Resource Conservationand Recovery Act (RCRA)

AN OVERVIEW OF THE RESOURCE CONSERVATION AND RECOVERY ACT

  1. OVERVIEW
    1. History
      1. Resource Conservation and Recovery Act (RCRA) – 1976
      2. Hazardous and Solid Waste Act (HSWA) – 1984
    2. Structure
      1. Defines waste
      2. Establishes operational, permit and paperwork requirements for the handling, treatment, storage and disposal of waste
      3. Describes corrective action
      4. Imposes strict sanctions
    3. Statutory and Regulatory References
      1. 42 U.S.C. 6901 et seq.
      2. 40 C.F.R. 260 – 281
  2. DEFINITION OF SOLID WASTE AND HAZARDOUS WASTE
    1. Solid Waste
      1. Garbage, refuse
      2. Pollution control sludge
      3. Discarded material
        1. Abandoned (disposed, incinerated, accumulated)
        2. Inherently waste like materials
        3. Certain listed hazardous wastes
      4. Certain types of material may be solid waste if they are recycled in certain ways:
        1. Types of recycling
          1. used in a manner constituting disposal
          2. burned for energy recovery
          3. reclaimed
          4. accumulated speculatively
        2. Types of materials
          1. spent materials
          2. by-products
            • sludges
            • scrap metals
            • certain hazardous commercial chemicals
        3. Solid waste determination
          1. all above are solid wastes if used in a manner constituting disposal or burned for energy recovery
          2. spent materials, scrap metals, by-products, hazardous by- products, sludges and hazardous sludges are solid wastes if accumulated speculatively
          3. spent materials, hazardous by-products, hazardous sludges and scrap metals are solid wastes if reclaimed
        4. Recycling Exemptions
          1. if used as products having market value
          2. if returned to the system without being regenerated
      5. Exclusions
        1. Domestic sewage or waste in sewer system
        2. Industrial wastewater regulated under the CWA
        3. Irrigation return flows
        4. Nuclear wastes
        5. Pulping liquor
        6. Spent sulfuric acid used to produce virgin acid
        7. Reclaimed materials returned to the original process
          1. Enclosed in a hard-piped system
          2. No flame combustion in the process
          3. Not accumulated for 12 months without being reclaimed and
          4. Not used to produce a product used in a manner constituting disposal
      6. Hazardous Waste
        1. Characteristic hazardous wastes
          1. Ignitable
            1. liquid wastes with a flash point less htan 60 degrees Celsius; or,
            2. non-liquid wastes ignitable at standard temperature and pressure
          2. Corrosive – pH less than 2 or greater than12.5
          3. Reactive – wastes that are unstable or explosive under normal conditions or are capable of releasing toxic gases when mixed with water
          4. Toxic – liquid or leachate from a solid after the Toxicity Characteristic Leaching Procedure (TCLP) which exceeds a level set by USEPA for certain listed substances
        2. Listed Hazardous Wastes
          1. Criteria for listing
            1. exhibits hazardous characteristics
            2. demonstrated to be toxic in low doses
            3. contains a hazardous constituent listed in Appendix VII and is capable of posing a substantial present or potential threat to human health or the environment
          2. Categories
            1. F Wastes
            2. non-specific source wastes
            3. industrial spent solvents and by products
            4. K Wastes
              1. specific source wastes
              2. sludges and still bottoms from specific processes
            5. P Wastes – discarded or off-spec commercial chemical products or residue, contaminated soil or water or debris resulting from a spill of the same which are acutely hazardous
            6. U Wastes – discarded or off-spec commercial chemical products or residue, contaminated soil or water or debris resulting from a spill of the same
        3. Mixture/Derived from/Contained in
          1. Any material mixed with a listed hazardous waste or any material derived from the processing or treatment of a listed hazardous waste becomes or remains a listed hazardous waste.
          2. Any material in which a listed hazardous waste is contained is itself a listed hazardous waste
          3. Characteristic hazardous wastes may be mixed or treated so that they become noncharacteristic and not hazardous
          4. The “mixture/derived from” rule was been voided by a federal court. Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). The rule was permanantly reinstated at 57 Fed. Reg. 49278.
