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.
