mODEL STATE HAZARDOUS WASTE mANAGEmENT ACT
(ANNOTATED)
This publication (SW-635) was prepared
for the Office of Solid Waste
by MURRAY NEWTON
U.S. ENYIRONfTlENTAL PROTECTION AGENCY
1977
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An environmental protection publication (SW-635) in the solid waste
management series. Mention of commercial products does not constitute
endorsement by the U.S. Government. Editing and technical content of
this report were the responsibilities of the Hazardous Waste Management
Division of the Office of Solid Waste.
Single copies of this publication are available from Solid Waste
Information, U.S. Environmental Protection Agency, Cincinnati, Ohio 45268.
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MODEL STATE HAZARDOUS WASTE MANAGEMENT ACT—ANNOTATED
Recent Federal and State environmental management legislation has
addressed the quality of our air, water, and of the oceans. One result
of this legislation has been to curtail the disposal of potentially
hazardous materials into these media, thus improving the quality of our
air, water, and marine resources. But there has been a second result:
we continue to generate potentially hazardous wastes which can no longer
go to other media, so we put them on or into the land. The 375 million
tons of industrial wastes generated in the United States in 1974 included
about 30 million tons of potentially hazardous wastes.
New Federal legislation, the Resource Conservation and Recovery Act
(PL 94-580), controls the disposition of potentially hazardous wastes on
land. The Congress made clear that a joint Federal-State partnership is
intended for the implementation of this new pollution control program.
Regulatory provisions of the new Act are scheduled to take effect in
October 1978. States should begin to develop their own control programs
now.
An essential element in any State hazardous waste management
program is the enabling legislation. In some cases existing legislation
authorizes parts of what would constitute the State's program; in other
cases, existing legislation may be reinterpreted in such a way as to
cover some of the threats posed by the mismanagement of potentially
hazardous wastes. Most States, however, will find that an effective
program requires new legislation explicitly delineating the obligations
and responsibilities of those who generate, store, transport, treat, or
dispose of these wastes, but even here, States should consider the
possibility of supplementing existing solid waste legislation with the
appropriate hazardous waste management authority. The State may or may
not prefer to have a separate hazardous waste management act, so long
as the State obtains adequate legislative authority to develop and
implement its program.
This "Model" has been accepted by the Council of State Governments
for publication as "Suggested State Legislation" in Autumn, 1977.
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This document includes a text and annotation. The latter is
intended to explain the reasons for including certain phrases or ideas,
for choosing one or another among options, and to highlight potential
difficulties in interpretation or implementation of the text. Further,
this document is intended to show the reader the kind of legislative
authority the State may find useful in developing an effective hazardous
waste management program. Readers should not construe this Model Act as
showing what EPA will consider to be an "equivalent" State program, or
as setting out the criteria against which applications for authorization
under Section 3006 of the Resource Conservation And Recovery Act (RCRA)
will be judged; the Model Act is not so intended.
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MODEL STATE HAZARDOUS WASTE MANAGEMENT ACT — ANNOTATED
Section 1 [Short Title] 1
Section 2 [Finding of Necessity and Declaration
of Purpose] 3
Section 3 [Definitions] 6
Section 4 [Powers and Duties of the Department] 14
Section 5 [Permits] 22
Section 6 [Hazardous Waste Treatment/Disposal
Facilities and Sites] 28
Section 7 [Transportation of Hazardous Wastes] 34
Section 8 [Records; Reports; Monitoring] 39
Section 9 [Inspections; Right of Entry] 42
Section 10 [Imminent Hazard] 44
Section 11 [Enforcement] 48
Section 12 [Interstate Cooperation] 52
Section 13 [Repealer] 63
Section 14 [Severability] 63
Section 15 [Effective Date] 63
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SHORT TITLE
Section 1: This Act mag be cited as the Hazardous Waste
Management Act of 29
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FINDING OF NECESSITY AND DECLARATION OF PURPOSE
Section 2: (A) The legislature of this State finds:
(1) that continuing technological progress,
increases in the amounts of manufacture,
and the abatement of air and water pollution
have resulted in ever-increasing quantities
of hazardous wastes;
(2) that the public health and safety, and the
environment, are threatened where hazardous
wastes are not managed in an environmentally
sound manner;
(3) that the knowledge and technology necessary
for alleviating adverse health, environmental,
and aesthetic impacts resulting from current
hazardous waste management and disposal
practices are generally available at costs
within the financial capability of those
who generate such wastes, but that such
knowledge and technology are not widely used; and,
(4) that the problem of managing hazardous wastes
has become a matter of State-wide concern.
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Section 2: [continued]
(B) Therefore, it is hereby declared that the purposes
of this Act are:
(1) to protect the public health and safety,
the health of living organisms and the
environment, from the effects of the improper,
inadequate, or unsound management of
hazardous wastes;
(2) to establish a program of regulation over
the storage, transportation, treatment, and
disposal of hazardous wastes; and,
(3) to assure the safe and adequate management
of hazardous wastes within this State.
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Section 3: Definitions
The definitions have been worded so as to be consistent with the
new Federal solid waste legislation.
(B) "Disposal" - This definition is taken from the "Resource
Conservation and Recovery Act of 1976," (P.L. 94-580). The definitions
of "Disposal" and "Storage" taken together mean that the traditional
landfill can be construed as "Disposal" if there is any leaching or
other discharge; a "non-leaching" landfill, however, would be considered
"storage" (albeit very long term). The rationale for this is partly to
increase awareness that one has not "done away" with hazardous consituents
by simply putting them into the ground. Where there is no discharge or
emission, the hazardous waste has been retained in one place and requires
monitoring and/or care — hence "storage."
