Chapter 17 Resource Conservation Recovery Act (1976)

 

Composite of Statutory Types (as per regulatory taxonomy)

 

· Mandatory disclosure—manifest system

· Roadblock—"land ban" enacted in 1984

· Review and Permit—TSD licensing

· Control of market access—financial responsibility requirements

· Directly legislated standards—TSD facility design requirements

· Technology forcing—limitation on land-based disposal forces development of alternative disposal methods (e.g., incineration)

· Harm-based ambient standards—Toxicity Characteristic Leaching Procedure test defines wastes as hazardous

· Technology-based—EPA’s waste treatment regulations based on BDAT (best demonstrated available technology)

· Market incentives—high cost of dealing with Subtitle C hazardous solid waste rewards and encourages waste reduction

· Cleanup statute—EPA can order corrective action

· Land-use control—siting requirements for TSD facilities

 

RCRA Themes

 

  1. RCRA has very complex definitional system

    2. --goes to great lengths to define what is deemed hazardous and what materials are wastes (over-regulation)

    --but not comprehensive—much potentially hazardous material is definitionally overlooked (under-regulation)

    --makes act difficult to administer

  2. RCRA’s regulation of hazardous waste takes life cycle approach

    3. --tries to regulate waste from generation to its destruction or disposal

    --regulation primarily addressed to generators, transporters, and TSD facility operators

  3. RCRA’s elaborate TSD requirements for hazardous wastes have increased cost of hazardous waste disposal

    4. --created substantial incentives for seeking to contest the classification of materials as hazardous waste

  4. Congress grew impatient with EPA’s dilatory efforts

--employed a "land ban" (an outright ban on land disposal of hazardous waste if EPA did not adopt appropriate regulations by a certain date as a "hammer" to ensure regulatory action

 

RCRA Subtitle C Regulation of Hazardous Waste

 

Definition of a Hazardous Waste (see Figure 2 in text)

 

A solid waste is hazardous if:

 

· the waste exhibits a hazardous characteristic (ignitability, corrosivity, reactivity, toxicity) OR

· the waste meets the description of a listed waste (from non-specified sources (40 CFR § 261.31 ("F")), specified sources (40 CFR § 261.32 ("K")), or acutely and non-acutely hazardous chemicals (40 CFR § 261.33 ("P") and ("U")) OR

· the waste is mixed with a listed waste (mixture rule) OR

· the waste is derived from the storage, treatment, or disposal of a hazardous waste (derived from rule)

 

To avoid hazardous waste regulation (Subtitle C), the waste must be wholly or partially exempted or the hazardous waste status must be terminated

 

RCRA loophole (Subtitle D)—most nonhazardous waste is treated the same except for more explicit regulations covering municipal waste, household hazardous waste, small-quantity generator hazardous waste, and recycled oil

--industrial waste not legally defined as hazardous (7,600 million tons)

--municipal waste (211 million tons)

 

RCRA Issues

 

· When exempt household waste is incinerated, is the hazardous ash exempt too? No. (Supreme Court, Chicago v. EDF, 511 U.S. 328 (1994) held that generation of toxic ash must be regulated under Subtitle C if the ash possesses the characteristics of hazardous waste).

 

· International shipments—RCRA requires that exporters notify the EPA of international shipments. The importing country must agree to accept the waste. U.S. exports less than 1 percent of hazardous wastes.

 

· RCRA regulates underground storage tanks. (Existing tanks were to be upgraded by December 1998 or close down).

 

· Hazardous and Solid Waste Amendments (1984) imposed new technology-based standards on landfills handling hazardous wastes and increased federal authority over disposal of nonhazardous solid wastes.

--established over 70 statutory requirements with (often) tight deadlines

--moved away from land disposal as the primary means by requiring the treatment of wastes before their final disposal

--closed some loopholes in types of waste and waste management facilities not covered under RCRA

--regulation now covers 4,700 hazardous waste treatment, storage, and disposal facilities and 211,000 facilities that generate hazardous waste

 

· EPA is authorized to engage in corrective action that can prevent or remedy release of hazardous wastes (§7003), to seek significant civil and criminal penalties (§3008), and provides for citizen enforceability (§7002).