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Chapter 2

HAZARDOUS WASTE REGULATIONS

A. RCRA
B. CERCLA
C. The National Priority List
D. Organization of Federal Code
E. Washington State Regulations
F. Some Comparisons
G. Additional Issues

Concern over disposal of solid wastes in open dumps led to a federal response in
the form of the Solid Waste Disposal Act (SWDA) of 1965. The act was intended to
promote improved solid waste management and resource recovery practice. A specific
goal was replacement of open dumps with sanitary landfills. Sanitary landfills are
distinguished by coverage of the fill with a layer of soil at the end of each day. Daily
cover reduces vector (rodent and insect) propagation, odor release, wind-blown litter, and
the danger of fires. The fact that, less than 40 years ago, these were the primary concerns
associated with land disposal of solid waste is worthy of note. The act's modest
provisions also included funding for technical and financial assistance to states, research
and training grants, and guidelines for transport, separation, recovery, and disposal of
solid waste. (The term "hazardous waste" had no specific legal meaning at that time).
Implementation was assigned to the Public Health Service (USPHS) and the Bureau of
Mines. EPA did not yet exist.

The SWDA was amended by the Resource Recovery Act of 1970. The stated
goal of that act was to shift emphasis from waste disposal to waste recovery although it
provided little authority to produce such a change. It is primarily of note because it
included a directive to the Department of Health, Education and Welfare to investigate
the storage and disposal of hazardous wastes. This process contributed to the increasing
awareness of inappropriate hazardous waste disposal practices that led eventually to the
two major pieces of legislation that now govern hazardous waste activities in the U.S.

A. RCRA/HSWA

The Resources Conservation and Recovery Act (RCRA) of 1976 was the federal
government's initial attempt to dramatically alter hazardous waste management practice.
The original version of RCRA included provisions that: 1) identified hazardous waste, 2)
required generators of more than 1000 kg/mo of legally hazardous waste to report to
EPA, 3) established a “cradle-to-grave” manifest system for tracking hazardous wastes,
and 4) established a permit system for treatment, storage and disposal facilities (TSDFs)

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handling hazardous wastes. RCRA is generally prospective in outlook in that it primarily

addresses management of current and future waste streams.

RCRA was amended in 1984 by legislation referred to as the Hazardous and Solid
Waste Amendments (HSWA). Key aspects of HSWA included: extension of regulatory
coverage to generators of 100-1000 kg/mo (so called small quantity generators or
SQGs);imposition of staged ban on land disposal of many waste types; addition of
underground storage tank (UST) provisions under Subtitle I; stipulation of corrective
action (cleanup) requirements at facilities with ongoing operations; and inclusion of
export notification requirements. An abbreviated structure of RCRA as amended is
displayed in Figure 2.1. Hazardous waste generators, transporters, and TSDFs are
regulated under Subtitle C.

RCRA

Subtitle C Subtitle D Subtitle I

Hazardous Solid Underground

Waste Waste Storage Tanks

Generators Transporters Treatment,

Storage, &
Disposal
Facilities

Figure 2.1 An Abbreviated RCRA Framework.

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1. Waste Identification

The RCRA-based definition of hazardous waste was discussed in the prior

chapter. In order to encourage recycling of some common wastes, EPA has defined a
special category - "Universal Wastes." Initially three types of wastes were included:
thermostats containing mercury, some batteries and some unused or recalled pesticides.
A fourth waste stream, lamps containing mercury and lead, has since been added and a
fifth, mercury-containing equipment, has been proposed. Requirements imposed upon
generators, transporters and TSDFs are less stringent when dealing with Universal
Wastes than would otherwise be the case.
2. Generator Identification and Requirements

Generators are divided into classes depending upon the rate at which wastes are
produced. Generators producing more than 1000 kg/mo of hazardous waste (or 100 kg/
mo of acutely hazardous waste [most P list wastes plus F020-F023, F026, F027]) are
designated large quantity generators (LQGs) and are subject to the full range of generator
requirements. Generators of of lesser amounts of waste are designated small quantity
generators (SQG) or conditionally exempt small quantity generators (CESQGs) as
indicated in Table 2.1. Differences in requirements imposed on the classes are delineated
in Table 2.2.

Table 2.1 RCRA Generator Classes

generation rate
generator hazardous acutely acutely hazardous
class waste hazardous waste waste spill material
[kg/mo] [kg/mo] [kg/mo]
LQG ≥ 1000 or ≥1 or ≥ 100
SQG ≥ 100, < 1000 and <1 and < 100
CESQG < 100 and <1 and < 100

3. Transporter Requirements

To ensure "cradle-to-grave" control of hazardous wastes, transporters who collect

wastes from generators and take them to TSDFs are also subject to RCRA provisions.
Basic requirements are shown in Table 2.3.

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Table 2.2 RCRA Generator Requirements

LQG SQG CESQG
Identify wastes and assign waste ID code(s) • • •
Notify EPA of generating activity and receive ID number • •
Initiate manifesting • •
Comply with Dept. of Transportation (DOT) packaging, • •
labeling, and placarding rules
Transfer wastes to RCRA C permitted TSDFs or recyclers • •
only
Transfer wastes to RCRA C permitted TSDFs, recyclers •
or RCRA D landfills
File biennial report, retain records for three years •
Report exceptions (failure to receive signed copy of 45 60
manifest from TSDF within __ days)
Comply with requirements for storage containers • •
Provide employee training and written contingency plan •
Store no more than __ kg of waste for no more than __ ‡, 90 6000, 1000,
days (or comply with TSDF requirements)* 180* †
‡ no RCRA C waste may be held more than 90 days
*time limit is extended to 270 days if nearest TSDF is more than 200 miles away
†accumulation may not exceed 1000 kg at any time

Table 2.3 RCRA Transporter Requirements

• Notify EPA of activity and receive ID number
• Comply with manifest system
• Deliver only to permitted TSDFs
• Retain copies of manifests signed and dated by generator, transporter, and accepting TSDF
• Report spills to the National Response Center

4. Treatment, Storage and Disposal Facility (TSDF) Requirements

Requirements of RCRA treatment, storage and disposal facilities are outlined in Table
2.4. Submissions required to maintain or acquire a permit for operation of a TSDF are now
very extensive. (When RCRA was first enacted, existing facilities were grandfathered into
the system with minimal documentation. Many of those facilities subsequently closed as
more stringent permit requirements were phased in.) A partial list is presented in Table 2.5.

