Hazardous Waste Management

In Whose Backyard?

Michalann Harthill

• Publisher: Routledge
• Year: 2020
• ISBN:
  9780429725777
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

First published in 1994, as part of the AAAS Selected Symposia Series. National strategies to minimize pollution, including that from hazardous waste, are evolving in both the United States and Canada. Recent federal hazardous waste regulations in the United States, promulgated under the authority of the Resource Conservation and Recovery Act of 1976 (RCRA), encourage the states to develop their own waste management programs, patterned after federal specifications; some states have developed progressive options. Canadian hazardous waste management programs originate in the provinces. However, the federal government is increasingly involved in developing new treatment technologies, guidelines for consistent management, and control of waste across political boundaries. The authors of this volume find that disposal is still the most common practice for handling hazardous waste in both countries, despite the potential for alternative methods such as industrial process redesign for waste reduction, waste detoxification, recycling, or incineration. Nonetheless, some waste will remain. Sound disposal site selection criteria are prerequisite for industry and government credibility in site selection. Only after accountability is established and recognized will the public lose symptoms of the NIMBY (not in my backyard) syndrome. Even so, public involvement in site selection in these countries should be expected for a site to be accepted. All the while, the three parties— industry, government, and the public— must balance the risk of potential waste hazards with the cost of avoiding adverse effects.

1.
Resource Conservation and Recovery Act of 1976

John P. Lehman

In 1976, the U.S. Congress substantially amended the Solid Waste Disposal Act by enacting the Resource Conservation and Recovery Act (RCRA). Among the several provisions of RCRA, Subtitle C—Hazardous Waste Management—provided for the first time direct Federal regulatory authority over the transport, treatment, storage, and disposal of hazardous waste in the United States. Subtitle C also set up a mechanism for State hazardous waste programs to be authorized and carried out in lieu of the Federal program. Furthermore, Section 7003 or RCRA in Subtitle G — Miscellaneous Provisions—authorized the EPA Administrator to take legal action whenever the handling, storage, treatment, transportation, or disposal of solid or hazardous waste is presenting an imminent and substantial danger to health or the environment.

This paper reviews the goals and principal hazardous waste provisions of RCRA, and the recent additional amendments to the Solid Waste Disposal Act enacted in October 1980 The status of the Federal hazardous waste regulations in response to the Act, and the Federal and State programs which implement the Act and the regulations are discussed. Lastly, some of the significant issues and future EPA activities associated with the new hazardous waste program are summarized.

The Legislation

Although technically an amendment to the solid waste Disposal Act, the Resource Conservation and Recovery Act of 1976 essentially replaced prior Federal legislation in the solid waste area. RCRA includes a wide range of provisions concerning Federal, State, and regional solid waste management activities as well as the hazardous waste controls focused on here. From a hazardous waste perspective, the main goals of RCRA are to:

• Promote resource recovery and resource conservation systems, and
• Regulate the transportation, treatment, storage, and disposal of hazardous wastes which have adverse effects on health and the environment.

In its policies, regulations, and implementation programs, EPA has attempted to meet both of these goals simultaneously wherever possible.

The principal hazardous waste provisions of Subtitle C of RCRA direct EPA to establish:

• Identification methods and listings of hazardous waste,
• Standards applicable to hazardous waste generators, transporters, and owners and operators of hazardous waste facilities,
• A Federal RCRA permit program for hazardous waste facilities,
• Guidelines for authorization of State hazardous waste programs in lieu of the Federal program, and
• A grant program for assisting State hazardous waste activities.

Subtitle C also provides important authorities for Federal inspections and enforcement, and mandates a notification (or registration) program wherein any person who generates or transports hazardous waste or who owns or operates a hazardous waste facility must advise EPA of that activity. The statute further specifies that Subtitle C regulations become effective six months after their promulgation.

These provisions make clear that Congress intended that EPA establish minimum national standards for hazardous waste management at the Federal level, and that the States implement their own programs which are equivalent to and consistent with the Federal requirements. EPA will implement the Federal hazardous waste control program only in those States which are not authorized to conduct their own programs.

RCRA also contains a provision which allows existing hazardous waste facilities to operate under “interim status” from the ertective date of the Subtitle C regulations regulations facility permit is issued or denied, provided the facility is in existence on a date certain, and that the owner or operator has both properly notified EPA of hazardous waste activity and made an application for a RCRA permit within six months after the Subtitle C regulations are promulgated.

