The Hazardous Waste Crisis: EPA Struggles to Implement RCRA; Amendments Needed

The shattering disruption of the health and lives of residents near an abandoned burial site for toxic industrial chemicals at Love Canal in Niagara Falls and the poisoned stream flowing out of the "Valley of the Drums" near Louisville, Kentucky are only two manifestations of a chronic environmental problem that has finally become a full-blown crisis. These and similar stories have fostered a growing public realization of the staggering task the nation faces in protecting its citizens and its environment from the torrent of hazardous waste produced by its technological society.

Three years ago, Congress passed the Resource Conservation and Recovery Act (RCRA)¹ to deal with the problem of waste, and Subtitle C² of the statute outlines an elaborate scheme for federal and state regulation of hazardous waste. After much delay, the Environmental Protection Agency (EPA) has now proposed regulations to implement the Subtitle C program,³ which must be promulgated in final form by the end of 1979 as the result of a court order,⁴ but the proposals have generated intense controversy among industry and environmental interests. Moreover, the Act as it presently stands does not even address the very serious difficulties presented by inactive and abandoned dump sites. Congress is therefore expected to deal with this and other hazardous waste issues later this year. Meanwhile, the Department of Justice has begun filing lawsuits to remedy some of the most serious instances of improper hazardous waste disposal.

Background

Production of hazardous wastes has mushroomed over the years. In 1977, EPA estimated that the volume generated exceeded 35 million tons with a future growth rate of three percent per year.⁵ In the absence of economic or regulatory incentives for safe or environmentally careful disposal, generators have tended either to dump the wastes on their own property in ill-prepared ponds and landfills, burn them in an uncontrolled fashion, or turn them over to transporters who often dispose of them improperly and in some cases surreptitiously. In addition, many present dumpsites have been simple catchalls for a hodgepodge of waste without the special care necessary for hazardous materials. Such improper management⁶ can lead to extensive health and environmental damage by ground and surface water contamination, air pollution, and food-chain poisoning. As a result of a survey last year, EPA estimated that there are 32,000 hazardous waste landfills nationwide, of which 1,200 may pose an immediate hazard to the public and the environment. The estimated cost of remedying these "time bombs" is monumental: $3.6 to $6.1 billion for emergency site cleanup and damage mitigation and $26.2 to $44.1 billion for a permanent solution to the inadequate disposal practices that currently exist.⁷ These figures do not include the enormous cost in terms of health problems that will be and have already been caused by inadequate disposal of hazardous waste. In contrast, EPA has estimated that the cost to industry of complying with its proposed regulations will be $900 million annually.

Hazardous wastes have been treated in the past as merely part of the larger solid waste disposal issue. Their regulation has been left to municipal health and safety ordinances applied to solid waste disposal sites. State-level management was minimal,⁸ and frequently state efforts to open new landfill sites would conflict directly with local sentiment. In the mid-1960s, the first federal entry into the area of waste disposal affirmed reliance on local action but also encouraged state planning through technical and financial assistance.⁹ In 1970, Congress authorized funds for the construction by the states of resource recovery systems and directed promulgation by the federal government of waste management guidelines.¹⁰

The Resource Conservation and Recovery Act of 1976 represented a major change in the federal role relating to solid waste management. Although federal funds are held out as an incentive for the development and implementation of state and local waste plans, to encourage recovery of recyclable materials and to reduce the acreage of land filled, RCRA established a direct federal role regarding hazardous waste management. This was a [9 ELR 10061] result of the express congressional finding that "hazardous waste presents … special dangers to health and requires a greater degree of regulation than does nonhazardous solid waste."¹¹ Subtitle C of RCRA establishes a complex scheme for identifying hazardous wastes and imposes mandatory operating standards for generators, transporters, and disposal sites. A permit system for disposal is also established. In addition, the Act sets up a manifest requirement under which wastes must be tagged and closely followed from initial generation to disposal, i.e., a "cradle-to-grave" regulatory system. Concluding that nonfederal efforts should continue to be the backbone of controlling hazardous waste, however, Congress provided that approved state management programs will be the preferred vehicle for administration and enforcement.

Regulation under Subtitle C will be extensive. EPA has estimated that 270,000 generators of hazardous waste will be subject to the statutory requirements. Although 80 percent of such wastes are disposed of on the same site where they are generated, the regulations will also apply to 10,000 transporters and 30,000 off-site storage, treatment, and disposal facilities.¹²

Identification and Listing, § 3001

"Hazardous waste" is defined in RCRA as:

… a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may —

(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or

(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.¹³

Section 3001 of RCRA provides for the identification and listing of such wastes. Under this provision, EPA is required (1) to develop criteria for determining characteristics by which hazardous wastes can be identified, (2) to specify those characteristics, and (3) to list as hazardous particular wastes. This specification and listing process was adopted because of the breadth and inexactness of the statutory definition of hazardous wastes.

