In 1976 the Resource Conservation and Recovery Act (RCRA) was enacted as an amendment to the Solid Waste Disposal Act. RCRA regulates both household and hazardous solid wastes, with regulations covering hazardous wastes that are particularly detailed and are described as being "cradle to grave." ("Cradle to grave" refers to regulation from the point of generation of the waste through and including its ultimate point of "disposal" or storage.) The act was amended by Congress in 1978, 1980, 1984, 1986, 1988, and 1996, with the 1984 amendments making the most substantial additions to the program. The 1984 amendments, called the Hazardous and Solid Waste Amendments, expanded RCRA's coverage and requirements significantly to deal with hazardous industrial wastes.
Most of RCRA's programs are designed to be proactive; that is, they are designed to provide for safe handling and containment of both hazardous and nonhazardous wastes as they are generated. RCRA does not address the problems associated with inactive or abandoned dump sites or those associated with chemical spills or releases requiring immediate, emergency response. Those problems are dealt with under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund. Both RCRA and CERCLA are administered by the federal Environmental Protection Agency (EPA). RCRA's programs regulating businesses are administered by regional offices of the EPA except in states that have been authorized to administer their own RCRA programs. In such states, businesses deal directly with a state counterpart to the EPA.
Prior to 1965, regulation of solid wastes was considered to be the responsibility of state and local governments. When the Solid Waste Disposal Act was enacted in 1965, a great deal of our waste (garbage) disposal was through open dumping or in local "landfills." The Solid Waste Disposal Act was the first federal statute dealing with the effects of such dumping on our environment. The act's goal was to promote better solid waste disposal methods. It did so primarily by providing grants to states and local governments for research on waste disposal.
The Solid Waste Disposal Act was amended in 1970 by the Resource Recovery Act and in 1976 by RCRA. RCRA was designed to eliminate "the last remaining loophole in environmental law, that of unregulated land disposal of discarded materials and hazardous wastes," according to a report issued by the U.S. House of Representatives. In its enactment of RCRA in 1976 and in the 1984 and 1986 amendments to RCRA, Congress addressed three sets of needs and concerns. First, it focused on the need for a system for management of solid wastes. Second, it recognized the need for special provisions for dealing with hazardous wastes. Third, it included provisions to encourage resource conservation and recovery (recycling and reuse of resources).
Prior to enactment of RCRA, a great deal of the hazardous waste in the United States was "disposed of" or dumped at or near the site at which it was generated. In other cases, generators of hazardous waste hired transporters to take the wastes to off-site disposal areas. A lack of record-keeping and lack of efforts to contain wastes at disposal sites created serious problems for today and for future generations. When on-site disposal was used, records were not kept and property was often sold to parties who had no information about the presence of hazardous materials on the premises or buried on the property. When offsite disposal was used, generators often knew nothing about the location of or operations of the site to which transporters took hazardous wastes. Typically, a disposal site went through several changes of ownership during its period of operation, which averaged about 20 years. A site usually received hazardous wastes from numerous transporters and generators, and site operators had few or no records documenting the kinds of wastes located there. Further, after a site was closed, it was often sold (or occasionally donated) to purchasers who had no idea of its prior use. An example of this is the Love Canal site near Niagara Falls, New York, where in the late 1970s about 200 families experiencing unusually high rates of cancer, birth defects, and other health-related problems discovered that their homes and their children's elementary school had been built on top of a former waste dump for hazardous chemicals. Land for the school had been donated to the local school district.
RCRA includes four distinct programs designed to implement its goals. First, it encourages states to develop plans to manage nonhazardous (household) waste. Second, it establishes a "cradle to grave" system for monitoring and controlling the disposal of hazardous waste. The system of paperwork for monitoring such disposal is called a manifest system. Third, it regulates underground storage tanks through a program called the Underground Storage Tank (UST) program. Fourth, the EPA has conducted a new demonstration program to track medical wastes from generation through disposal.
