OCR error (C:\Conversion\JobRoot\00000CE2\tiff\20013L8I.tif): Unspecified error ------- transporting, storing, or disposing of hazardous waste. The Agency believes that a successful legislative process to make targeted changes to RCRA, could make the statute an even more effective tool in safely managing our solid and hazardous waste. For more information on the RCRA Legislative Reform Initiative, please contact any member of our RCRA Legislative Reform Team: David Hockey, Team Leader, at 202 260-7596; Bob Hall at 202 260-4498; or Judy Kertcher at 202 260-4522. Thank you for your interest in improving RCRA. Attachment 1 - Outreach Plan Attachment 2 - Draft Issue Papers ------- ATTACHMENT #1 SUBJECT: Outreach Plan for RCRA's Legislative Reform Initiative « The President's plan for developing targeted legislative improvements to the Resource Conservation and Recovery Act (RCRA) places an important emphasis on soliciting input from multiple stakeholders. The process EPA is initiating today will provide several opportunities for individuals from all major stakeholder groups (e.g., states, regulated community, environmental community, general public) to present their individual ideas and suggestions for improving the solid and hazardous waste system under RCRA. The President's plan states that the Agency will convene a outreach process by April 15, 1995 and will deliver to Congress a package of legislative "rifle-shot" improvements to RCRA by July 15, 1995. In order to gather the multi-stakeholder input and meet the ambitious schedule, EPA is taking several approaches to this outreach strategy. EPA recognizes that 90 days is a relatively short time to solicit the views of the numerous parties that may have interest in RCRA legislative changes. Therefore, EPA will convene a roundtable comprised of individuals who generally reflect RCRA's major stakeholder groups. The roundtable members will each provide the Agency with their own ideas and suggestions related to this initiative. EPA will hold three meetings of the roundtable that will be open to the public and each meeting will provide time for public comments and suggestions. The Agency also will meet, as time permits/ at the request of individuals, groups, or coalitions who wish to present their ideas and suggestions to the Agency. Due to the short time period, it would be helpful for individuals of similar interests or supporting similar ideas to work together in presenting their ideas to the Agency. It also may be productive for groups or coalitions to work with selected individuals of the roundtable; the roundtable members will be announced shortly. Additionally, EPA will be accepting written comments and suggestions for the initiative that will be made available in a public docket established for this process. Meeting summaries, roundtable meeting summaries, and any other documents relevant to the initiative also will be placed in the docket. (See Attachment #2 for details regarding the docket.) Given the expedited timeframe, EPA will not prepare formal responses to all comments and suggestions placed in the docket. ------- Roundtable/Public Meeting Schedule (Specific meeting sites and times will be announced in the Federal Register by April 24th) Number 1 Date: EPA Region: City/State: Number 2 Date: EPA Region: City/State: Number 3 Date: Place: City/State: May 10, 1995 EPA Region V Chicago, IL May 23rd, 24th, or 25th, 1995 (to be decided ASAP) EPA Region VI Houston, TX June 7, 1995 EPA Headquarters Washington, D.C. ------- ATTACHMENT #2 SUBJECT: Draft Issue Papers Attached are draft issue papers developed to serve as a starting point for discussions to prepare a package of "rifle- shot" reforms to the Resource Conservation and Recovery Act (RCRA) by July 15, 1995. Each draft paper highlights a topic and concern previously raised to the Agency by one or more stakeholders regarding the statutory basis for managing solid and hazardous waste. For your convenience, we have attempted to add as background relevant citations to applicable statutory language, regulations, and judicial cases (where any). We caution the reader not to infer any new EPA policy statements from these draft issue papers. These papers are staff-level attempts to summarize issues on which the Agency has heard concerns expressed, with relevant citations added. In developing the package of targeted legislative reforms for RCRA, EPA will be following the principles for reinventing environmental protection outlined in the President's plan: o Protecting public health and the environment is an important national goal, and individuals, businesses