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Table 2.4 RCRA Treatment, Storage and Disposal Facility (TSDF) Requirements.
• File notices for all hazardous waste activities (storage and treatment ) and receive ID
number
• Obtain appropriate permits
• Initiate corrective action in the event of a release exceeding action level at point of
compliance
• Meet minimum technology requirements

Table 2.5 Partial List of TSDF Permitting Requirements.

• facility description
• waste analysis procedures
• security provisions
• personnel training
• preparedness and prevention measures
• contingency plans and emergency procedures
• record keeping and reporting
• groundwater monitoring
• closure and post-closure plans
• financial assurance
• technical descriptions of storage, treatment and disposal facilities

Provisions of HSWA require Corrective Actions (CAs) at RCRA permitted

TSDFs. Corrective Actions are triggered by evidence of migration of wastes from the
facility. TSDFs failing to undertake corrective measures can lose their permit, which
might result in transfer from RCRA to CERCLA jurisdiction.

5. Land Ban

The land ban provisions in HSWA stem from the negative consequences of past
land disposal practice (i.e., many Superfund sites are former landfills). To avoid
repetition of past mistakes, Congress decided to severely restrict land disposal options
(including landfills, surface impoundments, waste piles, injection wells, underground salt
domes or beds, mines or caves, or concrete vaults or bunkers). In initial form, this was
manifest in land disposal restrictions (LDR) sequentially banning portions of the overall
waste stream (the first, second and third "thirds"). Impacted wastes could not be land
disposed without prior treatment by a specified method (Best Demonstrated and
Available Technology or BDAT). Under this regime, wastes from different sources, but

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containing the same hazardous constituents, might be treated differently. In 1994 EPA
supplemented the BDAT requirements with Universal Treatment Standards (UTS) which
are concentration based limits on land disposal of more than 200 specific hazardous
constituents (based on predicted treatment efficiency). Recently EPA has proposed
extending UTS coverage to characteristic wastes (US EPA, 1995b) which were
previously free from LDR if treated to remove the characteristic for which they were
listed.

6. Underground Storage Tanks (USTS)

The Federal program for management of underground storage tanks is found in

Subtitle I of RCRA (Table 2.6). The federal regulations apply to all UST systems
containing regulated substances with at least 10% volume underground, except
noncommercial motor fuel tanks less than 1100 gallons, oil storage tanks for on-site
heating, basement storage tanks on or above the floor, septic tanks, surface
impoundments, systems for collecting wastewater and stormwater, and flow-through
process tanks, (and a few other less important categories). Regulated substances include
petroleum and CERCLA hazardous substances (described further below) except RCRA
hazardous wastes. (Tanks containing RCRA hazardous wastes are Subtitle C TSDFs.)
About 1.2 million USTs are currently registered (US EPA, 1995f). Roughly 90% of
these contain a petroleum product. More than 300,000 UST leaks have been reported.

B. CERCLA

The Comprehensive Environmental Response, Compensation and Liability Act

(CERCLA) of 1980 was the second major federal hazardous waste law enacted in the U.S.
CERCLA revised the National Contingency Plan (NCP) which originated in the Federal
Water Pollution Control Act (FWPCA) and covered oil and chemical spills in waterways.
The NCP allocates authority and provides a cleanup management protocol. CERCLA
also established the National Priority List (NPL) of waste sites requiring cleanup and
eligible for federal funding. Inclusion on the NPL requires a minimum score in the
Hazard Ranking System (HRS) except for one site in each state designated a top priority
by that state.

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Table 2.6 RCRA Subtitle I Requirements.

——————————————————————————————
• Registration of regulated tanks with state.

• Notification (to state) of suspected release exceeding Reportable

Quantities (RQ), action plan, and closure. RQ:

Petroleum - 25 gallons or an amount causing a sheen on surface

water

Other substances - any amount if below ground, or the CERCLA RQ

if above ground or to surface water.

• Operating and technical requirements: proper installation, compatible

materials, leak detection (methods and frequency specified), corrosion
protection, spill and overfill prevention, secondary containment for
hazardous substance tanks, record keeping.

• Demonstration of financial responsibility: for owner or operator, $0.5-

1.0 million per occurrence.

• Closure: Temporary or permanent; In-place or by removal.

——————————————————————————————

CERCLA established: 1) a cleanup fund (Superfund) of $1.6 billion raised from

taxes on crude oil, petroleum products, and feedstock chemicals to be used on NPL sites
only; and 2) a post-closure fund (Post Closure Liability Trust Fund) raised from a
$2.13/dry ton tax on materials transported to RCRA-permitted disposal sites. The latter
is applicable to interim or permanent RCRA facilities, although it was enacted under
CERCLA.

CERCLA defines hazardous substances compiled from lists established under

RCRA, the Clean Water Act (CWA), and the Clean air Act (CAA). EPA discretion in
including additional compounds regulated under the Toxic Substances Control Act
(TSCA) is also allowed. CERCLA requires reporting of releases of hazardous substances
except as permitted under RCRA, the National Pollutant Discharge Elimination System
(NPDES) (CWA), CAA, or Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
to the National Response Center (NRC). The act establishes reportable quantities (RQs)
of 1, 10, 100, 1000, and 5000 pounds based on compound properties.

CERCLA gives EPA authority to: 1) clean up an NPL site, or 2) order abatement
by responsible parties, and 3) recover costs up to three times actual expenses. The act
also sets penalties (fine & imprisonment) for failure to report releases and liability limits
for accidents. In the event of willful misconduct or failure to cooperate, liablity limits
may be removed. Strict liability (fault need not be shown) for cost of removal, cost of
response, and damages and injury is established by the statute. Joint and several liability

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(each contributing party can be held liable for the whole site) has been established by
subsequent case law. Standard exemptions are: 1) acts of God, 2) acts of war, 3) acts by
third party if due care was exercised and precautions taken. Under the original provisions
of CERCLA, potentially responsible parties (PRPs) include 1) the current owner or
operator of a site containing hazardous substances, 2) persons who owned or operated the
site at the time of hazardous substances were disposed, 3) any person who arranged for
treatment, storage, or disposal of hazardous substances at the site, 4) any generator who
produced hazardous substances disposed at the site, and 5) any transporter who hauled
hazardous substances to the site.