In Subtitle D of RCRA, states are encouraged to implement their own solid waste management plans. This has become increasingly difficult for states due to at least two factors. First, with population growth and the increased use of "disposable" products, the amount of waste being generated each year is increasing dramatically. Second, there is a phenomenon that has been labeled the "NIMBY Syndrome." ("NIMBY" stands for "Not In My Back Yard.") Our present solid waste disposal sites are being filled quickly; most are filled to capacity within 20 (or fewer) years after their opening. Yet, because of opposition of local residents, it has become extremely difficult for private waste disposal companies or local municipalities to find locations for and open new facilities for disposal of such wastes. No one wants to live next to or near such a site. As a result, in the 1984 Hazardous and Solid Waste Amendments, Congress authorized the EPA to take a more active role in assisting the states in handling nonhazardous waste landfills. The EPA has been working on strategies to deal with disposal of household wastes.
In Subtitle C of RCRA, Congress established a cradle to grave system for management of hazardous wastes. Pursuant to Subtitle C, the EPA has issued criteria for identifying hazardous wastes, and, in turn, it has used those criteria to issue a list of those wastes that are considered to be "hazardous" for purposes of administration of RCRA. That list is published in the Federal Register and is updated periodically. As a part of this cradle to grave system, the EPA was directed to issue three sets of standards regulating three sets of parties: (1) generators who produce hazardous waste, (2) transporters of the waste, and (3) those who own or operate disposal sites. The EPA has issued standards regulating how generators handle, label, and store hazardous wastes. Similar standards cover transporters of hazardous wastes. A transporter must obtain a license (permit) for hauling of wastes and that license will cover only specified types of waste, depending on whether the transporter has met the EPA's requirements for each type. Similarly, any facility accepting hazardous wastes for disposal must obtain a license (permit) from the EPA in which the EPA specifies which kinds of hazardous waste can be accepted by the facility. Such facilities are subject to extensive regulation by the EPA covering location and construction of the site as well as its ongoing operation. As a precondition to issuance of licenses (permits) to transporters or owners or operators of sites, the EPA applies extensive standards (regulations) to those parties.
Tying together the EPA's regulation of generators, transporters, and owners or operators of sites is the "manifest system." A manifest is a set of paperwork that accompanies each "batch" of hazardous waste from the generator, through any and all transporters, and to the site of ultimate disposal. The disposal site might be better conceptualized as the site of "permanent storage," because such wastes never "go away." (In some cases, however, wastes may be treated to reduce hazards or to recover materials for reuse.) The RCRA and the EPA refer to disposal sites as "treatment, storage and disposal facilities."
The manifest is a form that is obtained from the EPA or its state counterpart in states that have been authorized to administer RCRA. The manifest form includes five or six copies of a form with copying materials in-between. The generator fills out his or her portion of the form, identifying the wastes to be hauled; keeps a copy; and conveys the remaining copies to the transporter. It should be noted that this manifest system affects most businesses in this country. Any company generating one-half of a 50-gallon barrel of hazardous wastes or more per month must comply with the manifest system.
Next, the transporter completes the remaining forms, giving the transporter's EPA-assigned identification number. The transporter keeps one copy. If there is a second transporter, he or she does the same. Finally, the disposal site owner or operator completes the remaining forms with his or her EPA-assigned identification number. The owner or operator keeps one copy, sends one to the EPA or its state counterpart, and sends one to the generator. The result is a complete paper record of a batch of hazardous wastes from the point of generation to its ultimate "disposal" site. Generators of waste can be held liable for civil or criminal penalties for failure to complete a manifest, for failure to hire an EPA-licensed transporter, or if the wastes are not placed in an EPA-licensed facility. There are also civil or criminal penalties for transporters or facilities that are either unlicensed or that handle or accept wastes not allowed under their licenses.
Subtitle I of RCRA, regulating underground storage tanks, was added to RCRA through 1984 amendments. Pursuant to the program, states are required to inventory all underground storage tanks containing hazardous substances or petroleum products. Testing of all such tanks is required and use of tanks that are subject to leaking should have been discontinued by 1997. If an owner or operator of the tank can be identified, he or she is required to undertake and pay for cleanup of the tank and contamination caused by the tank. When an owner or operator cannot be identified or is insolvent, funding may be available from a $500 million Leaking Underground Storage Tank Trust Fund that was established through the 1986 amendments to RCRA. The program is funded by federal taxes on motor fuels. The program has become controversial, however, because various states have run out of funds without having finished testing and cleanup of the numerous leaking tanks within their borders.
