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Melvin E. Keener, Ph.D. Presented at Odense, Denmark Introduction The hazardous waste management system in the United States is governed by several laws, more than 1200 pages of Environmental Protection Agency (EPA) regulations, and numerous guidance and policy documents. In addition, most states have authorized hazardous waste management systems. This paper will describe the primary Federal regulations effecting hazardous waste and how those regulations effect the hazardous waste industry. How Regulations are Developed in the United States The Congress of the United States starts the process by passing laws that gives the Executive Branch (in this case, EPA) general guidance on what regulations to develop. The legislative process is open, giving all interested parties an opportunity to express opinions on the legislation in question. Once the legislation has passed both Houses of Congress, it is signed by the President into law. The primary law covering hazardous waste management is the Resources Conservation and Recovery Act (RCRA). RCRA was enacted in 1976 as an amendment to the Solid Waste Disposal Act. RCRA was significantly amended in 1984 by the Hazardous and Solid Waste Amendments (HSWA), restricting land placement of hazardous wastes, among other changes. An amendment in 1986 added corrective actions to leaking underground storage tanks. The four major programs under RCRA are:
Defining Hazardous Waste The first step in the hazardous waste management system in the United States is determining if a material is a solid waste. EPA defines a solid waste as any solid, liquid, or contained gaseous material that is being discarded by being disposed of, burned or incinerated, or recycled. It can be the product of a manufacturing process, a commercial product used in the process (such as a solvent), or a product that is outdated. Materials that are recycled or burned to recover energy (such as used lubricating oil) may be considered a waste. RCRA specifically excludes certain wastes. These include:
A solid waste that exhibits any of the following properties is considered a hazardous waste due to its corrosivity (40 CFR 261.22):
A solid waste that exhibits any of the following properties is considered hazardous due to its reactivity (40 CFR 261.23):
The toxicity characteristic is based on the Toxicity Characteristic Leaching Procedure (TCLP) test. This test is designed to simulate leaching action that can occur in landfills. The extract of this procedure is tested to determine if any of the contaminants are in concentrations greater than listed in Table 1 (40 CFR 261.24). For example, if the extract from a TCLP contained a concentration of arsenic greater than 5.0 mg/l, then that waste is hazardous. For this example, this waste would have a D004 waste code. As a matter of policy and in guidance documents, EPA allows the generator the option of using either testing or process knowledge to determine if a waste is hazardous based on characteristics. This allows the generator to declare a particular waste stream as hazardous without the cost of testing. The second way a solid waste can become a hazardous waste is to be included on one of three lists of hazardous waste:
Generator The generator is the first link in the cradle-to-grave chain of hazardous waste management. Subtitle C requires generators to ensure and fully document the hazardous waste they produce is identified and transported to a RCRA treatment, storage, or disposal facility (TSDF). The TSDF can be either on- or off-site. The Subtitle C regulations define "generator" to include any facility owner or operator who first creates a hazardous waste or the person who first makes the waste subject to Subtitle C regulations. Under RCRA, there are three categories of hazardous waste generators:
Large and small quantity generators are subject to the regulations in 40 CFR 262 requiring them to:
Transport Transport (40 CFR 263) is the second link in the cradle-to-grave chain of hazardous waste management. If the facility chooses to transport the hazardous waste to an off-site TSDF for treatment and/or disposal, the generator has to create a manifest. This manifest is used by EPA to track the movement of the hazardous waste from the point of generation to the point of ultimate treatment or disposal. RCRA manifests contain:
Treatment, Storage, and Disposal Facilities Treatment, storage, and disposal facilities (TSDF) are the last link in the cradle-to-grave hazardous waste management system. Subtitle C requires that all TSDF's obtain an operating permit and abide by the regulations. These regulations establish design and operating criteria as well as performance standards that owners and operators must meet to protect human health and the environment. The definition of a TSDF (40 CFR 260.10) encompasses three functions:
As a matter of policy, EPA has established a hierarchy for handling hazardous waste. EPA believes that the best method for handling hazardous waste is to minimize the production of that hazardous waste. EPA encourages generators to find ways to change equipment or processes to minimize the generation of hazardous waste. One way EPA has encouraged this is to require that all releases to the environment be reported to EPA through the Toxics Release Inventory (TRI). This data is complied and reported to the public. Public knowledge of the amount of pollutants released from a facility has been useful in reducing the amount of hazardous waste generated. The second step in the hierarchy is to recycle or reuse the waste materials. For the materials that can not be recycled or reused, the third step is treatment to remove or reduce the characteristic, reduce the volume, or stabilize the contaminants. The final step in the hierarchy is disposal in a secure landfill or injection into a stable aquifer where a no-migration determination has been made. Land Disposal Restrictions Land disposal restrictions are probably the most complicated part of RCRA (40 CFR 268). The Hazardous and Solid Waste Amendments of 1984 (HSWA) included restrictions on the land disposal of untreated hazardous waste. HSWA requires that EPA develop treatment standards stipulating concentrations or levels of hazardous constituents that are considered as protective of human health and the environment. Treatment standards are expressed as either concentrations of hazardous constituents in the leachate as measured by TCLP or by a weight percentage. In addition to treatment standards, a particular treatment method is specified for a few wastes (e.g., incineration for halogenated organic compounds). To date, treatment standards for the following have been established:
Compliance Monitoring The effective implementation of RCRA depends upon compliance with the regulations. The enforcement program seeks to ensure that regulatory provisions of RCRA are met and to compel necessary corrective action. The two aspects of the program are compliance monitoring and enforcement actions. Most enforcement actions are statutory, not regulatory. It should be noted that state requirements may be more stringent than federal requirements. The first phase of enforcement is monitoring to verify that facilities comply with RCRA regulatory requirements. The primary method of collecting compliance monitoring data is through inspections. Inspections may include a formal visit, a review of records, taking of samples, or observation of operations. State or Federal EPA officials conduct most inspections. HSWA requires that all TSDF's be inspected at least once every two years. The second phase of the compliance monitoring program is taking enforcement action to bring units out of compliance back into compliance. The enforcement options are: administrative actions; civil actions; or criminal actions. Administrative actions can be either informal or administrative orders. Informal actions can be as simple as a telephone call outlining a minor problem that needs to be fixed. An informal letter outlining problems is often called a "notice of violation" (NOV) or a "notice of deficiency" (NOD). These violations are normally solved by the owner/operator taking steps to correct the problem. If a more serious violation takes place or the owner/operator does not respond to a NOV, EPA can issue an administrative order. An administrative order imposes enforceable legal duties. Orders can be used to force a facility to comply with specific regulations, to take corrective action, to perform monitoring, testing, and analysis, or to address a threat to human health and the environment. An administrative order can be issued unilaterally by EPA or the state, or it can be issued as a consent order, which documents an agreement between the agency and the facility. In addition to administrative cations, EPA can initiate civil actions. Civil actions are a formal lawsuit, filed in court, against a person or company who has failed to comply with statutory, regulatory, or administrative orders. Civil actions are generally employed in situations where repeated or significant violations can result in environmental harm. Civil penalties range from $5,000 to $25,000 per day per violation. Seven acts are identified in Section 3008 of RCRA as subject to criminal action. The first six criminal acts carry penalties of up to $50,000 per day per violation or from two to five years in jail. These acts are:
Current Pressures on the Hazardous Waste Industry in the United States The pressures on the hazardous waste industry in the past, currently, and in the future will be how regulations are developed, the cost of treating and disposing of hazardous waste (economics), and societal. Regulations. The land disposal restrictions have probably had the most effect on the hazardous waste industry in the last 10 years. These regulations forced a number of wastes to be treated before placing them on the land. The hazardous waste treatment industry was instrumental in getting this law passed and the subsequent regulations promulgated. This is one example of a regulation creating or sustaining the treatment industry. Without this regulation, many commercial treatment companies would not be in business