The Resource Conservation and Recovery Act of 1976 sparked a far-reaching and complex regulatory program that took four years to create initially and that continues to evolve with ever-increasing complexity. By closely tracking hazardous wastes from generation to disposal, that is, from "cradle to grave," RCRA reaches all phases of hazardous waste generation and management. For example, those who generate hazardous waste must know or analyze the material, maintain records, record volumes, and assure that off-site disposal occurs at appropriate facilities. For most on-site storage, treatment, and disposal facilities, EPA (or states to which EPA has delegated such authority) must issue permits that incorporate strict, site-specific requirements, including cleanup of past contamination. Even after active hazardous waste operations cease, facilities subject to RCRA permitting remain obligated to complex closure/post-closure and cleanup requirements that can run for decades. However, recent EPA rules and guidance may provide a creative opportunity to reduce the burden of these last requirements.
RCRA regulations establish stringent requirements for the generation, transportation, treatment, storage, and disposal of hazardous waste. These are particularly complex and onerous in the case of land disposal. Other requirements may include ground water monitoring and financial responsibility.
Congress enacted the Hazardous and Solid Waste Amendments (HSWA) to RCRA in 1984 to accelerate EPA's progress in establishing rigid requirements for landfills and other hazardous waste management units. HSWA also called for regulations to restrict severely the land disposal of hazardous wastes. The resulting complex regulatory program has imposed substantial costs by requiring treatment of hazardous wastes prior to land disposal.
HSWA gave EPA authority to require cleanup of releases of hazardous constituents from non-hazardous solid waste management units (SWMUs). Under this "corrective action" authority, EPA requires each facility subject to hazardous waste permit requirements to identify the nature and extent of contamination, if any, from all SWMUs located at the facility and then to initiate both on- and off-site cleanup as necessary. As it evolves, the corrective action program is demanding a scope of site-specific planning and expenditure from industry even greater than that experienced by Superfund.
Morgan, Lewis & Bockius LLP has many attorneys with extensive RCRA expertise. They include Michael Steinberg, who since his return from the Justice Department has been counseling major trade associations on RCRA issues and who persuaded the D.C. Circuit to set aside EPA's "mixture rule" and carbamate waste listing, and Kenneth Rubin, who prepared the petition that ultimately led to EPA's first "delisting"and advises a large number of our clients on day-to-day RCRA compliance questions.
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