EPA issued its proposed § 3001 regulations last December.¹⁴ In developing the hazardous waste characteristics, EPA looked to the statutory definition of "hazardous waste," the language of § 3001, past damage incidents, and recommendations of other government and private agencies. To refine the set of characteristics, EPA considered whether the characteristic provided a generally applicable description of a waste property or attribute, the likelihood of a hazard developing if a waste with such characteristics were mismanaged, and whether there was a reliable and available test method by which its presence can be determined.Primarily on the basis of the last criterion,¹⁵ EPA has established four identifiable characteristics of hazardous waste: ignitability, corrosivity, explosiveness (reactivity), and toxicity under conditions that simulate a mismanaged disposal site.¹⁶

EPA noted radioactivity, infectiousness, phytotoxicity, and teratogenicity and mutagenicity as possible additional characteristics but omitted them on the ground that their presence cannot easily be tested for. The exclusion of radioactivity may be justifiable because such substances are regulated under other laws and are specifically excluded from RCRA.¹⁷ The other omissions may be significant; their absence may permit many dangerous wastes with such characteristics to fall outside the purview of the regulatory program. EPA has suggested that it may later overcome this problem in the final regulations because it has requested data to support an expansion of the characteristics to include radioactivity, genetic activity, bioaccumulation, and additional aspects of chronic toxicity to aquatic organisms, terrestrial plants, and humans.¹⁸ Carcinogenicity, the consideration of which is not required under the proposed regulations, may also be included by the final regulations.

In addition to establishing that a waste is hazardous and therefore subject to the provisions of Subtitle C if it possesses specific characteristics, EPA's regulations provide a list of specific wastes which have been designated as hazardous because they possess any one of the characteristics described by EPA, they are deemed to fall within the statutory definition by EPA, or they are generated by specific sources or industrial processes.¹⁹

The § 3001 identification process is the cornerstone of the entire hazardous waste management program. Whether or not a waste substance is deemed "hazardous" will determine whether the entire regulatory scheme is brought to bear. Environmental groups have criticized the proposed regulations as giving inadequate coverage to potentially hazardous wastes because of insufficient listing, limited identification of characteristics, and inadequate testing procedures.²⁰ On the [9 ELR 10062] other hand, industry and some government agencies²¹ have proposed that priority of listing be set on the basis of degree of risk, with those substances known to be most hazardous listed first. Although developing priorities based on degree of risk makes good sense in the abstract, this approach should be reserved for setting enforcement priorities rather than at the initial stage of defining the scope of the regulatory program. The better approach would be to draw as many potentially hazardous substances within reach of the regulations at the outset and then bring enforcement actions against the worst cases first.

Under the statute, a state governor may petition EPA to have a material identified as a hazardous waste. Inclusion in the regulatory system may also come from "generators of solid waste who know or have reason to believe that their waste is hazardous" and must then test their wastes for the presence of the established characteristics.²² Putting this burden on the generator, whose economic incentive is to remain free of regulation, is not without risk, but may free the Agency, which is short on staff and funds, from doing its own testing in every case.

In an enforcement action under Subtitle C, the federal government need only prove that the substance is listed as hazardous and is being disposed of in violation of the regulations. The propriety of the listing will not be relevant in such a proceeding, but it is worth noting that a generator may petition to have its waste removed from the regulatory system.²³ This non-inclusion process may consume a great deal of EPA's energies, and it should be noted that the evidence to support non-inclusion, which are to be the results of specific tests, will come from the interested generator rather than EPA or an independent testing facility. Furthermore, the petitioner's "demonstration" will automatically rebut the presumption of hazard due to listing and will automatically take effect 90 days after EPA receives the petition. The EPA Administrator, either before or after the exemption takes effect, may disapprove it for failure to follow the required procedures, because the test results do not support the exemption, or because the results are based on inaccurate information, but the applicant or any other party aggrieved by the grant or denial of an exemption may request a public hearing with an opportunity for judicial review.

Waste Generators, § 3002

Under § 3002 of RCRA, EPA is required to establish operational standards for generators of hazardous wastes.²⁴ The standards are to include record keeping of the quantity and constituents of the wastes produced, packaging and labeling, participation in a manifest system to assist in tracking the wastes through treatment, transportation, storage, and disposal, and periodic reports to EPA on the quantities generated and their disposition.

Since there is no statutory definition of "generator," EPA has defined the term in the proposed regulations²⁵ to mean any person, company, or federal agency "whose act or process produces hazardous waste identified or listed" under the regulations.²⁶ Although § 3002 itself does not provide for any exemptions, the Agency has established certain exemptions from the "generator" standards.The Agency's basis for this is "to balance the need to protect human health and the environment from the adverse impact of potential mismanagement … with the need to hold the administrative and economic burden of management of these wastes under RCRA within reasonable and practical limits."²⁷ The principal exemption is for generators of less than 100 kilograms of hazardous waste per month.²⁸

EPA's exemption for small generators, while it may well reduce the regulatory burden on industry,²⁹ does not appear to have a basis in the statute. Congress intended to develop a program to cover all hazardous waste because of the insidious and cumulative nature of the threat and did not make exceptions dependent upon economic or volume considerations. Furthermore, some waste substances, such as dioxin, are extremely toxic even in very small amounts. To delete such wastes from the record keeping system would be to lose track of potentially damaging substances and undercut the statutory goal of "cradle-to-grave" tracking and protection. This latter aspect is disturbing because the waste from small generators, regardless of the degree of hazard, would only be subject to the less stringent safeguards of Subtitle D.³⁰ Although some safeguards may be better than none, [9 ELR 10063] it is unfortunate that mere volume, rather than other considerations of relative degree of hazard, should serve to justify less care.

