§ 4.1 Hazardous Waste

• Library: Environmental Law Vol. 1: Regulation and Permitting (OSBar) (2013 Ed.)

§ 4.1 HAZARDOUS WASTE

§ 4.1-1 Statutory and Regulatory Framework

§ 4.1-1(a) Federal Resource Conservation and Recovery Act (RCRA)

In 1976, Congress declared that the national policy of the United States is that the generation of hazardous waste be "reduced or eliminated as expeditiously as possible," and that whatever wastes that are produced "should be treated, stored, or disposed of so as to minimize the present and future threat to human health and the environment." 42 USC § 6902(b). To accomplish this goal, Congress passed the Resource Conservation and Recovery Act of 1976 (RCRA), 42 USC §§ 6901-6992k, as an amendment to the Solid Waste Disposal Act. Although RCRA and its accompanying regulations, 40 CFR parts 260-272, cover all solid wastes (see § 4.2-1 to § 4.2-6(b)), RCRA's centerpiece is Subtitle C, which provides comprehensive laws to manage the generation, transportation, storage, treatment, and disposal of hazardous waste materials. 42 USC §§ 6921-6939e. The United States Environmental Protection Agency (EPA) is responsible for administering, implementing, and enforcing RCRA.

Because of the complexity of RCRA's regulatory scheme and the volume of rules proposed each year, it is not practical for this deskbook to be a comprehensive catalog of all RCRA rules promulgated since the 2002 publication. Rather, it is intended to highlight and summarize the most legally significant aspects of RCRA and Oregon hazardous waste rules and case law.

PRACTICE TIP: For comprehensive coverage of all EPA rulemaking, EPA publishes a biannual regulatory agenda, known as the Unified Agenda Report. The report is broken down by statute and contains (1) information regarding regulations and major policies currently under development, (2) reviews of existing regulations and major policies, and (3) rules and major policy-making completed or canceled since the last agenda. EPA maintains a mailing list for the agenda and does not charge for a single copy. To receive an e-mail with a link to the new semiannual regulatory agenda as soon as it is published, a person must send an e-mail message with his or her name to Regulatory_Agenda@epa.gov and put "EPA E-Agenda: Add" in the subject line. The newest agendas and plans can be found on two Web sites: < www.reginfo.gov > and < www.regulations.gov >. EPA's agendas and plans from 2006 to 2010 can be found at < www.epa.gov/lawsregs/regulations/regagenda.html >.

To track the progress of EPA's priority rulemakings sign up on the EPA's RSS feed from the Regulatory Development and Retrospective Review Tracker at < http://yosemite.epa.gov/opei/RuleGate.nsf/content/getalerts.html?opendocument >. To receive the EPA's monthly Action Initiation List, which contains information about the rules newly approved for development, go to < www.epa.gov/lawsregs/regulations/ail.html#notification > and follow the steps provided.

§ 4.1-1(b) Oregon's Hazardous Waste Program

Although the federal government has provided a detailed regulatory scheme, the Resource Conservation and Recovery Act of 1976 (RCRA) expressly allows states to develop and manage their own hazardous waste programs. 42 USC §§ 6941-6949a (authorizing and setting forth criteria for state solid waste programs). The Environmental Protection Agency (EPA) gave final authorization to Oregon's hazardous waste program in 1986.

Further requirements for state programs are set forth in 40 CFR sections 271.1 to 271.26 and operate in lieu of the federal regulations. State plans may not impose any requirements that are less stringent than those set by EPA, but states may set more stringent standards than what is required under federal law. Oregon has elected to exceed RCRA's federally mandated standards in several areas. For example, Oregon's program is more stringent than the federal program when addressing dredged materials because, unlike the federal program, it does not exclude dredged materials from regulation as a solid waste subject to a hazardous waste determination. Oregon's program also exceeds the federal standards regarding the disposal of military munitions, pesticide residues, and universal waste. See Oregon: Final Authorization of State Hazardous Waste Management Program Revision, 67 Fed Reg 57,337, 57,342-57,343 (Sept 10, 2000). 42 USC § 6929; accord State of Washington, Dept. of Ecology v. U.S.E.P.A., 752 F2d 1465, 1467 (9th Cir 1985) (more stringent state standards are proper). However, private parties may avail themselves of RCRA's citizen-suit provisions to allege violations of state law. Sierra Club v. Chem. Handling Corp., 824 F Supp 195, 197-98 (D Colo 1993).