In October 1980, the U.S. Congress enacted further significant amendments to the Solid Waste Disposal Act(¹). Among other things, these 1980 amendments:

• Suspended RCRA Subtitle C control, pending further study, over the following wastes:
  • Drilling fluids, produced waters, and other wastes associated with the exploration, development, and production of crude oil, natural gas, or geothermal energy;
  • Fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels;
  • Solid waste from the extraction, beneficiation, and processing of ores and minerals and
  • Cement kiln dust waste.

Following completion of these studies within two to three years, EPA may or may not elect to regulate these wastes under RCRA Subtitle C. Any such regulations for oil and gas wastes must be authorized by an Act of Congress which will:

• Require regulations to distinguish between new and existing facilities, where appropriate.
• Change the date certain which measures whether or not a facility is “in existence” from October 21, 1976, to November 19, 1980.
• This amendment allows hazardous waste facilities built since RCRA was enacted to operate under “interim status.”
• Permanently suspend RCRA Subtitle C control over coal mining wastes which are covered by a permit issued under the Surface Mining Control and Reclamation Act of 1977.
• Clarify and strengthen the RCRA Subtitle C inspection and enforcement provisions.
• Add to Subtitle C the following new sections:
  • Sec. 3012 Hazardous Waste Site Inventory which requires States (under Federal grant) to inventory all sites at which hazardous waste has at any time been stored or disposed of; and
  • Sec. 3013 Monitoring, Analysis, and Testing which authorizes EPA to require the owner or operator of a hazardous waste facility or site (whether or not the site is in operation) to conduct monitoring, testing, analysis, and reporting to ascertain the nature and extent of any substantial hazard to human health or the environment due tc the presence or release of hazardous waste at the site.

1 Public Law 96–482, October 21, 1980

In a separate action in October 1980, the Congress further amended the Solid Waste Disposal Act by enacting the Used Oil Recycling Act, of 1980(²). Among other things, with respect to RCRA Subtitle C, the Used Oil Recycling Act requires EPA to (i) determine whether or not used oil meets the definition of hazardous waste under Section 3001 of RCRA and to report that determination to Congress within 90 days; and (ii) promulgate regulations, within one year, to protect public health and the environment from hazards associated with recycled oil. These regulations must follow an analysis of the economic impact of the regulations on the oil recycling industry, and must not discourage the recovery or recycling of used oil.

2 Public Law 96–463, October 15, 1980.

Lastly, no discussion of hazardous waste legislation would be complete without mention of the recently enacted “Superfund” law, known officially as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980(³). While the Superfund law is not an amendment to the Solid Waste Disposal Act, the two laws share a common goal, which is to protect human health and the environment from the effects of improper hazardous waste disposal, and there are several cross references to Subtitle C of the Solid Waste Disposal Act within the Superfund law.

3 Public Law 96–510, December 11, 1980.

In addition to the main Hazardous Substance Response Fund established by taxes on certain raw materials, the Superfund law also creates a new Post-Closure Liability Fund established by a tax of $2.13 per dry ton of hazardous waste received after September 30, 1983, at hazardous waste facilities operating under interim status or a RCRA permit. The liability of the owner or operator of a hazardous waste disposal facility which has received a RCRA permit will be transferred to and assumed by the Post-Closure Liability Fund if: (i) the facility was operated and closed in compliance with RCRA Subtitle C regulations and its permit, and (ii) monitoring for up to five years after closure demonstrates that there is no substantial likelihood that any migration off-site or release from confinement of any hazardous substance or other risk to public health or welfare will occur. This new provision -should remove one of the significant impediments to new hazardous waste facility construction, namely, the reluctance of owners to risk long-term and open-ended liability for their hazardous waste disposal activities, even when these activities are conducted in full compliance with the RCRA regulations.

Federal Regulations Under RCRA

Development of the Federal hazardous waste regulations under RCRA Subtitle C has proved to be a very difficult task. The wastes meriting control are quite diverse in terms of the type of hazards involved (e.g., ignitables, explosives, strong acids and bases, toxic inorganics including toxic metals, and toxic organics including carcinogens) and physical form (i.e., solids, sludges, liquids, and gases). Such wastes are generated by a wide spectrum of industry and other sources such as research laboratories, hospitals, and agricultural and transportation operations. Thus, the regulations affect a large number of enterprises, some of which have not been subject to environmental regulations previously. Further, the facilities used for treatment, storage, or disposal of hazardous waste are also quite diverse in terms of their type (e.g., tanks, lagoons, landfills, incinerators, deep wells), climate, underlying geology and hydrology, and proximity to population centers. Also, the statute requires EPA to establish financial responsibility standards for facility owners and operators—a form of regulation with which the EPA has little prior experience.

