Office of Solid Waste

DATE:        11 JUN 1978

SUBJECT: Options for Implementing Hazardous Waste Regulations

FROM:      William Sanjour, Chief
                  Assessment & Technology Branch, HWMD, (WH-565)

TO:            John P. Lehman, Director
                  Hazardous Waste Management Division, (WH-565)

This is in response to your request for options for revising our plans for implementing the hazardous waste management provisions of RCRA. You have indicated that Mr. Jorling would like us to propose alternatives for reducing the scope of our regulations because President Carter's inflation fighting program will not allow for sufficient Federal government resources to implement this program as it now stands. However, most of the ideas which have been suggested by Mr. Jorling and his staff would reduce the protection of public health and the environment contrary to the intent of Congress as expressed in RCRA. Therefore, I think that before we look at alternatives which may be contrary to the intent of Congress we ought to first examine alternatives created by EPA actions which may cause an increase in the anticipated Federal budget needed to regulate hazardous wastes. I have identified four such areas and I'm sure there are more that I don't know of.

The first area is self regulation. Congress did not intend that the government would be the sole source of enforcement of RCRA. The Act liberally provides for public participation and citizens suits against violators. Congress intended that persons with a vested interest in enforcing the law should be encouraged and provided with the legal tools with which to do so. For example if a chemical waste handler knows that a competitor is charging cut-rate prices and dumping his waste down a sewer instead of a safe disposal site, it should be easy to "blow the whistle" on him, or if wells are being poisoned by a factory dumping hazardous waste, the victims should have easy means for bringing action.

This kind of thing is not only beneficial for the public welfare, but any action brought by a citizen reduces the need for Federal funds and Federal personnel for enforcement. Therefore if reducing the Federal budget is one of our goals, it would seem that we should be designing our regulation writing strategy so as to maximize public participation, but we are not. In fact in some areas we are being encouraged to reduce public participation.

For example, I understand that our management does not want the definition of hazardous waste to include such things as whether or not the waste is poisonous, or if it causes cancer or if it can burn or blow up etc. because this would make it too easy for citizens to know what wastes are hazardous and thus bring suit against persons dumping those wastes.

I would suggest, therefore, that the first alternative to be explored for reducing the Federal cost requirements for hazardous waste management is a policy of encouraging and expediting self enforcement.

The second area of Federal cost reduction is State assumption of hazardous waste management. In writing RCRA, Congress went to great lengths in encouraging the States to manage hazardous wastes in lieu of the Federal government. Nevertheless our management has been hostile to this approach and has been prone to adding more and more restrictions on states wishing to run their own programs thus discouraging them from doing so. While this policy could be the right thing to do if the Federal hazardous waste program was everything it should be, it might be wise to do just the opposite if the alternative to state assumption is a crippled Federal program. Beggars can't be choosers.

The third area of Federal cost reduction in hazardous waste management has to do with those activities in EPA which result in the creation off hazardous waste. This would include:

  • Regulations under the Clean Water Act which require the construction of waste water treatment plants which remove wastes from the rivers and concentrate them as sludge for disposal on land.

  • Regulations under the Marine Protection Act which prevents the disposal of wastes into the ocean and thus results in their disposal on land.

  • Regulations under the Clean Air Act which recover wastes from the air and concentrate them for disposal on land.

    If EPA cannot afford to adequately regulate the land disposal off such wastes, perhaps we ought to consider the alternative of not requiring their creation in the first place. For example, EPA might examine the wisdom of requiring the expenditure of billions of dollars to remove wastes which poison fishes from the rivers and oceans only to allow than to be dumped in human food and drinking water supplies and poisoning the people who are paying to protect the fishes.

    Given that EPA cannot afford to adequately regulate hazardous waste disposal, reducing expenditures in the above areas could have the following benefits:

    1. Improve the protection of public health.

    2. Reduce costs of compliance, thus aiding the fight against inflation.

    3. Free up resources in EPA which could then be used for hazardous waste management.

    The fourth area is the decisions which have been made to enlarge the scope of hazardous waste coverage beyond that intended by Congress. Two such decisions by our management come to mind. The first is the decision to regulate the owners of inactive hazardous waste disposal sites. For example, homeowners on whose property hazardous waste may have been buried by a previous owner at some time in the distant past, would be brought under our regulation by this decision. While the full impact off this decision is unknown (and probably unknowable) it is clear that it increases many times over the number of persons covered by our regulations. While it is commendable to want to protect the environment from these inactive sites it is also clear that Congress never intended that that should be done under Subtitle C of RCRA.

    A second decision by our management which greatly increases the number of facilities brought under our regulations is the decision to regulate industrial wastewater treatment plants. These plants were built to meet EPA requirements and are operated under a permit granted by the NPDES program of EPA. While it is true that these plants, built to EPA specifications, are responsible for polluting groundwater drinking supplies it is also clear that Congress intended that they be regulated under the Clean Water Act rather than RCRA.

    Perhaps we should review these decisions before we proceed to pare down the scope of what Congress did intend to regulate

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