Resource Conservation and Recovery Act

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The Resource Conservation and Recovery Act (RCRA), enacted in 1976, is the principal Federal law in the United States governing the disposal of solid waste and hazardous waste. RCRA gives the U.S. Environmental Protection Agency (EPA) the authority to control hazardous waste from its creation to its disposal. This includes the generation, transportation, treatment, storage, and disposal of hazardous waste. RCRA also set forth a framework for the management of non-hazardous solid wastes.[1]

The 1986 amendments to RCRA enabled EPA to address environmental problems that could result from underground tanks storing petroleum and other hazardous substances. The Federal Hazardous and Solid Waste Amendments (HSWA) are the 1984 amendments to RCRA that focused on waste minimization and phasing out land disposal of hazardous waste, as well as corrective action for releases.[1]

RCRA and coal ash

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Coal waste dumps contain billions of gallons of fly ash and other coal waste containing toxic heavy metals, which the EPA considers a threat to water supplies and human health. They are not subject to federal regulation, however, and there is little monitoring of their impacts on the local environment.[2]

The EPA reclassified fly ash from waste to a reusable material in the 1980s, and the agency exempted ash from RCRA regulations for hazardous waste beginning in 1993. Coal ash has been exempt from federal regulation since October 1980, with the inception of the "Bevill Exclusion" to RCRA, section 3001(b)(3)(A)(ii). Bevill excludes from RCRA hazardous waste regulations the solid waste that results "from the extraction, beneficiation, and processing of ores and minerals." The exclusion held despite pending completion of a study and a Report to Congress, as required by federal law, and pending a determination by the EPA Administrator either to promulgate regulations under Subtitle C or to declare such regulations unwarranted.[3]

In 1993 and 2000, EPA published regulatory determinations stating that coal ash waste does not warrant regulation under RCRA Subtitle C, which pertains to hazardous wastes, and should remain excluded from the definition of hazardous waste. In 2000, EPA determined that instead RCRA subtitle D regulating non-hazardous waste were applicable for coal combustion wastes, specifically those disposed in surface impoundments, landfills, and as fill in surface or underground mines. EPA further determined that beneficial uses of these wastes, other than for minefilling, pose no significant risk and no additional national regulations are needed.[3]

After the 2008 TVA Kingston Fossil Plant coal ash spill, pressure mounted for the EPA to regulate coal ash. As of May 2010, EPA is proposing to federally regulate for the first time coal ash to address the risks from the disposal of the wastes generated by electric utilities and independent power producers. EPA is considering two possible options for the management of coal ash for public comment. Both options fall under the RCRA. Under the first proposal, EPA would list these residuals as "special wastes," or hazardous wastes, subject to regulation under subtitle C of RCRA, when destined for disposal in landfills or surface impoundments. Treatment, storage, and disposal facilities (TSDFs) manage hazardous wastes under RCRA Subtitle C, and generally must have a permit in order to operate, with land disposal restrictions. Under the second proposal, EPA would regulate coal ash under subtitle D of RCRA, the section for non-hazardous wastes. Under section D, no permit is required, monitoring is done by citizens, not the federal government, and there are no restrictions on land disposal of the waste.[4] Click here for more on the key differences between the proposed rules.

RCRA and oil/gas waste

Oil and gas wastes have been exempted from the RCRA since 1988.[5] Due to this exemption, oil and natural gas operators transporting shale gas wastewater are not considered to be transporting or receiving “hazardous” wastes, and thus do not need to meet the cradle-to-grave safeguards established by RCRA regulations. In the absence of federal regulations, states regulate the handling, storage, and transport of shale wastewater, including the waste from fracking.[6]

Some states allow for the storage or disposal of shale gas wastewater in open impoundments. There has been struggles about the power of states versus municipalities regarding fracking waste storage: Pennsylvania's Act 13, for example, limits the ability of municipalities to enact their own regulations regarding the siting of impoundments; several municipalities are challenging the law in court.[6]

The land application of shale gas wastewater is also regulated primarily at the state level. Some states, such as Pennsylvania, issue permits authorizing land application of fracking waste, such as for roadway prewetting, anti-icing, and deicing purposes, as long as the brines meet certain pollutant concentration limits. In some other states, however, the road spreading of shale gas wastewater is prohibited.[6]

Resources

References

  1. 1.0 1.1 "Summary of the Resource Conservation and Recovery Act" EPA Website, accessed June 2010.
  2. Shaila Dewan, "Hundreds of Coal Ash Dumps Lack Regulation," New York Times, January 7, 2009.
  3. 3.0 3.1 J. David Brittingham, "United States: Coal Ash Regulations: EPA Speaks--Sort of..." Dinsmore and Schohl, May 10, 2010.
  4. "Coal Combustion Residuals - Proposed Rule" EPA, accessed June 2010.
  5. Renee Lewis Kosnik, "The Oil and Gas Industry’s Exclusions and Exemptions to Major Environmental Statutes," Oil and Gas Accountability Project, 2007 Report.
  6. 6.0 6.1 6.2 [Rebecca Hammer, Jeanne VanBriesen, and Larry Levine, "In Fracking's Wake: New Rules are Needed to Protect Our Health and Environment from Contaminated Wastewater," Natural Resources Defense Council, May 2012 report.

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