A number of public policy considerations affected the RCRA Subtitle C regulation development effort, as well as the technical complexities mentioned above. These policy considerations included maximizing public participation in the regulation development effort under a “Sunshine” approach; reducing regulatory burden, including paperwork, to a minimum; responding to public alarm about hazardous wastes, which was heightened by the Love Canal and other incidents; and responding to the RCRA goal to promote resource conservation and recovery.

After substantial public input to early drafts, EPA issued most of the RCRA Subtitle C regulations as proposed rules in December 1978. The public response was overwhelming. EPA received over 1200 sets of comments on the proposed rules, some of which rivaled a New York City telephone book in length. This number of comments on a proposed rule was unprecedented in EPA history Many commenters raised significant technical and policy issues. Also, at about the same time, Congressional debate on RCRA amendments began.

EPA decided, as a practical matter, to promulgate the RCRA Subtitle C regulations in three phases in order to begin the hazardous waste program in response to public expectations while allowing time to address the more complex technical and policy issues associated with the program, and to incorporate pending RCRA amendments into the regulations, where possible.

Accordingly, on May 19, 1980, EPA promulgated Phase I of the RCRA regulations which provide the basic foundation upon which later phases will build. The Phase I regulations consist of:

1. 40 CFR Part 260—General regulations and definitions applicable to the hazardous waste management system.
2. 40 CFR Part 261—Identification and listing of hazardous waste, which establishes the scope of the regulatory program.
3. 40 CFR Part 262—Standards applicable to generators of hazardous waste, including the requirement to originate a manifest for off-site shipments of hazardous waste.
4. 40 CFR Part 263—Standards applicable to transporters of hazardous waste.
5. 40 CFR Part 264—Standards for owners and operators of hazardous waste treatment, storage, and disposal facilities. Part 264 standards are used as the technical basis for RCRA facility permits. In Phase I, the Part 264 standards included general and reporting requirements, but did not include technical or financial standards.
6. 40 CFR Part 265—Interim status standards for owners and operators of hazardous waste treatment, storage, and disposal facilities. These standards apply to facilities in interim status, before a RCRA permit is issued or denied. EPA decided to put these standards in a separate Part to avoid any confusion with the technical facility permitting standards in Part 264. In Phase I, the interim status standards included general, reporting, and technical standards, but not financial standards.

[As a result of public comment on the proposed rules, the financial responsibility standards were substantially revised and were reproposed for both Parts 264 and 265 at the time the Phase I standards were issued.]

As part of the Agency’s effort to reduce regulatory burden, EPA developed consolidated permit and State program authorization rules for the hazardous waste program under RCRA, the underground injection control program under the Safe Drinking Water Act, the national pollutant discharge elimination system (NPDES) and Section 404 dredge or fill programs under the Clean Water Act, and the prevention of significant deterioration program under the Clean Air Act. The RCRA portions of these rules are considered to be part of the Phase I RCRA Subtitle C regulations. They were also promulgated on May 19, 1980, and are found in:

• 7. 40 CFR Part 122—EPA administered permit programs, which establishes definitions and basic permit requirements.
• 8. 40 CFR Part 123—State program requirements, which establishes requirements for approved State programs operated in lieu of EPA.
• 9. 40 CFR Part 124—Procedures for decision making, which establishes the procedures to be followed in making permit decisions.

Phase II of the RCRA Subtitle C regulations will consist of the Part 264 technical and financial standards to be used in RCRA facility permits, and the Part 265 interim status standards for financial responsibility. At this writing, EPA has nearly completed development of the Phase II standards, and they are expected to be promulgated in early 1981. However, the standards for land disposal facilities involve especially complex technical issues, and significant changes have been made to them as a result of comment on the proposed rules. Therefore, it may be necessary to repropose these particular standards prior to finalizing them.

EPA anticipates that Phase III of the RCRA Subtitle C regulations will include standards for specific facilities and waste which require special management standards. Examples include special requirements for waste oil and waste solvent management. 40 CFR Part 266 has been reserved for these standards, which, in general, will apply in lieu of Parts 264 or 265. Phase III is expected to be ...

Table of contents

• Cover
• Half Title
• Series Page
• Title
• Copyright
• About the Book
• About the Series
• Contents
• About the Editor and Authors
• Introduction
• 1 Resource Conservation and Recovery Act of 1976
• 2 A Canadian Federal Perspective
• 3 Methods for Assessing Health
• 4 Selecting Sites for Radioactive Waste Repositories
• 5 Siting Nonradioactive Hazardous Waste Facilities
• 6 Public Participation in Siting
• 7 An Industrial Viewpoint
• 8 Waste Disposal/Management Options
• 9 Cleaning Up Uncontrolled Hazardous Waste Sites
• 10 Superfund
• 11 Striking a Reasonable Balance
• Index