pretreatment of all hazardous wastes before disposal,²⁵⁰ Congress specified detailed design standards for the units into which the waste will be disposed (i.e., the minimum technology requirements, or MTRs).²⁵¹ The MTRs require that any new landfill or surface impoundment (or expansions to existing units) be outfitted with two or more liners, a leachate collection system, and groundwater monitoring wells.²⁵² There are exceptions to this requirement for alternative designs that are equally as protective and for certain landfills receiving only wastes from particular furnace operations.²⁵³ Any new incinerator must meet the destruction and removal efficiency standard specified in title 40, § 264.343 of the Code of Federal Regulations.²⁵⁴ Finally, any new landfill, surface impoundment, pile, underground tank, or land treatment unit must have an approved leak detection system.²⁵⁵

For surface impoundments, Congress also applied the MTRs retroactively. Any impoundment operating under interim status at the time of the 1984 Amendments was required to undergo retrofitting to meet the double-liner, leachate collection system standard within four years.²⁵⁶ Previously, EPA had required any surface impoundment not in compliance at the end of the four-year period to [21 ELR 10267] close.²⁵⁷ EPA has since amended its regulations to allow nonretrofitted impoundments to continue to receive nonhazardous wastes.²⁵⁸ Congress provided an exception to the retrofit requirements for impoundments that are (1) more than one-quarter mile from the nearest drinking water aquifer, (2) have at least a single liner, and (3) are in compliance with groundwater monitoring requirements.²⁵⁹ Congress further exempted impoundments used for "aggressive biological treatment" from having to comply with permit requirements under the FWPCA.²⁶⁰ The effect of the retrofit requirements was to force the closure of over 90 percent of the surface impoundments in existence at the time of the 1984 Amendments.

The retrofit requirement also applies to surface impoundments at facilities that enter interim status after 1984 due to changes in the hazardous waste characteristic or listing rules.²⁶¹ Facilities must retrofit these impoundments within four years of entering the subtitle C system.²⁶²

Waste Piles. EPA defines "waste pile" as an area on the land where waste is accumulated for storage or treatment purposes²⁶³ (but not disposal, which makes it a landfill).²⁶⁴ Although not subject to the full MTRs, EPA regulations require that waste piles be put on at least a single liner with a leachate collection system.²⁶⁵ The facility must also institute run-on, run-off controls to prevent and/or capture contaminated stormwater,²⁶⁶ and the facility must regularly inspect and monitor the pile and the various associated systems.²⁶⁷ In keeping with the temporary nature of a pile, all wastes, along with any contaminated soil, must be removed or decontaminated at closure (i.e., clean closed).²⁶⁸ If full decontamination is not possible, the facility must institute postclosure care.²⁶⁹

Landfills. The design requirements for landfills are now dictated predominantly by the MTR provisions. EPA regulations directly codify those provisions.²⁷⁰ In addition, EPA requires installation of run-on, run-off controls.²⁷¹ Pursuant to the 1984 Amendments, landfills are prohibited from accepting bulk or noncontainerized liquids.²⁷² Finally, similar to the standards for other units, landfills must be regularly monitored and inspected, and they are subject to closure and postclosure care requirements, including the installation of a cap or cover on the top of the landfill to minimize the amount of stormwater leaching into the landfill.²⁷³

Surface Impoundments. A surface impoundment may be conceptualized as a man-made pond or as a landfill with liquid floating on top of it.²⁷⁴ Of all land disposal units, surface impoundments raise the most concerns, since the liquids in the impoundments cause the leaching of toxic constituents and hydraulically drive those constituents down through the bottom into the groundwater.²⁷⁵ For this reason, the MTRs are toughest on impoundments, as discussed above.

Otherwise, EPA standards for surface impoundments are similar to the Agency's landfill requirements.²⁷⁶ The four key differences are (1) a surface impoundment does not need run-on, run-off controls; (2) a facility must develop a contingency plan for taking an impoundment out of service it it starts to leak;²⁷⁷ (3) a surface impoundment may be clean closed;²⁷⁸ (4) if it is not clean closed, an impoundment must be drained before it is capped.²⁷⁹

Land Treatment Units. Land treatment units are units where waste is placed on the ground for treatment.²⁸⁰ They are not subject to the double-liner and leachate collection system requirements, since their purpose is to allow the hazardous constituents to interact with the soil in order to degrade, transform, or immobilize those constituents.²⁸¹ Instead, land treatment units must be designed and must work to maximize the treatment effect.²⁸² To get this break from the MTRs, the treatment technique must be pretested or otherwise demonstrated to work before a final permit can be issued.²⁸³ The land treatment unit must include run-on, run-off controls and be regularly inspected.²⁸⁴ Land treatment units must also install a system to monitor liquids in the "unsaturated zone" (i.e., the zone above the uppermost groundwater aquifer) to determine whether hazardous constituents are migrating out of the zone where treatment is authorized to occur.²⁸⁵ If no hazardous constituents mi [21 ELR 10268] grate out of the treatment zone, the unit is exempt from groundwater monitoring.²⁸⁶ Land treatment units are subject to closure by installation of a cap and postclosure care.²⁸⁷

The Land Disposal Restrictions

The land disposal restrictions (LDRs, or the land ban) are the centerpiece of the 1984 Amendments to RCRA. The land ban reflects a significant change in the focus of the subtitle C regulatory program: from one oriented toward preventing hazardous waste releases to one that encourages minimization and treatment of hazardous wastes. The land ban also incorporates the "hammer" concept.²⁸⁸

"Land ban" is a misnomer for the program. The LDRs restrictions do not prohibit all hazardous wastes from land disposal. Rather, they represent a creative statutory method for ensuring that EPA establish standards for hazardous wastes destined for land disposal.

The LDR provisions do prohibit the land disposal²⁸⁹ of hazardous wastes pursuant to a five-phase statutory schedule. By November 1986, listed solvent-containing or dioxin-containing wastes were banned.²⁹⁰ In July 1987, the so-called California list²⁹¹ wastes were banned;²⁹² these included any listed or characteristic wastes that fell into one of the following categories: (1) liquid wastes containing high concentrations of free cyanide, (2) liquid wastes containing high concentrations of certain heavy metals, (3) liquid wastes containing high concentrations of polychlorinated biphenyls (PCBs), (4) liquid wastes with low pH, or (5) other wastes containing high concentrations of halogenated organic compounds.²⁹³ For the remaining listed or characteristic hazardous wastes, Congress instructed EPA to divide the wastes into three groups based on their relative degree of hazard.²⁹⁴ EPA banned the first third of the listed wastes in August 1988, the second third in June 1989, and the final third and any characteristic wastes in May 1990.²⁹⁵

The statute provides four ways to avoid the prohibition against land disposal. First, under § 3004(m), EPA may establish treatment standards for the waste "which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized."²⁹⁶ Wastes that meet the treatment standards set by EPA under § 3004(m) may be disposed of in a land disposal unit (which must meet the MTR standards).²⁹⁷ EPA sets § 3004(m) standards in one of two ways: (1) EPA establishes a maximum concentration level for hazardous constituents in the waste (for wastewaters) or the waste extract using the new TCLP (for nonwastewaters);²⁹⁸ or (2) EPA specifies a particular treatment technology to be used on the waste.²⁹⁹

The relationship between § 3004(m) and the other LDR provisions is referred to as the statutory hammer in the LDR.³⁰⁰ It is so called because if EPA were to fail to promulgate § 3004(m) standards by the required date, all land disposal of that waste would be prohibited on that date (even wastes that had been treated to levels similar to those EPA might set). The hammers provide a strong incentive for EPA to develop and promulgate the required standards on time to avoid the serious disruptions in the economy that would result from an inability to legally dispose of any hazardous wastes.³⁰¹ They were indeed effective; EPA issued all of its § 3004(m) regulations on time.³⁰²

The second method for avoiding the land ban is through a "no-migration" petition. Hazardous wastes, whether treated or untreated, may by disposed of in any land disposal unit if "it has been demonstrated to [EPA], to a reasonable degree of certainty, that there will be no migration of hazardous constituents from the disposal unit or [for Class I UIC wells]³⁰³ injection zone for as long as the wastes remain hazardous."³⁰⁴

Third, EPA may grant a "national capacity variance" for up to two years after the statutory ban would otherwise take effect based on when "adequate alternative treatment, recovery, or disposal capacity … will be available."³⁰⁵ In other words, if the capacity does not exist to treat all the wastes to the § 3004(m) level using the § 3004(m) method at the time EPA issues the § 3004(m) standards, EPA can allow up to two additional years to allow that capacity to develop.

Finally, EPA can grant an individual capacity variance for up to one additional year if the facility has contracted to construct a treatment unit or arrange for treatment but cannot yet have the waste treated.³⁰⁶

[21 ELR 10269]

The treatment standards issued under § 3004(m) are based on the performance of the best demonstrated available technology (BDAT).³⁰⁷ The treatment standard may be expressed either by mandating the use of the best technology or by setting a maximum concentration level for the hazardous constituents in the waste or its treatment residual (for nonliquid wastes, the concentration in an extract obtained using the TCLP).³⁰⁸ To ensure that treatment occurs, EPA prohibits a facility from simply diluting its waste to meet the BDAT concentration level.³⁰⁹

The use of technology-based standards is not explicit in § 3004(m); rather, EPA interpreted "substantially diminish toxicity … and migration [to minimize health threats]," along with the accompanying legislative history, as expressing preference for this approach. This interpretation was upheld in 1989 by the D.C. Circuit,³¹⁰ which nonethelessinstructed EPA to provide a more complete explanation of its rationale for choosing it.³¹¹ EPA complied with the court's request by publishing, in February 1990, a supplemental notice explaining that it believed a technology-based approach is appropriate given the uncertain risks still associated with land disposal of hazardous wastes and the inability to quantify the point at which the concentrations of hazardous constituents minimize threats to human health and the environment.³¹²

Despite judicial acceptance of technology-based standards for the land ban, there remain thorny policy issues for EPA to address. The most difficult issues concern the establishment of treatment standards for characteristic wastes. It may be that the BDAT for a particular waste will treat the waste to or beyond the point that it no longer exhibits a characteristic (i.e., it is no longer hazardous under RCRA). Does EPA have the authority to set a treatment level below the characteristic level or to establish a specific treatment method (i.e., to mandate that the waste be further treated beyond the point at which it is not a hazardous waste)? Further, can EPA prohibit the use of simple dilution of a characteristic waste to eliminate its characteristic? EPA has asserted that it has the authority both to set treatment levels below the characteristic level and to prohibit dilution to meet that level.³¹³ The Agency explained that once a characteristic waste is generated, it is part of the subtitle C system and subject to its requirements (including the land ban) to the grave, regardless of the characteristics of the waste when it was disposed of.³¹⁴ Nonetheless, EPA has waived the dilution prohibition for characteristic wastes that are later treated in units not currently subject to subtitle C regulation for purposes of meeting FWPCA or SDWA requirements.³¹⁵ EPA feared that applying the dilution prohibition could force a significant change in the methods of treatment used to meet these requirements without significantly advancing the treatment goals of the land ban program.³¹⁶

EPA must set § 3004(m) standards for newly identified or newly listed hazardous wastes within six months of when the wastes become hazardous; there is, however, no hammer or other prohibition on land disposal if EPA fails to do so.³¹⁷ EPA is presently working on establishing BDAT for several new waste listings and for wastes that are hazardous because of the new toxicity characteristic.

Permitting Requirements

To operate, each TSDF must have a permit or qualify for interim status, in addition to satisfying all of the above requirements.