While one may be sympathetic to the Agency's limited ability to administer the hazardous waste program because of a lack of staff and funds and may acknowledge the possible, though as yet unproven, economic impact on small generators, Congress chose not to allow such considerations to justify carving loopholes in the law. It should not, therefore, be the Agency's prerogative to create such exceptions by fiat. Even more disturbing is that EPA is considering raising this proposed exemption from 100 to 1,000 kilograms per month.³¹ If a small generator does not have the financial ability to provide adequate safeguards against the improper disposal of hazardous waste, there is a serious question whether Congress intended to permit that operator to generate it in the first place.

Since the overall purpose of the hazardous waste program envisioned by RCRA is to provide "cradle-to-grave" regulation, the most important element is to make sure that the waste is funnelled into the control program in the first place. For this reason, EPA has said that its major monitoring and enforcement efforts will focus on the generator, who has the responsibility of identifying the waste as hazardous and insuring that it is placed in the management system.³²

Waste Transporters, § 3003

Section 3003(a)³³ of RCRA directs EPA to promulgate regulatory standards for transporters of hazardous waste, which the proposed regulations³⁴ take to mean all transporters, including federal agencies, of hazardous waste which requires a manifest under § 3002.³⁵ Such wastes can be delivered only to a treatment, storage, or disposal facility that holds a permit issued under § 3005 of the Act. Each transporter of hazardous waste will have an identification number that will be used on all waste tracking documents. In the event of a spill of hazardous waste, which must be reported immediately to federal officials, all transporter standards relating to that particular carriage are suspended until the spill is cleaned up, rendered nonhazardous, or determined not to present an immediate hazard to human health or the environment. Regulation of hazardous waste transportation will be carried out concurrently with the Department of Transportation, which has related responsibilities under the Hazardous Materials Transportation Act (HMTA).³⁶ EPA's proposed regulations depart from the HMTA, however, by extending coverage of the § 3003 standards and the HMTA regulations to intrastate shipments as well as interstate shipments.

Waste Facilities, § 3004

Because Congress accepted the reality of continued generation of hazardous waste, the principle element in assuring protection of human health and the environment from the dangers of such wastes are the standards imposed at the end of the "cradle-to-grave" cycle, i.e., on owners and operators of treatment, storage, and disposal facilities.³⁷ EPA has chosen to adopt performance and general design standards applicable to all facilities rather than establishing individual standards for particular categories of facilities.³⁸

The § 3004 regulations base their requirements on "Human Health and Environmental Standards," making specific reference to the Safe Drinking Water Act,³⁹ the Federal Water Pollution Control Act (Clean Water Act),⁴⁰ and the Clean Air Act.⁴¹ The purpose of this connection is to justify more stringent conditions on facilities if the § 3004 standards do not result in a facility's compliance with the other environmental laws to protect ground and surface water and air quality.

The § 3004 regulations contain standards for both on-site (i.e., on the same property as the generating facility) and off-site storage.⁴² EPA decided, however, that storage on the generation site for less than 90 days, where the generator is only temporarily holding the waste prior to shipment, does not require compliance with the storage standards. This distinction was based on the ground "that the likelihood of discharge of waste to the environment occurring within 90 days is low."⁴³ This [9 ELR 10064] Interpretation is inconsistent with RCRA, however, which specifically defines "storage" to include "on a temporary basis."⁴⁴ Furthermore, a succession of temporary storages at a site, pending accumulation of a commercially acceptable volume of waste, could essentially create a permanent storage site and lead to damage if not properly safeguarded.

A major element of the end-of-the-cycle controls deals with closure of sites and subsequent management of inactive sites.⁴⁵ EPA's proposed standards allow treatment, storage, and disposal up to three years after reception of wastes ceases at a facility in which to complete operations, cover landfills, and dismantle and decontaminate equipment. For 20 years thereafter, or some shorter time if EPA agrees, the site must be monitored by the owner or operator. Besides reporting to EPA on closure activities and post-closure monitoring, the owner-operator must assure that a closed site is recorded on local land maps and must note in the property's deed that its future use is restricted so as not to interfere with either protective seals or post-closure monitoring.

For facility owners and operators, one of the most controversial parts of the § 3004 site regulations is the financial responsibility requirement.⁴⁶ When applying for a facility permit, the owner-operator must estimate the closure and post-closure costs and establish a trust fund to cover them.Obtaining the facility permit is conditioned upon EPA's approval of these steps. The trust monies will be returned to the owners incrementally during the closure and post-closure stages to pay the costs. EPA will also require minimum liability insurance of at least $5 million per occurrence per site to cover accidents over the operating life of the facility.

Although these requirements will impose a new financial burden upon owners-operators,⁴⁷ the trust-fund approach seems a logical solution to the difficult problem of providing for ultimate disposal in a safe manner. It should be noted, however, that no mechanism is proposed for periodic review of the adequacy of the amounts set aside in these funds. Such review might be wise in light of the fact that the costs of providing the necessary safeguards could change dramatically not only over the active life of the facility but also during the closure and post-closure periods.⁴⁸

EPA has discovered that liability insurance for non-sudden damage (e.g., from leakage) after a site has been closed is not available. Thus, no requirements for such protection have been imposed, but the Agency is considering requesting legislative authority to create a federally administered fund to cover such claims and cleanup costs, funded perhaps through a general surcharge levied at the time of disposal.⁴⁹

Permit System, § 3005

Section 3005⁵⁰ requires the owner or operator of a treatment, storage, or disposal facility to obtain a permit issued by EPA or an authorized state upon a determination that the facility complies with § 3004. Disposal of hazardous waste can then only be done in accordance with the terms of the permit. Failure to comply with the terms of the permit may lead to its revocation. In order to minimize the immense administrative burden that would be placed on EPA by requiring full and immediate implementation of the permit program, Congress created an interim status whereby a facility can submit an application and thereafter be deemed to hold a permit until the Agency can make a final decision on the application. This temporary authorization will not be available, however, until EPA has issued its final § 3001 regulations.