The liability provisions of CERCLA have long been a source of controversy.

Joint and several liability exposes minor contributors to what are potentially very large
costs, and imposition of liability for actions that were legal at the time they were
conducted raises questions regarding the constitutional prohibition on ex post facto laws.
However, because that constutional protection concerns criminal liability and CERCLA
imposes only civil liability, challenges to CERCLA on ex post facto grounds have failed
in court (Friedland and Hagen, 1992). Retroactivity was upheld in a 1996 decision by the
11th Circuit Court of Appeals in United States vs. Olin Corp.

In 1986 CERCLA was amended by the Superfund Amendments and

Reauthorization Act (SARA). SARA expanded Superfund by $8.5 billion (an amount
intended to cover expenses through September 1991). The additional funds were to be
raised from taxes on petroleum and listed feedstocks, and income of corporations with
greater than $2 million in annual revenues. SARA also established a Leaking
Underground Storage Tank Trust Fund of $0.5 billion from motor fuel taxes. Superfund
was reauthorized a year early in 1990 and the trust fund was increased by $5.1 billion
(elevating cumulative authorization to $15.2 billion). Although current authorization
expired September 30, 1994, funding was continued so that cleanup would not cease if
reauthorization was delayed (as it has been).

Other key features of SARA include: Title III, a component of sufficient weight to
be referred to alone as the Emergency Planning & Community Right-to-Know Act
(EPCRA); a charge to the Agency for Toxic Substances and Disease Registry (ATSDR)
(a branch of the Centers for Disease Control (CDC)) to conduct site health assessments
(within one year of a site's addition to the NPL) and development of a priority list of
substances and toxicological profiles; requirement that the HRS be reevaluated (in view
of a goal of 1600-2000 listed sites by 1988); cleanup criteria; a requirement that each
state prepare a Capacity Assurance Plan (CAP) reagrding disposal facilities; and changes
in settlement provisions. The latter point refers to provision for 1) natural resouces
damages to be determined by designated trustees with corresponding limits on any
Superfund contribution; 2) de minimis settlements allowing minor contributors or
landowner PRPs to settle unilaterally if they a) did not conduct or permit a release, b) did
not contribute by act or omission, or c) did not purchase the land with knowledge of
contamination; and 3)

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expansion of recoverable (EPA) costs to include health assessments, negotiation of Non-

Binding Allocations of Responsibility (NBARs), enforcement, indemnification of
contractors, and interest on incurred costs.

The free-standing SARA Title III provisions (aka EPCRA) were inspired by the
1984 release of methyl isocyanate (MIC) in Bhopal, India that left almost 3000 dead.
Emergency planning provisions included establishment of State Emergency Response
Committees (SERCs) to be designated by each Governor (by April 1987) and formation
of Local Emergency Planning Districts (LEPDs) to be designated by the SERCs (by July
1987). Regulated facilities must designate representatives to serve on the LEPDs and
must have Emergency Response Plans in place (since October, 1988).

Emergency Notification requirements apply to firms with 10 or more full time

employees using greater than threshold amounts of chemicals from what is termed the
Extremely Hazardous Substance List (approximately 400 compounds). A release of more
than the RQ (1 pound unless otherwise designated) requires reporting to local
governments (LEPD) and follow-up notice regarding mitigation.

Under the Community Right-to-Know provisions of SARA Title III, regulated

facilities are required to have Occupational Safety and Health Administration (OSHA)
Material Safety Data Sheets (MSDSs) on hand, must submit a chemical inventory and
corresponding MSDSs to the LEPD, SERC, and local fire department, and must maintain
an emissions inventory. The latter requirement currently entails reporting of routine
releases of about 330 listed chemicals or chemical classes. These data are used to
compile the Toxics Release Inventory (TRI) which was introduced in Chapter 1.
Addition of 313 chemicals was proposed in early 1994 (Hanson, 1994). The actual
number added in the final rule published in November of 1994 was 286. Opponents of
the additional reporting requirements have attempted to overturn the decision to expand
TRI via legislative and judicial avenues, but have been unsuccessful. A claim that EPA
exceeded its authority in expanding the reportable chemical list was rejected by a U.S.
district court in April 1996. EPA is currently proposing to expand TRI in two other
ways: by extending reporting requirements to additional industries and by increasing the
amount of data required. The latter move involves a so-called "materials accounting"
approach. Industries would be required to report data sufficient to compute a mass
balance on their facilities, rather than just release and transfer data.

C. NATIONAL PRIORITY LIST

The process by which an abandoned or uncontrolled hazardous waste site

becomes a Superfund or NPL site is presented schematically in Figure 2.2. The key to
inclusion in or exclusion from the NPL is the score the site produces in the Hazard
Ranking System (aka Mitre model). Originally a cutoff value of 28.5 was adopted to
yield about 400 sites, a number EPA felt it could manage. Subsequently the 28.5 value
became entrenched even though it has no explicit toxicological or risk-based foundation.

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The original HRS included quasi-quantitative ranking of risks associated with: 1)

Migration (via air, groundwater, or surface water), 2) Fire and Explosion, and 3) Direct
Contact. Only Migration scores were used for NPL ranking. The five components of
Migration pathway scoring involve: 1) the presence or absence of an observed release, 2)
characteristics of the migration route that would hinder or facilitate migration, 3) the
degree of containment present, 4) waste characteristics including toxicity and persistence,
and 5) targets (populations or resources in close proximity). Some of the changes
incorporated in the revised HRS (US EPA,1990d) are outlined in Table 2.7.

Application of the HRS has led to listing of nearly 1500 sites on the NPL. The
Comprehensive Environmental Response, Compensation, and Liability Information
System (CERCLIS) is the complete inventory of sites that have been reported for
evaluation. As of mid 2002, CERCLIS contained over 11,000 sites still being evaluated.