Obtaining Interim Status

Congress created interim status because it recognized that existing TSDFs would not be able to obtain subtitle C permits immediately upon promulgation of EPA regulations, yet they should be allowed to continue to operate while their permit applications were pending. To obtain interim status, a TSDF must (1) be in existence on the date statutory or regulatory provisions that subject it to subtitle C take effect, (2) comply with the notification requirements under § 3010(a) and obtain an EPA identification number, if necessary, and (3) file a RCRA "part A" permit application.³¹⁸

Interim status was to be a temporary expedient that would be quickly phased out through the issuance of permits to existing TSDFs. However, the Agency found that permits were, in general, time-consuming to issue and was slow to do so. Furthermore, since the interim status requirements were less stringent than the part 264 requirements, facilities had little incentive to seek final permit issuance. Congress therefore acted in the 1984 Amendments to terminate interim status in one year for any land disposal facility that had not filed the second part (part B) of its RCRA permit application³¹⁹ or any facility out of compliance on that date with the groundwater monitoring and financial responsibility requirements.³²⁰ Congress also ordered EPA to act on pending applications and to issue or deny final permits for (1) land disposal facilities within four years, (2) hazardous waste incinerators within five years, and (3) all other facilities within eight years.³²¹

Despite these changes, facilities continue to obtain interim status. If a facility becomes subject to subtitle C for the first time due to a new hazardous waste listing or characteristic, the facility may obtain interim status by complying with the requirements discussed above.³²² A land disposal facility must file its part B application and comply with the groundwater and financial responsibility requirements within one year or its interim status will terminate.³²³ All [21 ELR 10270] other facilities must file their part B applications when EPA requests them.³²⁴

Permit Application Requirements and Procedures

The RCRA subtitle C permit application has two parts: Part A includes descriptive information about the facility (e.g., the owner's name, location, type of waste, and type of regulated units).³²⁵ To qualify for interim status, the facility must file part A on or before the effective date of the rule that subjects it to subtitle C.³²⁶ Part B requirements are much more substantial (e.g., waste analysis information, descriptions of security procedures, inspection schedules, geological location information, emergency procedures and contingency plans, personnel training procedures and plans, closure plans and cost estimates, financial responsibility documents, and groundwater monitoring data).³²⁷ In addition, for each regulated unit, the application must include detailed design and engineering information, which is necessary to determine the unit's compliance with the substantive standards.³²⁸ To maintain interim status, a land disposal facility must file its part B within one year of the effective date of the regulation bringing it into subtitle C.³²⁹

EPA issues RCRA permits in accordance with consolidated procedures established for all existing permit programs, including subtitle C, underground injection control (UIC) (SDWA), national pollutant discharge elimination system (NPDES) (FWPCA), § 404 (FWPCA), and PSD (FWPCA).³³⁰ These procedures specify that permits may be issued only after interested parties and the surrounding community have been notified and a public hearing has been held.³³¹ A public record (including the permit application, supporting documentation, written comments on the draft permit or proposed permit denial, and transcripts of any public hearing) must be kept.³³² The EPA Regional Administrator normally issues permits, and the permittee or any interested party may appeal any part of the permit decision to the EPA Administrator.³³³ If the Administrator denies review, the permit decision is final; otherwise, the parts of the decision reviewed remain temporary until the Administrator rules.³³⁴ Final permit decisions are subject to judicial review.³³⁵

EPA is not limited to the specific provisions of the statute or of the regulation in developing permit conditions. Rather, Congress has specifically instructed the Agency and the states to include any "terms and conditions … necessary to protect human health and the environment."³³⁶

Once issued, subtitle C permits are limited to 10 years; permits for land disposal facilities must be reviewed after five years.³³⁷ Permits may be modified during their lifetime either at the behest of EPA or the permittee. A permit may be reopened by EPA to add new statutory requirements, to change compliance dates, to respond to changed conditions at the facility, or to propose termination of the permit for noncompliance.³³⁸ If the permit is reopened by EPA, the part 124 procedures apply.³³⁹ A permittee may also reopen the permit to get authorization for additional or different activities. The level of public participation involved depends on the significance of the proposed change.³⁴⁰

Certain types of TSDFs can obtain RCRA permits without undergoing the formal process or complying with all part 264 requirements; they are deemed to have a RCRA "permit-by-rule."³⁴¹ EPA regulations dictate the provisions with which the facility must comply. EPA has permit-by-rule provisions for three types of facilities/units: (1) barges that accept hazardous waste for ocean disposal, (2) Class I UIC wells, and (3) POTWs receiving hazardous wastes for treatment pursuant to an FWPCA permit.³⁴² In each case, the facility already has a permit issued under another EPA program. UIC wells and POTWs operating under a permit-by-rule must comply with SWMU corrective action requirements.³⁴³ EPA regulations also provide for special procedures for issuing emergency permits,³⁴⁴ trial burn permits for incinerators,³⁴⁵ demonstration permits for land treatment units,³⁴⁶ and demonstration permits for development of innovative and experimental treatment technologies.³⁴⁷

State Programs and Enforcement

The subtitle C regulations are extensive, but they can protect human health and the environment only if they are properly implemented and enforced. As with many environmental statutes, Congress intended subtitle C to be implemented through a federal/state partnership, with the states taking the lead for most program implementation and with the federal government maintaining an oversight role and using its own powerful enforcement authorities.

State Program Authorization

Following the model of several other environmental statutes,³⁴⁸ RCRA subtitle C provides that states,³⁴⁹ with EPA [21 ELR 10271] approval, may assume primary responsibility to implement and enforce a state hazardous waste program that acts "in lieu of" the EPA-run federal program.³⁵⁰ Once a state obtains authorization to run the subtitle C program, the requirements imposed by state law become federally enforceable; however, EPA may enforce against a person in that state only after it notifies the state 30 days before commencing the enforcement action.³⁵¹ RCRA also follows other environmental statutes³⁵² by explicitly allowing states to adopt any requirements for hazardous waste management as long as those requirements are at least as stringent as the federal requirements under RCRA.³⁵³ A state need not obtain RCRA authorization to implement and enforce its own hazardous waste requirements as a matter of state law if they are as stringent as the RCRA standards.

As with virtually every other provision of RCRA, the 1984 Amendments added a new wrinkle to the state program authorization process. The next section discusses the pre-1984 authorization process and the changes caused by HSWA.

Base Program Authorization. Under the pre-1984 Act, a state could apply for two different types of subtitle C program authorization. A state with a functioning hazardous waste regulatory program in place at the time EPA issued its initial federal regulations could seek interim authorization.³⁵⁴ To obtain interim authorization, which EPA could grant for only up to two years,³⁵⁵ a state had to show that its program was "substantially equivalent" to EPA's regulations under subtitle C.³⁵⁶ Interim authorization (except authorization for HSWA provisions)³⁵⁷ was phased out in 1986.³⁵⁸

The standards for a state to obtain final authorization are tougher. To be authorized, the state program must be (1) equivalent to the federal program, (2) consistent with the federal program and programs in other states, and (3) provide adequate resources for enforcement.³⁵⁹ EPA may also later decide to withdraw a state's final authorization and reinstate the federal program if it determines that the state no longer meets these standards.³⁶⁰ As of December 1990, 46 states have obtained final authorization for the non-HSWA portion of the subtitle C program (which EPA refers to as the "base program").

HSWA Authorization. A state program that has interim or final authorization operates "in lieu of" the federal program.³⁶¹ Before the 1984 Amendments, EPA interpreted this phrase to mean that a change in the federal requirements would not be immediately enforceable against operators/facilities in authorized states; the state would first have to amend its laws and regulations to conform to the revised federal program or seek EPA approval to implement a revised state program.³⁶²

The 1984 Amendments change this policy by providing that any change in federal regulations adopted pursuant to the Amendments would take effect in authorized states at the same time as in nonauthorized states.³⁶³ EPA would implement and enforce the federal regulations in an authorized state until the state obtained new authorization to enforce those requirements.³⁶⁴ One complicated result of this scheme is that a TSDF may require a permit issued by two different regulatory authorities, one part issued by the base program-authorized state covering the non-HSWA requirements, and one part issued by EPA covering HSWA requirements, such as facility-wide or SWMU corrective action.³⁶⁵ Even in the nonpermit context, a facility subject to subtitle C requirements in an authorized state must constantly watch the Federal Register for new EPA HSWA rules that will be applicable to it. As of December 1990, only seven states have obtained authorization for the corrective action requirements under § 3004(u); others have obtained authorization for various other parts of the HSWA-based program.

Enforcement Provisions

Because subtitle C provides for both civil and criminal enforcement of its requirements, EPA has several enforcement [21 ELR 10272] options. On the civil side, EPA may issue an administrative order requiring compliance or it may file suit in federal district court seeking an injunction mandating compliance.³⁶⁶ An administrative order may also includerevocation of a facility's § 3005 permit and/or assessment of a civil penalty of up to $ 25,000 per day of noncompliance for each requirement.³⁶⁷ "In assessing such a penalty, [EPA] shall take into account the seriousness of the violation and any good faith efforts to comply with applicable requirements."³⁶⁸ EPA must provide opportunity for a public hearing on any administrative order.³⁶⁹ The statute provides for an additional civil penalty of up to $ 25,000 per day for noncompliance with an administrative order.³⁷⁰ As discussed above, the statute also gives specific authority to EPA to issue administrative orders requiring corrective action at interim status facilities, with specific penalties for noncompliance.³⁷¹

RCRA also provides for significant criminal penalties for knowing violations of subtitle C requirements: a term of up to two years in prison and/or a fine of up to $ 50,000 per day for knowingly

transporting or causing the transport of hazardous waste to a facility without a subtitle C permit or without the required manifest;³⁷²

treating, storing, or disposing of hazardous waste without a permit or in violation of any material requirement of a permit or interim status;³⁷³

misrepresenting information on a required document;³⁷⁴

destroying, altering, concealing, or failing to file required records;³⁷⁵

exporting hazardous waste in violation of the requirements of RCRA § 3017;³⁷⁶ or

managing used oil in violation of requirements under § 3014 or other RCRA provisions.³⁷⁷

Fines and sentences may be doubled for repeat offenders.³⁷⁸ If a person, in committing one of these offenses, knowingly "places another person in imminent danger of death or serious bodily injury," that offender may be subject to a $ 250,000 fine ($ 1 million for corporations) and/or 15 years in prison.³⁷⁹

RCRA § 7003 gives EPA broad authority to abate situations that "may present an imminent and substantial endangerment to health or the environment."³⁸⁰ If EPA learns of such a situation, it may issue an administrative order or seek an injunction in federal district court to stop the practice causing the danger and/or take any other action necessary.³⁸¹ Violators of an administrative order under § 7003 may be penalized up to $ 5,000 per day.³⁸² This authority extends to any past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste, and may be used notwithstanding any other provision of RCRA.³⁸³ In other words, § 7003 actions are not limited to hazardous waste activities and may be taken even if the activity leading to the endangerment is or was legal under subtitle C or D.

Finally, RCRA provides for citizen enforcement of its provisions. Under RCRA, citizens may file one of three types of suits in federal district court: (1) an action against any person (including the United States or a state) in violation of a RCRA permit or other requirement of any RCRA subtitle;³⁸⁴ (2) an action against any person to abate an imminent and substantial endangerment (paralleling § 7003 authority);³⁸⁵ or (3) an action against EPA to compel the completion of a nondiscretionary duty under the statute (e.g., a statutory mandate to issue regulations).³⁸⁶

RCRA contains two prerequisites to pursuing a citizens suit. First, RCRA requires a citizen to give notice to EPA, the appropriate state, and the alleged violator (or, for mandatory duty cases, only to EPA) before filing a citizens suit, and must wait 60 days after the notification before filing unless the action is under subtitle C.³⁸⁷ Second, a citizen may not sue for violation of a statutory or regulatory requirement if EPA or the state "has commenced and is diligently prosecuting" a court action seeking compliance with the requirement;³⁸⁸ nor may a citizen sue to abate an imminent and substantial endangerment if EPA or the state is already taking action under § 7003, CERCLA, or state authorities to address the concern.³⁸⁹

RCRA also provides for judicial review of Agency regulations in the U.S. Court of Appeals for the D.C. Circuit.³⁹⁰ A party must file a petition for review within 90 days of the promulgation of the regulation.³⁹¹

Subtitle D

Subtitle D of RCRA³⁹² contains the provisions for regulation of nonhazardous solid wastes. It covers a broad range of materials, including industrial wastes, mining and other large-volume wastes, household wastes and other municipal garbage, and ash from the combustion of municipal wastes.³⁹³

[21 ELR 10273]

Subtitle D has attracted neither the attention nor the controversy the subtitle C program has. The reasons are clear from the structure and purposes of the statute. First, the mandate of subtitle Dis broad. Whereas the exclusive purpose of subtitle C is to "protect human health and the environment,"³⁹⁴ subtitle D is intended "to assist in developing and encouraging methods for the disposal of solid waste which are environmentally sound and which maximize the utilization of valuable resources including energy and materials … and to encourage resource conservation."³⁹⁵ Thus, subtitle D gives EPA a broader mandate to consider the impact of regulation on recycling and other practices, rather than focusing solely on health and environmental risk. This decreases the stringency, and thus the controversy, of subtitle D regulations. Second, the two subtitles have very different implementation schemes. As opposed to subtitle C, subtitle D is a state-led program. There is little federal oversight of (and, for most of the past 15 years, no federal funding for)the states' implementation of subtitle D criteria, and no federal implementation or enforcement if the states fail to act. In addition, while subtitle C is a "cradle to grave" system, subtitle D controls only the disposal of nonhazardous wastes.