Although the Agency has not yet proposed regulations to implement § 3005,⁵¹ it has established priorities to be followed in considering permit applications: off-site facilities (because these are generally large and handle particularly hazardous wastes); generators discharging hazardous wastes into municipal sewers that are subject to pretreatment standards; industries subject to best available technology standards under § 301 of the Federal Water Pollution Control Act; and industries holding national pollutant discharge elimination system permits.

State Programs, § 3006

Although EPA is responsible for promulgating national standards for the hazardous waste management program, Congress intended that the states should establish their own programs to enforce and administer the standards. A state program must at least meet the federal standards, but it may impose more stringent requirements.⁵² EPA will disapprove a proposed state program that is not "equivalent" to the federal program, is not "consistent" with the federal program and other state programs, or does not provide for "adequate enforcement" of the federal standards.⁵³ If a state program fails to win EPA's approval, the federal agency must enforce RCRA's standards in that state. On the other hand, any action taken by a state pursuant to an authorized program has the same force and effect as action taken by EPA.⁵⁴ Section 3006(c) allows interim, 24-month authorizations of state programs that have been put into effect within 90 days after the §§ 3002-3005 [9 ELR 10065] regulations are promulgated, which will minimize EPA's initial burden of reviewing state programs. Finally, EPA may withdraw its authorization if a state is not administering its program in accordance with federal standards.

Section 3006(a) requires EPA to issue guidelines to assist the states in developing their hazardous waste management programs. These guidelines were proposed more than a year ago⁵⁵ and will be proposed again in revised from within the next month. The first proposal outlined the elements of state programs that EPA will evaluate to determine whether approval of the program is warranted. "Equivalency" can be achieved either with specific state hazardous waste legislation or with other environmental legislation that would have the same effect, but facility permits and a manifest system are necessary parts of the state program. The "consistency" requirement precludes a state ban on imports of hazardous waste from other states because such a banwould inhibit free movement among the states.⁵⁶ To determine whether a state provides "adequate enforcement," EPA will assess each program on an individual basis.

Congress provided for "interim" authorization of a state program if it is "substantially equivalent" to the federal program.⁵⁷ This may appear to conflict in principle with the preemption provision of § 3009, but Congress explicitly permitted approval of a less exacting state program for a limited period of time. In its guidelines, EPA also proposed a "partial" authorization of some elements of a state program, although the three criteria of equivalency, consistency, and adequate enforcement must be met for the discrete elements. Such "partial" authorization may relieve EPA of a certain amount of the burden of regulation, but bifurcated administration could result in bureaucratic inefficiency and exacerbate the problems of an inadequately administered national program.

Other Provisions

Section 3007(a)⁵⁸ gives federal or state officials access to the records and place of business of any generator, transporter, or owner-operator for the purpose of enforcing or developing regulations.⁵⁹ The federal enforcement program is outlined in § 3008⁶⁰ which provides for notification, compliance orders, and civil suits. A violator of a compliance order will be subject to a civil penalty of up to $25,000 per day. In addition, a criminal penalty of up to $25,000 per day or one year in prison can be imposed for other violations of the statute or the regulations. Section 3009⁶¹ preempts state and local regulations that are less stringent than the federal standards, but states and localities are not prohibited from applying their own standards if application of the federal regulation is postponed or enjoined. Within 90 days after the § 3001 regulations are promulgated, any person subject to §§ 3002, 3003, or 3004 must notify either EPA, or the state if there is an authorized state program, of the location and general description of the activities that would subject it to regulation and the wastes that are encompassed within § 3001.⁶²

Inactive Sites

As the discovery in the last year of a number of leaking inactive and abandoned hazardous waste disposal sites has demonstrated, past neglect of hazardous waste disposal methods has left a legacy of buried time bombs. Unfortunately, EPA has chosen not to extend the reach of its Subtitle C hazardous waste management program to facilities that cease receiving, treating, storing, and disposing of hazardous waste before the regulations take effect. EPA has noted that neither RCRA nor its legislative history discusses whether § 3004 should apply to inactive sites and that because the statute is written in the present tense, it "seems" to apply only to facilities still in active operation when the regulations become effective.⁶³ The underlying reason for EPA's reluctance to regulate inactive sites, however, may stem from the "enormous" technical, legal, and economic difficulties that might ensue.⁶⁴

On the other hand, the Agency acknowledges that inactive sites may continue to "dispose" of waste within the statutory definition by "leaking" it into the ground and thus would still come within the scope of the statute.⁶⁵ Furthermore, the § 3004 requirement that EPA develop facility standards "as may be necessary to protect human health and the environment" would seem to include sites that no longer receive waste but still threaten harm through leakage of the wastes they already contain.

EPA's failure to include inactive sites in its regulations, despite the availability of persuasive arguments for inclusion, leaves a major gap in the program. If the Agency persists in this attitude, a frightening prospect looms: substandard disposal facilities may rush to receive hazardous waste now and then close down just prior to the effective date of the regulations, which will be mid-1980 at the earliest, thereby escaping coverage under the comprehensive management system.