In response to criticism that the cleanup process is proceeding too slowly, EPA is
emphasizing partial cleanup activities (removal actions which have occurred at many
sites) and substituting “construction completions” for remediation completions.
Complete remediation of a site is a drawn-out process that may take a decade or more.
Demonstration of progress is quite difficult if that metric is adopted. Figure 2.3 is a
schematic of the process by which a Superfund site is remediated. EPA has also adopted
a procedure by which a site can be deleted from the NPL by deferral to the RCRA
Corrective Action program (US EPA, 1995c). In addition, recently EPA moved to
greatly reduce the number of active CERCLIS sites by deleting "No Further Response
Action Planned" or NFRAP sites (US EPA, 1995d). As a result, over 30,000 sites have
been moved from active to archived status in CERCLIS. This action stems primarily
from concerns regarding real estate transactions.

Table 2.7 Some Post-SARA Revisions to the Hazard Ranking System (US EPA, 1990d).

• Addition of measures of mobility and bioaccumulation to waste characteristics scoring.

The latter reflects food chain concerns.
• Addition of potential (vs. observed) release to migration route scoring.

• Addition of a so-called "maximally exposed individual" (MEI) to the target list. The
previous version was insensitive to large exposures to small populations.
• Addition of fishery use to surface water targets (again reflecting food chain concerns).
• Addition of ecosystem toxicity to waste characteristics in surface water pathway.

• Replacement of Direct Contact by an Onsite Exposure Pathway that is included in the

HRS score (and includes nearby population threats).

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Site Discovery

Removal Action

Preliminary
Assessment (PA)

No federal action
required Site Inspection

Hazard Ranking
System Scoring

National Priority
List

Figure 2.2 The CERCLA Site Listing Process

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NPL

Remedial Feasibility Study

Investigation (RI) (FS)

Remedy Selection/
Record of Decision

Remedial
Design

Remedial Action

Closure

Post Closure

Figure 2.3 The CERCLA site cleanup process.

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Tables 2.10-2.13 provide some historical perspective on NPL sites. Tables 2.10-
2.12 present data display the ten sites that had scored highest (as of August 1990) on the
HRS nationwide, the three highest in Washington State, and some additional well
publicized sites. Ranks on the NPL reflect HRS scores. The HRS is a crude method at
best, and notoriety and high scores do not appear well correlated. Perhaps in response to
this observation, EPA has stopped assigning ranks to individual sites. Sites are now
ranked in groups of 50.

Table 2.10 National Priority List Top Ten as of August 1990

(US EPA, 1990b).
———————————————————————————
1. Lipari Landfill NJ
2. Tybouts Corner Landfill DE
3. Bruin Lagoon PA
4. Helen Kramer Landfill NJ
5. Industri-Plex MA
6. Price Landfill NJ
7. Pollution Abatement Services NY
8. La Bounty Site IA
9. Army Creek Landfill DE
10. CPS Madison Industries NJ
———————————————————————————

Table 2.11 Top Washington State NPL Sites as of August 1990

(US EPA, 1990b).
———————————————————————————
49. Western Processing Kent
62. Frontier Hard Chrome Vancouver
71. ALCOA Vancouver
———————————————————————————

Table 2.12 Ranking of Some Notorious NPL Sites as of August

1990 (US EPA, 1990b).
———————————————————————————
32. Stringfellow CA
96. A.L.Taylor (Valley of the Drums) KY
118. Aerojet General CA
158. Love Canal NY
177. Hooker NY
245. Velsicol (Hardeman Co.) TN
348. Syntex (Verona) MO
492. Times Beach Site MO
———————————————————————————

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Activities that had lead to NPL listing as of 1990 are delineated in Table 2.13.
Interestingly about 20 percent of NPL sites were former municipal landfills. This has
significant ramifications with respect to liability. Also dispersed among the activities in
Table 2.13 are several that could be considered “recycling.” Past recycling practices
often fell short of ideal.

D. ORGANIZATION OF THE FEDERAL CODE

Federal statutes are recorded in the U.S. Code. Technically, the terms RCRA and
CERCLA refer to acts of Congress found there. Implementation of statutes is assigned to
executive branch agencies such as EPA and takes the form of regulations found in the Code of
Federal Regulations (CFR). The regulations that are derived from RCRA and CERCLA as
amended are found in Title 40 of the CFR. Chapter I (Roman numeral one) of 40 CFR is
devoted to environmental protection. Hazardous waste provisions are found primarily in
subchapters I and J. Subpart titles are shown in Table 2.16. Federal regulations dealing with
underground injection of hazardous wastes, which stem from amendments to the Safe Drinking
Water Act rather than RCRA or CERCLA, are found in subchapter D.

Promulgation of rules by executive branch agencies entails a series of steps in

which rules are proposed, commented upon by affected parties, and then finalized.
Proposed and final rules (with agency responses to public comments) are published in the
Federal Register. Access to the Federal Register and the CFR via the internet is possible
(see the course supplement at <http://depts.washington.edu/~jkspage/envh446.html>).

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Table 2.13 Types of Activities at 1207 Final and Proposed Sites Ordered by Frequency
of Occurrence in Total NPL as of August 1990 (USEPA, 1990b).
Activity Final Sites Proposed Total
Sites
Surface impoundments 437 6 443
Landfills, commercial/industrial 419 0 419
Containers/drums 301 1 303
Other manufacturing/industrial 233 2 235
Landfills, municipal 230 1 231
Spills 196 1 197
Chemical processing/manufacturing 168 4 172
Waste piles 116 4 120
Leaking containers 116 1 117
Tanks above ground 111 1 112
Tanks below ground 78 3 81
Ground water plumes 71 7 78
Electroplating 69 0 69
Military testing & maintenance 62 0 62
Wood-preserving 55 1 56
Open burning 54 0 54
Waste-oil processing† 47 2 49
Ore processing/refining/smelting 45 2 47
Military ordnance prod./stor./disp. 40 0 40
Outfall, surface water 36 2 38
Solvent recovery† 34 0 34
Landfarm, land treatment/spreading 33 0 33
Battery recycling† 25 0 25
Incinerator 19 0 19
Mining sites, surface 17 0 17
Drum recycling† 14 0 14
Underground injection 13 0 13
Sand and gravel pits 11 0 11
Road oiling 9 1 10
Mining sites, subsurface 9 1 10
Explosive disposal/detonation 10 0 10
Laundries/drycleaners 9 0 9
Sinkholes 7 0 7
Tire storage/recycling† 2 0 2
——— ——— ———
Total Sites* 1187 20 1207
* Since each site may have more than one activity, the number of activities is greater than
the number of sites; †Ostensible recycling activity.