and government must take responsibility for the impact of their actions. o Regulation must be designed to achieve environmental goals in a manner that minimizes costs to individuals, businesses, and other levels of government. o Environmental regulations must be performance-based, providing maximum flexibility in the means of achieving our environmental goals, but requiring accountability for the results. o Preventing pollution, not just controlling or cleaning it up, is preferred. o Market incentives should be used to achieve environmental goals, whenever appropriate. o Environmental regulation should be based on the best science and economics, subject to expert and public scrutiny, and grounded in values Americans share. o Government regulations must be understandable to those who are affected by them. ------- o Decision making should be collaborative, not adversarial, and decision makers must inform and involve those who must live with the decisions. o Federal, state, tribal and local governments must work as partners to achieve common environmental goals, with non-federal partners taking the lead when appropriate. o No citizen should be subjected to unjust or disproportionate environmental impacts. We welcome your ideas and suggestions for improving the Resource Conservation and Recovery Act. The public must send an original and two copies of their comments and suggestions to the following address, and please place the docket number F-95-LRRA-FFFFF on your submittal. RCRA Information Center (5305) U.S. Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 204"60 You also can contact any member of the RCRA Legislative Reform Team for more information: David Hockey, Team Leader phone 202 260-7596 fax 202 260-9355 Judy Kertcher phone 202 260-4522 fax 202 260-9355 Bob Hall phone"202 260-4498 fax 202 260-9355 ------- Staff Draft-Far Discussion Purposes Only 1 Resource Conservation and Recovery Act Issue for Discussion Regarding Legislative Action Topic Listing Determinations Concern When determining whether to list a waste as hazardous, the Agency considers plausible mismanagement scenarios (e.g., management in an unlined surface impoundment) in order to be protective. However, if the waste in question is currently or can be managed under enforceable, good management practices that protect human health and the environment, then mismanagement may no longer be plausible, and full RCRA hazardous waste requirements may not be necessary. Background Statutory Section 3001(a)--Criteria for Identification or Listing [of Hazardous Waste] ....the Administrator shall....develop and promulgate criteria for....listing hazardous waste.... Section 1004(5)--Definition of Hazardous Waste The term "hazardous waste" means a solid waste....which because of its quantity, concentration, or physical, chemical, or infectious characteristic may....pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. Section 7003-lmminent Hazard Authority [U]pon receipt of evidence that the past or present handling ... of any solid or hazardous waste may present an imminent and substantial endangerment to health or the environment, the Administrator may bring suit .... [or] issute] orders as shall be necessary to protect public health and the environment. ------- I Staff Draft-For Discussion Purposes Only 1 Regulatory Title 40, Code of Federal Regulation, Parts 260, 261. Judicial Edison Electric Institute v. U.S. EPA. 2 F.3d 438 (D.C.Cir. 1993). ------- I Staff Draft--For Discussion Purposes Only 1 Resource Conservation and Recovery Act Issue for Discussion Regarding Legislative Action Topic Management Requirements Concern Once a waste is identified as hazardous, through a listing or by exhibiting a characteristic, all of the applicable requirements for the generator, transporter, and facility treating, storing, or disposing of the waste apply. Thus, the regulatory implications of a decision about whether a waste is hazardous are "all or nothing"; there is currently no middle ground. However, it may be possible that for certain wastes and scenarios the full hazardous waste management requirements are not needed; the application and enforcement of specific, tailored good management practices could negate the risk posed for that waste, and thus the need for a hazardous waste designation. Background Statutory Section 3004(a)--Standards Applicable to Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities ...the Administrator shall promulgate regulations establishing such performance standards, applicable to owners and operators of facilities for the treatment, storage, and disposal of