[9 ELR 10066]

The Agency is not totally ignoring the problem of inactive sites, however. It is currently gathering information on where these sites are and what wastes they contain, and it has recently sent proposals to Congress to include them specifically within its authority. This task may require gathering information from original owners who subsequently sold the sites to third parties, as was the case at Love Canal, or who simply abandoned them. A key change, furthermore, would be to draw sites within the Agency's immediate regulatory jurisdiction rather than waiting until after the regulations are promulgated.⁶⁶

Use of § 7003

Aside from the question of applying Subtitle C standards, EPA has concluded that § 7003 of RCRA is a powerful tool to use against inactive facilities which pose health and environmental problems.⁶⁷ This provision allows EPA to sue to halt immediately any hazardous waste handling, transportation, or disposal operation which "is presenting an imminent and substantial endangerment to health or the environment."⁶⁸ Even though this authority has been in effect since 1976, the first lawsuit using it was not brought until February 1979. In United States v. Kin-Buc, Inc.,⁶⁹ the government is involking § 7003, several water pollution provisions, and the common law doctrine of nuisance as the basis for a suit to halt operations of a New Jersey hazardous waste landfill and to recover damages and penalties. The federal government has since filed a second suit, United States v. Wade,⁷⁰ based exclusively on § 7003, which seeks to have hazardous waste removed from an inactive site and to enjoin further use of the site for hazardous waste storage without EPA approval. Section 7003 can not be invoked in state- or citizen-initiated enforcement actions, but states have begun to take action using their own statutory authorities.⁷¹

Section 7003 is a useful provision for reaching immediate hazardous waste problems, but it is hardly a panacea for the difficulties of inactive sites. Under the provision, a plaintiff must marshal sufficient evidence to establish "imminent endangerment." This burden of proof will be difficult to meet and means that only a handful of such cases are likely to be brought because of the funds and enforcement staff required to do the necessarily thorough job. Control of this problem would be far easier if inactive sites were brought explicitly within the statute and subject to regulatory standards. A further difficulty with § 7003 is that it is available against only the present owner of the land on which the inactive site is located, a person who in many cases may not have been involved in the original hazardous waste activities or even aware of the past use of the site and who may not have the resources to remedy the hazard. The third problem with EPA's reliance on § 7003 is that it is logically inconsistent to rely solely on that provision for dealing with inactive sites when it is written in the same present tense and employs the same terms as the hazardous waste management provisions which EPA has concluded do not cover inactive sites.

EPA and the Department of Justice have claimed that staff limitations prevent aggressive use of § 7003 as a general enforcement provision. Dealing with the hazardous waste problem has clearly not been a high priority with either agency until the recent advent of public and congressional pressure generated by extensive publicity.

Congressional Activity

In the next few months, Congress will probably reauthorize RCRA for fiscal year (FY) 1980 and beyond and then turn to the controversial issues of improving the hazardous waste management program. Because of the publicity and spate of congressional hearings, Congress will probably buck the current budget-cutting tide and substantially increase EPA's hazardous waste funding, even though for the last few years the Agency has received less than Congress authorized.⁷² In addition, the Agency has recently indicated that it will make a supplemental request for more than $130 million to fund nearly 200 new positions in order to increase its efforts against inactive and abandoned sites. Congress will also be facing a number of substantive issues on the RCRA hazardous waste management program. Besides providing more specific direction to EPA on how to deal with inactive and abandoned sites, Congress is being pressed by segments of industry for express statutory exemptions for their wastes. EPA and the Justice Department have requested an amendment to § 7003 such that in an enforcement suit the prosecution has to prove only that there may be "an imminent and substantial endangerment" rather than that the facility is presently causing one,⁷³ a change that will lessen the government's [9 ELR 10067] burden of proof substantially. Although siting of future hazardous waste facilities promises to be a difficult problem, Congress may decide that the states should assume responsibility for assuring that enough sites are established, even to the point of using condemnation powers in the face of local opposition.⁷⁴

The most controversial proposal before Congress is the establishment of a "superfund" to finance the immediate cleanup of inactive and abandoned disposal sites. This fund may be combined with one presently proposed to cover oil spills.⁷⁵ Although the generators argue that they should not have to pay for the sins of their predecessors, Congress may well assess a volume-based charge against current generators to establish the fund. One problem with a volume-based assessment is that it does not correlate to the degree of risk presented by particularly hazardous wastes; low-volume highly dangerous wastes would be charged less than high-volume low-risk wastes. Thus, a generator could concentrate its wastes as much as possible to minimize the financial burden. If the fund proposal is enacted, money may in any event be available only for cleanup of hazardous waste sites and not for third-party damages, which would reach staggering levels. If the "superfund" combines oil, toxic substances, and hazardous waste, it is anticipated that most of the initial influx of several hundred million dollars will be used for hazardous waste cleanup, but even this may be nowhere near enough to cover actual costs.

Conclusion

Under the prod of a lawsuit, a deluge of publicity, and widespread public and congressional dismay, the Environmental Protection Agency is finally taking action to establish the comprehensive hazardous waste management program mandated by the Resource Conservation and Recovery Act of 1976. When the regulations are finally in place sometime in 1980, the program will be at least two years behind the schedule set by Congress. Even then, the system will be complicated, and additional staff and funds will be needed to administer and enforce the program properly. Congress will also have to take further legislative action to address the problem of inactive and abandoned sites. When the full panoply of machinery is at last in place and working, substantial progress may finally begin toward overcoming one of the nation's most severe environmental dilemmas.

