EPA Lays Out Its Vision for the Future of the RCRA Regulatory Program

by Bergeson & Campbell, P.C.
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Enacted in the bicentennial year of 1976, the Resource Conservation and Recovery Act (RCRA) is approaching its 40th anniversary. To celebrate this milestone, and to lay a path forward for the future of the RCRA program, EPA recently released "RCRA's Critical Mission and the Path Forward." The report is a must-read for RCRA practitioners, as it describes in broad terms EPA’s plans for the evolution of the RCRA regulatory program, namely a shift towards sustainable materials management.

Serving dual roles of heralding the impressive accomplishments of the RCRA program and advocating for its continuation, the report stresses what EPA believes to be the critical nature of the regulatory regime.

In the report, EPA trumpets that “RCRA remains critical to our environmental and economic future: there are wastes from new products and chemicals; emerging waste management technologies; unpredictable and unusual waste streams from an increasing number of natural and man-made disasters; and possible long-term legacy issues even when sites are cleaned-up.

The RCRA program has its critics. Arguably it is one of the most complicated federal regulatory regimes: the RCRA Definition of Solid Waste – the subject of scores of federal lawsuits -- rivals the tax code in its bewildering complexity. Some critics also argue that the RCRA regulations apply a sledgehammer where a screwdriver would work just as well. Despite these criticisms, however, few could argue convincingly that the program has not achieved meaningful and impressive results. As the report states, the program’s nationwide accomplishments include:

  • Developing a cradle-to-grave hazardous waste management system and the federal/state infrastructure to implement the system;
  • Establishing the framework for states to implement effective municipal solid waste and non-hazardous secondary materials management programs;
  • Preventing contamination from adversely impacting communities and resulting in future Superfund sites by promulgating comprehensive hazardous waste regulations that include requirements to incorporate robust technical standards into waste management systems;
  • Restoring 18 million acres of contaminated lands, nearly equal to the size of South Carolina, and making the land ready for productive reuse through the RCRA Corrective Action program;
  • Creating partnership and award programs to incentivize companies to modify manufacturing practices to generate less waste and reuse materials safely;
  • Enhancing perceptions of wastes as valuable commodities that can be part of new products, thereby conserving natural resources, saving energy, and reducing greenhouse gas emissions, through its sustainable materials management efforts; and
  • Bolstering the nation’s recycling infrastructure and increasing the municipal solid waste (MSW) recycling rate from less than 7 percent to almost 35 percent by providing information and systems that help states set recycling goals, raising awareness, and promoting the business case for waste reduction.

RCRA faces continuing challenges, and identifying these challenges – and thus the commensurate need for a robust RCRA program – appears to be the main thrust of the report.

At its core, RCRA is about protecting communities and promoting resource conservation. Since it was enacted, the program has evolved in response to changes in waste generation and management aspects that could not have been foreseen when the program was first put in place. The report argues that the RCRA program is needed to address continuing challenges: large amounts of waste; highly toxic waste; new wastes from novel developments in manufacturing products and chemicals; wastes from increasingly efficient air and water pollution control devices; unpredictable and unique waste streams resulting from an increased number of natural and other catastrophes; population growth that places larger demands on our natural resources and produces more and new waste; contaminated lands that still require cleanup; and long-term stewardship of facilities that closed with waste in place.

Some of the key challenges come from wastes that are produced in large amounts, are highly toxic, or are produced in many dispersed locations, often by small entities. As examples, the report cites mining wastes that are produced in high volumes; some spent solvents, certain pesticides and some wood-preserving chemicals that can be highly toxic; and used oil, fluorescent light bulbs and other mercury-containing building equipment such as older thermostats that can be found in many dispersed locations. For some of these wastes for which regulations have already been developed, EPA and the states still face ongoing challenges involving implementation and management aspects.

New and more advanced management technologies and improved methods and options for recycling or reusing wastes and materials are proliferating. As science and knowledge advance and technologies emerge, the report claims that RCRA’s scope is evolving to address new waste streams such as nanomaterials, evaluate technologies and management practices, adjust monitoring and cleanup requirements, and renew facility operating permits to accommodate new developments.

RCRA’s mission to conserve resources is another critical component of the program, especially given the pressures of population growth and greater demand on natural resources. As the world population continues to grow, and material and natural resource use continues to increase, the demand for additional goods and services stresses available resources. EPA states in the report that the RCRA program’s pressing role is to lead towards a change in the relationship between material consumption and economic growth by promoting more productive and sustainable ways to extract, use, and manage materials. EPA and the states are striving to achieve an integrated and intelligent use of materials that maximizes their value, prevents upstream pollution, and conserves resources.

The vision for the RCRA program articulated in the report is to continue to safeguard communities and the environment; mitigate and clean up contamination; champion sustainable lifecycle waste and material management approaches; and promote economic development and community wellbeing. In the report EPA states that the RCRA program is designed and implemented to anticipate a need for “aggressive, nationwide resource conservation that minimizes waste generation and disposal by encouraging process substitution, materials recovery, properly conducted recycling and reuse, and treatment. Accordingly, the RCRA program continues to expand beyond “waste management” to “sustainable materials management,” EPA states. The report predicts that doing so will support a dynamic and sustainable economy through improved materials use.

The RCRA program will continue evolving to balance waste and materials management with current and anticipated materials and resource consumption habits. EPA and its state partners are committed to providing ongoing leadership in applying rigorous scientific principles and risk assessment techniques, and fostering innovation so as to support a dynamic and sustainable economy. EPA also cites the need to continue overseeing cleanup, overcoming challenges at the most highly contaminated and technically challenging sites, and ensuring long-term stewardship. The report further states that there is a need to keep providing information, convening stakeholders, and challenging manufacturers to lower life cycle impacts and advance sustainable materials management.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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