RCRA's Statutory and Regulatory Framework

Date01 April 2010
RCRA’s Statutory
and Regulatory
by Susan M. McMichael
Susan M. McMichael is an environmental attorney
at the Los Alamos National Security, LLC. e views
expressed herein are the author’s and do not necessarily
reect those of Los Alamos National Security, LLC.
Editors’ Summary
Most people are unsure of how to address complicated
issues associated with RCRA permitting, federal facili-
ties, and ha zardous and radioactive mixed waste. e
sheer number of EPA rules alone (over 900) can be
mind-boggling, with new rules issued each year. e
overall RCRA regime has evolved to address critical
issues related to the ma nagement and cleanup of haz-
ardous and radioactive mixed wastes. e RCRA Per-
mitting Handbook, from which this Article is excerpted,
acts as a thorough guide to all aspects of RCRA permit
rules, numerous useful references, court cases, and EPA
guidance. e Handbook is intended to assist a broad
audience on how to navigate and better understand
RCRA permit requirements and compliance.
Each year, signicant amounts of hazardous and radio-
active mixed waste must be managed or disposed of in
the United States. e U.S. Environmental Protection
Agency (EPA) estimated that in 2007, approximately 50 mil-
lion tons of hazardous waste were managed at 1,395 facilities
nationwide annually.1 Although the precise amount is uncer-
tain, the volume increases with radioactive mixed wa ste—it
is estimated by the U.S. Department of Energy (DOE) that
approximately 710,000 cubic meters (m3) of low-level radio-
active mixed waste will require disposa l through 2070.2
e ma nagement and cleanup of these wastes are regu-
lated by EPA and authorized states under Subtitle C of the
Resource Conservation a nd Recovery Act (RCR A).3 RCRA
establishes a framework, described as unparalleled in scope
and complexity, for the comprehensive cradle-to-grave man-
agement of hazardous waste.4
Central to this framework is the RCRA permit, which
imposes detailed requirements on persons that own and
operate facilities for the safe treatment, storage, or disposa l
of hazardous waste, including radioactive mixed waste. e
RCRA regime developed over decades, but is marked by
three key laws discussed below:
• e Resource Conservation and Recovery Act of 1976
• e Hazardous and Solid Waste Amendments
(HSWA) of 1984
• e Federal Facility Compliance Act (FFCA) of 1992.
Editors’ Note: is Article is excerpted from the RCRA Permitting
Handbook (Susan M. McMichael ed., forthcoming Summer 2010).
1. U.S. EPA, N A: T N B RCRA H-
 W R (based on 2007 Data) (2008). EPA data excludes: (1)
hazardous waste received from o-site for storage/bulking and subsequently
transferred o site for treatment or disposal; and (2) hazardous waste stored,
bulked, and/or transferred o-site with no prior treatment/recovery, fuel
blending, or disposal at the site. Note that of the 1,395 facilities, 516 reported
as hazardous waste management facilities. e National Biennial Report and
updates are available at http://www.epa.gov/epawaste/inforesources/data/bien-
2. EPA data, extrapolated from a 1990 National Survey, estimates that commer-
cial facilities generate approximately 108,100 cubic feet of radioactive mixed
waste annually. U.S. EPA, Regulatory Impact Analysis, Storage, Treatment,
Transportation, and Disposal of Mixed Waste, Docket F-2001-MLZF-FFFFF
No. 14 (Feb. 2001). DOE’s estimate addresses only low-level radioactive mixed
waste, and does not include transuranic mixed waste destined for disposal at
the Waste Isolation Pilot Plant. Further, the estimated 710,00 cubic meters of
low-level mixed waste includes volumes to be disposed at Comprehensive En-
vironmental Response, Compensation, and Liability Act (CERCLA) disposal
facilities. See U.S. DOE, Current Planned Low-Level Waste Disposal Capacity
Report (Rev. 1) (Apr. 9, 2009).
3. 42 U.S.C. §§6901-6992k, ELR S. RCRA §§1001-11011.
4. See H C.  E  C, H  S
W A  1984, H.R. R. N. 198, 98th Cong., 1st Sess.
June 9, 1983 (hearings of U.S. House Energy Committee). See also United
States v. White, 766 F. Supp. 873, 877, 22 ELR 20050 (E.D. Wash. 1991)
(EPA regulations establish a detailed and complex comprehensive hazardous
waste management system).
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
4-2010 NEWS & ANALYSIS 40 ELR 10433
is Article discusses how RCRA evolved to close major
loopholes in federal law and, along the way, become a compli-
cated regulatory program of labyrinthine rules and exceptions.
e Article introduces the reader to the “big picture” from
which RCRA permit requirements derive. It provides a histori-
cal overview of RCRA’s statutory framework, including its major
amendments, such as the HSWA and the FFCA and EPAs cra-
dle-to-grave rules. Finally, the Article discusses the RCRA state
authorization process, with an emphasis on state program revi-
sions, new processes to expedite approval, and the tools to better
understand the state and EPA roles in this dynamic process.