1. 42 U.S.C. §§ 6901-6987, ELR STAT. & REG. 41901.

2. RCRA §§ 3001-3011, 42 U.S.C. §§ 6921-6931, ELR STAT. & REG. 41906.

3. Regulations for §§ 3001, 3002, and 3004 were proposed at 43 Fed. Reg. 58946 (Dec. 18, 1978); regulations for § 3003 were proposed at 43 Fed. Reg. 18506 (Apr. 28, 1978); regulations for § 3006 were proposed at 43 Fed. Reg. 4366 (Feb. 1, 1978); regulations for § 3010 were proposed at 43 Fed. Reg. 29908 (July 11, 1978). Proposed regulations for § 3005 and a reproposal of regulations for § 3006 are due to be made public early in June.

4. Illinois v. Costle, 9 ELR 20243 (D.D.C. Jan. 3, 1979). Under RCRA, EPA was required to issue the regulations in final form by April 21, 1978.

5. 5 EPA J., no. 2, at 12 (Feb. 1979). The General Accounting Office, however, has indicated that industry will generate 56 million tons of hazardous waste annually by 1980. COMPTROLLER GENERAL, HAZARDOUS WASTE MANAGEMENT PROGRAMS WILL NOT BE EFFECTIVE; GREATER EFFORTS NEEDED 1, No. CED-79-14 (GAO Jan. 23, 1979).

6. EPA has estimated that only 10 percent of the hazardous wastes currently generated are disposed of in a way that would meet the proposed federal standards. Id.

7. C. LEGG, ESC FACT SHEET, ABANDONED WASTE SITES: THE HIGH COST OF NEGLECT (ENVIR. STUDY CONF. Mar. 22, 1979).

8. Kovacs & Klucsik, The New Federal Role in Solid Waste Management: The Resource Conservation and Recovery Act of 1976, 3 COL. J. ENVT'L L. 205, 213 (1977).

9. Solid Waste Disposal Act of 1965, Pub. L. No. 89-272, 79 Stat. 1000 (1965).

10. Resource Recovery Act of 1970, Pub. L. No. 91-512, 84 Stat. 1227 (1970).

11. RCRA § 1002(b)(5), 42 U.S.C. § 6901(b)(5), ELR STAT. & REG. 41902.

12. 5 EPA J., no. 2, at 11.

13. RCRA § 1004(5), 42 U.S.C. § 6903(5), ELR STAT. & REG. 41902. "Solid waste" means:

"any garbage, refuse, sludge from a waste treatment plant, water supply 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….

RCRA § 1004(27), 42 U.S.C. § 6903(27), ELR STAT. & REG. 41903.

14. 43 Fed. Reg. 58946 (Dec. 18, 1978).

15. 43 Fed. Reg. 58950 (Dec. 18, 1978).

16. 40 C.F.R. § 250.13 (proposed), 43 Fed. Reg. 58955 (Dec. 18, 1978).

17. The statutory definition of "solid waste" excludes material regulated under the Atomic Energy Act of 1954. RCRA § 1004(27), 42 U.S.C. § 6903(27), ELR STAT. & REG. 41903.

18. Advance Notice of Proposed Rulemaking, 43 Fed. Reg. 59022 (Dec. 18, 1978).

19. 40 C.F.R. § 250.14 (proposed), 43 Fed. Reg. 58957 (Dec. 18, 1978).

20. The Environmental Defense Fund, in particular, has found that EPA's § 3001 procedures compare unfavorably with several state programs. See Comments of the Environmental Defense Fund on the Environmental Protection Agency's Proposed Regulations Implementing Sections 3001, 3002 and 3004 of Resources Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), at 4-22 (Mar. 16, 1979) (copy on file at ELR) (hereinafter cited as EDF Comments).

21. See 6 TOXIC MATERIALS NEWS 101-02 (Mar. 28, 1979).

22. 40 C.F.R. § 250.10(d) (proposed), 43 Fed. Reg. 58954 (Dec. 18, 1978).

23. The generator must perform specified tests to show that the waste from an individual facility is not hazardous. 40 C.F.R. § 250.15 (proposed), 43 Fed. Reg. 58959 (Dec. 18, 1978).

24. 42 U.S.C. § 6922, ELR STAT. & REG. 41906.

25. 40 C.F.R. pt. 250, subpt. B (proposed), 43 Fed. Reg. 58969 (Dec. 18, 1978).

26. 40 C.F.R. § 250.21(b)(9) (proposed), 43 Fed. Reg. 58976 (Dec. 18, 1978).

27. 43 Fed. Reg. 58970 (Dec. 18, 1978).

28. "Small" generators and retailers disposing of hazardous waste must dispose of their waste in a solid waste disposal facility which complies with Subtitle D of RCRA, §§ 4001-4009, and is certified by the state. A farmer disposing of waste pesticide is not a generator if he takes certain precautions in disposing of it and its containers. 40 C.F.R. § 250.29 (proposed), 43 Fed. Reg. 58979 (Dec. 18, 1978). "Small" generators, retailers, and farmers need not comply with the important manifest tracking system of 40 C.F.R. § 250.22 (proposed). A generator which disposes of its hazardous waste at an on-site facility need not comply with the manifest, most of the reporting provisions, and the container and labelling requirements. 40 C.F.R. § 250.20(c)(1)(iii) (proposed), 43 Fed. Reg. 58975 (Dec. 18, 1978).