Now that the hazardous waste program is moving into a more mature implementation-oriented stage, Congress is readdressing the forgotten problem of properly controlling wastes that are not regulated as hazardous.³⁹⁶ Subtitle D may be the battleground of the 1990s waste management debate, with much of the battle focusing on whether (and how much) to transform the substantive stringency and implementation techniques of subtitle D into a more "C-like" regime. Thus, a firm understanding of the current D system is in order.

Open Dumping Criteria and Enforcement

Subtitle D instructs EPA to develop criteria for the operation of "sanitary landfills" (i.e., landfills for which "there is no reasonable probability of adverse effects on human health and the environment").³⁹⁷ Units that do not meet the landfill design and operating criteria are classified as "open dumps" and are prohibited by subtitle D.³⁹⁸

Subtitle D is designed to be a state-led program. States may apply to EPA for approval of their solid waste management plans if they wish to obtain funds under § 4007(b).³⁹⁹ Although § 4005(c) appears to establish a mandatory requirement, the only penalty for not doing so is loss of such funds. To obtain approval, the plan must, among other requirements, prohibit open dumping (as defined by EPA's criteria)⁴⁰⁰ and provide for the closing or upgrading of all existing open dumps.⁴⁰¹ Congress also instructed the states to identify which local or regional agencies within the state would be responsible for developing and implementing the solid waste management plan.⁴⁰² At the time RCRA was adopted, any state to obtain EPA approval of its plan was to receive federal funding to implement it.⁴⁰³ However, Congress has funded the program only sporadically since 1979.⁴⁰⁴

Before 1984, there was no federal backup if a state failed to develop and implement the solid waste criteria. EPA generally lacked direct enforcement authority over the open dumping criteria, although it could still undertake a § 7003 action to address imminent and substantial endangerments to health or to the environment.⁴⁰⁵ Citizens did not have the authority to enforce the open dumping criteria under § 7002 until 1984.⁴⁰⁶

Municipal Landfill Regulations

Congress was sensitive to the increasing concerns with hazardous waste being managed in subtitle C units, particularly municipal landfills. The household hazardous waste⁴⁰⁷ and small-quantity generator exclusions⁴⁰⁸ in EPA's subtitle C regulations meant that RCRA hazardous wastes could be sent to municipal landfills. Furthermore, given the lack of strong enforcement of subtitle D, these facilities might go virtually unregulated.

To address the potential environmental problems caused by these loopholes, Congress adopted § 4010, which, inter alia, ordered EPA to revise the subtitle D criteria for facilities receiving hazardous wastes from such sources.⁴⁰⁹ Congress specifically instructed EPA to include groundwater monitoring and corrective action provisions in the new regulations.⁴¹⁰ Congress also added provisions requiring EPA to make a specific determination whether a state program to implement the new criteria is adequate,⁴¹¹ and the authority to enforce the criteria directly if the state fails to gain approval of its plan.⁴¹²

In response to the § 4010 mandate, EPA proposed criteria for municipal solid waste landfills (MSWLFs)in 1988.⁴¹³ These proposed regulations contain detailed location restrictions;⁴¹⁴ criteria for the design, operation, maintenance, closure, and postclosure care of a municipal landfill;⁴¹⁵ financial responsibility requirements;⁴¹⁶ and groundwater monitoring and corrective action requirements.⁴¹⁷ These proposed landfill criteria are more detailed and prescriptive [21 ELR 10274] than the existing solid waste disposal criteria, and begin to approach the subtitle C standards.⁴¹⁸ EPA estimates that the proposed criteria, if adopted, will cost between $ 700 million and $ 900 million per year to implement, or approximately $ 8 to $ 11 for each U.S. household.⁴¹⁹ EPA expects to issue the final landfill criteria in 1991.

Subtitle I

The 1984 Amendments added an entire new regulatory scheme for underground storage tanks (USTs). Subtitle I of RCRA⁴²⁰ addresses over two million such tanks which, absent regulation, pose a significant risk of leaks and catastrophic failures.⁴²¹ Subtitle I applies to tanks that are at least 10 percent below ground (including the volume of any attached piping) and that contain either petroleum or CERCLA hazardous substances;⁴²² it also applies to tanks that store petroleum products and other usable industrial substances. Subtitle I is the only RCRA regulatory scheme that is not limited to solid wastes.

The basic structure of the program is similar to the subtitle C program. Initially, each owner of a UST was required by § 9002, within 18 months of enactment, to notify the appropriate state or local agency of the existence, age, size, type, location, and uses of its tank(s), including tanks not currently in service but that were in operation at some time after January 1, 1974, a requirement similar to § 3010 of RCRA.⁴²³ Section 9003 instructs EPA to develop regulations for UST leak detection, prevention, and cleanup "as may be necessary to protect human health and the environment"⁴²⁴ (i.e., the same regulatory standard as for subtitle C). The UST regulations are to include leak detection system operating, monitoring, and reporting requirements;⁴²⁵ requirements for reporting tank releases and corrective actions undertaken to address them;⁴²⁶ a requirement to perform such corrective action;⁴²⁷ closure and financial responsibility requirements;⁴²⁸ and design and construction standards for new USTs.⁴²⁹ These requirements are similar to those imposed on hazardous waste TSDFs pursuant to § 3004(a).

Subtitle I also parallels subtitle C in its implementation and enforcement provisions. A state may assume primary enforcement responsibility for subtitle I in lieu of EPA by demonstrating that it has a program that contains all of the elements required by EPA's regulations under § 9003 and that provides for adequate enforcement.⁴³⁰ For the state to obtain authorization, state UST regulations must be as stringent as EPA's.⁴³¹ Federal UST regulations are enforceable by an administrative order issued by EPA or through federal district court;⁴³² subtitle I further provides for civil penalties for violations or for failure to comply with an administrative order.⁴³³ EPA also has specific authority to issue corrective action administrative orders, similar to § 3008(h) authority.⁴³⁴ Subtitle I also creates a trust fund (a mini-Superfund) for addressing EPA or state-run cleanups of leaking USTs before promulgation of EPA regulations, or future cleanups where prompt action is necessary and no operator can be found or the operator is not in compliance with the regulations.⁴³⁵ Finally, as with the other subtitles, EPA may still undertake a § 7003 action to address imminent and substantial endangerments to health or the environment from UST activities.⁴³⁶ Citizens may enforce the subtitle I requirements under § 7002.⁴³⁷

Despite the similarities in the statutory framework of the two programs,EPA purposefully designed its UST regulations and state program approval requirements to be far more flexible than the subtitle C regulations. EPA based its regulatory approach on the following factors: (1) the number of USTs is very large; (2) most existing USTs are made of unprotected steel (the most likely to leak); (3) most USTs are owned or operated by small businesses not accustomed to complying with complex regulations; and (4) UST technology is constantly improving.⁴³⁸ Overall, EPA attempted to develop a program that would protect human health, yet be implementable primarily at the state and local levels; would be simple to understand and comply with; and would encourage technological innovation and voluntary compliance.⁴³⁹

To these ends, EPA adopted a scheme whereby industry codes of practice form the basis for EPA standards,⁴⁴⁰ with EPA regulations covering installation, operation, and maintenance of USTs. First, new USTs must be designed and constructed to maintain structural integrity (including cathodic protection to prevent corrosion) based on existing industry standards,⁴⁴¹ and the owner/operator of a new tank must certify that the tank's installation complied with the requirements.⁴⁴² Existing tanks must also be upgraded to meet these requirements.⁴⁴³ Second, owners/operators of new or existing USTs must follow proper procedures for filling tanks to prevent spills and overflows; which means that spill prevention devices must be installed.⁴⁴⁴ Owners/operators must also repair tanks in accordance with industry standards.⁴⁴⁵

[21 ELR 10275]

The second major set of provisions in the UST regulations is the leak detection requirements. USTs containing petroleum are allowed to use a variety of methods, as long as the method selected follows certain EPA performance standards.⁴⁴⁶ By contrast, hazardous substance USTs must install secondary containment systems, unless EPA or the state specifically approves an alternate method.⁴⁴⁷ EPA plans to phase in the leak detection requirements through 1993, with the oldest tanks required to implement the requirements first.⁴⁴⁸ If existing tanks are not upgraded to meet the standards before 1998, they must be closed.⁴⁴⁹ The regulations also impose reporting requirements if a leak is detected,⁴⁵⁰ and corrective action of detected releases will follow.⁴⁵¹ Finally, the regulations provide that tanks must be closed by decontamination and removal from the ground or filling with inert material.⁴⁵² The financial responsibility provisions of the subtitle I regulations parallel similar provisions in subtitle C.⁴⁵³

The process for obtaining approval of a state subtitle I program parallels the subtitle C regulations.⁴⁵⁴ Yet, the subtitle I state program approach is substantively less rigorous than that of subtitle C. Rather than showing equivalence of its program on a regulation "line-by-line" basis, a state need show only that its program has each of the "elements" of an approvable state program as outlined in § 9004.⁴⁵⁵ In addition, EPA allows states to use different administrative procedures to implement their UST programs.⁴⁵⁶

Prospects for Reauthorization

With the passage and signing of the Clean Air Act Amendments in November 1990, many expect that Congress will next address the task of adopting the first broad-based reauthorization of RCRA since the 1984 Amendments.

EPA recently conducted a detailed internal study of the subtitle C program.⁴⁵⁷ The study concluded that, particularly in light of the 1984 Amendments, RCRA contains too many "high priorities" that conflict with each other. It also concluded that the program should be revised to clarify and order these priorities, encourage waste minimization as an overall goal, establish clearly the roles of the interested parties (including EPA, the states, Congress, the Office of Management and Budget, and the public), and encourage innovation in hazardous waste management and cleanup.⁴⁵⁸ The EPA study reflects a consensus that implementation of the 1984 Amendments in relation to subtitle C deserves reconsideration. Yet, it appears unlikely that Congress will make significant changes to subtitle C in the upcoming reauthorization cycle. The focus, instead, will be on the "nonhazardous" wastes (i.e., subtitle D).

In the 1989-90 session, several key members of the House and Senate subcommittees with jurisdiction over RCRA submitted significant bills for the reauthorization of RCRA. Senator Baucus (D-Mont.), chair of the Subcommittee in the Environment and Public Works Committee in charge of RCRA;⁴⁵⁹ Sen. Chaffee (R-R.I.), ranking minority member of the same subcommittee;⁴⁶⁰ and Rep. Luken (D-Ohio), chair of the analogous subcommittee in the House,⁴⁶¹ each offered bills. The legislative action occurred on the Luken bill, where a substitute was offered in May 1990, which was subsequently marked up and reported by Luken's subcommittee. With the focus on the Clean Air Act, however, the full committee took no action.