or would be significantly smaller. On the other hand, requiring generators to submit data on releases to the environment (TRI reporting) and EPA's publishing of those releases has increased the pressure on generators to reduce the amount of waste generated. Other pending regulations that will effect hazardous waste management in the U.S. are HWIR and HWC MACT. The proposed hazardous waste identification rule (HWIR) is expanding the methods of removing materials from Subtitle C regulations. If this rule becomes final with significant amounts of waste being moved from Subtitle C to Subtitle D (industrial non-hazardous waste), the supply of hazardous waste to the treatment industry could be reduced. The hazardous waste combustor MACT (maximum achievable control technology) proposed rule (HWC MACT) will significantly tighten the standards for hazardous waste combustors and potentially increase the costs for disposal. Economics. The hazardous waste industry is a cyclic industry, primarily because the largest supplier of produce, the chemical industry, is cyclic. The flow of materials to the hazardous waste industry depends heavily on the economic health of generators. Another significant economic factor is the treatment capacity. Innovative technologies also influence industry capacity. Perhaps the best way to illustrate these points is with an example. The hazardous waste incineration industry in the 1980's was characterized by few permitted incinerators (low capacity) and high supply. The supply of hazardous waste was fueled by the implementation of land ban restrictions and the fear of unlimited liabilities under Superfund. Generators did not fully understand Superfund or the land ban restrictions. In an effort to avoid regulatory or unlimited labilities, many plant managers elected to send their hazardous wastes to incineration to avoid these problems. The end product of incineration is a certificate of destruction that terminates the generator's responsibility for that waste. As a result, there was little capacity and a high supply, driving prices up (up to $2,000 per ton). As time passed, several factors combined to alter this. Companies looked at the high profit margins for hazardous waste combustion and started building and permitting more units. Cement and lightweight aggregate kilns began substituting high BTU fuels for coal. Generators learned more about land disposal restrictions and Superfund liabilities. These, combined with TRI reporting and the need to reduce production costs, forced companies to use techniques to reduce the amount of waste produced. As a result, prices fell. These forces have produced the current situation where there is over capacity and low prices ($150 per ton). This has resulted in poor economic health for a number of hazardous waste incineration companies, idling of hazardous waste incinerators, and cement kilns exiting the market. The supply of materials will continue to fluctuate based on the health of industry in general. However, TRI reporting requirements and cost will continue to moderate any expansion of supply of hazardous wastes. Society. Probably the single most important societal effect has been as a result of TRI reporting. Now that the public knows how much pollution is released by each facility, there is significant public pressure to reduce that amount. NIMBY (not in my back yard) has made it extremely difficult to build new TSDF's or to expand old units. It also makes it increasingly difficult for existing facilities to renew permits. Certain activist groups, both international and local, have specific agendas that make it harder for the hazardous waste industry to continue to function. There appears to be the belief that stopping the entire production of hazardous waste is possible. Future Finally, what does the future hold for the hazardous waste industry in the United States? The three current driving forces, regulation, economics and society, should remain as drivers. However, there could be some changes in these methods. Industry and EPA are currently looking at changing the current "command and control" regulatory structure into a system based on rewards for the "good actors" (incentives to reduce the amount of waste released into the environment) and punishment for the "bad actors." Whether this idea can survive in the current political climate is anyone's guess. Pertaining to economics, capacity should continue to decrease and the supply will depend on the general health of the economy. However, the supply growth will be slower than it was in the past due to cost and TRI reporting pressures. Innovative technologies may play a significant role in the near future. There are large amounts of money chasing innovative solutions to hazardous waste problems as evidenced by the ability of certain companies to raise venture capital. There is no reason to believe that future societal pressures will change from current levels. Thus, if capacity continues to decrease and the economy
continues to grow, the hazardous waste management industry in the
United States should stabilize in the near future. |