29. EPA estimates that the "small generator" exclusion will still allow 99.5 to 99.9 percent of potentially hazardous industrial waste to be included in the system while relieving 60 percent of the generators in the manufacturing industry of the regulatory burden. 43 Fed. Red. 58969 (Dec. 18, 1978).

30. Subtitle D of RCRA, §§ 4001-4009, 42 U.S.C. §§ 6941-6949, ELR STAT. & REG. 41909, is intended to assist, through federal financial and technical assistance to state and regional authorities, in the development of environmentally sound methods for the disposal of solid waste. It includes federal guidelines for state plans, which have been proposed, see 43 Fed. Reg. 38534 (Aug. 28, 1978), criteria for sanitary landfills, which have been proposed, see 43 Fed. Reg. 4942 (Feb. 6, 1978), and a requirement for closing or upgrading open dumps. Under § 4004, a sanitary landfill is not deemed an open dump "only if there is no reasonable probability of adverse effects on health or the environment from disposal of solid waste at such facility." (Emphasis added.) The Environmental Defense Fund has criticized reliance on Subtitle D for generators excluded from the § 3002 standards because there is no oversight and enforcement mechanism and because there could be a large number of small generators who use a single § 4004 facility. In the latter event, there could be a high concentration of untracked and unknown hazardous waste. See EDF Comments, supra note 20, at 23-35.

31. 43 Fed. Reg. 58970 (Dec. 18, 1978).

32. 43 Fed. Reg. 58975 (Dec. 18, 1978).

33. 42 U.S.C. § 6923(a), ELR STAT. & REG. 419069

34. 40 C.F.R. pt. 40, subpt. C (proposed), 43 Fed. Reg. 18506 (Apr. 28, 1978). Section 3003 of RCRA mandated that final regulations were to be in place by April 21, 1978.

35. Note that this does not include transportation of waste from "small generators." See text and notes 28-30 supra. It also does not include transportation of waste to a facility on the same site as the generator, see 40 C.F.R. § 250.20(c)(1)(iii) (proposed), 43 Fed. Reg. 58975 (Dec. 18, 1978). The problem in the latter situation is that on-site transportation can sometimes involve lengthy distance, and improper handling can cause spills that would not be covered by these regulations.

36. 49 U.S.C. § 1801-1812. Recently, the Library of Congress issued a report criticizing the Transportation Department's regulation and enforcement under the Act. One identified problem is that the staff is inadequate to oversee implementation. Wash. Post. Apr. 24, 1979, § A, at 7, col. 4.

37. RCRA § 3004, 42 U.S.C. § 6924, ELR STAT. & REG. 41906. EPA's proposed regulations are 40 C.F.R. pt. 250, subpt. D (proposed), 43 Fed. Reg. 58982 (Dec. 18, 1978).

38. By a series of "notes" in the proposed regulations, EPA has indicated that tailoring of a specific facility is permitted if the owner-operator can demonstrate that certain restrictions are unnecessary.EPA's proposed adoption of discretionary authority to grant such variances has been criticized as too great a departure from the need for uniformity of standards. See EDF Comments, at 54-63.

39. The facility must not endanger an underground drinking water source or sole source aquifer. See Safe Drinking Water Act of 1974, 42 U.S.C. §§ 300(f), 300(h)-303(e), ELR STAT. & REG. 41131.

40. Sections 303 & 311, 33 U.S.C. §§ 1313 & 1321, ELR STAT. & REG. 42125 & 42132.

41. Sections 110-112, 42 U.S.C. §§ 7410-7412, ELR STAT. & REG. 42212.

42. 40 C.F.R. § 250.44 (proposed), 43 Fed. Reg. 59007 (Dec. 18, 1978).

43. 43 Fed. Reg. 58988 (Dec. 18, 1978).

44. 42 U.S.C. § 6903(33), ELR STAT. & REG. 41903.

45. 40 C.F.R. § 250.43-7 (proposed), 43 Fed. Reg. 59004 (Dec. 18, 1978).

46. 40 C.F.R. § 250.43-9 (proposed), 43 Fed. Reg. 59006 (Dec. 18, 1978).

47. EPA has concluded that the insurance premiums will not be prohibitive. 43 Fed. Reg. 58987 (Dec. 18, 1978).

48. EPA's calculations include interest and inflation factors. 40 C.F.R. § 250.43-9 (proposed), 43 Fed. Reg. 59006 (Dec. 18, 1978).

49. See 43 Fed. Reg. 58987 (Dec. 18, 1978). This may be part of the "superfund" legislation. See text at note 75 infra.

50. 42 U.S.C. § 6925, ELR STAT. & REG. 41906.

51. The Agency expects to make public its proposals in June 1979.

52. RCRA § 3009, 42 U.S.C. § 6929, ELR STAT. & REG. 41908. Presumably, this preemption provision would not interfere with the less stringent "interim" authorization which Congress explicitly allowed. See note 57 infra, and accompanying text.

53. Section 3006(b), 42 U.S.C. § 6926(b), ELR STAT. & REG. 41907.

54. Section 3006(d), 42 U.S.C. § 6926(d), ELR STAT. & REG. 41907.

55. 40 C.F.R. pt. 250, subpt. F (proposed), 43 Fed. Reg. 4366 (Feb. 1, 1978).