hazardous waste identified or listed under this subtitle as necessary to protect human health and the environment.... Such standards shall include, but need not be limited to, requirements respecting- (1) maintaining records... (2) satisfactory reporting, monitoring, and inspection and compliance with the manifest system... (3) operating methods, techniques, and practices as may be satisfactory... (4) location, design, and construction... (5) contingency plans... (6) maintenance of operation... qualifications as to ownership, continuity of operation, training for personnel, and financial responsibility (7) compliance with [permit] requirements... ------- f Staff Draft--For Discussion Purposes Ontv 1 Section 3005(a)--Permit Requirements the Administrator shall....[require] each person owning or operating an existing or planning to construct a new facility for the treatment, storage, or disposal of hazardous waste to have a permit.... Section 3005(c)--Permit Issuance Upon a determination....of compliance....for which a permit is applied for under this section with the requirements of this section and section 3004, the Administrator shall issue a permit for such facilities. Section 3004(m)(1) and (2)--Treatment Standards for Wastes Subject to Land Disposal Prohibitions (1) ....the Administrator shall....promulgate regulations specifying those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized. Section 3004(u)--Continuing Releases at Permitted Facilities Standards promulgated under this section shall require, and a permit issued....by the Administrator or state shall require, corrective action of all releases of hazardous waste or constituents from any solid waste management unit at a treatment, storage, or disposal facility seeking a permit under this subtitle, regardless of when the waste was placed in such unit. Permits issued under section 3005 shall contain schedules of compliance for such corrective action (which such corrective action cannot be completed prior to issuance of a permit) and assurances of financial responsibility for completing such corrective action. Regulatory Title 40, Code of Federal Regulation, Parts 264, 265, 266, 267, 268, 270. Judicial No specific cites. ------- I Staff Draft-For Discussion Purposes Only 1 Resource Conservation and Recovery Act Issue for Discussion Regarding Legislative Action Topic RCRA Permits Concern For low-risk hazardous waste management facilities (e.g., storage- only facilities), the requirement to obtain a RCRA permit (and to meet associated management requirements) can in some cases lead to high administrative costs while resulting in little or no increased environmental benefit. Cumbersome permit requirements can also delay the transition from less stringent interim status standards to other, more appropriate, management standards. Background Statutory Section 3005(a)--Permit Requirements the Administrator shall....[require] each person owning or operating an existing or planning to construct a new facility for the treatment, storage, or disposal of hazardous waste to have a permit.... Section 3005(c)--Permit Issuance Upon a determination....of compliance....for which a permit is applied for under this section with the requirements of this section and section 3004, the Administrator shall issue a permit for such facilities. Section 3004(u)--Corrective Action [A] permit issued after November 8, 1984, ... shall require corrective action for all releases of hazardous waste or constituents from any solid waste management unit.... Regulatory Title 40, Code of Federal Regulation, Part 270; sec. 264.101 ------- f Staff Draft-For Discussion Purposes Only 1 Judicial No specific cites. ------- I Staff Draft—For Discussion Purposes Only 1 Resource Conservation and Recovery Act Issue for Discussion Regarding Legislative Action Topic Prescriptive Requirements Concern The RCRA requirements governing certain hazardous wastes can be prescriptive and may be impractical to implement in certain situations (e.g., radioactive waste mixed with hazardous waste). In addition, certain RCRA requirements may be economically unreasonable to implement, where they have a major impact on the regulated entity without a corresponding environmental benefit (e.g., small businesses that do not meet the technical requirements for the small quantity generator exemption from most RCRA requirements). Background Statutory (Principally, the following examples have been mentioned) Section 3004(a)--Standards Applicable to Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities ...the Administrator shall promulgate regulations