RCRA's Statutory and Regulatory Framework

AuthorSusan M. McMichael
Page 1
Chapter 1
RCRA’s Statutory and Regulatory Framework
1.0 Introduction
Each year, signic ant amounts of ha zardous and radioactive mixed wa ste must be managed or disposed of in
the United States. e U.S. Environmental Protection Agency (EPA) estimated that in 2009, approximately 39
million tons of hazardous waste were managed at 1,254 facilities nationwide annually.1 Although the precise
amount is uncerta in, the volume increases with radioactive mixed waste —it is estimated by the U.S. Depart-
ment of Energy (DOE) that approximately 710,000 cubic meters (m3) of low-level radioactive mixed waste will
require disposal throug h 2070.2
e management and cleanup of these wastes are regulated by EPA and authorized states under Subtitle C of
the Resource Conservation and Recovery Act (RCRA).3 RCRA establishes a framework, described as unparal-
leled in scope and complexity, for the comprehensive “cradle-to-grave” management 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 disposal of hazardous waste, including radioactive mixed
waste. e RCRA regime developed over decades, but is ma rked by three key laws discussed below:
• the Resource Conservation and Recovery Act of 1976;
• the Hazardous and Solid Waste Amendments (HSWA) of 1984; and
• the Federal Facility Compliance Act (FFC A) of 1992.
is opening chapter discusses how RCRA evolved to close major loopholes in federal law and, along t he
way, became a complicated regulatory program of labyrinthine ru les and exceptions. e chapter introduces
the reader to the “big picture” from which RCRA permit requirements derive. It provides a historical overview
of RCRA’s statutory framework (Section 1.1 below), including its major amendments, such as the HSWA and
the FFCA (Sections 1.2 and 1.3) and EPA’s cradle-to-grave rules (Section 1.4). Finally, the chapter discusses
the RCRA state authorization process, with an emphasis on state program revisions, new processes to expedite
approval, and the tools to better understand the state and EPA roles in this dyna mic process (Section 1.5).
1. U.S. EPA, N A: T N B RCRA H W R (based on 2009 data) (2010). 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 1,254
facilities, 460 reported as hazardous waste management facilities. e National Biennial Report and updates are available at www.epa.gov/epawaste/
2. EPA data, extrapolated from a 1990 National Survey, estimates that commercial 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 710,000 cubic meters of low-level mixed waste includes volumes to
be disposed at Comprehensive Environmental 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).
Page 2 RCRA Permitting Deskbook
1.1 The Historical Driver: RCRA
We must eliminate the word “waste” from our vocabulary and 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 fra mework to regulate ha zard-
ous 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 RCRA. Radioac-
tive mixed waste contains both hazardous waste and radioactive components regulated under the Atomic Energy
Act of 1954, as amended8 (see Chapter 10, Radioac-
tive Mixed Wastes). RCRA recognizes two other types
of wastes: municipal and industrial. Municipal waste,
e.g., household and commercial trash a nd g arbage, is
primarily regulated by states, Indian tribes, a nd loca l
governments under the less rigorous standards of Sub-
title D of RCRA.9 Industrial solid waste, some of which
may present signicant risks to human health and envi-
ronment, is also regulated by states, Indian tribes, and
some local governments 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 hazardous waste by promoting incentives to conserve, recycle, and recover
valuable materials; and
• to control land disposal (primarily of hazardous industrial waste) through a regulatory program that sets
national and uniform standards for safe waste management.11
is policy evolved in response to a particular problem in the mid-1970s, when the nation faced serious envi-
ronmental issues resulting from t he 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 hazardous waste.12 e “use and discard” attitude prevailed in collective public poli-
cy.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 hazardous waste was “essentially unregulated,” and
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 (SDWA) 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(41), 42 U.S.C. §6903(41) (2000).
9. 42 U.S.C. §§6941-6949a (1994). In 2007, the United States generated approximately 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 Figures 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 rules for municipal solid waste are found at 40 C.F.R.
Parts 240 through 258.
10. EPA estimates that industrial facilities in the United States generate and dispose 7.6 billion tons of industrial solid waste each year. EPA has not
adopted national standards to regulate industrial solid wastes, but instead issued voluntary national guidelines for industrial waste management.
See U.S. EPA, Guide for Industrial Waste Management, at 1, available at www.epa.gov/epaoswer/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).
Box 1.1
RCRA Waste Programs
Subtit le C — Hazardou s and Radi oactive
Mixed Wastes
Subtit le D — Munici pal a nd I ndustrial Solid
Subtit le I — Undergrou nd an d Abo ve-
ground Storag e Tanks

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