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DEFINITIONS
Section 3: When used in this Act:
(A) The term 'Department' means the Department of
this State charged with the administration and
enforcement of this Act.
(B) The term 'Disposal' means the discharge, deposit,
injection, dumping, spilling, leaking or placing
of any hazardous waste into or on any land or water
so that such hazardous waste or any constituent
thereof may enter the environment or be emitted
into the air, or discharged into any waters, including
groundwaters.
(C) The term 'Generation' means the act or process
of producing waste materials.
(D) The term 'Hazardous Waste' means any waste or
combination of wastes of a solid, liquid,
contained gaseous, or semisolid form which
because of its quantity, concentration, or
physical, chemical, or infectious characteristics,
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Section 3: (Continued)
(D) "Hazardous Waste" - This definition is consistent with
that in the new "Resource Conservation and Recovery Act of 1976,"
(P.L. 94-580). EPA recommends that enabling legislation contain
a generic definition, and that it not contain specific criteria,
lists, or wastes. The definition should instead give generic
examples of hazardous wastes, such as "... including, but not
limited to, toxic, flammable, etc " The listing of examples
shows to the Department, the courts, industry, and the public,
what the legislature intends "hazardous" to mean.
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Section 3: [ continued ]
in the judgment of the Department may (1) cause,
or significantly contribute to, an increase in
mortality or an increase in serious irreversible
or incapacitating reversible illness; or (2)
pose a substantial present or potential hazard
to human health or the environment when improperly
treated, stored, transported, or disposed of, or
otherwise managed. Such wastes include, but are not
limited to, those which are toxic, corrosive,
flammable, irritants, strong sensitizers, or which
generate pressure through decomposition, heat, or
other means.
(E) The term 'Hazardous Waste Management' means the
systematic control of the collection, source
separation, storage, transportation, processing,
treatment, recovery, and disposal of hazardous waste.
(F) The term 'Manifest' means the form used for
identifying the quantity, composition, and the
origin, routing, and destination of hazardous
waste during its transport.
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Section 3: (Continued)
(H) "Storage" - This definition is similar to that in RCRA. (If
the State does not use the concepts of "storage" and "disposal" in RCRA
(and in this paper), any substitute definition of "storage" must limit
the duration for which a waste may be "stored." One reason for this
limitation is that indefinite storage, or storage for a long period of
years, may otherwise become a way for generators to avoid the controls
which the State exercises over "disposal." A second reason is to avoid
the enforcement problem of the possessor's intent. Where the State
defines storage or disposal to include the concept of "intending to
reuse or recover," or "intending to hold for future use," the State
invites the difficulties attendant to proving "intent." Third, the
longer one stores a hazardous waste, the more closely one approaches the
environmental effects and consequences of "disposal." For all these
reasons, where the more traditional definition of "storage" is used it
should include a phrase such as, "Storage in excess of [one year, for
example] shall be considered disposal for the purpose of this Act."
(K) "Treatment Facility" - This definition explicitly includes
"on-site" hazardous waste management. The law thus recognizes that the
environmental threat is no less from those wastes managed at the site of
generation than from those wastes managed anywhere else. It is for this
reason that the State's regulation of hazardous waste treatment or
disposal facilities must include regulating those who manage their own
wastes at the site of generation.
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Section 3; [continued]
(G) The term 'Person' means any individual, trust,
firm, joint stock company, corporation
(including a government corporation), partnership,
association, State, municipality, commission,
political subdivision of a State, any
interstate body, or the United States.
(H) The term 'Storage' means the containment of
hazardous wastes, either on a temporary basis
or for a period of years, in such a manner as
not to constitute disposal of such hazardous
wastes.
(I) The term 'Transport' means the movement of
wastes from the point of generation to any
intermediate points, and finally to the point
of ultimate storage or disposal.
(J) The term 'Treatment' means any method, technique,
or process, including neutralization, designed
to change the physical, chemical, or biological
character or composition of any hazardous waste,
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Section 3: [continued]
so as to neutralize such waste or so as to
render such waste nonhazardous, safer for transport,
amenable to recovery, amenable to storage,
or reduced in volume.
(K) The term 'Treatment Facility' means a location
at which waste is subjected to treatment and may
include a facility where waste has been generated.
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Section 4: Powers and Duties of the Department
Subsection (A) directs the Department to conduct and publish
a study of hazardous waste management within the State. Inclusion
of this requirement is intended partly to assist the Department
in gathering information it needs, but which it may not have
explicit authority to elicit under existing statutes.
The subsection specifies that the study must address the costs
of current hazardous waste management practices. This allows the
State to assign likely costs to its regulatory decisions, making
possible an analysis of the economic consequences of many of the
Hazardous Waste Management Act's provisions. This process is
analogous to the Federal government's "Economic Impact Analysis"
process for its own actions.
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POWERS AND DUTIES OF THE DEPARTMENT
Section 4: (A) Within one year after the effective date of
this Act, the Department shall conduct and
publish a study of hazardous waste management
in this State, which study shall include, but
not be limited to —
(1) a description of the sources of hazardous
waste generation within the State, including
the types and quantities of such wastes; and,
(2) a description of current hazardous waste
management practices and costs, including
treatment and disposal, within the State.
