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 Robert J. Yarbrough
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The RCRA Land Ban

By
Robert J. Yarbrough
1998
I.      Background
 RCRA, relating to hazardous waste, was signed into law in 1976. The Carter Administration was not aggressive in developing implementing  regulations.  Under citizens’ suit pressure, EPA promulgated the initial subtitle C regulations effective 1980.  Shortly thereafter, the Reagan Administration came into office with a deregulation agenda and did little to find alternatives to waste disposal in landfills.  After a few notorious scandals surrounding implementation of environmental laws by Reagan appointees, the Democrat-controlled Congress enacted HSWA in 1984.  HSWA stripped much of the discretion from the executive in developing the hazardous waste management program.  Congress exhibited a profound distrust for the executive branch in environmental matters - see the hazardous air pollutant provisions of the 1990 amendments to the Clean Air Act, which provided substantial specificity for a program to which EPA had failed to allocate resources or to make progress.
II.    Key Provisions of HSWA
 The land ban provisions are codified at 42 USC 6924 (d) through (m).  The provisions severely restricted but did not prohibit the land disposal of hazardous wastes.  HSWA created three categories of wastes:

1. Liquid wastes associated with solids or sludges and containing high concentrations of metals, such as cyanide, arsenic or cadmium. 42 USC 6924(d).

 2. Dioxin or solvent containing wastes. 42 USC 6924 (e).

 3. All other hazardous wastes. 42 USC 6924(g).  This category was further broken down into three subcategories.

a. First third,
b.
Second third, and
c.
Third third.

 For each of the categories of wastes, Congress created a mandate.  The requirements for all of the categories of wastes were similar, differing principally in the time in which EPA was to complete its task.  Land disposal after a certain date was prohibited unless the Administrator of EPA promulgated regulations finding that the prohibition of land disposal was not required to protect human health and the environment.  The prohibition was not complete, however.  42 USC 6924(m) provided that:

 (1) …The Administrator shall… promulgate regulations specifying those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration… so that …threats to human health and the environment are minimized. (2) If such hazardous waste has been treated to the level or by a method specified in regulations promulgated under this subsection, such waste or residue thereof shall not be subject to any prohibition… and may be disposed of in a land disposal facility…  

 Depending on the waste, the statute created deadlines of from twenty-four months to sixty-six months after November 24, 1984.  Failure of the Administrator to enact regulations by the deadlines had consequences for the regulated community.
 1. Soft Hammer.

 The soft hammer was to fall if EPA missed a deadline to promulgate regulations concerning the first third or second-third waste categories.  The soft hammer prohibited land disposal of the waste unless the generator certified that the generator had investigated and had no practical alternative for disposal of the waste.

 2. Hard Hammer.

 If EPA failed to meet the third-third deadline for regulating all listed hazardous wastes, then land disposal of any unregulated waste was flatly prohibited.

 Congress created special provisions for wastes that were hazardous solely because of a characteristic (ignitable, reactive, toxic, corrosive).  Such wastes were not subject to the land ban under 42 USC 6924(g)(7) if:

 1. treated in an NPDES-permitted wastewater treatment system, or

 2. the waste “no longer exhibits a hazardous characteristic” at the time of land disposal.