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Table 2.16 Excerpt from index to Title 40 of the CFR - Protection of the Environment
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
CHAPTER I-ENVIRONMENTAL PROTECTION AGENCY

SUBCHAPTER D - WATER PROGRAMS

PART 144 - Underground injection control program
PART 145 - State UIC program requirements
PART 146 - Underground injection control program: criteria and standards
PART 147 - State underground injection control programs
PART 148 - Hazardous waste injection restrictions

SUBCHAPTER I - SOLID WASTES

PART 260 - Hazardous waste management system: General
PART 261 - Identification and listing of hazardous waste
PART 262 - Standards applicable to generators of hazardous waste
PART 263 - Standards applicable to transporters of hazardous waste
PART 264 - Standards for owners and operators of hazardous waste treatment, storage, and disposal
facilities
PART 265 - Interim status standards for owners and operators of hazardous waste treatment, storage, and
disposal facilities
PART 266 - Standards for the management of specific hazardous wastes and specific types of hazardous
waste management facilities
PART 268 - Land disposal restrictions
PART 270 - EPA administered permit programs: The Hazardous Waste Permit Program
PART 271 - Requirements for authorization of State hazardous waste programs
PART 272 - Approved State hazardous waste management programs
PART 273 - Standards for universal waste management
PART 279 - Standards for the management of used oil
PART 280 - Technical standards and corrective action requirements for owners and operators of
underground storage tanks (UST)
PART 281 - Approval of state underground storage tank programs
PART 282 - Approved underground storage tank programs

SUBCHAPTER J - SUPERFUND, EMERGENCY PLANNING, AND COMMUNITY RIGHT-TO-KNOW

PROGRAMS
PART 300 - National Oil and Hazardous Substances Pollution Contingency Plan
PART 302 - Designation, reportable quantities, and notification
PART 303 - Citizen awards for information on criminal violations under superfund
PART 305 - Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
administrative hearing procedures for claims against the Superfund
PART 307 - Comprehensive environmental response, compensation, and liability act (CERCLA) claims
procedures
PART 310 - Reimbursement to local governments for emergency response to hazardous substance releases
PART 311 - Worker protection
PART 350 - Trade secrecy claims for emergency planning and community right-to-know information: and
trade secret disclosures to health professionals
PART 355 - Emergency planning and notification
PART 370 - Hazardous chemical reporting: Community right-to-know
PART 372 - Toxic chemical release reporting: Community right-to-know
PART 373 - Reporting hazardous substance activity when selling or transferring Federal real property
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

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E. WASHINGTON STATE REGULATIONS

In Washington State, statutes are codified as the Revised Code of Washington

(RCW) and regulations are found in the Washington Adminstrative Code (WAC). The
Dangerous Waste Regulations, Chapter 173-303 of the Washington Admistrative Code
(WAC), correspond to the federal regulations implementing RCRA and the Model Toxics
Control Act (MTCA) of 1990, Chapter 173-340 WAC, corresponds to regulations
promulgated under CERCLA. Excerpts from the Indexes of the RCW and the WAC are
presented in Tables 2.17 and 2.18, respectively.

Table 2.17 Index to selected chapters of Title 70 of the Revised Code of Washington
(RCW) - Public Health And Safety
Ch. 70.93 RCW Model Litter Control
Ch. 70.95 RCW Solid Waste Management Reduction and Recycle
Ch. 70.95C RCW Waste Reduction
Ch. 70.95D RCW Solid Waste Incinerator
Ch. 70.95E RCW Hazardous Waste Fees
Ch. 70.95G RCW Packages Containing Metals
Ch. 70.95H RCW Clean Washington Center
Ch. 70.95I RCW Used Oil Recycling
Ch. 70.95J RCW Municipal Sewage Sludge – Biosolids
Ch. 70.95K RCW Biomedical waste
Ch. 70.98 RCW Nuclear Energy and Radiation
Ch. 70.99 RCW Radioactive waste storage and transportation act of 1980
Ch. 70.102 RCW Hazardous Substance Information
Ch. 70.104 RCW Pesticides - Health Hazards
Ch. 70.105 RCW Hazardous Waste Management
Ch. 70.105A RCW Hazardous Waste Fees
Ch. 70.105D RCW Hazardous Waste Cleanup Model Toxic Control Act
Ch. 70.118 RCW On-Site Sewage Disposal Systems
Ch. 70.121 RCW Mill tailings--Licensing and perpetual care
Ch. 70.136 RCW Hazardous Materials Incidents
Ch. 70.138 RCW Incinerator Ash Residue
Ch. 70.142 RCW Chemical contaminants and water quality
Ch. 70.148 RCW Underground Petroleum Storage Tanks
Ch. 70.149 RCW Heating oil pollution liability protection act

MTCA was promulgated through the initiative process rather than legislative
action. Some differences in MTCA and CERCLA terminology are presented in Table
2.16. The state has adopted its own priority system, the Washington Ranking Method
(WARM). Sites evaluated under WARM are given a priority ranking between 1 (most
serious) and 5 (least serious). Some additional structural differences are listed in Table
2.17.