establishing such performance standards, applicable to owners and operators of facilities for the treatment, storage, and disposal of hazardous waste identified or listed under this subtitle.... Such standards shall include, but need not be limited to, requirements respecting--. (1) maintaining records... (2) satisfactory reporting, monitoring, and inspection and compliance with the manifest system... (3) operating methods, techniques, and practices as may be satisfactory... (4) location, design, and construction... (5) contingency plans... (6) maintenance . of operation... qualifications as to ownership, continuity of operation, training for personnel, and financial responsibility (7) compliance with [permit] requirements... Section 3004(m)(1) and (2)--Treatment Standards for Wastes Subject to Land Disposal Prohibitions (1) ....the Administrator shall....promulgate regulations specifying those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from ------- f Staff Draft-For Discussion Purposes Only 1 the waste so that short-term and long-term threats to human health and the environment are minimized. Section 3004(u)--Continuing Releases at Permitted Facilities Standards promulgated under this section shall require, and a permit issued....by the Administrator or state shall require, corrective action of all releases of hazardous waste or constituents from any solid waste management unit at a treatment, storage, or disposal facility seeking a permit under this subtitle, regardless of when the waste was placed in such unit. Permits issued under section 3005 shall contain schedules of compliance for such corrective action (which such corrective action cannot be completed prior to issuance of a permit) and assurances of financial responsibility for completing such corrective action. Regulatory Title 40, Code of Federal Regulation, Parts 260, 262, 263, 264, 265, 266, 267, 268. Judicial No specific cites. ------- [ Staff Draft-For Discussion Purposes Only 1 Resource Conservation and Recovery Act Issue for Discussion Regarding Legislative Action Topic Land Disposal Restrictions Concern The land disposal restrictions prevent the disposal of hazardous waste on the land until levels of treatment are met which ensure that short- term and long-term threats to human health and the environment are minimized. For some wastes, this provision could be interpreted to require the treatment of the waste's hazardous constituents to levels below those which the Agency would consider necessary to protect human health and the environment. Background Statutory Section 3004(m){1) and (2)--Treatment Standards for Wastes Subject to Land Disposal Prohibitions (1) ....the Administrator shall....promulgate regulations specifying those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized. (2) If such hazardous waste has been treated to the level or by a method specified....such waste or residue thereof....may be disposed of in a land disposal facility. Regulatory Title 40, Code of Federal Regulation, Part 268 Judicial Hazardous Waste Treatment Council v; U.S. EPA (HWTC III). 886 F.2d 355 at 361-65 (D.C. Cir. 1989) Chemical Waste Management v. U.S. EPA ("Third-Third" case), 976 F.2d 2, at 14, 31-32 (D.C.Cir. 1992). ------- I Staff Draft-For Discussion Purposes Only 1 Resource Conservation and Recovery Act Issue for Discussion Regarding Legislative Action Topic Treatment Requirements Concern The land disposal restrictions require the treatment of waste to specified levels or with a specified technology before the waste can be dispose on the land. However, under some circumstances, the process of treating certain wastes to meet LDR requirements may itself pose a greater risk to human health and the environment than land disposal or other alternative management practices. Background Statutory Section 3004(m)(1) and (2)-Treatment Standards for Wastes Subject to Land Disposal Prohibitions (1) ....the Administrator shall....promulgate regulations specifying those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized. (2) If such hazardous waste has been treated to the level or by a method specified....such waste or residue thereof....may be disposed of in a land disposal facility. Regulatory Title 40, Code of Federal Regulation, Part 268 Judicial American Petroleum Institute v. U.S. EPA. 906 F.2d 729, at 735-36 and 738 (D.C.Cir. 1990) ------- I Staff Draft—For Discussion Purposes Only 1 i Resource Conservation and Recovery Act Issue for Discussion Regarding Legislative Action Topic Untreated Waste Disposal Concern The RCRA requirements preventing the disposal of untreated waste on the