(B) Within six months after the publication of the study
required by Section 4(A) of this Act, the Department
shall develop and publish a plan for the safe
and effective management of hazardous wastes
within this State. Such plan shall include, but
not be limited to —
(1) identification of those locations within
the State which are suitable for the
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Section 4: (Continued)
Subsection (B) requires the Department to identify locations "suitable"
for hazardous waste treatment or disposal sites. This phrasing is not
intended to preclude "engineered" sites. The Department should seek
those locations which have been favored by geology, climate, and other
relevant factors, and which offer natural protection to the environment;
EPA recognizes, however, that there is a need for facilities in States,
and sections of States, which have no suitable natural sites, and that
this need can only be met through artificial devices which protect the
environment. Where the soil does not meet acceptable standards of
impermeability, for example, artificial liners may be substituted. This
means that the Department should include those areas where a site is
needed, but in which a site would have to be "engineered" to protect the
environment.
Subsection (B) additionally requires the State to identify those
parts of the State which are iiot suitable for the location of hazardous
waste treatment or disposal sites. This decision, as well as the above
decision that sites should be located in certain areas, must be based on
a number of factors besides geology and hydrology. EPA encourages the
kind of determination which results in certain areas being designated as
"critical" or "sensitive" for ecological or other reasons, and in which
the State would allow the location of hazardous waste treatment or
disposal facilities with great reluctance and under especially high
standards of design, construction, and operation. An example of such a
"critical area" might be a major aquifer.
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Section 4: [continued]
establishment of hazardous waste treatment
or disposal facilities or sites; and,
(2) identification of those locations within
the State which are not suitable for the
establishment of hazardous waste treatment
or disposal facilities or sites.
(C) Within two years after the publication of
the study required by Section 4(A) of this Act,
the Department shall, after adequate notice
and at least one public hearing on the record,
adopt, and may revise as appropriate —
(1) criteria for the determination of whether
any waste or combination of wastes is
hazardous for the purposes of this Act;
(2) rules and regulations for the storage,
treatment, and disposal of hazardous wastes;
(3) rules and regulations for the
containerization and labeling of hazardous
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Section 4: (Continued)
Subsection (C) (3) requires that the State rules and regulations
for the transport of hazardous wastes be "consistent" with those of the
U.S. Department of Transportation. This does not mean that States must
adopt the DOT rules by reference or unchanged; however, where the State
chooses to establish any rule or regulation for transport that is different
from (including stricter than) DOT's, it will be incumbent upon the
State to avoid conflict with the latter.
Subsections (C) (5) and (C) (6) are important for occupational
health and safety, as well as for environmental protection. EPA has
documented cases where someone disposing of hazardous wastes has been
injured or killed because he handled unmarked containers in a manner one
would not were the containers prominently labeled to show their potential
danger. Similarly, EPA has documented cases where the disposal of
imcompatible wastes together (such as acids being disposed of with
cyanide wastes) has resulted in injury or death. Subsections (C) (5)
and (C) (6) are an important part of the State's effort to assure that
those who handle hazardous wastes are fully informed as to the nature of
the hazard, and as to the safest method of handling those wastes.
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Section 4: [continued]
wastes, which rules shall be consistent
with those issued by the United States
Department of Transportation;
(4) rules and regulations specifying the terms
and conditions under which the Department
shall issue, modify, suspend, revoke, or
deny such permits as may be required by this Act;
(5) rules and regulations establishing standards
and procedures for the safe operation and
maintenance of hazardous waste treatment or
disposal facilities or sites;
(6) a listing of those wastes or combinations
of wastes which are not compatible, and
and which may not be stored or disposed
of together; and,
(7) procedures and requirements for the reporting
of the generation, storage, transportation,
treatment, or disposal of hazardous wastes
pursuant to Section 8 of this Act.
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Section 4: (Continue)
Section (C) includes a requirement for a "public hearing on the
record." Readers should be aware that the use of this phrase will, in
many States, trigger the use of an "Administrative Practices Act" or
equivalent. This entails the advantages and disadvantages of a formal
proceeding, including the keeping of a transcript, and so on.
Subsection (D) gives the Department an opportunity to recognize the
differing needs of differing regions within the State. Nevertheless,
the Department must establish certain minimum standards above which the
environment will be protected; it is in the process of determining how
far above this minimum the State sets specific requirements that Subsection
(D) comes into play.
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Section 4: [ continued ]
(8) rules and regulations establishing standards
and procedures for the certification of
supervisory personnel at hazardous waste
treatment or disposal facilities or sites
as required under Section 6(A)(3)(a)
of this Act.
(9) Procedures and requirements for the use
of a manifest during the transport of
hazardous wastes.
(D) In complying with this Section the Department
shall consider the variations within this
State in climate, geology, population density,
and such other factors as may be relevant to
the management of hazardous wastes.
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Section 5: Permits
The word permit" has been used thorughout this document to stand
for the process by which the State can insure cognizance of, as well as
control over, various activities. The provisions and requirements of
each permit system should be explicitly stated in the regulations which
implement the State Hazardous Waste Management Act; consequently, the
reader should be aware that certain uses of the word "permit" here may
refer to a license or registration concept, and need not imply the
detailed criteria and compliance schedules attendant to the kind of
permit issued under the Federal Water Pollution Control Act Amendments
of 1972 (P.L. 92-500).