The Luken and Baucus bills are similar, and each calls for a significant expansion of the federal role in subtitle D, including a requirement for federal permitting of subtitle D disposal facilities, more detailed standards for specific types of facilities, a new effort to promote or require state solid waste management planning, and new federal financial assistance to states in these efforts.⁴⁶² The Chaffee bill is narrower and focuses on source reduction and recycling of municipal and other solid wastes.⁴⁶³

As a unit, the three bills focus on improving four major aspects of the subtitle D program. First, they attempt to improve the federal regulatory regime over subtitle D facilities. The Luken and Baucus bills mandate state issuance of permits to subtitle D facilities.⁴⁶⁴ These permits must reflect compliance with new disposal criteria to be developed by EPA. EPA is instructed to develop yet another set of revised criteria for MSWLFs, and new criteria for industrial solid wastes and for nearly all of the special waste categories, including municipal solid waste combustion ash, medical waste, mining waste, oil and gas wastes, and coal combustion wastes.⁴⁶⁵

Second, the bills attempt to beef up the existing scheme for solid waste management planning. The Chaffee bill, in particular, requires that any state seeking approval of its plan under §§ 4004 and 4007 include provisions to increase recycling activities in the state, limit the use of municipal waste incineration as an alternative to recycling, and provide economic incentives to companies to engage in source separation of solid wastes and purchase recycled materials.⁴⁶⁶ The other two bills add a negative incentive for states to develop solid waste plans: states without approved plans may lose federal funding for other environmental programs or be unable to ship solid wastes out of state for disposal.⁴⁶⁷

[21 ELR 10276]

The third major set of changes to subtitle D under the bills would provide strong incentives for both states and the federal government to promote and engage in waste reduction and recycling.⁴⁶⁸ For instance, such concerns as minimizing consumer product packaging, improving industrial process efficiency, and encouraging composting would be studied and/or regulated by EPA.⁴⁶⁹ The bills would also establish more explicit provisions to encourage federal procurement of recycled goods, even when this is more expensive.⁴⁷⁰

Finally, each bill would resume federal funding of state solid waste management activities and would put a particular emphasis on recycling programs.⁴⁷¹ The Chaffee bill would establish a trust fund for source reduction and recycling.

The focus on subtitle D in reauthorization does not mean, however, that issues regarding hazardous wastes and materials will be ignored. All three bills direct EPA to evaluate the extent to which hazardous constituents may be found in everyday products, including lead-acid batteries, paint pigments, and others.⁴⁷² In addition, at least the Luken bill proposes changes to subtitles C and I. The focus of these provisions is on the problems of identifying and listing hazardous waste. The Luken bill would move toward a concentration-based hazardous waste approach, whereby any waste with a concentration of hazardous constituents greater than 0.1 percent would be considered a characteristic hazardous waste.⁴⁷³ In addition, EPA would be instructed to develop additional characteristic tests for radioactivity, carcinogenity, acute toxicity, and others.⁴⁷⁴ The Luken bill also tightens up on the delisting program, although it makes it easier for facilities to obtain subtitle C permits.⁴⁷⁵

The content of the likely vehicles for RCRA reauthorization suggests that Congress is mostly happy with the subtitle C program as revised by the 1984 Amendments, and is already turning toward the rest of the waste management universe. Yet, many implementation issues remain in the subtitle C program, as do many concerns within EPA regarding how to set priorities in light of the overlapping and conflicting deadlines and signals from Congress. Congress seems ready to add a whole new set of priorities and concerns to EPA's waste program "plate." How EPA will respond (and whether Congress will provide sufficient funding to run both the C and an improved D program) remains to be seen.

One message is clear, however: Congress expects that subtitle D will increase in stringency and complexity. That may be good. It will eliminate the incentives to avoid subtitle C at all costs, and it will allow EPA to engage in more broad-based planning and standard-setting for waste management. The challenge is to integrate the new D program with the existing C requirements so as to enhance, not hinder, the goals of waste minimization, source reduction, ease of compliance, and protection of human health and the environment.

1. 42 U.S.C. §§ 6901-6992, ELR STAT. RCRA 001-050. Technically, RCRA was a set of amendments to the previously existing federal Solid Waste Disposal Act. Since its passage, RCRA has become the preferred acronym for the statute.

2. American Mining Congress v. EPA, 824 F.2d 1177, 1189, 17 ELR 21064, 21070 (D.C. Cir. 1987) (Starr, J., writing for the majority).

3. This Article does not identify or discuss all of RCRA's relevant statutory and regulatory provisions. The subtitle C regulations alone consume over 500 pages of the Code of Federal Regulations. This Article is solely an introduction to RCRA, and the reader is urged to consult the source materials for further information, particularly regarding many of the subtle loopholes in RCRA. In particular, this Article does not address the Medical Waste Demonstration program adopted as subtitle J of RCRA in 1988. The interested reader may consult 42 U.S.C. §§ 6992-6992k (subtitle J) and 40 C.F.R. pt. 259 (1989) (implementing regulations).

4. R. FORTUNA & D. LENNETT, HAZARDOUS WASTE REGULATION: THE NEW ERA 10 (1987).

5. The statute required promulgation of the regulations 18 months after passage, or no later than April 1978. RCRA §§ 3001-3004, 42 U.S.C. §§ 6921-6924, ELR STAT. RCRA 010-012 (1982).

6. Promulgation was required one year after passage. RCRA §§ 1008, 4004, 42 U.S.C. §§ 6907(a), 6944(a), ELR STAT. RCRA 006, 028.

7. Illinois v. Costle, 9 ELR 20243 (D.D.C. 1979). RCRA, like many environmental statutes, provides for citizen suits to compel EPA's compliance with nondiscretionary statutory duties. RCRA § 7002, 42 U.S.C. § 6972(a)(1), ELR STAT. RCRA 034.

8. 45 Fed. Reg. 12722 (Feb. 26, 1980).

9. 45 Fed. Reg. 33066-33259 (May 19, 1980) (six different rules).

10. 47 Fed. Reg. 32274 (July 26, 1982); see also id. at 32276-77 (listing all initial subtitle C regulation publication dates).

11. 44 Fed. Reg. 45079 (July 31, 1979); 44 Fed. Reg. 53460 (Sept. 13, 1979).

12. FORTUNA & LENNETT, supra note 4, at 11-12.

13. Id. at 16.

14. C. HARRIS, W. WANT & M. WARD, HAZARDOUS WASTE: CONFRONTING THE CHALLENGE 33-35 (1987).

15. Id. at 35.

16. Pub. L. No. 98-616, 98 Stat. 3221.

17. FORTUNA & LENNETT, supra note 4, at 16-18.

18. Id. at 16-17. The "hammer" concept is discussed in detail in "Basic Standards for Treatment, Storage, and Disposal Facilities" infra.

19. Indeed, EPA's subtitle C program during the 1990s may be almost completely under the supervision of the federal district court in Washington, D.C. In 1989, the Environmental Defense Fund filed the "mega-deadline" suit, seeking to put EPA on a schedule for nearly all remaining HSWA deadlines (of which there are dozens). Environmental Defense Fund v. EPA, No. 89-0598 (D.D.C. filed Mar. 8, 1989). This suit has caused the promulgation of four major rules or studies as of the end of December 1990.

20. 40 C.F.R. pt. 260, app. I (1989).

21. RCRA § 1004(27), 42 U.S.C. § 6903(27), ELR STAT. RCRA 005 (1988). All citations to the U.S. Code refer to the 1988 edition, unless otherwise indicated.

22. See 45 Fed. Reg. 33093 (May 19, 1980).

23. 40 C.F.R. § 261.3(b) (1981) (superseded) (emphasis added).

24. R. HALL, T. WATSON, J. DAVIDSON, D. CASE & N. BRYSON, RCRA HAZARDOUS WASTES HANDBOOK 2-8 (6th ed. 1985); cf. H.R. REP. NO. 1491, 94th Cong., 2d Sess. 26, reprinted in 1976 U.S. CODE CONG. & ADMIN. NEWS 6238, 6264 (RCRA should not regulate industrial processes).

25. 50 Fed. Reg. 641 (Jan. 4, 1985).

26. 40 C.F.R. § 261.2(a)(1) (1989).

27. 40 C.F.R. § 261.2(a)(2) (1989).

28. 40 C.F.R. § 261.2(b) (1989).

29. 40 C.F.R. § 261.2(c) (1989).

30. 40 C.F.R. § 261.2, Table 1 (1989).

31. 40 C.F.R. § 261.2(d) (1989).

32. 40 C.F.R. § 261.6(c) (1989).

33. 40 C.F.R. § 261.6(b) (1989).

34. See infra notes 115-317 and accompanying text.

35. 824 F.2d 1177, 17 ELR 21064 (D.C. Cir. 1987).

36. Id. at 1179, 1181, 17 ELR at 21064, 21066.

37. Id. at 1186, 17 ELR at 21068.

38. Id. at 1193, 17 ELR at 21073.

39. 50 Fed. Reg. 519, 520 (Jan. 8, 1988).

40. Id. at 521, 523, 526.

41. 906 F.2d 729, 20 ELR 21091 (D.C. Cir. 1990).

42. Id. at 740-41, 20 ELR at 21096-97.

43. Id. at 741-42, 20 ELR at 21097.

44. American Mining Congress v. EPA, 907 F.2d 1179, 20 ELR 21415 (D.C. Cir. 1990) (AMC II).

45. Id. at 1186, 20 ELR at 21418 (emphasis in original).

46. EPA has no current plans to finalize the 1988 proposed amendments to the solid waste definition. 55 Fed. Reg. 45181 (Oct. 29, 1990). The Agency is, however, considering whether the solid waste definition needs a general overhaul. Cf. RCRA IMPLEMENTATION STUDY, infra note 457, at 38 (solid and hazardous waste definitions need to be rewritten).

47. See 33 U.S.C. § 1317(b), ELR STAT. FWPCA 034.

48. See 33 U.S.C. § 1342(a), ELR STAT. FWPCA 051.

49. RCRA § 1004(27), 42 U.S.C. § 6903(27).

50. 40 C.F.R. § 261.4(a)(1) (1989). Congress was sufficiently concerned that this loophole in the statute and the regulations was allowing large volumes of hazardous wastes to be "dumped down the sewer," escaping regulation. See 129 CONG. REC. H9149 (daily ed. Nov. 3, 1983) (statement of Rep. Molinari (R-N.Y.)). Congress therefore instructed EPA to submit a report to Congress documenting the number of generators disposing of hazardous wastes in sewers and the volumes and types of waste disposed of, and analyzing the adequacy of existing regulations in controlling such wastes. 42 U.S.C. § 6939(a), ELR STAT. RCRA 025. Congress also directed EPA to promulgate additional regulations necessary to protect human health and the environment, based on the conclusions of the study. 42 U.S.C. § 6939(b), ELR STAT. RCRA 026. EPA submitted the report in 1986, concluding that the domestic sewage exemption should be retained, but that existing FWPCA pretreatment requirements should be strengthened; EPA promulgated regulations implementing the report's recommendations in 1990. 55 Fed. Reg. 30082 (July 24, 1990).

51. Comite pro Rescate de la Salud v. Puerto Rico Aqueduct & Sewer Auth., 888 F.2d 180, 20 ELR 20211 (1st Cir. 1989); cert. denied, 110 S. Ct. 1476 (1990) (adopting EPA's interpretation of § 261.4(a)(1)).

52. 40 C.F.R. § 261.4(a)(5) (1989).

53. 40 C.F.R. § 261.4(a)(6)-(8) (1989).

54. 40 C.F.R. pt. 260, app. I (1989).

55. 42 U.S.C. § 6921(a), ELR STAT. RCRA 010.

56. 42 U.S.C. § 6903(5), ELR STAT. 004.

57. 42 U.S.C. § 6921(b)(1), ELR STAT. RCRA 010.

58. 40 C.F.R. § 261.10 (1989).

59. 40 C.F.R. § 261.11 (1989).

60. 40 C.F.R. § 261.21-.24 (1989).

61. 40 C.F.R. § 261.21 (1989).

62. 40 C.F.R. § 261.22 (1989).

63. 55 Fed. Reg. 11798, 11862 (Mar. 29, 1990) (corrected at 55 Fed. Reg. 26987 (June 29, 1990)) (to be codified at 40 C.F.R. pt. 261, app. II).