        4. Delisting
          1. USEPA determination that a specific waste mixture does not meet the criteria under which the waste was listed
          2. Petitioner bears the burden of proving that no portion of the waste or the mixture meets the hazardous waste characteristics
          3. Requires a formal rule making
      7. Exclusions from hazardous wastes
        1. Household waste
        2. Agricultural and livestock wastes applied as fertilizer
        3. Certain types of mineral and petroleum extraction wastes
        4. Fly ash waste from the combustion of fossil fuels
        5. Certain specified wastes which otherwise fail the TCLP tests.
  3. GENERATOR AND TRANSPORTER
    1. Generator Defined
      1. Any person whose act or process produces hazardous wastes or
      2. Any person whose act causes a waste to be subject to regulation
      3. A person identified above who does not store hazardous wastes on-site for more than 90 days and does not treat or dispose of hazardous wastes on site
    2. Generator Requirements
      1. Obtain a Generator Identification Number
      2. Appropriately store or package the waste
        1. If waste is stored, it must be labeled as to date and identity
        2. If waste is packaged, it must be labeled and packaged according to DOT requirements
      3. Prepare a manifest
      4. Maintain records of manifests and reports
      5. Dispose of waste at permitted facility
    3. Small Quantity Generator
      1. Generates greater than 100 kg but less than 1000 kg per month, but
      2. Quantity of waste on site never exceeds 6,000 kg
    4. Small Quantity Generator Requirements
      1. May store on site up to 180 days
      2. May not need manifest if wastes being reclaimed under a contractual agreement
      3. Must obtain identification number and maintain records
      4. Must dispose of wastes at a permitted facility
    5. Conditionally Exempt Small Generator Requirements
      1. Generates less than 100 kg per month
      2. Stores less than 1,000 kg on site
      3. Dispose of wastes at a permitted facility
      4. Wastes not subject to Land Disposal Restrictions
    6. Transporter Requirements
      1. Comply with manifest requirements
      2. Maintain records of manifests
      3. Report and remediate spills
      4. Comply with DOT requirements
  4. TREATMENT, STORAGE AND DISPOSAL FACILITIES
    1. TSD Facilities Defined
      1. Sites at which hazardous wastes are stored for more than 90 days, treated or disposed
      2. Must notify USEPA
      3. Must be permitted
      4. Types of TSD facilities
        1. Tanks
        2. Surface Impoundments
        3. Waste Piles
        4. Land Treatment
        5. Landfills
        6. Incinerators
        7. Warehouses
    2. General TSD Requirements
      1. Facility Management Plan
        1. Waste analysis
        2. Inspection
        3. Personnel training
        4. Security
        5. Control of unstable or incompatible wastes
      2. Contingency Plans and Emergency Procedures
        1. Emergency equipment and response plans
        2. Coordination with local authorities
        3. Employee training
      3. Manifests
        1. Verify received manifests
        2. Reconcile or refuse
      4. Record keeping
        1. Record of all wastes received and analysis
        2. Biennial reports
      5. Groundwater monitoring
        1. Applies to surface impoundments, landfills and land treatment units
        2. Requires upgradient and downgradient wells sufficient to identify groundwater impacts at background and at the point of compliance
        3. Phased approach
          1. monitoring to detect releases
          2. monitoring to determine compliance with established groundwater quality standards
          3. corrective action
      6. Closure/Post-Closure
        1. Written Closure Plan
        2. Clean Closure
          1. certification
          2. survey plat
        3. Closure in Place
        4. Post-Closure
          1. permit
          2. monitoring
          3. security
      7. Financial Assurance
        1. Assure funds for the cost of closure and post closure
        2. Various mechanisms available
          1. surety bond
          2. letter of credit
          3. insurance
          4. trust fund
          5. corporate guarantee
  5. LAND DISPOSAL RESTRICTIONS (LAND BAN)
    1. Overview
      1. Integral part of HSWA
      2. Phased restrictions over time
      3. Hard hammer/soft hammer
    2. Land Ban Requirements
      1. Prohibits disposal of listed or characteristic hazardous waste without treatment
      2. Requires treatment to BDAT standards
      3. Requires treatment to specified concentrations
    3. Exemptions
      1. Variance
      2. No-migration exemption
    4. Land Ban Requirements For Operators Of Facilities
      1. Generators
        1. Notify of shipment of Land Ban Waste
        2. Certify treatment to Land Ban Standards
      2. TSD Facilities
        1. Notify if transport off-site after treatment
        2. Storage restrictions
  6. RCRA PERMITS
    1. Applicability
      1. Required for TSD facilities
      2. Not required for:
        1. Totally enclosed treatment facilities