Subsection (A) requires a permit to construct, "substantially
alter," or operate any hazardous waste treatment or disposal facility.
This poses at least two issues for the State to address: defining
"substantially alter;" and, deciding whether construction and operation
entail two separate permits.
The phrase "substantially alter" is intended to allow the State
latitude in deciding what kinds or degrees of alteration so change the
environmental impact of a site as to make reassessment necessary.
Neither the State nor the site operator wants to repeat the permit
application and evaluation process each time there is a change to the
site, no matter how trivial or irrelevant that change may be. Therefore,
the State regulations should describe the circumstances under which an
existing site would be required to apply for a revised or amended permit.
The Model Legislation is purposely vague on the issue of separate
versus combined permits for construction and operation. Some States
issue a permit to construct, but require the permittee to apply for an
entirely separate permit after construction to operate the site. Other
States issue a single permit for the construction and subsequent operation
of a site. The State should be explicit in describing which of these
systems it is using.
Subsection (A) requires a permit to "store" hazardous wastes. As
stated above, this use of the word "permit" is not intended to parallel
the use of the word in the Water Pollution Control Act, or even in other
parts of this Model Legislation. The provision is nevertheless an
important one. It is intended to control the environmental abuse from
"storage" which is really "disposal," and which has the same (degrading)
environmental result as improper disposal. Consequently, the State
might require a permit from those who store in large, open areas (pits,
ponds, lagoons) for some period sufficient to threaten the environment.
The State should also use this provision to control the creation of
large piles of tailings or mining residuals above the surface, as there
are cases of such residuals remaining long after the generator has gone
out of business or otherwise left the scene. Conversely, the State
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PERMITS
Section 5: (A) Beginning six months after promulgation of
the regulations required under Section 4(C)
of this Act, no person shall construct,
substantially alter, or operate any hazardous
waste treatment or disposal facility or site,
nor shall any person store, transport, treat,
or dispose of any hazardous waste without first
obtaining a permit from the Department for
such facility, site, or activity.
(B) Permits issued under this Section shall be
issued under such terms and conditions as the
Department may prescribe under the authority
of Section 4 of this Act, and under such terms
and conditions as the [ appropriate State agency ]
may prescribe for the transportation of hazardous
wastes under Section 7 of this Act.
(C) Permits shall be issued for a period not to
exceed five years, and may be renewed at the
option of the issuing agency.
(D) Any permit issued under this Section may be
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Section 5: (Continued)
might not require permits of those who store small quantities in closed
tanks awaiting shipment, or those holding residuals for short periods
awaiting use or reuse.
The State should use the permits it does issue for "storage" as a
source of information, so that the State is aware of, and can track,
wastes through their life cycle, and to prevent such abuses as might
otherwise follow from the misnamed "storage" of hazardous wastes described
here.
Subsection (A) explicitly applies also to generators treating or
disposing of their own wastes. This frees the State from having to
allege that someone treating his own wastes at the site of generation is
"operating" a treatment or disposal site; this Subsection renders such
an issue moot, as anyone treating or disposing of hazardous wastes
(including his own wastes, and including on his own property) may be
required to use proper management practices.
Subsections (A) and (B) require permits for the transportation of
hazardous wastes; as elsewhere in this document, however, the word
"permit" is not intended to imply the kind of detailed criteria and
compliance schedules attendant to permits under the Federal Water
Pollution Control Act. (A number of States have elected to regulate the
transporters of hazardous wastes, several through the use of a "trip
ticket" or "manifest" system. These systems are described in the
annotation for Section 7.)
Subsection (B) includes the phrase "appropriate State agency," a
phrase which appears thorughout the Model Law where the subject is the
transport of hazardous wastes. Institutional arrangements and responsibilities
for the transport of hazardous wastes vary widely from one State to
another, making it impossible to generalize in a document such as this.
The reader should distinguish, however, between the economic aspects of
regulation (usually assigned to the State Public Utilities Commission or
equivalent agency) and other aspects such as transportation safety
(often assigned to the State Highway Patrol or equivalent agency). The
Model Law addresses only the latter function; where the economic and
safety aspects are divided between two agencies, all transport responsibilities
specified in the Model Law would logically be assigned to the latter
agency.
Subsection (C) suggests a term of five years for all permits. This
figure is presented for example only and is admittedly arbitrary. The
State should issue permits for a sufficient term that investors will
commit necessary funds, but not for a period which is so long as to
obligate the State to continue an unsatisfactory situation any longer
than it must.
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Section 5: [continued]
revoked by the issuing agency at any time when
the permittee fails to comply with the terms
and conditions of the permit, PROVIDED, no permit
shall be revoked until the Department has
provided the affected party with the opportunity
for an adequate hearing, and with written notice
of the intent of the Department to revoke the
permit and the reasons for such revocation.
(E) Where the application for or compliance with
any permit required under this Section would,
in the judgment of the Department, cause
undue or unreasonable hardship to any person, the
Department may issue a variance from the requirements
of this Section. In no case shall the duration
of any such variance exceed one year; renewals or
extensions may be given only after opportunity for
public comment on each such renewal or extension.
(F) Beginning six months after promulgation of
the regulations required under Section 4(C)
of this Act, any person undertaking one of the
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Section 5: (Continued)
Subsection (E) provides for variances. The State may choose to
issue variances for durations other than twelve months; the figure used
in this Model Legislation is for example only.
The State should also decide whether variances may be renewed, and,
if so, how many such variances may be given to one applicant or permittee.