64. EPA's regulatory threshold for toxic constituents is 100 times the maximum contaminant level established under the Safe Drinking Water Act (see 42 U.S.C. § 300f-2, ELR STAT. SDWA 002) for that constituent, or a similar health-based standard for ingestion of the constituent. See 45 Fed. Reg. 33111 (May 19, 1980); 55 Fed. Reg. 11827 (Mar. 29, 1990).

65. See 45 Fed. Reg. 33110-11 (May 19, 1980); 55 Fed. Reg. 11816-17 (Mar. 29, 1990).

66. See infra note 74.

67. 40 C.F.R. pt. 261, app. II (1989) (superseded Mar. 29, 1990, 55 Fed. Reg. 11863).

68. The 1984 Amendments added § 3001(g), which ordered EPA to "examine the deficiencies of the [EP toxicity test] … and make changes … 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." 42 U.S.C. § 6921(g), ELR STAT. RCRA 001. Congress also added § 3001(h), which ordered EPA to promulgate regulations "identifying additional characteristics of hazardous waste, including measures or indicators of toxicity." 42 U.S.C. § 6921(h), ELR STAT. RCRA 011.

69. 55 Fed. Reg. 11798 (Mar. 29, 1990) (to be codified in various sections of 40 C.F.R. pts. 261, 264, 265, 268, 271, and 302).

70. 55 Fed. Reg. 11855 (Mar. 29, 1990).

71. Id. at 11856. Interim status and permit requirements are discussed in "Permitting Requirements" infra.

It should be noted, however, that based on the number of § 3010 notices submitted to EPA as a result of the new toxicity characteristic rule, these numbers appear to significantly overestimate the size of the new regulated community. Personal communication with C. Wehling, U.S. EPA (Nov. 12, 1990).

72. 40 C.F.R. § 261.11(a)(1) (1989).

73. 40 C.F.R. § 261.11(a)(2) (1989).

74. 40 C.F.R. § 261.11(a)(3) (1989).

75. 40 C.F.R. § 261.31 (1989).

76. 40 C.F.R. § 261.32 (1989).

77. 40 C.F.R. § 261.33 (1989).

78. See 45 Fed. Reg. 33122-27 (May 19, 1980); 45 Fed. Reg. 47833-34 (July 16, 1980).

79. 42 U.S.C. § 6921(e)(1), ELR STAT. RCRA 011.

80. 42 U.S.C. § 6921(e)(2), ELR STAT. RCRA 011. As of December 1990, EPA has made a final decision on whether to list 12 of the 17 waste categories.

81. Treatment of a characteristic waste to remove its characteristic will, in most instances, require a RCRA subtitle C permit. Mixing a characteristic waste to remove the characteristic may also constitute treatment, and raises additional issues related to the land disposal restrictions. See "The Land Disposal Restrictions" infra.

82. 40 C.F.R. § 261.3(a)(2)(iv) (1989). One slight complication to the mixture rule is that if the waste is listed solely because it exhibits a characteristic pursuant to 40 C.F.R. § 261.11(a)(1), the mixture is a listed hazardous waste only if it continues to exhibit that characteristic. See 40 C.F.R. § 261.3(a)(2)(iii) (1989).

83. The "derived-from" rule is not explicitly stated in EPA regulations, but is implicit from the language of 40 C.F.R. § 261.3(a)(2)(ii) -(iv) (1989). EPA discussed the effect of the derived-from rule in the preamble to its initial 1980 regulations. See 45 Fed. Reg. 33096 (May 19, 1980).

84. The harsh effect of the presumptions created by the mixture and derived-from rules was challenged in 1980. After years of settlement negotiations and regulatory revisions, these challenges have finally been briefed and argued before the D.C. Circuit; the court's decision is pending. Shell Oil Co. v. EPA, No. 80-1532 (D.C. Cir., argued Dec. 11, 1990) (and consolidated cases).

85. 40 C.F.R. § 260.22 (1989).

86. 40 C.F.R. § 260.22(a)(1) (1989); see, e.g., 53 Fed. Reg. 15422, 15424-25 (Apr. 29, 1988) (proposing to delist waste that does not contain significant levels of hazardous constituents); 54 Fed. Reg. 11706 (Mar. 22, 1989) (final delisting).

The delisting program almost always uses EPA's vertical and horizontal (VHS) model of groundwater transport to decide whether the constituents in the waste pose regulatory problems. 50 Fed. Reg. 48896 (Nov. 27, 1985).

The VHS model measures the expected level of groundwater contamination of an aquifer from the leaching of hazardous wastes disposed of in an unlined landfill. The output from the model is the degree of dilution and attenuation that will occur over time.

The delisting program has been criticized by environmental groups for reliance on the VHS model because: (1) it evaluates only the hazards from groundwater contamination; (2) the levels of allowable groundwater contamination are different from those in other parts of the subtitle C program; and (3) the VHS model levels allow wastes to escape any subtitle C regulation that do not even meet the treatment standards of the land disposal restrictions. Florini, Denison & Rathbun, EPA's Delisting Program for Hazardous Wastes: Current Limitations and Future Directions, 19 ELR 10558 (Dec. 1989). EPA has largely rejected these criticisms. See, e.g., 54 Fed. Reg. 43818 (Oct. 27, 1989); 54 Fed. Reg. 11706 (Mar. 22, 1989) (discussing Environmental Defense Fund comments).

87. 40 C.F.R. § 260.22(a)(2) (1989). Congress added this requirement in the 1984 Amendments, instructing EPA, when evaluating delisting petitions, to consider "factors (including additional constituents) other than those for which the waste was listed if the Administrator has a reasonable basis to believe that such additional factors could cause the waste to be … hazardous…." 42 U.S.C. § 6921(f), ELR STAT. RCRA 011.

88. 42 U.S.C. § 6921(f), ELR STAT. RCRA 011.

89. Chemical Waste Mgmt., Inc. v. EPA, 869 F.2d 1526, 1539-40, 19 ELR 20641, 20647 (D.C. Cir. 1989) (upholding the policy).

90. See 45 Fed. Reg. 33170 (May 19, 1980); 54 Fed. Reg. 36596 (Sept. 1, 1989); 55 Fed. Reg. 39410 (Sept. 27, 1990) (active management of hazardous wastes causes regulation of those wastes).

91. E.g., American Mining Congress v. EPA, 907 F.2d 1179, 20 ELR 21415 (D.C. Cir. 1990); Ethyl Corp. v. EPA, No. 90-1004 (D.C. Cir. Nov. 23, 1990) (unpublished opinion).

92. 43 Fed. Reg. 58946 (Nov. 18, 1978).

93. 45 Fed. Reg.33084 (May 19, 1980).

94. 42 U.S.C. § 6935(a), ELR STAT. RCRA 023.

95. Id.

96. 42 U.S.C. § 6935(b), ELR STAT. RCRA 024.

97. 42 U.S.C. § 6935(c)-(d), ELR STAT. RCRA 024.

98. 50 Fed. Reg. 49164 (Nov. 29, 1985). These standards were upheld in Hazardous Waste Treatment Council v. EPA, 861 F.2d 270, 277, 19 ELR 20059, 20063 (D.C. Cir. 1988).

99. 50 Fed. Reg. 49212 (Nov. 29, 1985).

100. 50 Fed. Reg. 49258 (Nov. 29, 1985).

101. 51 Fed. Reg. 49100 (Nov. 19, 1986).

102. Id. at 49102-03.

103. 861 F.2d 270, 19 ELR 20059 (D.C. Cir. 1988).

104. Id. at 274-77, 19 ELR at 20061-63.

105. Id. at at 277, 19 ELR at 20063.

106. 40 C.F.R. § 261.4(b)(1) (1989).

107. Id.

108. 40 C.F.R. § 261.4(b)(2) (1989).

109. "Special wastes" comes from EPA's own proposed standards for these wastes. See 43 Fed. Reg. 58948, 58991-92 (Nov. 18, 1978).

110. 42 U.S.C. § 6921(b)(2), ELR STAT. RCRA 010 (oil and gas industry wastes); § 6921(b)(3), ELR STAT. RCRA 010 (coal combustion and fly ash wastes; cement kiln dust; and mining and mineral processing wastes).

111. Mineral extraction and beneficiation refer to the processes of removing ore from a mine and preparing it physically and chemically for further processing or use. See 54 Fed. Reg. 36592, 36616-19 (Sept. 1, 1989) (discussing EPA's definition of beneficiation).

112. 53 Fed. Reg. 25446 (July 6, 1988) (oil and gas); 51 Fed. Reg. 24496 (July 3, 1986) (mineral extraction and beneficiation). The decision not to regulate mineral extraction and beneficiation wastes under subtitle C was upheld in Environmental Defense Fund v. EPA, 852 F.2d 1316, 18 ELR 21169 (D.C. Cir. 1988).

113. 53 Fed. Reg. 9976 (Mar. 28, 1988) (announcing availability of study).

114. 55 Fed. Reg. 32135 (Aug. 7, 1990); see also Environmental Defense Fund v. EPA, 852 F.2d 1316, 18 ELR 21169 (D.C. Cir.), cert. denied,, 109 S. Ct. 1120 (1989); 54 Fed. Reg. 36592 (Sept. 1, 1989); 55 Fed. Reg. 2322 (Jan. 23, 1990) (establishing the boundaries of the exemption for mineral processing).

115. One federal judge has perceptively pointed out that subtitle C regulates hazardous waste "well beyond the grave," since it continues to regulate hazardous waste disposal facilities long after they shut down. American Iron & Steel Inst. v. EPA, 886 F.2d 390, 393 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 3237 (1990).

116. 42 U.S.C. § 6922(a), ELR STAT. RCRA 012.

117. 42 U.S.C. § 6922(a)(1), ELR STAT. RCRA 012.

118. 42 U.S.C. § 6922(a)(2)-(a)(3), ELR STAT. RCRA 012.

119. 42 U.S.C. § 6922(a)(4), ELR STAT. RCRA 012.

120. 42 U.S.C. § 6922(a)(5), ELR STAT. RCRA 012.

121. 42 U.S.C. § 6922(a)(6), ELR STAT. RCRA 012 (added by the 1984 Amendments).

122. 42 U.S.C. § 6922(b)(1), ELR STAT. RCRA 012.

123. 42 U.S.C. § 6922(b)(2), ELR STAT. RCRA 012.

124. 40 C.F.R. § 260.10 (1989). The definition follows from the RCRA definition of generation of hazardous waste. See 42 U.S.C. § 6903(6), ELR STAT. RCRA 004.

125. 40 C.F.R. § 262.11 (1989).

126. 40 C.F.R. § 262.11(c)(2) (1989).

127. 40 C.F.R. § 262.12 (1989).

128. 40 C.F.R. § 262.12(c) (1989). All generators, transporters, and TSDFs must therefore have an identification number. See also 40 C.F.R. §§ 263.11, 264.11, 265.11 (1989). Identification numbers are assigned after filing EPA Form 8700-12, which also serves as the form to notify EPA that one is engaging in hazardous waste management, as required by RCRA § 3010(a). 42 U.S.C. § 6930(a), ELR STAT. RCRA 022; see also 45 Fed. Reg. 12746 (Feb. 12, 1980) (specifying § 3010 notification requirements).

129. 40 C.F.R. § 262.20-.23 (1989).

130. 40 C.F.R. § 262.20(b) (1989). With one minor exception, only a facility that has a RCRA permit or interim status may accept off-site wastes. See 40 C.F.R. § 260.10 (1989) (as amended at 55 Fed. Reg. 2322 (Jan. 23, 1990)) (definition of designated facility).

131. 40 C.F.R. § 262.23 (1989).

132. 40 C.F.R. § 262.30-.33 (1989) (referencing 49 C.F.R. pts. 172, 173, 178, and 179).

133. 40 C.F.R. § 262.34(a) (1989). There are several subtle complications associated with the 90-day accumulation rule. See, e.g., 51 Fed. Reg. 10146 (Mar. 24, 1986).

134. 40 C.F.R. § 260.40-.43(1989).

135. 40 C.F.R. § 262.42 (1989).

136. 40 C.F.R. § 261.5(f) (1984) (superseded).