EPA retains a great deal of discretion in implementing and enforcing Oregon regulations to ensure that the state rules adequately promote RCRA's broader policy goals. Wyckoff Co. v. E.P.A., 796 F2d 1197, 1201 (9th Cir 1986) (EPA retains powers of "oversight and enforcement" even when authorized state program is in effect). If EPA determines that a state program no longer complies with the federal requirements, EPA may withdraw its approval of the state program or require the state to revise the state rules to make them consistent with the applicable federal standards. 40 CFR §§ 271.21-271.22. EPA may review and terminate any permit issued by the state under 42 USC section 6928(a)(3) provided the permittee is not complying with a condition of that permit or the permittee is not complying with a condition that the regional administrator in commenting on the permit application or draft permit stated was necessary to implement approved state program requirements. 40 CFR § 271.19. The regional administrator may take action under 42 USC section 6973 against a permit holder at any time whether or not the permit holder is complying with permit conditions. EPA retains the authority to bring enforcement actions, including civil and criminal penalties, against persons who have violated the state program. 42 USC § 6928(a)(2). But see Harmon Indus., Inc. v. Browner, 191 F3d 894, 896-97 (8th Cir 1999) (EPA may only initiate enforcement action (1) after the state has failed to initiate enforcement action after written notice from EPA or (2) after withdrawing authorization of the state program). EPA, however, must notify the state before commencing an enforcement action.

The Oregon Legislature has adopted a statewide hazardous waste program to protect "the public health and safety and environment of Oregon to the maximum extent possible." ORS 466.010(1)(b). See generally ORS 466.005-466.995. This program is coordinated, supervised, and enforced by the Department of Environmental Quality (DEQ) and authorizes the Environmental Quality Commission (EQC) to adopt the administrative rules and regulations to implement the program. ORS 466.015-466.025. The EQC rules are set forth in OAR chapter 340 and incorporate by reference many of the federal standards. OAR 340-100-0001 to 340-100-0022. EPA retains exclusive authority in implementing some provisions of the 1984 Hazardous and Solid Waste Amendments to RCRA. Many Oregon Administrative Rules vary from their federal counterparts; consequently, lawyers who represent clients who generate, transport, dispose of, or otherwise handle hazardous waste should become familiar with both the federal and Oregon regulatory schemes.

RCRA regulations are both extensive and complicated. To help make sense of the myriad rules, EPA has published internal guidance documents and directives. In addition, EPA's comments published in the Federal Register regarding proposed and final rules provide valuable insights into particular regulatory provisions. Sierra Club, 824 F Supp at 197 (EPA statements in Federal Register interpreting RCRA should be given great deference). DEQ also produces staff reports on proposed rules that can be useful in understanding the Oregon hazardous waste program.

PRACTICE TIP: RCRA, Underground Storage Tanks, and Leaking Underground Storage Tanks topics are available at the RCRA FAQs database located at < www.epa.gov/rcraonline >. This Web site contains a searchable database of EPA memoranda, letters, and guidance documents on a wide variety of hazardous waste topics. Agency decisions interpreting RCRA and its regulations can also be found on EPA's Environmental Appeals Board Web site, < http://yosemite.epa.gov/oa/EAB_Web_Docket.nsf >. Likewise, the Oregon DEQ has developed several guidance documents that are helpful in interpreting the state's hazardous waste program. These documents can be found at < www.deq.state.or.us/lq/hw/index.htm >. Collectively, these Web sites provide invaluable tools for any lawyer or environmental professional whose practice is affected by the complex and ever-changing regulation of hazardous waste and related issues.

§ 4.1-1(c) Waste Management Programs on Tribal Lands

Oregon's hazardous waste laws do not extend to facilities or activities of tribal members on reservations. "The policy of leaving Indians free from state jurisdiction is deeply rooted in the Nation's history." McClanahan v. State Tax Comm'n of Arizona, 411 US 164, 93 S Ct 1257, 36 L Ed 2d 129 (1973). Consequently, the Resource Conservation and Recovery Act of 1976 (RCRA) does not authorize states to regulate tribal activities on Indian land. State of Washington, Dept. of Ecology v. U.S.E.P.A., 752 F2d 1465, 1467-68 (9th Cir 1985).

Tribal waste management operations are immune from state authorized programs but are subject to federal regulation and enforcement actions under RCRA and Environmental Protection Agency (EPA) regulations. Blue Legs v. U.S. Bureau of Indian Affairs, 867 F2d 1094, 1097 (8th Cir 1989). Nevertheless, EPA needs to consult with tribal governments whenever EPA approves a permit application for waste facilities on or affecting Indian lands. See generally Hoopa Valley Tribe v. Christie, 812 F2d 1097, 1103 (9th Cir 1986) (describing government's duty to consult with tribes).

Persons who challenge waste management activities on...