This decision must take into account the environmental effects of
variances, since continued non-compliance with minimum standards creates
no less a problem for being sanctioned by the authority of a variance.
Balancing this is the realization that many factors may militate against
immediate closure of a permittee who can be brought into compliance
within a finite period if allowed to continue to operate. The Model Law
includes a requirement that the public be allowed to comment on any
renewal or extension of a variance. This is intended to make explicit
the State's authority to continue variances, but also its responsibility
to demonstrate to the public the reasons for so doing.
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Section 5: [continued]
activities for which, a permit is required
under this Section or under Section 7 of this
Act, or violating anu term or condition
under which a permit has been issued pursuant
to this Section or pursuant to Section 7
of this Act, shall be subject to the enforcement
procedures of Section 11 of this Act.
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Section 6: Hazardous Waste Treatment/Disposal Facilities and Sites
This Section includes several subjects which could be addressed
separately in hazardous waste legislation. These include: funding or
other provisions for long term care of sites; insurance requirements;
training requirements for operating and supervising personnel at sites;
and, a possible method for financing the State regulatory program. The
State should be certain that the first three above areas are addressed
somewhere in the authorizing legislation, if not in the section describing
the duties and responsibilities of treatment/disposal site operators.
The initial paragraph in Subsection (A) is intentionally broad in
order to give the State wide latitude in determining those requirements
necessary to the safe operation and environmentally-sound design of
treatment/disposal sites. The State should use its regulations to
detail the terms and conditions required of all permit holders. Terms
and conditions will vary (as they should) between permit holders depending
upon geology, hydrology, geography, and many other factors, and the
Regulations should recognize this by stating that the Department may
require such other terms and conditions as are necessary to meet the
purposes of the authorizing legislation. General terms and conditions
will include such things as a specific monitoring and sampling system
approved by the State, and evidence of financial responsibility in such
form and amount as the Department deems necessary.
Subsection (A) (2) does not suggest the specific type of financial
responsibility to be required. There are two separate concerns involved
in "long term care:" The first is the expense of continued monitoring
and maintenance of the site after cessation of operations; the second is
the potential expense of environmental damage occurring (or being
discovered) after cessation. The first concern is relatively inexpensive
and can be estimated in advance. The State can, therefore, require an
amount equal to X dollars a year for Y years. For example, the State
might require a bond of $10,000 dollars based upon monitoring and
maintenance costs of $1,000 each year for 10 years. This would assure
the integrity of fences, signs, monitoring wells, and so on, for whatever
period the State determined appropriate.
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HAZARDOUS WASTE TREATMENT/DISPOSAL FACILITIES AND SITES
Section 6: (A) No permit shall be issued to any hazardous
waste treatment or disposal facility or site
unless that facility or site meets such terms
and conditions as the Department may direct.
Terms and conditions shall include, but not
be limited to —
(1) Evidence of liability insurance in such
amount as the Department may determine
to be necessary for the protection
of the public health and safety and
of the environment;
(2) Evidence of financial responsibility
in such form and amount as the Department
may determine to be necessary to insure
that, upon abandonment, cessation, or
interruption of the operation of the facility
or site, all appropriate measures are taken
to prevent present and future damage to the
public health and safety and to the environment;
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Section 6: (Continued)
The second concern is considerably more difficult to quantify.
The type of damage which could occur, the cost of correcting that
damage (if it can be corrected), and the gestation time between closing
a site and the discovery of any damage are all relative unknowns.
States have devised different responses to these unknowns in order
to protect their citizens. One approach has been to require that any
site licensed for hazardous waste disposal or treatment be deeded to
the State, in effect making all sites public land. States which
have done this believe that the State will ultimately be responsible
for correcting any environmental damage caused by hazardous waste
treatment or disposal sites anyway, making it prudent that such sites
be on public land from the start. EPA does not necessarily endorse
this concept, as there are many facets to the issue of public versus
private disposal or treatment facilities, not all of which favor
public ownership. Most States have instead required some form
of bonding. The chief drawback to this approach is the difficulty
in determining an adequate amount for such a bond. A third
alternative is some type of trust fund or revolving account which
would receive money from currently operating sites, to be used to
correct damage caused by any treatment or disposal site, even if
closed long ago. The specific course chosen is less important than
the fact that the State have legislative authority to address the
problem of potential environmental damage from hazardous waste
treatment or disposal sites, and to institute some type of
protection for the public before that damage occurs.
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Section 6: [ continued ]
(3) Evidence that the personnel employed at
the hazardous waste treatment or disposal
facility or site have met such qualifications
as to education and training as the Department
may determine to be necessary to assure the
safe and adequate operation of the facility
or site:
(a) Persons charged with the direct
supervision of the operation of
any facility or site shall be certified
by the Department according to the
regulations required under Section 4(C)(8)
of this Act and after a review of the
types, properties, and volume of hazardous
wastes to be treated or disposed of at
the facility or site.
(b) The Department may require the recertification
of supervisory personnel where there is
any significant change in the types or
properties of hazardous wastes being
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Subsection (B) describes a system which would make the State
regulatory program self-supporting, and is similar to the system used in
California. The logic of such a system is that the "polluter pay," and
Subsection (B) offers one way by which the generators of hazardous
wastes might be charged for the costs of a State program to assure
adequate treatment and disposal of those wastes. If the State does
choose to establish a special fund for hazardous waste management, or
any similar area, the legislature will have to amend the State revenue
code; legislation such as a State hazardous waste management act is not
the proper vehicle for this.