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Table 2.18 Index to selected chapters of the Washington Administrative Code (WAC)
dealing with solid, hazardous, and radioactive waste
Ch. 173-32 WAC Allocation of Financial Aid to Counties and Cities - Solid (09-04-90)
Waste Management
Ch. 173-44 WAC Radioactive Waste (08-30-83)
Ch. 173-300 WAC Certification of Operators of Solid Waste Incinerator and (06-04-91)
Landfill Facilities
Ch. 173-303 WAC Dangerous Waste Regulations (10-19-95)
Ch. 173-304 WAC Minimum Functional Standards for Solid Waste Handling (10-04-88)
Ch. 173-305 WAC Hazardous Waste Fee Regulation (05-05-92)
Ch. 173-306 WAC Special Incinerator Ash Management Standards (04-30-90)
Ch. 173-307 WAC Pollution Prevention Plans (10-01-91)
Ch. 173-311 WAC Moderate Risk Waste Grants (09-04-90)
Ch. 173-312 WAC Coordinated Prevention Grants (05-21-91)
Ch. 173-313 WAC Local Solid Waste Enforcement Grants (09-07-89)
Ch. 173-314 WAC Waste Tire Carrier and Storage Site Licenses (01-13-89)
Ch. 173-315 WAC Model Toxic Control Act - Local Toxic Control Accounting (09-04-90)
Interim Financial Assistance Program
Ch. 173-318 WAC Establishment of Phase One - Waste Reduction and (09-05-89)
Recycling Grants Program
Ch. 173-319 WAC Comprehensive Waste Reduction/Recycling Grants Program (11-06-90)
Ch. 173-321 WAC Public Participation Grants (09-04-90)
Ch. 173-322 WAC Remedial Action Grants (11-22-93)
Ch. 173-325 WAC Low Level Radioactive Waste Disposal (07-07-86)
Ch. 173-326 WAC Site Use Permits for Low Level Radioactive Waste Disposal (11-30-92)
Ch. 173-328 WAC Mixed Waste Management Fee (05-05-93)
Ch. 173-340 WAC Model Toxics Control Act (MTCA) Cleanup Regulation (01-26-96)
Ch. 173-342 WAC Additional Taxable Hazardous Substance List (01-09-90)
Ch. 173-351 WAC Criteria for Municipal Solid Waste Landfills (10-08-93)
Ch. 173-360 WAC Underground Storage Tanks (02-01-95)

Table 2.19 Corresponding CERCLA & MTCA Terminology.

CERCLA MTCA
Potentially Responsible Parties Potentially Liable Person
National Priority List Hazardous Sites List
Preliminary Assessment/Site Investigation Site Hazard Assessment
Removal Action Interim Action
Record of Decision Draft and Final Cleanup Action Plan

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Table 2.20 Some Differences between CERCLA and MTCA.

CERCLA MTCA
NEPA/SEPA NEPA exemption SEPA compliance required
Reporting Reportable quantities No minimum. Best
professional judgement
Immediate 90 days*
Civil and criminal penalties No penalties
for failure to report.
Scope Petroleum excluded Petroleum included
Site evaluation HRS WARM (WA Ranking Method)
* Dangerous Waste releases, UST releases must be reported withing 24 hours

F. REGULATORY SCOPE

1. Regulated Chemicals/Materials

Numerous lists or classes of regulated materials and wastes have been cited in the
preceding pages. Table 2.21 represents a summary of those groups.

2. Regulated Community

Rough numbers of regulated parties under various provisions of the federal

hazardous waste rules are presented in Table 2.22.

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Table 2.21 Summary of numbers of substances regulated under the primary hazardous
waste-related statutes
statute designation code number of application
itemsa
RCRA §261 non-specific F 28b generator identification
source wastes
" specific K 111b generator identification
source wastes
" discarded P 107b generator identification, CAd trigger
chemicalsc
" discarded U 248b generator identification, CA trigger
chemicals
" characteristic D 42b generator identification, CA trigger
wastes
" hazardous App. ≈ 500 CA trigger
constituents VIII
CERCLA hazardous 922b spill reporting
substances
SARA §110 275b targets for ATSDR investigation
SARA §302(A) extremely 361b chemical emergency preparedness
hazardous
substances
SARA §313 ≈ 600e identification of TRI reporters
a subject to periodic revision, numbers are provided for perspective and should be
considered approximate; b Miller,1993; cacutely hazardous; dCorrective Action; eEPA,
1998.

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Table 2.22 Summary of regulated entities

statute designation number source
RCRA C LQGs ≈ 24,000 US EPA, 1995e
SQGs ≈ 175,000 US EPA, 1985
CESQGs ≈ 500,000 ICF, 1994
current TSDFs ≈ 2600 US EPA, 1995e
total TSDFs w/ CAs ≈ 2500 US EPA, 1993b
RCRA I USTs ≈1,200,000 US EPA, 1995f
UST leaks to date ≈ 300,000 "
CERCLA active CERCLIS sites 10,411 Reisch, 1999
archived CERCLIS sites 31,463 "
total NPL sites 1411 "
current NPL sites 1226 "
construction completions 608 "
SARA §313 form R reporters ≈ 22,000 US EPA, 1998
form R reports ≈ 71,000 "

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3. RCRA & CERCLA Remedial Processes

Provisions of HSWA require Corrective Actions (CAs) at RCRA permitted

TSDFs. As is the case with NPL site remediation, the pace of CAs has been criticized.
This is due in part to large differences among the states with respect to oversight (GAO,
1992). Only a small fraction of TSDFs choosing to close rather than comply with
increasingly stringent operating requirements had fulfilled requirements with respect to
closure (Table 2.23) at the time of the GAO review. EPA (1993b) estimated that 1500-
3500 RCRA facilities would require CA. A schematic of the RCRA CA process is
presented in Figure 2.4. A comparison of RCRA and CERCLA cleanups is presented in
Table 2.24.

Table 2.23 RCRA Interim and Final TSDFs (GAO, 1991).

——————————————————————————————
Total Closing Closure
Certified
—————————————————

Land Disposal1447 1128 337

Incinerators 202 39 N/A
Treatment/Storage
2812 1115 N/A
——— ———
4615 2282
——————————————————————————————

Table 2.24 Partial Comparison of Features of CERCLA and RCRA Cleanups.

CERCLA RCRA
Applicability RCRA and non-RCRA facilities RCRA interim status and
permitted facilities
Priority system HRS & NPL None
Lead EPA, DOE, DOD or state Owner/operator
Liability Broadly defined Current owner/operator
Constituents Hazardous substances Hazardous wastes and
constituents
Trigger HRS or state or federal judgment Action level exceedance
Health Assessment ATSDR Owner/operator
Natural Resource Trustee Owner/operator
Damage
Assessment
Cost Recovery Extensive provisions Limited provisions

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RCRA facility
assessment
(RFA)

RCRA facility
investigation
(RFI)

Interim measures may

occur at any point
Corrective
measures study
(CMS)

Corrective
measures
implementation
(CMI)

Figure 2.4 RCRA Corrective Action Process

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4. Cleanup goals

a. CERCLA Remedial Actions

Cleanup requirements under CERCLA are summarized in Table 2.25. In practice

the result (when targets are computed) is dependent upon: 1) Applicable or Relevant and
Appropriate Requirements (ARARs), or 2) standards derived from a site-specific risk
assessment. ARARs may be Safe Drinking Water Act (SDWA) Maximum Contaminant
Levels (MCLs) or Recommended Maximum Contaminant Levels (RMCLs); CWA
Ambient Water Quality Criteria (AWQC); CAA National Ambient Air Quality Standards
(NAAQS); or state criteria.

