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 ------- 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. ------- 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. -iii- ------- 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. -iv- ------- 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 -v- ------- SHORT TITLE Section 1: This Act mag be cited as the Hazardous Waste Management Act of 29 -1- ------- 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. -3- ------- ------- 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. -5- ------- 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." -6- ------- 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, -7- ------- 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. -8- ------- 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. -9- ------- 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. -10- ------- 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, -11- ------- ------- 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. -13- ------- 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. -14- ------- 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 -15- ------- 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. -16- ------- 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 -17- ------- 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. -18- ------- 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. -19- ------- 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. -20- ------- 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. -21- ------- 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 -22- ------- 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 -23- ------- 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. -24- ------- 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 -25- ------- 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. -26- ------- 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. -27- ------- 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. -28- ------- 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; -29- ------- 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. -30- ------- 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 -31- ------- 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. -32- ------- 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. -33- ------- 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. -34- -------An error occurred while trying to OCR this image. -------OCR error (C:\Conversion\JobRoot\0000076Q\tiff\2000QR97.tif): Saving image to "C:\Conversion\JobRoot\0000076Q\tiff\2000QR97.T$F.T$F" failed. ------- 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. -37- ------- 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. -38- ------- 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. -39- ------- 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." -40- ------- 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. -41- ------- 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. -42- ------- 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. -43- ------- 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. -44- ------- 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 -45- ------- 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." -46- ------- 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. -47- ------- 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. -48- ------- 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. -49- ------- 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. -50- ------- 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. -51- ------- 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. -52- ------- 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. -53- -------OCR error (C:\Conversion\JobRoot\0000076Q\tiff\2000QR9P.tif): Saving image to "C:\Conversion\JobRoot\0000076Q\tiff\2000QR9P.T$F.T$F" failed. ------- 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- ------- ------- u o H U W H w S fc O c^ HH > £ w oo D C! T3 CM 0 CM ( ) Q- *r } CO" CO - c u. c 0 0 O) r- M •"•* *O CM QJ O * C •§ ° O UJ z - co Wco T-I o r- > -COA — 3 .CD C O CC CO 90 c ~ c o C8 O O 0 CO O > C o J; cnU- S JM -g,^ ^ LD S- cccMZ~ ccSo-Si dcco< CD "5 c g ra c it) c <0 > £ * 2 >i±OJ > S ^ •* co „ r~- en o in _ CO O> c co o O co rnia isco, s o?l65. C S CM x o ^ci X c^ 2£ „ g o u- —~ S 0)0 c ^ « ,?25s o CO O U, S. GOVERNMENT PRINTING OFFICE : 1978 120-313/4003 ------- |