land unless it can be proven that the waste will not migrate from the unit as long as the waste remains hazardous (potentially thousands of years), may prevent the safe disposal of low-risk untreated or partially treated waste in certain land based units (i.e., deep well injection). Background Statutory 3004(d)(1)--Prohibitions on Land Disposal of Specified Wastes ....a method of land disposal [for a specified untreated hazardous waste] may not be determined to be protective of human health and the environment.... unless,....it has been demonstrated to the Administrator, to a reasonable degree of certainty, that there will be no migration of hazardous constituents from the disposal unit or injection zone for as long as the waste remain hazardous. Regulatory Title 40, Code of Federal Regulation, section 268.6 Judicial Brent Kav v. U.S. EPA. C.A. No. 6:90 CV582 (Aug. 3, 1993) (unpublished) ------- [ Staff Draft-For Discussion Purposes Only 1 Resource Conservation and Recovery Act Issue for Discussion Regarding Legislative Action Topic Deferral of RCRA Requirements Concern Court opinions addressing the management of hazardous wastes under alternative protective authorities (e.g., Clean Water Act), in lieu of RCRA Subtitle C, have left EPA's authority to defer to these authorities unclear. Background Statutory Section 1006(b)--lntegration with Other Acts The Administrator shall integrate all provisions of this Act....and shall avoid duplication, to the maximum extent practicable, with the appropriate provisions of [the Clean Air Act, Federal Water Pollution Control Act, Federal Insecticide, Fungicide, and Rodenticide Act, Safe Drinking Water Act, the Marine Protection, Research and Sanctuaries Act,] and following and such other Acts of Congress as grant regulatory authority to the Administrator. Such integration shall be effected only at the extent that it can be done in a manner consistent with the goals and policies expressed in this Act and in the other acts referred to in this subsection. Regulatory No specific cite in the Code of Federal Regulations. Judicial Edison Electric Institute v. U.S. EPA. 2 F.3d 438 (D.C.Cir. 1993). Chemical Waste Management v. U.S. EPA ("Third-Third" case), 976 F.2d 2, at 25 (D.C.Cir. 1992). State of Colorado v. U.S. Department of the Armv. 707 F.Supp. 1562, at 1566-67 (D.Colo. 1989). ------- f Staff Draft-For Discussion Purposes Only 1 Resource Conservation and Recovery Act Issue for Discussion Regarding Legislative Action Topic Indian Tribal Program Approval Concern EPA has explicit statutory authority to authorize states to implement hazardous and solid waste management programs. RCRA does not explicitly mention Indian Tribes in its discussion of authorization authorities; this omission has led some to challenge EPA's authority to approve qualified Tribal programs. Background Statutory Section 3006(b)--Authorization of State Programs Any State which seeks to administer and enforce a hazardous waste program....may develop and....submit to the Administrator [a]n application....for authorization for such program. Section 4005(c)(1)(C)--Upgrading of Open Dumps-Control of Hazardous Disposal The Administrator shall determine whether each State has developed an adequate [permit program to assure that solid waste management facilities within such State which may receive hazardous household waste or small quantity generator waste will be in compliance with the upgraded open dumping criteria]. Regulatory Title 40, Code of Federal Regulation Parts 258, 271, 272 Judicial No specific cites. ------- ------- [ Staff Draft-For Discussion Purposes Only 1 Resource Conservation and Recovery Act Issue for Discussion Regarding Legislative Action Topic Recycling of Hazardous Waste Concern Facilities treating or storing a hazardous waste need to obtain a permit and comply with all applicable management standards (e.g., land disposal restrictions, facility-wide corrective action, financial assurance). However, some facilities that recycle hazardous waste may not pose significant risks to human health and the environment or may need less than full RCRA hazardous waste regulation to ensure safe handling of waste. The need to comply with the full panoply of hazardous waste requirements may discourage the potential safe recycling of hazardous wastes. To better encourage appropriate recycling, certain of these wastes may not need to be defined and regulated as a solid waste under RCRA. Background Statutory Section 1004(34)-Definition of Treatment ....any method, technique, or process....designed to change the....character or composition of any hazardous waste so as to ....render, such waste....amenable for recovery.... Section 3005{a)-Permit Requirements the Administrator shall....