REGULATORY ALERT Hazardous waste: the controversy continues
Michael R. Deland ERT, Concord. MA
In the fall of 1976, Congress enacted the Resource Conservation and Recovery Act ( R C R A ) with the expectation that it would control safely from "cradle to grave" the enormous volume of hazardous waste generated in the U.S. EPA estimated that over 77.1 billion pounds of hazardous waste are produced annually and of that "only 10% are disposed of in an environmentally acceptable manner." More than five years have elapsed since R C R A ' s passage and instead of the mature, "cradle to grave" control envisioned by Congress, chaos prevails. Part of the program is still in its infancy and suffering intense growing pains, while more substantial portions are yet to be conceived. The major problems predictably are pinpointed in three separate lawsuits, each involving multiple parties. The deadline suit When it became apparent in the fall of 1978 that EPA not only had missed the statutory deadline of April 1978 to issue R C R A ' s implementing regulations, but also that the delays would continue, the state of Illinois, the Environmental Defense Fund ( E D F ) , Citizens for a Better Environment, and the National Solid Waste Management Association filed suit. This combined effort by states, environmentalists, and industry spurred the promulgation in May 1980 of the "most complex regulations EPA has ever gone forward with," which were accompanied by over 6000 pages of background documents. The agency admitted that this rulemaking was but
the "bare outline" of regulations to come. Both industry and environmental groups immediately challenged the regulations in court. Meanwhile, the deadline controversy continues. This fall EPA requested a further extension until fall 1983 to promulgate the final standards for permitting hazardous waste land disposal facilities. In December 1981 the court denied this request and held firm to its previously imposed Feb. 1, 1982 deadline. By rushing to meet the deadline, the agency admitted that the regulations would be "inferior" by being less flexible and less tailored to site- and waste-specific conditions and would likely need to be amended. EPA's approach to establish a basic standard followed by two implementation "options" has been criticized in detail by E D F , thereby setting the stage for further litigation. The consolidated permit suit As part of its May 1980 rulemaking, EPA published the initial R C R A regulations and also sought to streamline the permitting process by consolidating five previously separate programs. The Natural Resources Defense Council ( N R D C ) and numerous industrial petitioners contested this approach on procedural grounds. In November 1981, EPA and the industry petitioners arrived at a "settlement agreement," which obligates EPA to promulgate as "expeditiously as possible" certain "technical" and " o t h e r " amendments and publish preamble language and a "Regulatory Interpretation Memorandum." As a result of the agreement, the court deferred briefing of the issues and required EPA to file monthly status reports. The first one, submitted in January 1982, reveals that the agency has prepared Federal Register language for certain of the issues and has forwarded it to the Office of Management and Budget for review. Among the more significant and controversial issues agreed upon are to extend the life of a permit from the
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current 10 years to the "designed operating life" of the facility, and to allow commencement of construction of a facility prior to receipt of a final permit. E D F has already indicated its intent to contest these and other parts of the settlement agreement once it is published in the Federal Register. The substantive suit The challenges to EPA's May 1980 regulations by over 40 industrial litigants and several trade associations were consolidated into one case, Shell Oil vs. EPA, in which EDF is again the sole representative of environmental interests. Twenty-seven separate issues were identified and according to industry counsel approximately 50% have been "negotiated away." However, among those remaining are such fundamental questions as the definition of hazardous waste as it pertains to recycled and reused materials and whether EPA in fact has the statutory authority to regulate such wastes. All parties admit that progress on resolving the substantive issues has recently languished while EPA and the courts have concentrated on the deadline suit, the promulgation of land disposal standards, and the "settlement agreement." Five years after R C R A ' s passage, EPA's most ambitious regulatory program is still in its formative stages. Despite hundreds of pages of Federal Register notices, thousands of forms submitted to EPA, and numerous documents to the courts, industry and the states still have little concrete guidance on how to dispose of hazardous wastes. Unfortunately, more litigation, more years of uncertainty loom likely. Meanwhile, the waste continues to accumulate. This course will continue unless, starting now with EPA's Land Disposal proposal, industry environmental groups, local, state, and federal agencies, courts, scientists, and citizens recognize that a solution rests with their willingness to cooperatively seek a creative compromise. Environ. Sci. Technol., Vol. 16, No. 2, 1982
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