Table 2.25 Cleanup Requirements under CERCLA.

——————————————————————————————
Threshold criteria
1. Overall protection of human health and the environment
2. Compliance with ARARs

Balancing Criteria
3. Long-term effectiveness and permanence
4. Reduction of toxicity, mobility or volume through treatment
5. Short-term effectiveness
6. Implementability
7. Cost

Modifying Criteria
8. State acceptance
9. Community acceptance
——————————————————————————————

b. RCRA Corrective Actions

Proposed CA cleanup standards (US EPA, 1990a) have not yet been finalized
even though the final rule was due in 1993. Basic criteria are given in Table 2.26.
Resulting standards apply to 1) cleanup of Solid Waste Management Units (SWMUs)
(historical units at currently permitted TSDFs that may or may not have been designed
for handling hazardous wastes, but that present a threat of release), and 2) closure of
currently permitted units. Media Protection Standards, which are risk-based numerical
limits, apply to SWMU remediation. Closure of current units may be 1) Clean Closure
(cleanup to background levels or Practicably Quantifiable Limits (PQL), aka "edible dirt,
drinkable leachate"), or 2) Closure-in-Place (cleanup sufficient to prevent exceedance of
Maximum Concentration Limits (MCLs) or Alternative Concentration Limits (ACLs) at
point of compliance).

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Table 2.26 RCRA CA Cleanup Criteria.

——————————————————————————————
Goals

• To the extent practicable eliminate releases that pose threats to

human health and the environment.
• To cleanup contaminated material to a level consistent with
reasonably expected uses.

General Standards for Remedies

• Be protective of human health and the environment.

• Attain specified media cleanup standards.
• Control sources to reduce or eliminate to the extent practicable
further releases.
• Comply with RCRA waste waste management standards.

Remedy Selection Decision Factors

• Long-term reliability and effectiveness

• Reduction of toxicity, mobility, or volume of waste
• Short-term effectiveness
• Implementability
• Cost.
——————————————————————————————

c. MTCA (WA DOE, 1991)

Under MTCA, the state of Washington has established standards for cleanup of
groundwater (Washington Administrative Code (WAC) 173-340-720); surface water
(WAC 173-340-730); soil (WAC 173-340-740); industrial soil (WAC 173-340-745);
cleanup impacted air (WAC 173-340-750); and sediment (WAC 173-340-760). In each
case the cleanup targets may be derived by one of three methods: Method A - tabulated
default values; Method B - values calculated using a standard risk assessment protocol; or
Method C - values calculated from a site specific risk assessment. As an example,
MTCA soil cleanup levels are presented in Table 2.27. Cleanup of sites containing
compounds for which no Method A level is available must employ Method B or C.

d. USTs

According to RCRA Subtitle I, a corrrective action plan must "provide adequate

protection of human health, safety, and the environment" considering 1) the physical and
chemical properties of the regulated substance, 2) the hydrogeologic characteristics of the
facility and surrounding land, 3) the proximity, quality, and present and future uses of
groundwater, 4) an exposure assessment, and 5) the proximity, quality and current and

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future uses of surface waters. Most states have established cleanup standards for Total
Petroleum Hydrocarbons (TPH) (typically 10-1000 ppm) and may have additional
standards for BTEX (benzene, toluene, ethylbenzene, and xylenes) or other compounds
(Liptak and Lombardo, 1994). In Washington State, MTCA Method A soil standards
(Table 2.27) apply to UST cleanups.

Table 2.27 Model Toxics Control Act Method A Cleanup Levels for Soil and
Industrial Soil (WADOE, 1993b)

Hazardous Substance Soil Industrial Soil

Cleanup Level Cleanup Level
[mg/kg] [mg/kg]

Arsenic 20.0 200.0

Benzene 0.5 0.5
Cadmium 2.0 10.0
Chromium 100.0 500.0
DDT 1.0 5.0
Ethylbenzene 20.0 20.0
Ethylene dibromide 0.001 0.001
Lead 250.0 1000.0
Lindane 1.0 20.0
Methylene chloride 0.5 0.5
Mercury (inorganice) 1.0 1.0
PAHs (carcinogenic) 1.0 20.0
PCB Mixtures 1.0 10.0
Tetrachloroethylene 0.5 0.5
Toluene 40.0 40.0
TPH (gasoline) 100.0 100.0
TPH (diesel) 200.0 200.0
TPH (other) 200.0 200.0
1,1,1 Trichloroethane 20.0 20.0
Trichloroethylene 0.5 0.5
Xylenes 20.0 20.0

G. OTHER ISSUES

The scale and cost of, and issues addressed by, the Superfund program are such
that it is highly visible and a frequent target of critical evaluation. A large number of
internal and external reviews of various aspects of Superfund in particular or of federal
hazardous waste management policies in general have been conducted. This reflects the

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level of dissatisfaction with current and past policies and the financial stakes involved.
Reauthorization of Superfund has been delayed by disagreement over the direction
modifications will take. Briefing papers produced annually by the Congressional
Research Service are a good source of information on the key issues. (See the electronic
supplement for a link.) Recent assessments of the adequacy of Superfund and other
hazardous waste programs typically focus on current shortcomings. A useful perspective
on historical practices and the events that lead to the current regulatory structure has been
provided by Colten and Skinner (1996).