[require] each person owning or operating an existing or planning to construct a new facility for the treatment, storage, or disposal of hazardous waste to have a permit.... Section 3005(c)--Permit Issuance Upon a determination....of compliance....for which a permit is applied for under this section with the requirements of this section and section 3004, the Administrator shall issue a permit for such facilities. Section 3004(u)--Continuing Releases at Permitted Facilities ------- [ Staff Draft-For Discussion Purposes Only 1 Standards promulgated under this section shall require, and a permit issued....by the Administrator or state shall require, corrective action of all releases of hazardous waste or constituents from any solid waste management unit at a treatment, storage, or disposal facility seeking a permit under this subtitle, regardless of when the waste was placed in such unit. Permits issued under section 3005 shall contain schedules of compliance for such corrective action (which such corrective action cannot be completed prior to issuance of a permit) and assurances of financial responsibility for completing such corrective action. Regulatory Title 40, Code of Federal Regulation, Parts 260, 261, 262, 263, 264, 266, 268, 270. Judicial American Mining Congress v. EPA (AMC I). 824 F.2d 1177 (D.C.Cir. 1987) American Petroleum Institute v. EPA (API). 906 F.2d 729 (D.C.Cir. 1990) American Mining Congress v. EPA (AMC II). 907 F.2d 1179 (D.C.Cir. 1990) Steel Manufacturers Association v. EPA. 27 F.3d 642 (D.C.Cir. 1994) ------- [ Staff Draft-For Discussion Purposes Only 1 Resource Conservation and Recovery Act Issue for Discussion Regarding Legislative Action Topic Corrective Action Concern Under current RCRA requirements, hazardous wastes from cleanup activities (e.g., corrective action and related activities) are subject to the same permitting, treatment, disposal and other requirements as newly generated and managed hazardous waste. However, many of the requirements for as-generated hazardous wastes are inappropriate for soil and groundwater contaminated with such wastes, and EPA may lack sufficient authority to modify these requirements. The application of full RCRA hazardous waste requirements to cleanup wastes may act as a disincentive for cleanup, eliminate practical and effective remedies from consideration, deter the use of innovative technologies, and result in excessively costly cleanups. Background Statutory Section 3004(m)(1) and (2)~Treatment Standards for Wastes Subject to Land Disposal Prohibitions (1) ....the Administrator shall....promulgate regulations specifying those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized. Section 3004(u)--Continuing Releases at Permitted Facilities Standards promulgated under this section shall require, and a permit issued....by the Administrator or state shall require, corrective action of all releases of hazardous waste or constituents from any solid waste management unit at a treatment, storage, or disposal facility seeking a permit under this subtitle, regardless of when the waste was placed in such unit. Permits issued under section 3005 shall contain schedules of compliance for such corrective action (which such corrective action cannot be completed prior to issuance of a ------- [ Staff Draft-For Discussion Purposes Only 1 permit) and assurances of financial responsibility for completing such corrective action. Regulatory Title 40, Code of Federal Regulation, Parts 264, 265, 266, 267, 270, 271 Judicial No specific cites. ------- [ Staff Draft-For Discussion Purposes Only 1 t Resource Conservation and Recovery Act Issue for Discussion Regarding Legislative Action Topic Hazardous Waste Manifest Concern EPA may lack clear statutory authority to provide flexibility to the manifest system in order to provide significant reductions in paper work burdens. Background Statutory Section 3002(a)(5)--Standards Applicable to Generators of Hazardous Waste Such standards shall establish requirements respecting—....use of a manifest system or any other reasonable means necessary to assure that all such hazardous waste generated is designated for treatment, storage, or disposal in and arrives at, treatment, storage, or disposal facilities (other than facilities on the premises where the waste is generated) for which a permit has been issued as provided in this subtitle... Regulatory Title 40, Code of Federal Regulation, Parts 262. Judicial No specific cites. ------- |