Whether or not the State establishes any new fund, thought should
be given to some type of mechanism which will allow the hazardous waste
managment system to be self-sustaining. The State may elect a variant
of this system, such as returning a surcharge from treatment/disposal
sites to the General Fund while allocating the same amount to its
regulatory program through the usual appropriations process. In this
case, the State would avoid establishing any special accounts within the
General Fund.
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Section 6: [ continued ]
treated or disposed of at the facility
or site.
(B) The Department is authorized to establish a
schedule of fees to be paid to the Department
by hazardous waste treatment or disposal
facilities or sites.
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Section 7: Transportation of Hazardous Wastes
Many States have recognized the importance of transportation in
the "cradle-to-grave" life cycle of hazardous waste management, and
several have initiated hazardous waste hauler permit or control systems
as their first step in managing these wastes. The Congress has also
recognized the importance of transport control in managing hazardous
wastes, as demonstrated by the inclusion of a manifest system in the
"Resource Conservation and Recovery Act of 1976."
The Model Law directs the "appropriate State agency," rather than
the environmental management agency, to issue rules, regulations, and
permits for the transport of hazardous wastes. The wide variation in
institutional arrangements and responsibilities for the transport of
hazardous wastes make it impossible to specify the "appropriate" agency
for each State in this document. The reader should distinguish,
however, between the economic aspects of regulation (usually assigned
to the State Public Utilities Commission, or equivalent agency), and
other aspects such as transportation safety (often assigned to the
State Highway Patrol, or equivalent agency). The Model Law addresses
only the latter aspects.
Environmental agencies in a few States have been charged with the
responsibility for control of hazardous waste haulers. Where a
legislature chooses to do this, Subsection (A) should read: "...
the Department shall issue rules and regulations for the transportation
of such wastes."* Readers should also be aware of Section 112 of the
Hazardous Materials Transportation Act (P.L. 93-633), which reads (in part):
SEC. 112. (a) GfcNKRAL.—Except as provided in subsection (b) of
this section, any requirement, of a State or political subdivision thereof,
which is inconsistent with any requirement set forth in this title, or
in a regulation issued under this title, is preempted.
(b) STATE LAWS.—Any requirement, of a State or political Bub-
division thereof, which is not consistent with any requirement set forth
in this title, or in a. regulation issued under this title, is not preempted
if, upon the application of an appropriate State agency, the Secretary
determines, in accordance with procedures to be prescribed by regula-
tion, that such requirement (1) affords an equal or greater level of
protection to the public than is afforded by the requirements of this
title or of regulations issued under this title and (2) does not unreason-
ably burden commerce. Such requirement shall not be preempted to
the'extent s|>ecified in such determination by the Secretary for so long
as such State or political subdivision thereof continues to administer
mid enforce effectively such requirement.
US EPA and US DOT are working together to assure that the implementation
of RCRA and of the Hazardous Materials Transportation Act are compatible.
*EPA has published a guide to assist the States in implementing the kind
of transportation control systems autfiorized under this Section: Porter, C.H.
State program implementation guide: hazardous waste transportation control.
Environmental Protection Publication SW-512. [Washington], U.S.
Environmental Protection Agency, March 1976. 35 p.
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Section 7: (Continued)
purpose of controlling the movement of hazardous wastes from generation
to treatment or disposal. The single part system is simpler, and
generates less paper; the cost to the regulatory agency is that there
is no separate submittal from the generator to match with the form which
arrives (or fails to arrive) from the treatment/disposal site. Conversely,
the cost to the State in using the multi-part system is a large increase
in the amount of paper to be monitored. In many States this would require
automatic data processing equipment, with the attendant increase in
costs and personnel.
(3) The manifest system serves an important function in expediting
emergency response actions. Both variations of the manifest system
described above require the hauler to have a copy of the manifest system
in his possession when he has the wastes. A properly designed and
accurately completed manifest tells emergency response personnel what
the material is, the dangers it presents, and the proper procedures to
follow to mitigate damages. Equally important, the State insures that
the hauler is fully aware of what he is carrying by requiring full
disclosure from the generator at the time of consignment.
Existing U.S. Department of Transportation (DOT) regulations
require only that the material be marked as "flammable," "toxic," or
whatever the appropriate hazard may be. The waste hauler, treatment/
disposal site personnel, and emergency response personnel all need a
fuller description of the material being carried. This is especially
true because of the nature of hazardous wastes: combinations and mixtures
of any number of different substances, possibly posing several different
types of threats.
(4) The manifest system is useful to the State in compiling
information on the quantity and disposition of hazardous wastes within
the State. Because it is, in effect, a self-reporting system for
generators (generators must disclose information to the hauler which
is later submitted to the State), the State can monitor the aggregate
generation and treatment or disposal of hazardous wastes thorughout the
State. Any manifest system must be mandatory, including a prohibition
against the hauler accepting any wastes without a properly executed
form.
Subsection (B) includes explicit coverage of those hauling hazardous
wastes "...they have generated themselves." This is an important
provision and the State should be certain that any regulations of
hazardous waste haulers includes this or a similar phrase. Some States
have included the phrase "for hire" in describing the community being
regulated; this can be a significant loophole. Wastes are no less
hazardous, and the need for State cognizance no different, for the fact
that the hauler and the generator are the same person. The existence
of this loophole may leave a large segment of the hazardous waste problem
unregulated.