137. 42 U.S.C. § 6921(d), ELR STAT. RCRA 010.

138. 42 U.S.C. § 6921(d)(1), ELR STAT. RCRA 010.

139. 42 U.S.C. § 6921(d)(3), ELR STAT. RCRA 011.

140. 42 U.S.C. § 6921(d)(4), ELR STAT. RCRA 011.

141. See 51 Fed. Reg. 10146 (Mar. 24, 1986).

142. 40 C.F.R. § 262.44 (1989).

143. 40 C.F.R. § 262.34(d) (1989).

144. 40 C.F.R. § 261.5(b) (1989).

145. 40 C.F.R. § 261.5(g)(1) (1989).

146. 40 C.F.R. § 261.5(g)(2) (1989). There are separate requirements and lower SQG cutoffs for acutely hazardous wastes. See 40 C.F.R. § 261.5(e),(f) (1989).

147. 42 U.S.C. § 6922(a)(1), ELR STAT. RCRA 012.

148. 42 U.S.C. § 6922(a)(2)-(3), ELR STAT. RCRA 012.

149. 42 U.S.C. § 6922(a)(4), ELR STAT. RCRA 012.

150. 42 U.S.C. § 6922(a)(5), ELR STAT. RCRA 012.

151. 42 U.S.C. § 6922(a)(6), ELR STAT. RCRA 012.

152. 40 C.F.R. § 263.10(a) note (1989).

153. 40 C.F.R. § 263.11 (1989).

154. 40 C.F.R. § 263.20-.21 (1989).

155. 40 C.F.R. § 263.22 (1989).

156. 40 C.F.R. § 263.30-.31 (1989).

157. 42 U.S.C. § 6924, ELR STAT. RCRA 012.

158. 42 U.S.C. § 6925(c), ELR STAT. RCRA 017.

159. 42 U.S.C. § 6925(e), ELR STAT. RCRA 017; see infra notes 318-324 and accompanying text.

160. 42 U.S.C. § 6924(a)(1), ELR STAT. RCRA 012.

161. 42 U.S.C. § 6924(a)(2), ELR STAT. RCRA 012.

162. 42 U.S.C. § 6924(a)(3), (a)(6), ELR STAT. RCRA 012.

163. 42 U.S.C. § 6924(a)(5), ELR STAT. RCRA 012.

164. 42 U.S.C. § 6924(a)(5), ELR STAT. RCRA 012.

165. 42 U.S.C. § 6924(a)(6), ELR STAT. RCRA 012.

166. 42 U.S.C. § 6924(a)(7), ELR STAT. RCRA 012.

167. This section discusses primarily the requirements in 40 C.F.R. pt. 264, which apply to TSDFs that have permits. See 40 C.F.R. §§ 264.3, 270.70 (1989). The requirements for interim status or other nonpermitted facilities are in 40 C.F.R. pt. 265. For most of the general facility requirements, the part 265 standards are not significantly different from those in part 264; however, key requirements (e.g., groundwater monitoring or corrective action) may be quite different.

168. 42 U.S.C. § 6924(a), ELR STAT. RCRA 012.

169. Pub. L. No. 98-616 (§§ 201-209), 98 Stat. 3221, 3226-40 (adding § 3004(b) through 3004(x)).

170. 40 C.F.R. §§ 264.11, 265.11 (1989).

171. 40 C.F.R. §§ 264.70-.77, 265.70-.77 (1989).

172. 40 C.F.R. §§ 264.12-.13, 264.73-.77, 265.12-.13, 265.73-.77 (1989).

173. 40 C.F.R. §§ 264.31, 265.31 (1989).

174. 40 C.F.R. §§ 264.14, 265.14 (1989).

175. 40 C.F.R. §§ 264.15, 265.15 (1989).

176. 40 C.F.R. §§ 264.16, 265.16 (1989).

177. 40 C.F.R. §§ 264.31-.37, 264.50-.56, 265.31-.37, 265.50-.56 (1989).

178. 40 C.F.R. § 264.31 (1989).

179. 40 C.F.R. § 264.18 (1989). EPA regulations allow for a waiver from the 100-year floodplain requirement for facilities that can move the wastes before a flood occurs or that pose no health risks if a flood occurs. Id. § 264.18(b)(1).

180. 42 U.S.C. § 6924(o)(7), ELR STAT. RCRA 015.

181. 40 C.F.R. § 265.90(a) (1989).

182. 40 C.F.R. § 265.90(b), .91(a) (1989).

183. 40 C.F.R. § 265.92(b) (1989).

184. 40 C.F.R. § 265.93(c)-(d) (1989).

185. 42 U.S.C. § 6925(e)(2)-(3), ELR STAT. RCRA 017.

186. 40 C.F.R. § 264.91(a), .98 (1989).

187. 40 C.F.R. § 264.97(g), .98(a) (1989).

188. 40 C.F.R. § 264.97(g), .98(c) (1989).

189. 40 C.F.R. § 264.98(g) (1989).

190. 40 C.F.R. § 264.99 (1989).

191. 42 U.S.C. § 300f-2, ELR STAT. SDWA 002; see also 40 C.F.R. § 264.92, .94 Table 1 (1989).

192. 40 C.F.R. § 264.94(b) (1989).

193. 40 C.F.R. § 264.100 (1989).

194. 40 C.F.R. § 264.100(b) (1989).

195. 40 C.F.R. § 264.90(a)(2) (1989).

196. 42 U.S.C. § 6924(u), ELR STAT. RCRA 016.

197. Id.

198. 42 U.S.C. § 6924(v), ELR STAT. RCRA 016.

199. 42 U.S.C. § 6928(h), ELR STAT. RCRA 021.

200. 55 Fed. Reg. 30798 (July 27, 1990).

201. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 007-075; see 55 Fed. Reg. 8666 (Mar. 7, 1990) (to be codified at 40 C.F.R. pt. 300) (National Oil and Hazardous Substance Contingency Plan).

202. 55 Fed. Reg. 30801 (July 27, 1990).

203. Id. at 30800.

204. 40 C.F.R. §§ 264.111(a)-(b), 265.111(a)-(b) (1989).

205. 40 C.F.R. §§ 264.111(c), 265.111(c) (1989). Unit-specific requirementsare discussed in "Requirements for Specific Types of Hazardous Waste Units" infra.

206. 40 C.F.R. §§ 264.112, 265.112 (1989). A permitted facility submits and obtains approval of its closure plan during the permit process. A permitted facility must again notify EPA 45 to 60 days before closure begins. Id. § 264.112(d). An interim status facility must submit its plan at least six months before closure begins to give EPA time to review the plan. Id. § 265.112(d).

207. 40 C.F.R. §§ 264.113, 265.113 (1989) (superseded).

208. 54 Fed. Reg. 33394 -97 (Aug. 14, 1989) (amending 40 C.F.R. §§ 264.113, 265.113); see also Chemical Mfrs. Ass'n v. EPA, 919 F.2d 158 (D.C. Cir. 1990) (upholding delay of closure regulations).

209. 42 U.S.C. § 6924(o), ELR STAT. RCRA 015; see "Land Disposal Units," infra notes 249-262 and accompanying text.

210. 54 Fed. Reg. 33395, 33397 (Aug. 14, 1989) (to be codified at 40 C.F.R. §§ 264.113(e), 265.113(e)).

211. 52 Fed. Reg. 8712-13 (Mar. 19, 1987) (discussing current closure options for land disposal units).

212. See, e.g., 40 C.F.R. § 264.228(a)(1) (1989) (clean closure for surface impoundments).

213. 40 C.F.R. §§ 264.197(a), 265.197(a) (1989).

214. For instance, EPA does not allow landfills to be clean closed. 40 C.F.R. §§ 264.310, 265.310 (1989).

215. 40 C.F.R. §§ 264.110(b), 265.110(b) (1989).

216. 40 C.F.R. §§ 264.117(a), .118(a); 265.117(a), .118(a) (1989).

217. 40 C.F.R. §§ 264.117(a)(1)(i), 265.117(a)(1)(i) (1989).

218. 40 C.F.R. § 264.117(a)(1)(ii) (1989).

219. 40 C.F.R. § 264.117(b) (1989).

The two basic closure options lie at two extremes: complete decontamination or a full 30-year postclosure care period. EPA has proposed requirements for approval of "alternate" closure requirements where, on a case-by-case basis, the Agency would set requirements for partial decontamination and/or a modified postclosure care period based on the characteristics of the unit and the wastes within it. See 52 Fed. Reg. 8712 (Mar. 19, 1987). EPA plans to eventually repropose the alternative closure requirements, but it is not currently working on that new proposal. 55 Fed. Reg. 45176 (Oct. 29, 1990) (no date listed for reproposal).

220. 40 C.F.R. §§ 264.140-.151, 265.140-.151 (1989).

221. 40 C.F.R. §§ 264.142, .144; 265.142, .144 (1989).

222. 40 C.F.R. §§ 264.143(a), .145(a); 265.143(a), .145(a) (1989).

223. 40 C.F.R. §§ 264.143(b)-(c), .145(b)-(c); 265.143(b)-(c), .145(b)-(c) (1989).

224. 40 C.F.R. §§ 264.143(d), .145(d); 265.143(d), .145(d) (1989).

225. 40 C.F.R. §§ 264.143(e), .145(e); 265.143(e), .145(e) (1989).

226. 40 C.F.R. §§ 264.143(f), .145(f); 265.143(f), .145(f) (1989).

227. 40 C.F.R. §§ 264.147, 265.147 (1989).

228. This section does not address the standards for temporary storage containers (40 C.F.R. § 264.170-.178) or so-called miscellaneous units (40 C.F.R. § 264.600-.603).

229. 51 Fed. Reg. 25472 (July 14, 1986).

230. 40 C.F.R. §§ 264.191, 265.191 (1989).

231. 40 C.F.R. §§ 264.191(d), .196; 265.191 (d), .196 (1989).

232. 40 C.F.R. §§ 264.192, 265.192 (1989).

233. 40 C.F.R. §§ 264.193, 265.193 (1989).

234. 40 C.F.R. §§ 264.195-.96, 265.195-.96 (1989).

235. 40 C.F.R. §§ 264.197, 265.197 (1989).

236. EPA's regulations do not explicitly state this. An "incinerator" is defined as a flame combustion device that is not a boiler or an industrial furnace. 40 C.F.R. § 260.10 (1989). Boilers and furnaces are devices that use flame to recover raw materials (e.g., a smelter or a kiln) or energy. Id. By elimination, an incinerator is a device that is not trying to recover materials or energy.

237. 40 C.F.R. § 266.30-.35 (1989).

238. 40 C.F.R. § 264.343(a) (1989).

239. 40 C.F.R. § 264.341-.342 (1989).

240. 40 C.F.R. §§ 264.344(a)(2), 270.62 (1989).

241. 40 C.F.R. § 264.345, .347 (1989).

242. 40 C.F.R. §§ 264.351, 265.351 (1989).

243. 40 C.F.R. § 266.35 (1989).

244. 40 C.F.R. § 266.32-.33 (1989).

245. 40 C.F.R. § 266.34 (1989).

246. 42 U.S.C. § 6924(q)(1), ELR STAT. RCRA 015.

247. Environmental Defense Fund v. Reilly, No. 89-0598 (D.D.C. Oct. 12, 1990). The regulations were proposed on May 6, 1987 (52 Fed. Reg. 16982) and reproposed on October 26, 1989 (54 Fed. Reg. 43718). The final regulations were signed by the EPA Administrator on December 31, 1990, but have not yet been published in the Federal Register.

248. 42 U.S.C. § 6924(r), ELR STAT. RCRA 015.

249. E.g., H.R. REP. NO. 198, 98th Cong., 2d Sess., pt. 1, at 20 (1984), reprinted in 1984 U.S. CODE CONG. & ADMIN. NEWS 5576, 5578 ("there is a growing body of evidence that land disposal of hazardous waste is not providing, and in some cases cannot provide, protection against groundwater contamination and in many cases poses grave threats to public health and the environment").

