RCRA's Statutory and Regulatory Framework

• Date: 01 April 2010

40 ELR 10432 ENVIRONMENTAL LAW REPORTER 4-2010

RCRA’s Statutory

and Regulatory

Framework

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-

nialreport/index.htm.

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 EPA’s 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,

1976).

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

management.11

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-

swer/non-hw/industd/guide.htm.

11. RCRA §1002, 42 U.S.C. §6901 (2000).

12. 122 C. R. at S33816 (daily ed., Sept. 30, 1976) (statement of Sen.

Randolph).

13. Id.

14. 122 C. R. H19764 (daily ed., June 22, 1976) (statement of Rep.

Rooney).

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

(1976).

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

Wastes

Subtitle D — Municipal and Industrial Solid Waste s

Subtitle I — Underground and A bove ground Storage

Tanks

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.