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Section 8: Records, Reports, Monitoring
This Section allows the State to require submittal of the information
it needs to assure "cradle-to-grave" control over hazardous wastes.
This is a crucial element in the State hazardous waste management program,
as the State must be aware of the kinds and quantities of hazardous wastes
for which it is responsible, the origins and destinations of these wastes,
and the integrity of the treatment or disposal method used. The State
can do these things most effectively through rules or regulations describing
what is needed.
Section 8 explicitly covers all main participants in hazardous waste
management. The State can only assure sound management if it is aware
of all potentially hazardous wastes in the State, including those which
remain at the site of generation.
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RECORDS; REPORTS; MONITORING
Section 8: (A) The Department shall adopt, and may revise
as necessary, such rules relating to records,
reports, and monitoring as may be necessary
to achieve the purposes of this Act. These
rules shall include, but not be limited to,
rules which prescribe:
(1) the establishment and maintenance of
records;
(2) the submittal of reports;
(3) the taking of samples, and the
performing of tests or analyses;
(4) the installing, calibrating, using,
and maintaining of monitoring
equipment or methods; and,
(5) the providing of such other information
as the Department may specify by rule.
(B) Six months after promulgation of the regulations
required under Section 4(C)(7) of this Act,
it shall be unlawful for any person to generate,
store, transport, treat, or dispose of hazardous
wastes in this state without reporting such
activity to the Department according to the
procedures described in said regulations.
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Section 8: (Continued)
Subsection (E) is especially important to generating industries.
Those States which have begun their own hazardous waste management
programs have encountered concern from generators that trade secrets,
or other proprietary information, could be deduced from their wastes, or
from reports to the State concerning their wastes. The State should
recognize and accommodate this concern in establishing its program.
However, the State should retain the prerogative of determining that
the release of information would not be harmful if the claim of trade
secret is not valid. The Model Legislation includes the requirement
that persons seeking protection of information demonstrate "...to
the satisfaction of the Department..." that the information is indeed
a "trade secret."
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Section 8: [ continued ]
(C) Six months after promulgation of the rules
required under Section 8(A) of this Act, it shall
be unlawful for any person to generate, store,
transport, treat, or dispose of hazardous wastes
within this State without complying with the
procedures described in said rules.
(D) Any person violating any requirement authorized by
this Section shall be subject to the enforcement
provisions of Section 11 of this Act.
(E) Information obtained by the Department under this
Section shall be available to the public, unless
the Department certifies such information to be
proprietary. The Department may make such
certification where any person shows, to the
satisfaction of the Department, that the infor-
mation, or parts thereof, if made public, would
divulge methods, processes, or activities entitled
to protection as trade secrets. Nothing in this
Subsection shall be construed as limiting the dis-
closure of information by the Department to any
officer, employee, or authorized representative
of the State concerned with effecting this Act.
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Section 9: Inspections; Right of Entry
This Section parallels a common provision of existing State and
Federal environmental statutes. Subsection (B) is of special importance
to States regulating land disposal and treatment of hazardous wastes.
Industrial wastes have traditionally been mobile, and the State
cannot effectively regulate the management of these wastes without
authority to monitor their movements. The State must be able to inspect
waste-carrying vehicles to insure that they are hauling what they say
they are, and that Federal and State safety provisions have been met.
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INSPECTIONS; RIGHT OF ENTRY
Section 9: For the purposes of developing or enforcing
any rule or regulation authorized by this Act,
any duly authorized representative or employee
of the Department may, upon presentation of
appropriate credentials, at any reasonable time
(A) Enter any place where hazardous wastes
are generated, stored, treated, or
disposed of;
(B) Inspect and obtain samples of any waste,
including samples from any vehicle in
which wastes are being transported,
as well as samples of any containers
or labels; and,
(C) Inspect and copy any records, reports,
information, or test results relating
to the purposes of this Act.
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Section 10: Imminent Hazard
The purpose of this Section is to allow the Department to act
immediately where the potential for environmental damage may be
realized before the completion of normal administrative or judicial
remedies. The corollary to this is that the Department would use
this Section to prevent or minimize such damage only in situations
where immediate action were essential.
The Section provides considerable flexibility. Where the
Department chooses, it may issue an administrative order, but the'
Section also allows the Department to seek a court order if it
prefers.
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IMMINENT HAZARD
Section 10: (A] Notwithstanding any other provision of this Act,
the Department, upon receipt of information that
the storage,transportation, treatment, or
disposal of any waste may present an imminent and
substantial hazard to the health of persons or
to the environment, may take such action as it
determines to be necessary to protect the health
of such persons or the environment. The action
the Department may take includes, but is not
limited to —
(1) Issuing an order directing the operator
of the treatment or disposal facility
or site, or the custodian of the waste,
which constitutes such hazard, to take
such steps as are necessary to prevent the
act or eliminate the practice which
constitutes such hazard. Such action may
include, with respect to a facility or site,
permanent or temporary cessation of operation; and,
(2) Requesting that the Attorney General or
appropriate District Attorney commence an
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Section 10: (Continued)
Subsection (B) includes the phrasing "...it shall not be necessary
to allege or prove...that irreparable damage will occur.,, or that the
remedy at law is inadequate..." for the Department to take immediate
action under this Section, Such a waiver is a useful element in any
imminent hazard provision the State includes in its hazardous waste
management legislation. Its purpose is to prevent lengthy legal delays
over the correctness of the Department's judgment that a threat is
immediate, and delays caused by affected persons forcing the Department
to exhaust such other (slower) legal remedies as may be available to the
Department. This phrasing may be of special interest in those States
where the courts have been reluctant to consider limited environmental
damage to be "irreparable."