1. Import/Export

a. Interstate Transport

Importing of wastes triggers the "not-in-my-backyard" (NIMBY) response. Some

states (Alabama, South Carolina) have attempted outright bans on import of hazardous
waste from other states. Such bans were ruled to be barriers to interstate commerce by
U.S. Supreme Court in June, 1990. Many states have since instituted taxes on hazardous
wastes disposed within their borders. An Alabama law imposing $72/ton surtax on
disposal of waste shipments originating out-of-state was upheld by the Alabama Supreme
Court in 1991, but invalidated by the U.S. Supreme Court in 1992 on "restraint of trade"
grounds. Legal maneuvering on this issue continues.

b. International Transport

The export of hazardous wastes is a politically charged topic. Anecdotal case

histories involving dumping of first world wastes in third world countries have been
featured prominently in the news media. Some attributes of appropriate locations
hazardous waste repositories are presented in Table 2.28. Some third world countries
have geographical features that are potentially well-suited to waste disposal. However,
the absence of appropriate technical resources and/or socio-political structures make use
of such sites problematical.

Concern over the international waste trade lead to The Basel Convention on the
Control of Transboundary Movements of Hazardous Wastes and Their Disposal, which
by March 22, 1990 had been signed by 52 countries (including the U.S.). A smaller
number of countries has ratified the agreement. Some of the provisions of the Basel
Convention are presented in Table 2.29. Amendments continue to be negotiated. Some
countries have agreed to outright bans on exports of some materials.

The U.S. Senate has ratified the Basel convention, but has not yet passed
implementing legislation. Recently the Clinton administration has proposed that the
implementing legislation include provisions that would largely ban export of hazardous
wastes to countries outside of North America (Hanson, 1994). Until some form of that
legislation is passed, exports from the U.S. are regulated under RCRA. Current RCRA
provisions include limitation of exports to countries with which bilateral or multilateral

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agreements have been reached and requirements for prior notification and consent of
receiving countries' governments.

Legal exports of hazardous waste from the U.S. amounted to about 150,000 tons
in 1988 (Murphy, 1993). Although there is some question regarding the accuracy of the
accounting (GAO, 1993c), this is less than 0.1% of the waste handled in RCRA Subtitle
C facilites at that time (Table 1.9). Of total exports, 85% were sent to Canada, 8% to
Mexico and the remainder to Europe, Japan, and Brazil.

Table 2.28 Some basic considerations for hazardous waste repositories.

——————————————————————————————
ENVIRONMENTAL

• Arid/impermeable soils; absence of groundwater

• Geological stability (absence of volcanism, earthquakes)
• Low population density in immediate vicinity

TECHNICAL

• Design capability
• Pool of competent labor

SOCIO/POLITICAL

• Political stability
• Accountability (functional judicial system)
• Likelihood of equitable distribution of costs and benefits
——————————————————————————————

Table 2.29 Basic features of the Basel Convention.

——————————————————————————————
• Covers hazardous and "other" (household wastes and their ash) wastes.

• Bans exports to countries lacking appropriate capabilities.

• Requires notification and consent of exporting, transiting and receiving

countries' governments.

• Sets packaging, labeling, and transporting requirements.

——————————————————————————————

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2. Property Transfers

Fear of CERCLA-related liability has altered the way real estate (especially
industrial property) is bought and sold in the U.S. New Jersey's Environmental Cleanup
Responsibility Act (ECRA) of 1983 represents an early attempt to regulate the transfer of
contaminated properties. Because of burdensome requirements and negative trends in
New Jersey's economy that have been attributed in part to ECRA, the act was
substantially modified in 1993 by the Industrial Site Recovery Act (ISRA).

ISRA requirements are triggered by transfer of the property or cessation of

operations. Owner/operator responsibilities include notification (within 5 days) of the
New Jersey Department of Environmental Protection and Energy (DEPE) and provision
of some basic information concerning the transaction and property. In the absence of an
approved Negative Declaration (certification that no release has occurred, or that
remediation is complete), the ISRA regimen then consists of 1) Preliminary Assessment,
2) Site Investigation, 3) Remedial Investigation, and 4) Remedial Action.

Changes from ECRA include: elimination of some triggers such as condemnation

proceedings; elimination of UST requirements that overlapped with other state laws;
inclusion of de minimis provisions; an "historic fill" defense; provision for three soil
cleanup levels (residential, non-residential, and site-specific); relaxation of financial
assurance requirements for voluntary cleanups; and greater leeway for owner/operators to
proceed voluntarily.

Other states have since enacted variations including "affirmative disclosure"

(condition of the property must be revealed) and "super-lien" (state has first lien on
property value if state funds are used in cleanup) laws. The legality of some versions of
these laws is under challenge. Nevertheless, many commercial lenders now require
property inspections before participation in real estate transactions. What constitutes
"clean" is often unclear, but avoidance of CERCLA or state equivalent liability is the
primary concern.

On the national level EPA is responding to the question of indefinite sequestration

of contaminated industrial properties via its Brownfields initiative. The basic premise is
that properties that will remain dedicated to industrial purposes need not be cleaned to
residential standards. A summary of pilot projects can be found on an EPA website
accessible via the class website.

REFERENCES

Colton, C. and P. Skinner. (1996). The Road to Love Canal: Managing Industrial Waste
before EPA. University of Texas Press, Austin.
Friedlander, D., and P. Hagen (1992). "Cleanup Liability and the Constitution," J.
AWMA, 42(12):1614-1616.

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Hanson, D. (1994a). "Toxics Release Inventory: EPA seeks to monitor 313 more
chemicals," Chem. & Engr. News, January 17, pp.4-5.
Hanson, D. (1994b). "U.S. seeks to curtail waste exports," Chem. & Engr. News,
March 7, p.6.
ICF, Inc. (1994). Generation and Management of CESQG waste. US EPA Office of
Solid Waste. Contract no. 68-W3-0008.
Liptak, J., and G. Lombardo. (1994). "States Find Risk Based Guidelines a Sensible
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Miller, S. (1993). "Where do all those lists come from?" Environ. Sci. & Tech.,
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Murphy, S. (1993). "The Basel Convention on Hazardous Wastes," Environment,
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Reisch, M. (1999) Superfund Reauthorization Issues in the 106th Congress.
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U.S. Congress Government Accounting Office (GAO). (1991). Hazardous Waste:
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U.S. Environmental Protection Agency (US EPA). (1993a). National Biennial RCRA
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National Oil and Hazardous Substances Pollution Contingency Plan (NCP);
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