In light of these concerns, Congress inserted a specific legislative finding in RCRA that

certain classes of land disposal facilities are not capable of assuring long-term containment of certain hazardous wastes, and to avoid substantial risk to human health and the environment, reliance on land disposal should be minimized or eliminated, and land disposal, particularly landfill and surface impoundment, should be the least favored method for managing hazardous wastes.

RCRA § 1002(b)(7), 42 U.S.C. § 6901(b)(7), ELR STAT. RCRA 004.

250. See "The Land Disposal Restrictions" infra.

251. 42 U.S.C. §§ 6924(o), 6925(j), ELR STAT. RCRA 015, 018.

252. 42 U.S.C. § 6924(o)(1)(A), ELR STAT. RCRA 015.

253. 42 U.S.C. § 6924(o)(2)-(3), ELR STAT. RCRA 015.

254. 42 U.S.C. § 6924(o)(1)(B), ELR STAT. RCRA 015.

255. 42 U.S.C. § 6924(o)(4), ELR STAT. RCRA 015.

256. 42 U.S.C. § 6925(j)(1),ELR STAT. RCRA 015.

257. 51 Fed. Reg. 16445 (May 2, 1986) (codified at 40 C.F.R. §§ 264.113, 265.113 (1989)) (superseded).

258. 54 Fed. Reg. 33382 (Aug. 14, 1989).

259. 42 U.S.C. § 6925(j)(2), ELR STAT. RCRA 018.

260. 42 U.S.C. § 6925(j)(3), ELR STAT. RCRA 018.

261. 42 U.S.C. § 6925(j)(1), ELR STAT. RCRA 018.

262. 42 U.S.C. § 6925(j)(6), ELR STAT. RCRA 018.

263. 40 C.F.R. § 260.10 (1989).

264. 40 C.F.R. §§ 264.250(b), 265.300 (1989).

265. 40 C.F.R. § 264.251(a) (1989). Pursuant to the 1984 Amendments, interim status facilities must also comply for expanded or new waste piles. 42 U.S.C. § 6936(a), ELR STAT. RCRA 024; 40 C.F.R. § 265.254 (1989).

266. 40 C.F.R. § 264.251(c) (1989). Interim status facilities must comply if the leachate or run-off from the pile is a hazardous waste. 40 C.F.R. § 265.253 (1989).

267. 40 C.F.R. § 264.254 (1989).

268. 40 C.F.R. §§ 264.258(a), 265.258(a) (1989).

269. 40 C.F.R. §§ 264.258(b), 265.258(b) (1989).

270. 40 C.F.R. §§ 264.301(a)-(e), .301(k); 265.301 (1989).

271. 40 C.F.R. §§ 264.301(f)-(h), 265.302 (1989).

272. 42 U.S.C. § 6924(c), ELR STAT. RCRA 013; 40 C.F.R. § 264.314 (1989).

273. 40 C.F.R. §§ f264.303, .310; 265.310 (1989).

274. Cf. 40 C.F.R. § 260.10 (1989) (defining "surface impoundment" as, for example, a pit, pond, or lagoon).

275. Cf. 47 Fed. Reg. 32284-85 (July 26, 1982) (liquids in land disposal units pose the greatest environmental threat).

276. 40 C.F.R. §§ 264.221, 265.221 (MTR design requirements); 264.226, 265.226 (monitoring and inspection); 264.228, 265.228 (closure and postclosure care) (1989).

277. 40 C.F.R. § 264.227 (1989).

278. 40 C.F.R. §§ 264.228(a)(1), 265.228(a)(1) (1989).

279. 40 C.F.R. §§ 264.228(a)(2), 265.228(a)(2) (1989).

280. 40 C.F.R. § 260.10 (1989).

281. Interestingly, however, placing a waste into a land treatment unit is land disposal for purposes of RCRA. 42 U.S.C. § 6924(k), ELR STAT. RCRA 012. Therefore, all such wastes must first meet the requirements of the land disposal restrictions before further land treatment can begin. See American Petroleum Inst. v. EPA, 906 F.2d 729, 734-36, 20 ELR 21091, 21093-94 (D.C. Cir. 1990). These restrictions are discussed in "The Land Disposal Restrictions" infra.

282. 40 C.F.R. §§ 264.273(a), 265.272(a) (1989).

283. 40 C.F.R. § 264.272 (1989).

284. 40 C.F.R. §§ 264.273(b)-(g), 265.272(b)-(d) (1989).

285. 40 C.F.R. §§ 264.278, 265.278 (1989).

286. 40 C.F.R. § 264.280(e) (1989).

287. 40 C.F.R. §§ 264.280(a)-(d), 265.280 (1989).

288. See supra note 18 and accompanying text; "Basic Standards for Treatment, Storage, and Disposal," infra.

289. RCRA defines land disposal "to include, but not be limited to, any placement of … hazardous waste in a landfill, surface impoundment, waste pile, injection well, land treatment facility, salt dome formation, salt bed formation, or underground mine or cave." 42 U.S.C. § 6924(k), ELR STAT. RCRA 014.

290. 42 U.S.C. § 6924(e), ELR STAT. RCRA 013.

291. H.R. REP. NO. 198, 98th Cong., 2d Sess., pt. 1, at 35 (1984), reprinted in 1984 U.S. CODE CONG. & ADMIN. NEWS 5576, 5593 (wastes on the list selected based on existing regulations in California).

292. 42 U.S.C. § 6924(d), ELR STAT. RCRA 013.

293. 42 U.S.C. § 6924(d)(2), ELR STAT. RCRA 013.

294. 42 U.S.C. § 6924(g)(1)-(2), ELR STAT. RCRA 014.

295. 42 U.S.C. § 6924(g)(4), ELR STAT. RCRA 014.

296. 42 U.S.C. § 6924(m)(1), ELR STAT. RCRA 014.

297. 42 U.S.C. 6924(d)(1), (e)(1), (g)(5). EPA regulations provide for a site-specific variance from the § 3004(m) standards if the facility can show that because of the physical or chemical properties of its wastes, it cannot achieve the § 3004(m) levels or use the prescribed § 3004(m) method. 40 C.F.R. § 268.44(a) (1989).

298. 40 C.F.R. § 268.41, .43 (1989).

299. 40 C.F.R. § 268.42 (1989).

300. FORTUNA & LENNETT, supra note 4, at 202.

301. To further enforce the hammer concept, Congress also added a provision prohibiting the storage of any waste prohibited from land disposal unless "such storage is solely for the purpose of [accumulating] such quantities of hazardous waste as are necessary to facilitate proper recovery, treatment or disposal." 42 U.S.C. § 6924(j), ELR STAT. RCRA 014.

302. See 51 Fed. Reg. 40572 (Nov. 7, 1986) (solvents and dioxins); 52 Fed. Reg. 25760 (July 8, 1987) (California list); 53 Fed. Reg. 31138 (Aug. 17, 1988) (first third of listed wastes); 54 Fed. Reg. 26594 (June 23, 1989) (second third); 55 Fed. Reg. 22520 (June 1, 1990) (third third and characteristic wastes).

303. 40 C.F.R. § 146.5(a) (1989).

304. 42 U.S.C. § 6924(d)(1), (e)(1), (g)(5); ELR STAT. RCRA 013-014; see Natural Resources Defense Council v. EPA, 907 F.2d 1146, 20 ELR 21274 (D.C. Cir. 1990) (upholding EPA's standards and processes for reviewing and approving "no migration" petitions).

305. 42 U.S.C. § 6924(h)(2), ELR STAT. RCRA 014.

306. 42 U.S.C. § 6924(h)(3), ELR STAT. RCRA 014.

307. 51 Fed. Reg. 40572, 40578 (Nov. 7, 1986).

308. 40 C.F.R. § 268.41-.43 (1989) (as amended, 55 Fed. Reg. 22520 (June 1, 1990)).

309. 40 C.F.R. § 268.5 (1989).

310. Hazardous Waste Treatment Council v. EPA, 886 F.2d 355, 19 ELR 21398 (D.C. Cir. 1989), cert. denied, 111 S. Ct. 139 (1990).

311. Id. at 365-66, 19 ELR at 21403-04.

312. 55 Fed. Reg. 6642 (Feb. 26, 1990).

313. 55 Fed. Reg. 22520, 22651-658 (June 1, 1990).

314. Id. at 22651-52.

315. Id. at 22657-59.

316. Id.

317. 42 U.S.C. § 6924(g)(4), ELR STAT. RCRA 014.

318. 42 U.S.C. § 6925(e)(1)(A)-(C), ELR STAT. RCRA 017.

319. See infra notes 361-365 and accompanying text.

320. 42 U.S.C. § 6925(e)(2), ELR STAT. RCRA 017.

321. 42 U.S.C. § 6925(c)(2)(A), ELR STAT. RCRA 017.

322. 42 U.S.C. § 6925(e)(1)(A)(ii), ELR STAT. RCRA 017.

323. 42 U.S.C. § 6925(e)(3), ELR STAT. RCRA 017.

324. 40 C.F.R. § 270.10(e)(4), .10(f)(2) (1989).

325. 40 C.F.R. § 270.13 (1989).

326. 42 U.S.C. § 6925(e)(1)(C), ELR STAT. RCRA 017.

327. 40 C.F.R. § 270.14 (1989).

328. 40 C.F.R. § 270.14-.23 (1989).

329. 42 U.S.C. § 6925(e)(3), ELR STAT. RCRA 017.

330. 40 C.F.R. pt. 124 (1989).

331. 40 C.F.R. § 124.10-.11 (1989); see also 42 U.S.C. § 6974, ELR STAT. RCRA 036 (specifying public participation requirements for the RCRA permit process).

332. 40 C.F.R. § 124.9 (1989).

333. 40 C.F.R. § 124.19 (1989).

334. 40 C.F.R. § 124.19(f) (1989).

335. 42 U.S.C. § 6976(a)(1), ELR STAT. RCRA 036.

336. 42 U.S.C. § 6925(c)(3), ELR STAT. RCRA 016.

337. Id.

338. 40 C.F.R. § 270.41,.43 (1989).

339. 40 C.F.R. § 270.41 (1989).

340. 40 C.F.R. § 270.42 (1989).

341. 40 C.F.R. § 270.60 (1989).

342. Id.

343. 40 C.F.R. § 270.60(b)(3)(i), .60(c)(3)(vii) (1989); see Inland Steel Co. v. EPA, 901 F.2d 1419, 20 ELR 20889 (7th Cir. 1990) (upholding RCRA corrective action for UIC wells). But cf. Natural Resources Defense Council v. EPA, 907 F.2d 1146, 1165, 20 ELR 21274, 21283 (D.C. Cir. 1990) (suggesting that permits-by-rule may not be consistent with procedural requirements for RCRA permits).

344. 40 C.F.R. § 270.61 (1989).

345. 40 C.F.R. § 270.62 (1989).

346. 40 C.F.R. § 270.63 (1989).

347. 40 C.F.R. § 270.64 (1989); see 42 U.S.C. § 6925(g), ELR STAT. RCRA 016 (authorizing research and development permits).

348. See, e.g., 33 U.S.C. § 1342(b), ELR STAT. FWPCA 051; 42 U.S.C. §§ 300h-1, 300h-4, ELR STAT. SDWA 009, 011 (SDWA (UIC program)).

349. RCRA defines "state" to include the 50 states, the District of Columbia, Puerto Rico, and four other U.S. territories. 42 U.S.C. § 6903(31), ELR STAT. RCRA 005. EPA is currently considering whether to amend its regulations to treat Indian tribes as states for purposes of subtitle C authorization. 55 Fed. Reg. 45178-79 (Oct. 29, 1990); cf. 33 U.S.C. § 1377(e), ELR STAT. FWPCA 063 (treating tribes as states under the FWPCA).

350. 42 U.S.C. § 6926(b), ELR STAT. RCRA 020.

351. 42 U.S.C. § 6928(a)(3), ELR STAT. RCRA 022.

352. See, e.g., 42 U.S.C. § 7416, ELR STAT. CAA 017; 33 U.S.C. § 1370, ELR STAT. FWPCA 061.

353. 42 U.S.C. § 6929, ELR STAT. RCRA 022.