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Section 10: [continued}
action enjoining such, acts or practices.
Upon a showing by the Department that a
person has engaged in such acts or practices,
a permanent or temporary injunction,
restraining order, or other order may be
granted.
(B) In any civil action brought pursuant to tnis
Section in which a temporary restraining order,
preliminary injunction, or permanent injunction
is sought, it shall not be necessary to allege
or prove at any stage of the proceeding that
irreparable damage will occur should the temporary
restraining order, preliminary injunction, or
permanent injunction not be issued; or that the
remedy at law is inadequate, and the temporary
restraining order, preliminary injunction, or
permanent injunction shall issue without such
allegations and without such proof.
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Section 11: Enforcement
Section 11 provides the mechanism by which the Department can
enforce the permits, rules, regulations, standards, and requirements
promulgated under the authority of this Act.
The Department has three options under the Recommended Legislation's
enforcement provisions:
(1) The Department can issue an order
to the violator instructing him to
comply with whatever rule (or regulation,
etc.,) he is violating;
(2) The Department can ask that an action be
brought for a penalty against a violator;
or,
(3) The Department can obtain an injunction
against a violator.
These options provide the Department with wide latitude in enforcing the
rules and regulations promulgated under the Act. The Department may
choose to simply issue an order preventing an act or the continuation of
a practice which violates applicable regulations, where the act or
practice does not pose an imminent threat of extreme hazard. Section
11(B) then allows the Department to invoke criminal penalties where such
an order has been knowingly violated.
Where damage has already occurred, and where that damage appears to
warrant compensation, the Department may choose to seek civil penalties.
Last, the Department may choose to seek injunctive relief for those
situations where the potential hazard of an act or practice appears to
make that appropriate.
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ENFORCEMENT
Section 11: (A) Whenever the Department finds that any person
is in violation of any permit, rule, regulation,
standard, or requirement under this Act, the
Department may issue an order requiring such
person to comply with such permit, rule,
regulation, standard, or requirement, or the
Department may request that the Attorney
General of this State bring a civil action for
injunctive relief in [the appropriate] court;
or, the Department may request that the Attorney
General of this State bring a civil enforcement
action under Subsection 11(C) of this Act.
(B) Any person who knowingly violates any order
issued by the Department pursuant to this Section
shall be liable for a fine not to exceed $25,000
per day of violation, imprisonment for not to
exceed one year, or both.
(C) Any person who violates any permit, rule,
regulation, standard, or requirement pursuant to
Sections 4, 5, 6, 7, or 8 of this Act shall be
liable for a fine of not to exceed $25,000 per
day of violation.
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Section 11: (Continued)
Subsections 11(C) and 11(D) specify the Sections of this Act which,
if violated, can result in the imposition of penalties. Failure to
specify those Sections which carry such sanctions may result in problems
of "due process," as persons subject to the Act must be given clear
notice of the sanctions which may result from a violation. The State
legislation should clearly identify those provisions which carry
penalties.
Subsection 11(E) is similarly important for reasons of due process:
the violator must receive "effective notice" that he has violated an
order which may result in criminal sanctions.
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Section 21: [continued]
(D) Each day of non-compliance with any order
issued by the Department pursuant to this Section,
or of non-compliance with any permit, rule,
regulation, standard, or requirement pursuant
to Section 4, 5, 6, 7, or 8 of this Act shall
constitute a separate violation of this Act.
(E) An order issued under this Section shall be
delivered by personal service and shall be
served on the person designated by the laws
of this State as appropriate to receive
service of process.
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Section 12: Interstate Cooperation
Interstate cooperation is especially important in the management of
hazardous wastes. While air pollution moves as the climate dictates,
and water pollution as geography and geology dictate, residuals destined
for the land move at human whim. Wastes going to the land can and are
transported by all manner of vehicle to sites in any direction as far
away from the point of generation as economics allows. Many large
industrial centers are at or near the boundary of a neighboring State,
with the movement of wastes from generation in one State to treatment or
disposal in another State being part of longstanding residuals management
practices as a result.
The Congress has recognized this in the "Resource Conservation and
Recovery Act of 1976," Section 1005 of which encourages certain interstate
compacts. Where States do not establish formal agreements, they may
find it useful to at least recognize publicly that interstate cooperation
is especially important in managing hazardous wastes by including phrasing
similar to that in Section 12 of the Model Law in their own Hazardous
Waste Management Acts.
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INTERSTATE COOPERATION
Section 12: The legislature of this State encourages
cooperative activities by the Department with
other States for the improved management of
hazardous wastes; for improved, and so far
as is practicable, uniform State laws relating
to the management of hazardous wastes; and
compacts between this and other States for the
improved management of hazardous wastes.
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REPEALER
Section 13:
The following laws of this State are hereby
repealed on the effective date of this Act:
SEVERABILITY
Section 14:
If any provision of this Act, or the application
of any provision of this Act to any person or
circumstances, is held invalid, the application
of such provision to other persons or circumstances,
and the remainder to this Act, shall not be
affected thereby.
Section 15:
EFFECTIVE DATE
This shall take effect on
ya!567
SW-635
-55-
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