56. EPA's proposed allowance for a phase-out of such bans may be dropped in light of the Supreme Court's decision last term holding that such bans violate the Commerce Clause. Philadelphia v. New Jersey, 437 U.S. 617, 8 ELR 20540 (1978). See Comment, Supreme Court Voids New Jersey Ban on Waste Importation, 8 ELR 10159 (1978).

57. Section 3006(c), 42 U.S.C. § 6926(c), ELR STAT. & REG. 41907.

58. 42 U.S.C. § 6927(a), ELR STAT. & REG. 41907.

59. The statute does not require that warrants be obtained prior to entry, but if this provision is used, cognizance will have to be taken of the recent Supreme Court decision prohibiting warrantless inspections for regulatory enforcement. Marshall v. Barlow's, Inc., 436 U.S. 307, 8 ELR 20434 (1978). See Comment, Supreme Court Invalidates Warrantless Entry Under OSHA; Enforcement of Environmental Laws Threatened, 8 ELR 10132 (July 1978).

60. 42 U.S.C. § 6928, ELR STAT. & REG. 41907.

61. 42 U.S.C. § 6929, ELR STAT. & REG. 41908. See note 52 supra and text at note 57 supra.

62. Section 3010(a), 42 U.S.C. § 6930(a), ELR STAT. & REG. 41908. EPA has proposed regulations to implement this provision. 40 C.F.R. pt. 250, subpt. G (proposed), 43 Fed. Reg. 29908 (July 11, 1978).

63. 43 Fed. Reg. 58984 (Dec. 18, 1978).

64. Id.

65. Id.

66. Subtitle C's regulations do not take effect until six months after they are promulgated. Section 3010(b), 42 U.S.C. § 6930(b), ELR STAT. & REG. 41908. Under the present schedule, this means mid-1980, at the earliest. The intent behind this lag time was to allow active generators, transporters, and owners-operators of facilities time to comply. An inactive operation should not need as long time as an active one to come into compliance with EPA's regulations, however.

67. 43 Fed. Reg. 58984 (Dec. 18, 1978).

68. 42 U.S.C. § 6973, ELR STAT. & REG. 41913.

69. No. 79-514 (D.N.J., complaint filed Feb. 2, 1979), summarized at ELR PEND. LIT. 65601.

70. No. 79-1426 (E.D. Pa., complaint filed Apr. 20, 1979).

71. Kelley v. Hooker Chem. & Plastics Corps., No. 79-22878-CE (Mich. Cir. Ct. Ingham Cty., complaint filed Feb. 21, 1979), summarized at ELR PEND. LIT. 65617.

72. In fiscal year 1979, Congress authorized appropriations of at least $12.6 million for the hazardous waste program, but the Agency received only $7.6 million. When it submitted its FY 1980 budget earlier this year, EPA asked for only $8.7 million, which now clearly appears to be insufficient. Also, EPA asked for only a $1.3 million increase in enforcement funding for sudden emergencies. Congress authorized $25 million in financial assistance to the states under Subtitle C for FY 1979, but the Agency received only $15 million for this program. EPA originally requested $18.6 million for FY 1980, but Congress may now appropriate more to assist in the development of state programs. A recent General Accounting Office report noted that unless EPA and the states are provided more staff and funds, hazardous waste will not be brought under effective control. COMPTROLLER GENERAL, HAZARDOUS WASTE MANAGEMENT PROGRAMS WILL NOT BE EFFECTIVE: GREATER EFFORTS ARE NEEDED, NO. CED-79-14 (GAO Jan. 23, 1979). Because of the paperwork involved and the present lack of staff, EPA has estimated that it may take up to 10 years to issue permits to the hazardous waste facilities. 9 ENVIR. REP. [CURR. DEV.] 2250 (Mar. 30, 1979).

73. This would bring § 7003 into conformity with § 1431 of the Safe Drinking Water Act, 42 U.S.C. § 300i, ELR STAT. & REG. 41136, which allows the EPA Administrator to take action against a contaminant which "may present an imminent and substantial endangerment to the health of persons." Note, however, that both the Clean Air Act and the Clean Water Act use the same language, "is presenting," as RCRA. Clean Air Act § 303(a), 42 U.S.C. § 7603(a), ELR STAT. & REG. 42256; Clean Water Act § 504(a), 33 U.S.C. § 1364(a), ELR STAT. & REG. 42147. As part of the RCRA FY 1980 reauthorization bills, both the Subcommittee on Resource Protection of the Senate Environment and Public Works Committee and theSubcommittee on Transportation and Commerce of the House Interstate and Foreign Commerce Committee have agreed to amend § 7003 to change the language to "may present an imminent and substantial endangerment." The House version would also give EPA authority to issue an administrative order for cleanup of such sites. 6 TOXIC MATERIALS NEWS 149-150 (May 9, 1979).

74. Some officials at EPA feel that siting is the major hurdle to the development of new disposal capacity. 9 ENVIR. REP. [CURR. DEV.] 2295 (Apr. 6, 1979).

75. H.R. 85, 96th Cong., 1st Sess. (1979). This bill is backed by the oil and shipping industries and is the oil spill liability bill that was passed by the House last year. It provides for a three-cent-per-barrel charge on imports of oil to go toward establishing a $200 million fund. Maximum liability for each occurrence will be $30 million, and the bill would preempt state liability laws. The bill was recently reported out of the House Merchant Marine and Fisheries Committee and goes to consideration by the Public Works and Transportation Committee. The former committee has opposed combining the oil spill fund with a hazardous waste "superfund."