Subtitle J was added to RCRA in 1988 when U.S. citizens became alarmed in response to reports about medical wastes being washed up on beaches in the United States and in other parts of the world. Pursuant to Subtitle J, the EPA conducted a two-year demonstration project designed to track medical waste from generation to disposal, following the model of Subtitle C, which regulates disposal of hazardous wastes. To this date, Congress has not enacted a nationwide program for medical waste regulation. Some states, however, are regulating such wastes.
The most recent amendments to RCRA are in the Land Disposal Program Flexibility Act of 1996. The law allows decharacterized wastes from centralized wastewater management systems to be disposed of on land so long as they are not hazardous wastes at the point of disposal. The law also allows more flexibility for the states as they regulate small landfills (defined as those receiving less than 20 tons of waste per day), allowing them to exempt those small landfills from groundwater monitoring requirements under certain conditions.
Sanctions for violations of the various requirements of RCRA include civil and criminal penalties. Civil penalties range up to $25,000 per day per violation. Criminal penalties can include up to one year in prison, fines of up to $25,000 per day per violation, or both.
Corporate managers have been frustrated by the amount of paperwork required under RCRA, the minute details of operation covered by RCRA regulations, and by the EPA's slow action in reviewing applications for permits. RCRA limits the duration of permits to ten years, yet it may take up to four years to obtain a permit from the EPA. Thus, operators of a facility may feel as though they are continuously involved in the process of applying for permits. Some critics allege that as a consequence of this process the most reputable companies that make good-faith efforts and devote substantial resources to waste minimization and waste handling are unduly burdened by the EPA's regulation of their activities pursuant to RCRA. Those critics allege that at the same time RCRA's burdensome requirements encourage other less reputable companies to avoid the regulatory process altogether.
Such companies dispose of their wastes in illegal ways creating hazards to which the public will be exposed.
Further, as the United States is becoming more involved in a global economy, its handling of hazardous waste has taken on global consequences. As a result of a scarcity of sites for disposal of both nonhazardous and hazardous wastes, new companies have been established in the United States that make a business of shipping our wastes abroad. Such waste is reportedly being hauled to sites in the Caribbean, the South American country of Guyana, various countries in Africa, and to other sites throughout the world. The attention of the world was captivated when from 1988 to 1990 a shipment of ash from Philadelphia spent two years traveling from country to country—including the Bahamas, Bermuda, Honduras, the Dominican Republic, Guinea-Bissau, and Haiti—trying to find a place to dump its cargo of waste. Environmentalists fear that impoverished Third World countries are becoming dumping grounds for the hazardous wastes of more prosperous, industrialized countries. As a consequence, traffic in international wastes has become the subject of international agreements, including, for example, the 1989 Basel Convention.
A sound environmental policy for the United States must include provisions for management of hazardous wastes. Environmentalists agree that businesses must be encouraged to develop innovative programs for management of hazardous waste. The current RCRA program may be discouraging such innovation by placing substantial costs and inconvenience on responsible businesses. Yet, our businesses must behave in a responsible manner in the international area and avoid taking advantage of citizens of Third World countries that may be coerced to accept hazardous wastes due to financial need. Thus, it is likely that Congress will give serious consideration to proposals for amendments to RCRA as it considers its reauthorization in the near future. In addition, issues related to management of wastes will extend beyond RCRA into negotiation of international agreements and treaties as our interconnections with other countries expand.
[ Paulette L. Stenzel ]
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Kummer, Katharina. "The International Regulation of Transboundary Traffic in Hazardous Wastes: The 1989 Basel Convention." International and Comparative Law Quarterly 41 (1992): 530-62.
Sheppard, Nathaniel, Jr. "West Shipping Waste Woes to Third World." Chicago Tribune, 11 July 1988.
U.S. Department of Energy. Office of Environmental Policy and Assistance. "OEPA Environmental Law Summary: Land Disposal Program Flexibility Act of 1996 (P.L. 104-119)." Washington: U.S. Department of Energy, 1997. Available from tisnt.eh.doe.gov/oepa/law-sum/ldpfa.htm .