        2. Treatment, storage or disposal of wastes from generator of less than 100 kg/month
        3. Elementary neutralization facilities for corrosive works
        4. Ocean disposal vessels
        5. UIC injection wells
        6. Treatment works subject to CWA
        7. Immediate response activities
        8. Permit by rule
    2. Interim Status Facilities
      1. Facilities in existence when wastes become regulated
      2. Notify USEPA
      3. Obtain Identification Number
      4. File Part A application
      5. Generally less stringent operating requirements
      6. File Part B application per regulation or on demand
    3. Permit Process
      1. Part A Application
        1. Factual information regarding the management and activity at the facility
        2. Site plans
        3. Description of the process
        4. List of hazardous wastes
      2. Part B Application
        1. Waste analysis
        2. Security and inspections
        3. Emergency procedures and contingency plans
        4. Geological information
        5. Personnel training plans
        6. Closure plans
        7. Groundwater monitoring plans
        8. Financial assurance
      3. Agency Review
        1. Request additional information
        2. Public participation
        3. Draft Permit
        4. Deny or issue with conditions
      4. Conditions
        1. Duty to comply
        2. Duty to reapply
        3. Proper operation
        4. Duty to provide information, maintain records, allow inspection
        5. Compliance schedules
        6. Notice of non-compliance
        7. Report spills
        8. Reopener
      5. Permit Modifications
        1. Reasons for modification
          1. alteration in facility
          2. new requirements
          3. new information
          4. compliance schedule problems
        2. Procedures vary based on type of modification
          1. minor changes
          2. changes in waste managed
          3. substantial changes
    4. State Implementation
      1. Interim Authorization – Substantially equivalent
      2. Final Authorization
        1. Equivalent regulation
        2. Consistent with federal and other state programs
        3. Adequate resources
      3. HSWA Authorization – Corrective action
  7. VI. CORRECTIVE ACTION
    1. Methods For Imposing
      1. Permit conditions
        1. To correct continuing releases from solid waste management units (SWMUs) at TSD facilities (Section 3004(u))
        2. To correct release from TSD facilities beyond facility boundaries to protect human health and the environment (Section 3004(v))
      2. Administrative Order to correct release from interim status facilities (Section 3008(h))
    2. Application
      1. Hazardous Waste Management Units
        1. Surface impoundments
        2. Waste piles
        3. Land treatment areas
        4. Landfill cells
        5. Tanks
      2. Solid Waste Management Units (SWMUs)
        1. Any unit where solid wastes have been placed at any time irrespective of whether the unit was intended for the management of solid or hazardous waste, including areas at which solid wastes have been routinely and systematically released.
        2. Examples
          1. dumpsters
          2. storage pads
          3. floor drains
    3. Corrective Action Process
      1. RCRA Facility Assessment (RFA)
        1. Conducted by government
        2. Screening to determine potential for releases
      2. RCRA Facility Investigation (RFI)
        1. Characterize the environmental setting
        2. Characterize the SWMUs
        3. Describe potential exposure
        4. Assess risks associated with releases
        5. Interim measures
      3. Agency Determination
        1. No further action
          1. no releases
          2. release below action levels
        2. Action levels
          1. focus on groundwater
          2. Safe Drinking Water Act MCLs
          3. risk levels for carcinogens
      4. Corrective Measure Study (CMS)
        1. Feasibility of treatment methodologies
        2. Health and safety impacts of treatment options
        3. Pilot studies
        4. Cost estimates
      5. Corrective Measure Implementation (CMI)
        1. Agency selection of remedy
          1. long term reliability and effectiveness
          2. reduction of toxicity, mobility or volume
          3. ability and time to implement
          4. establishment of media cleanup standards
          5. cost
          6. modify permit
        2. Implementation
          1. design
          2. progress reports
          3. review of implementation
          4. completion
          5. determination of technical impracticability
    4. Corrective Action For Imminent Hazard
      1. Agency can bring action to seek remedial injunction
      2. Agency can act against any party contributing to the disposal problem
  8. VII. SANCTIONS
    1. Civil Penalties
      1. $25,000 per day
      2. Permit revocation
      3. Barred from government contracts
    2. Criminal Penalties
      1. Fine
      2. Incarceration
    3. Citizen’s Suits
      1. Notice
      2. Remedy

    Copyright Steven M. Taber, 1995 staber@taberlaw.com
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