 Nonetheless, characteristic wastes were required to meet any treatment standards set by EPA.  The characteristic waste provisions were to create much controversy later on.
 III.  EPA rulemaking.
A.      Effectiveness of the Hammers
 The statutory hammers were effective at prodding timely rulemaking action out of EPA.  EPA met all of its rulemaking deadlines under the Land Ban program.  In EPA's third-third rulemaking, the last and most controversial of the standards, EPA’s speed left it subject to criticism and reversal.
 B.      EPA approach to Rule making
 EPA set treatment standards in two ways: (1)to set a maximum concentration of the hazardous constituent (for water borne wastes) or to set a maximum concentration of hazardous constituent extracted using the TCLP test (for waste in the solid state), or (2) to set technology-based performance standards based on BDAT (best demonstrated available technology). The use of technology-based treatment to satisfy land ban requirements was not specifically authorized by HSWA; nonetheless the interpretation was upheld by the D.C. Circuit in 1989, in Hazardous Waste Treatment Council v EPA, 886 F.2d 355(D.C. Cir. 1989).
 C.      Third-third rulemaking for characteristic wastes
 Prior to the third-third rulemaking, EPA regulated characteristic wastes only so long as the waste exhibited a hazardous characteristic.  When the waste ceased to exhibit the characteristic, EPA ceased to regulate the waste.   This was the major difference between the regulation of characteristic and listed waste.  Prior to the third-third rulemaking, EPA applied the mixture rule to require that any mixture of a listed hazardous waste and a non-hazardous waste was itself hazardous waste.  The combination rule was interpreted to mean that any combination of listed hazardous waste and an environmental medium such as soil or water was hazardous until the hazardous constituent was removed by treatment.  On the other hand, any action which removed the hazardous characteristic of a characteristic hazardous waste rendered the waste non-hazardous.  In other words, dilution was an acceptable mode of dealing with a characteristic hazardous waste.  In the third-third rulemaking, EPA addressed treatment of characteristic hazardous wastes by allowing dilution of most ignitable, corrosive and reactive wastes.  EPA’s rationale was that it did not matter how the hazardous characteristic was removed for these wastes, so long as it was removed.  EPA’s stated reasons were at variance from its proposal and apparently were driven by the need to quickly issue final regulations to avoid the statutory hammer.  For toxic characteristic hazardous wastes, EPA prohibited dilution as a method of treatment because the toxic constituents of the wastes would not be destroyed and could accumulate.
D.      Chemical Waste Management case
     In Chemical Waste Management v EPA, 976 F.2d 2 (D.C. Cir. 1992), the court considered a broad challenge to the final third-third rules.  Industry argued that EPA only had jurisdiction over characteristic wastes while they exhibited the characteristic.  The court rejected the argument, holding that EPA has jurisdiction forever once a waste is a hazardous waste.  This had the effect of deciding that EPA had jurisdiction to require that characteristic wastes were treated to less than the hazardous characteristic concentrations.  Environmental petitioners claimed that EPA could not allow dilution as a substitute for treatment.  The court held that EPA had the power to allow dilution, but failed to do so effectively in the rulemaking.  The court struck down the rules allowing dilution of ignitable, corrosive and reactive wastes.  Environmental petitioners claimed that the rule allowed characteristic hazardous waste to be combined with sewage in a NPDES-permitted wastewater treatment system and to thus be diluted and stored in unlined impoundments.  The petitioners argued that the impoundments became RCRA disposal facilities.  EPA allowed this activity in the rulemaking.  The court upheld most of the provision, but required EPA to regulate the hazardous constituents to the extent that dilution of the waste did not meet land ban treatment standards.  EPA promulgated an interim rule interpreting the court’s decision and eventually entered into an agreement with the environmental petitioners to regulate unlined impoundments at NPDES facilities on a schedule.
 IV.    Later Developments
 A.      TCLP wastes
 EPA promulgated the TCLP method for determining whether a waste was hazardous by the characteristic of toxicity in 1990, replacing the EP Toxicity test.  The third-third rulemaking did not apply to wastes newly hazardous under the TCLP test.  EPA therefore was required to promulgate new standards incorporating the TCLP-hazardous wastes.  It proposed the rule in 1993.
 B.   Challenge to aluminum pot liner standard
      In Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914 (D.C. Cir. 1998), small aluminum producers challenged an EPA land disposal standard for aluminum pot liners, a listed waste, which was based on a process developed by Reynolds, a major aluminum producer.  The court found that the EPA standard, based on the TCLP test, did not accurately predict the leaching of metals (cyanide, arsenic and fluoride) from the pot liners due to the extreme alkaline condition of the pot liners.  The court overturned EPA’s rule as arbitrary and capricious.  The court vacated the treatment standard and the prohibition on land disposal because of the prohibition might shut down aluminum production.
      C.   New regulations   
      EPA continues to promulgate requirements under the land disposal restriction program.  EPA is required to promulgate land disposal standards within six months of the listing of a new waste.  In August, 1998, EPA proposed land disposal requirements for four waste streams at petroleum refineries.