I. The Historical Driver: RCRA
“We must eliminate the word ‘ waste’ from our vocabulary an d
substitute the word conservation .
—Statement of Sen. Jennings Randolph (D-W. Va.),
in introducing RCRA5
In 1976, the U.S. Congress passed Subtitle C of RCRA to
establish a national framework to regulate hazardous waste.6
e Act dened hazardous waste as a “solid waste” that “may
cause or signicantly contribute to an increase in mortality
or serious illness, or may pose a substantia l threat to human
health or the environment.”7 Hazardous waste also includes
radioactive mixed waste, which is regulated under Subtitle C
of RCR A. R adioactive mixed waste contains both hazard-
ous waste and radioactive components regulated under the
Atomic Energy Act of 1954, as amended.8 RCRA recognizes
two other types of wastes: municipal and industrial. Munici-
pal waste, e.g., household and commercial trash and garbage,
is primarily regulated by states, Indian tribes, and local gov-
ernments under the less rigorous standards of Subtitle D of
RCRA.9 Industria l solid waste, some of which may present
signicant risks to human health a nd environment, is also
5. 193 C. R. 23849-50 (daily ed., July 21, 1975).
6. RCRA §1002, 42 U.S.C. §6901, Pub. L. No. 94-580, 90 Stat. 2795 (Oct. 21,
1976). RCRA amended the Solid Waste Disposal Act (SWDA) of 1965, 42
U.S.C. §3251 (1965), Pub. L. No. 89-272. Prior to the SWDA, the federal
program was conducted under the Public Health Service Act and consisted
primarily of solid waste disposal research. Only 12 states had an identiable
solid waste program. S. R. N. 988, 94th Cong., 2d Sess. 5-6 (June 25,
7. RCRA §1004(5), 42 U.S.C. §6903(5) (2000).
8. RCRA §1004, 42 U.S.C. §6903(41) (2000).
9. 42 U.S.C. §§6941-6949a (1994). In 2007, the United States generated ap-
proximately 254 million tons of municipal solid waste, of which 33.4% was
recycled. See U.S. EPA, Municipal Solid Waste Generation, Recycling, and
Disposal in the United States: Facts and Figure for 2007, EPA530-R-09-010
(Nov. 2008). EPA regulated municipal waste through guidelines until 1993.
See 40 C.F.R. Part 257 (1996) (guidelines). In 1993, EPA issued regulations
for municipal solid waste and established national standards for municipal
solid waste landlls that encouraged environmentally safe methods for solid
waste disposal that maximizes resource recovery and conservation. EPA r ules
for municipal solid waste are found at 40 C.F.R. Parts 240 through 258.
regulated by states, Indian tribes, and some local govern-
ments under Subtitle D of RCRA (see Box 1.1).10
Congress passed Subtitle C of RCRA to address two
interrelated policy goals:
• to reduce the generation of haza rdous waste by pro-
moting incentives to conserve, recycle, and recover
valuable materials; and
• to control land disposal (primarily of ha zardous
industrial waste) through a regulatory program that
sets national and uniform standards for safe wa ste
is policy evolved in response to a particular problem in
the mid-1970s, when the nation faced serious environmental
issues resulting from the improper management and disposal
of solid and hazardous waste. Up to that time, Congress and
the environmental movement had focused on air and water
problems, while neglecting the “stepchild”—solid and haz-
ardous waste.12 e “use and discard” attitude prevailed in
collective public policy.13 As a result, by 1975, landlls were
reaching their design limits, while the volume of waste was
projected to increase by 5-10% annually.14 Moreover, land
disposal of haz ardous waste was “essentially unregulated,”
and considered one of the “last remaining loopholes in envi-
ronmental law.”15 ere was a clear understanding that haz-
ardous waste, u nless neutralized or managed, presented a
danger to society.16
10. EPA estimates that industrial facilities in the United States generate and dis-
pose 7.6 billion tons of industrial solid waste each year. EPA has not adopted
national standards to regulate industrial solid wastes, but instead issued vol-
untary national guidelines for industrial waste management. See U.S. EPA,
Guide for Industrial Waste Management, at 1, available at www.epa.gov/epao-
11. RCRA §1002, 42 U.S.C. §6901 (2000).
12. 122 C. R. at S33816 (daily ed., Sept. 30, 1976) (statement of Sen.
13. Id.
14. 122 C. R. H19764 (daily ed., June 22, 1976) (statement of Rep.
15. Id. (land disposal of hazardous waste unregulated); H.R. R. N. 1491, 94th
Cong., 2d Sess. 1 (Sept. 9, 1976), reprinted in 5 U.S.C.C.A.N. 6238, 6241
16. H.R. R. N. 1491, 94th Cong., 2d Sess. 3 (Sept. 9, 1976), reprinted in 5
U.S.C.C.A.N. 6238, 6241(1976).
Box 1.1
RCRA Waste Programs
Subtitle C — Hazardous and Radioactive Mixed
Subtitle D — Municipal and Industrial Solid Waste s
Subtitle I Underground and A bove ground Storage
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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