Resource Conservation and Recovery Act

RCRA Overview RCRA enacted in order to address serious dangers arising from hazardous waste generation, management, and land disposal. Statutory objectives: To ensure that hazardous waste management practices be conducted in a manner which protects human health and the environment; Minimize the generation and land disposal of wastes.

RCRA Overview Subchapter C: Nationwide “cradle to grave” system governing generation, transport, storage, treatment, and disposal of hazardous wastes. Subchapter D: States use federal financial and technical assistance to develop solid waste management plans.

Solid Waste Solid waste: any garbage, refuse, sludge . . . And other discarded material, including solid, liquid, semisolid or contained gaseous material . . . . 42 U.S.C. § 6903(27).

Hazardous Waste Hazardous waste: a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may— (A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. 42 U.S.C. § 6903(5).

Hazardous wastes EPA provided with authority to identify and list hazardous wastes. 42 U.S.C.§ 6921. EPA established two classes of hazardous waste: “listed” hazardous wastes “characteristic” wastes exhibiting one or more of characteristics of ignitability, corrosivity, reactivity, and toxicity. 40 C.F.R. Part 261.

“Cradle to Grave” Regulation RCRA requires EPA to issue regulations with respect to: Generators Transporters Operations of treatment, storage, or disposal facilities (TSDFs) Permitting of TSDFs Standards for state hazardous waste programs Generators: Any person whose act or process produces hazardous waste or whose act first causes a hazardous waste to become subject to regulation. Each generator must apply for an EPA ID number. It is illegal to treat, store, or dispose of, or transport wastes without a number. Waste Identification: The person who generates the waste must conduct a waste analysis to determine whether it is either a listed hazardous waste or exhibits a characteristic. Manifesting: A crucial part of the cradle to grave concept is the Uniform Hazardous Waste Manifest. It provides all necessary info to allow the wastes to be safely transported, treated, stored, or disposed of. The law places the burden of manifesting waste on the generator. Copies must be given to all transporters. The generator must also comply with all packaging, labeling, or placarding and marking requirements to properly transport the wastes. The generator designates the one permitted TSD facility that is to receive wastes. Hazardous wastes may be stored on-site for no more than 90 days or else the facility becomes a storage facility, for which it must have a permit. Generators must file biennial

Land Disposal of Hazardous Wastes To discourage land disposal of hazardous wastes, such disposal banned unless: Wastes meet EPA treatment standards; or EPA finds there will be no migration of hazardous constituents from the disposal unit or injection zone for as long as wastes remain hazardous. Wastes subject to the land ban phased in. Wastes treated to meet treatment standards may be land-disposed in units meeting minimum technological requirements (MTRs) promulgated by EPA under RCRA Section 3004(o); 42 USC 6924(o).

Treatment, Storage, and Disposal Facilities – Permitting standards Applicable to new and existing facilities Detailed requirements regarding: Siting and construction Groundwater and other monitoring Recordkeeping Emergency plans, security, and financial assurance Technical requirements RCRA requires EPA to promulgate standards to address maintenance of records regarding all wastes subject to TSD activity; reporting, monitoring, inspection, and compliance with the manifest system; precise technical requirements for TSD activities; siting and construction requirements; contingency plans for emergencies; general operating and financial assurance requirements. RCRA permits are generally effective for 10 years, except land disposal permits which must be reviewed every 5 years.

RCRA—Administrative Enforcement Tools Information Gathering EPA and authorized states have right to records, to enter property, gather samples, and inspect for violations. RCRA Section 3007(a). EPA must inspect federal and state facilities each year, private TSDF facilities every two years.

RCRA—Administrative and Civil Enforcement Tools Order Authority EPA may order current or past owner to perform testing, monitoring, or other actions to assess risk. U.S. can bring civil suit for failure to comply with order—court may order compliance and award penalties of up to $5,000 per day. RCRA Section 3013, 42 USC 6934 Where EPA determines that the presence of any hazardous waste at a facility or site at which hazardous waste is or has been stored, treated, or disposed of, or the release of any such waste from such facility or site, may present a substantial hazard to human health or the environment, he may issue an order requiring the owner or operator of such facility or site to conduct monitoring, testing, analysis, and reporting with respect to such facility or site as EPA deems reasonable to ascertain the nature and extent of such hazard. EPA can also in certain circumstances issue such orders to previous owners. If EPA determines no current or former owner is capable of conducting monitoring, testing, or analysis, EPA can do it itself or authorize the state to do it, and require the owner or operator, or post owner or operator, to reimburse EPA or the State. If a person fails to comply with an order, the U.S. may bring suit in federal court. Courts may issue an order to comply, and assess civil penalties of up to $5,000 per day of such failure to comply.

RCRA—Administrative and Civil Enforcement Tools Order Authority, cont. EPA may issue compliance order to any person in violation of any RCRA requirement. EPA may also order penalties not to exceed $32,500 per day for violation, and for failure to take corrective action within time specified in compliance order. EPA may also suspend or revoke violator’s permit. RCRA Section 3008(a), 42 USC 6928(a) EPA may issue orders under 3008(a) of RCRA when it determines that any person has violated or is in violation of any requirement of RCRA. The order may include assessment of a civil penalty, a requirement to comply immediately or within a specified period, or both. If the violation occurs in a state with an authorized RCRA program, EPA must give notice to the State in which the violation occurred prior to issuing an order. The order may include a suspension or revocation of any permit issued by EPA or the State. Any penalty assessed shall taken into account the seriousness of the violation and any good faith efforts to comply with applicable requirements. Daily penalties may be ordered for each violation. Therefore, if there are numerous violations, concurrent penalties may be ordered.

RCRA—Administrative and Civil Enforcement Tools Civil judicial enforcement for violations The U.S. may commence a civil action for any violation of RCRA. RCRA Section 3008(a), 42 U.S.C. 6928(a) States may bring suit under state law, or under RCRA as a citizen suit. Citizens may bring suit against violators under citizen suit provision. RCRA Section 7002, 42 USC 6972 Criminal penalties may also be imposed against transporters, or those who generate, treat, store, or dispose of, or export hazardous substances in knowing violation of legal requirements, including requirement to have a permit. Fines may be $50,000 per day, and imprisonment of 2 years for some violations and 5 years for others. In addition, those who knowingly violate requirements and who knows at the time that he places another person in imminent danger of death or serious bodily injury may be subject to a $250,000 fine and imprisonment up to 15 years or both. Organizational defendants can receive a fine up to $1 million. Section 3008(d) of RCRA, 42 USC 6928(d)

RCRA—Administrative and Civil Enforcement Tools Imminent and Substantial Endangerment EPA may issue administrative order, or U.S. may file civil action Against present or former generators, transporters, owners or operators who contributed to disposal Where EPA believes that there may be an imminent and substantial endangerment to health or the environment. RCRA Section 7003, 42 USC 6973. Courts liberally construe EPA’s ability to issue imminent and substantial endangerment orders and court’s ability to enter orders under this provision. There need not be a certainty of risk, nor an emergency or immediate hazard, just a risk of injury. For example, a rusting drum of a hazardous substance may present a risk of harm even if it is not currently leaking. Citizens may also bring citizen suits for imminent and substantial endangerment.