354. 42 U.S.C. § 6926(c)(1), ELR STAT. RCRA 019.

355. See 42 U.S.C. § 6926(c) (1982) (superseded in part).

356. 42 U.S.C. § 6926(c)(1), ELR STAT. RCRA 019.

357. 42 U.S.C. § 6926(g)(2), ELR STAT. RCRA 020.

358. 42 U.S.C. § 6926(c)(1), ELR STAT. RCRA 019.

359. 42 U.S.C. § 6926(b)(1)-(3), ELR STAT. RCRA 019. Technically speaking, the statute puts the burden on EPA to show that the state's program is not equivalent, consistent, and adequate. If EPA fails to act on a state application for final authorization within 90 days showing why the criteria are not met, the state becomes authorized. Id. EPA, however, has always acted to recommend approval or disapproval of a final application.

EPA has promulgated regulations specifying how a state may apply for final authorization. 40 C.F.R. pt. 271, subpt. A (1989). These require the state to submit a formal request signed by the governor, a detailed description of the state program, a statement from the attorney general describing how the state laws and regulations are equivalent to (or more stringent than) and consistent with the federal requirements, a draft memorandum of agreement specifying how EPA and the state will conduct their parts of the program, and copies of all relevant state laws. Id. § 271.5. EPA decides to approve or disapprove the application after public notice and opportunity for a hearing. Id. § 271.20.

360. 42 U.S.C. § 6926(e), ELR STAT. RCRA 019; 40 C.F.R. § 271.22-.23 (1989).

361. 42 U.S.C. § 6926(b)-(c), ELR STAT. RCRA 019.

362. 50 Fed. Reg. 28729 (July 15, 1985). The state is under an obligation to amend its program accordingly to ensure that its program remains equivalent to the federal program. See 40 C.F.R. § 271.21 (1989).

EPA has adopted certain regulations since 1984 that do not appear in the 1984 Amendments and thus constitute changes to the base program. EPA has maintained its position with regard to the applicability of these regulations in base program-authorized states (i.e., they do not take effect until the state amends its program accordingly). E.g., 53 Fed. Reg. 35417 (Sept. 13, 1988).

363. 42 U.S.C. § 6926(g)(1), ELR STAT. RCRA 020.

364. Id. Congress provided that a state can again obtain interim authorization for such HSWA requirements by showing that its program is "substantially equivalent" to the federal requirements. Id. § 6926(b)(2), ELR STAT. RCRA 019.

365. 40 C.F.R. § 271.1(f), .3(a)(3), .19(f), .121(c)(3), .121(f), .134(f) (1989).

366. 42 U.S.C. § 6928(a)(1), ELR STAT. RCRA 020.

367. 42 U.S.C. § 6928(a)(2), (g), ELR STAT. RCRA 020,021.

368. 42 U.S.C. § 6928(a)(3), ELR STAT. RCRA 020.

369. 42 U.S.C. § 6928(b), ELR STAT. RCRA 021.

370. 42 U.S.C. § 6928(c), ELR STAT. RCRA 021.

371. 42 U.S.C. § 6928(h), ELR STAT. RCRA 021; see supra notes 194-203 and accompanying text.

372. 42 U.S.C. § 6928(d)(1), (d)(5), ELR STAT. RCRA 021.

373. 42 U.S.C. § 6928(d)(2), ELR STAT. RCRA 021.

374. 42 U.S.C. § 6928(d)(3), ELR STAT. RCRA 021.

375. 42 U.S.C. § 6928(d)(4), ELR STAT. RCRA 021.

376. 42 U.S.C. § 6928(d)(6), ELR STAT. RCRA 021.

377. 42 U.S.C. § 6928(d)(7), ELR STAT. RCRA 021.

378. 42 U.S.C. § 6928(d), ELR STAT. RCRA 021.

379. 42 U.S.C. § 6928(e), ELR STAT. RCRA 021.

380. 42 U.S.C. § 6973(a), ELR STAT. RCRA 035.

381. Id.

382. 42 U.S.C. § 6973(b), ELR STAT. RCRA 035.

383. 42 U.S.C. § 6973(a), ELR STAT. RCRA 035.

384. 42 U.S.C. § 6972(a)(1)(A), ELR STAT. RCRA 034.

385. 42 U.S.C. § 6972(a)(1)(B), ELR STAT. RCRA 035.

386. 42 U.S.C. § 6972(a)(2), ELR STAT. RCRA 035.

387. 42 U.S.C. § 6973(b)(1)(A), (b)(2)(A), (c); see also 40 C.F.R. pt. 254 (RCRA citizen suit notice requirements).

388. 42 U.S.C. § 6973(a)(1)(B), ELR STAT. RCRA 035.

389. 42 U.S.C. § 6973(b)(2)(B)-(C), ELR STAT. RCRA 035.

390. 42 U.S.C. § 6976(a)(1), ELR STAT. RCRA 035.

391. Id.

392. 42 U.S.C. §§ 6941-6949a, ELR STAT. RCRA 027-030.

393. U.S. EPA, REPORT TO CONGRESS, SOLID WASTE DISPOSAL IN THE UNITED STATES, ES-1 (1988).

394. E.g., 42 U.S. §§ 6921(a), 6922(a), 6923(a), 6924(a), ELR STAT. RCRA 010-012.

395. 42 U.S.C. § 6941, ELR STAT. RCRA 027.

396. See "Prospects for Reauthorization," infra.

397. 42 U.S.C. § 6944(a). EPA's existing criteria are in 40 C.F.R. pt. 257; see Chemical Mfrs. Ass'n v. EPA, 673 F.2d 302, 17 ELR 20396 (D.C. Cir. 1981) (upholding criteria).

398. 42 U.S.C. § 6945(a), ELR STAT. RCRA 028.

399. 42 U.S.C. § 6947(a), ELR STAT. RCRA 029. State plans are approved pursuant to the procedures in 40 C.F.R. pt. 256 (1989).

400. 42 U.S.C. § 6943(a)(2), ELR STAT. RCRA 027.

401. 42 U.S.C. § 6943(a)(3), ELR STAT. RCRA 028.

402. 42 U.S.C. § 6946, ELR STAT. RCRA 028.

403. 42 U.S.C. § 6947(b)(1), ELR STAT. RCRA 029.

404. 42 U.S.C. § 6948(a), ELR STAT. RCRA 029 (funding in 1980-82, 1985-88).

405. 42 U.S.C. § 6973(a), ELR STAT. RCRA 035.

406. 42 U.S.C. § 6972(a)(1), ELR STAT. RCRA 034.

407. See supra notes 106-108 and accompanying text.

408. See supra notes 136-146 and accompanying text.

409. 42 U.S.C. § 6949a(d), ELR STAT. RCRA 030.

410. Id.

411. 42 U.S.C. § 6944(c)(1), ELR STAT. RCRA 028.

412. 42 U.S.C. § 6944(c)(2), ELR STAT. RCRA 028.

413. 53 Fed. Reg. 33314 (Aug. 30, 1988).

414. Id. at 33406.

415. Id. at 33407-408, 33410-11.

416. Id. at 33409.

417. Id. at 33411-412.

418. EPA did, however, reject adopting the subtitle C approach to setting standards (i.e., uniform national criteria with the potential for individual variances on a site-specific basis). EPA rejected such an approach to avoid over-regulation of municipal landfills. Id. at 33323.

419. Id. at 33387, 33389.

420. 42 U.S.C. § 6991-6991i, ELR STAT. RCRA 042.

421. H.R. CONF. REP. NO. 1133, 98th Cong., 2d Sess. 128, reprinted in 1984 U.S. CODE CONG. & ADMIN. NEWS 5576, 5699.

422. 42 U.S.C. § 6991(1), (2), ELR STAT. RCRA 042.

423. 42 U.S.C. § 6991a(a)(2), ELR STAT. RCRA 042.

424. 42 U.S.C. § 6991b(a), ELR STAT. RCRA 042.

425. 42 U.S.C. § 6991b(c)(1)-(2), ELR STAT. RCRA 042.

426. 42 U.S.C. § 6991b(c)(3), ELR STAT. RCRA 042.

427. 42 U.S.C. § 6991b(c)(4), ELR STAT. RCRA 042.

428. 42 U.S.C. § 6991b(c)(5)-(6), ELR STAT. RCRA 042.

429. 42 U.S.C. § 6991b(e), ELR STAT. RCRA 042.

430. 42 U.S.C. § 6991c(a), ELR STAT. RCRA 042.

431. 42 U.S.C. § 6991c(b)(1), ELR STAT. RCRA 042.

432. 42 U.S.C. § 6991e(a), ELR STAT. RCRA 042.

433. 42 U.S.C. § 6991e(a)(3), e(d), ELR STAT. RCRA 042.

434. 42 U.S.C. § 6991b(h)(4), ELR STAT. RCRA 042.

435. 42 U.S.C. § 6991b(h), ELR STAT. RCRA 035.

436. 42 U.S.C. § 6991(a), ELR STAT. RCRA 035.

437. 42 U.S.C. § 6991(a)(1), ELR STAT. RCRA 034.

438. 53 Fed. Reg. 37082, 37083 (Sept. 23, 1988).

439. Id. at 37083-84.

440. Id. at 37098.

441. 40 C.F.R. § 280.20 (1989).

442. 40 C.F.R. § 280.20(f) (1989).

443. 40 C.F.R. § 280.21(1989).

444. 40 C.F.R. § 280.20(c), .21(d), .30 (1989).

445. 40 C.F.R. § 280.33 (1989).

446. 40 C.F.R. § 280.41, .43 (1989).

447. 40 C.F.R. § 280.42 (1989).

448. 40 C.F.R. § 280.40(c) (1989).

449. 40 C.F.R. § 280.41(a)(2), .42(a) (1989).

450. 40 C.F.R. § 280.50-.53 (1989).

451. 40 C.F.R. § 280.60-.67 (1989).

452. 40 C.F.R. § 280.71(b) (1989).

453. 40 C.F.R. § 280.90-.111 (1989). Compare 40 C.F.R. § 264.140-.151 (subtitle C).

454. 40 C.F.R. pt. 281 (1989). Compare 40 C.F.R. pt. 271 (subtitle C).

455. 40 C.F.R. § 281.30-.38 (1989); see 53 Fed. Reg. 37216-17 (Sept. 23, 1988) (explaining this approach).

456. 53 Fed. Reg. at 37186.

457. U.S. EPA, THE NATION'S HAZARDOUS WASTE MANAGEMENT PROGRAM AT A CROSSROADS: THE RCRA IMPLEMENTATION STUDY (1989) (available from EPA's RCRA Docket).

458. Id. at 1-2.

459. S. 1113, 101st Cong., 1st Sess.

460. S. 1112, 101st Cong., 1st Sess.

461. H.R. 3735, 3736, 3737, 101st Cong., 1st Sess.

462. CONGRESSIONAL RESEARCH SERVICE, REPORT FOR CONGRESS — SOLID WASTE DISPOSAL ACT: COMPARISON OF REAUTHORIZATION BILLS, unnumbered summary page (Jan. 23, 1990) [hereafter CRS REPORT].

463. Id.

464. Id. at CRS-1.

465. Id. at CRS-1 to CRS-15.

466. Id. at CRS-18 to CRS-19.

467. Id. at CRS-20.

468. Id. at CRS-22 to CRS-39.

469. Id. at CRS-22 to CRS-32.

470. Id. at CRS-33 to CRS-39. These provisions are designed, in part, to overrule EPA's policy of not allowing for price preferences in establishing federal agency procurement guidelines under § 6002 of RCRA, 42 U.S.C. § 6962, ELR STAT. RCRA 032; see National Recycling Coalition, Inc. v. Reilly, 884 F.2d 1431, 19 ELR 21424 (D.C. Cir. 1989) (upholding EPA's interpretation of § 6002).

471. CRS REPORT, supra note 462, at CRS-40 to CRS-44.

472. Id. at CRS-45 to CRS-48.

473. Id. at CRS-51.

474. Id.

475. Id. at CRS-51 to CRS-52.

21 ELR 10254 | Environmental Law Reporter | copyright © 1991 | All rights reserved