Too Much Waste: A Proposal for Change in the Government's Effort to Clean Up the Nation

This Note focuses on TSD facilities because RCRA requirements applicable to TSD facilities are much more onerous and comprehensive than those applicable to transporters and generators.Richard G. Stoll, The New RCRA Cleanup Regime: Comparisons and Contrasts with CERCLA, 44 Sw.L.J. 1299, 1302 (1991).Most of these differences occur because only TSD facilities and not transporters or generators are required to obtain permits.Id.28.As originally written, RCRA was organized into subtitles.The 1980 reauthorization reorganized the Act into subsections; however, most environmental lawyers still refer to the most important subsections by their original subtitle names: subtitle C, governing hazardous waste, and subtitle D, governing solid waste.RCRA defines solid waste as any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 1342 of title 33 [Clean Water Act), or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 .... RCRA § 1004(27), 42 U.S.C. § 6903 (27).The EPA's solid waste definition, limited in scope to subtitle C, states that any discarded material that is not specifically excluded by RCRA or by regulation, any materials which are incinerated or burned, or any materials that are "accumulated, stored, or treated (but not recycled) before or in lieu of being abandoned" by disposal, burning, or incineration are solid waste.40 C.F.R. § 261.2(b) (1994).Certain recycled or "inherently wastelike" materials may also be solid waste.Id.RCRA defines hazardous waste as a subset of solid waste.A hazardous waste is a solid waste, or combination of solid wastes, which may "(A) cause, or significantly contribute to an increase in mortality or an increase in serious, irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed."RCRA § 1004(5), 42 U.S.C. § 6903(5); see also J. Stanton Curry et al., The Tug-of-War Between RCRA and CERCLA at Contaminated Hazardous Waste Facilities, 23 ARIZ.ST.L.J. 359, 362-63 n.18 (1991); Shanley, supra note 3, at 279. 29.45 Fed.Reg.33,073 (1980), amended by 51 Fed.Reg.40,636 (1986) (codified as amended at 40 C.F.R. pt.260 (1994)).30.Stoll, supra note 27, at 1302.To obtain a permit, a TSD facility must satisfy certain requirements for notice and public hearings and, in the process, invite public opposition.Id.31.40 C.F.R. pts.264-65 (1994); see also Curry et al., supra note 28, at 364.Facilities that close after November 19, 1980 may have substantial closure and post-closure duties and may be required to obtain a post-closure permit.Id. at 364 n.32; see also Stoll, supra note 27, at 1303 (outlining the EPA requirement that a facility be "clean closed" and the catch-22 that results from a failure to do so). 32.Stoll, supra note 27, at 1302.The RCRA corrective action program has become the main rival for remedial action under CERCLA and is discussed infra at Part IV.