October 3, 2018
Source: William C. Schillaci
Department: EHS Daily Advisor
As with other environmental statutes, Congress wrote RCRA to be an exercise in federal-state cooperation. The statute listed areas of concern, provided major goals, and directed the EPA to write rules to achieve those goals. States then had the option to adopt and enforce the federal rules with EPA oversight and, of course, with federal funding defraying some of the programmatic costs. The OIG notes that between 1980 and 2015, the EPA has done its job by promulgating 335 federal rules (some required, others not) to implement RCRA's hazardous waste provisions. The problem is that the states have been inconsistent in adopting these rules and applying to the EPA for federal authorization. Moreover, the EPA itself has a spotty record of granting rule authorization to states seeking it. The result is that, from state to state, there is a wide discrepancy in RCRA rule authorizations.
"States and the EPA have taken many years to authorize rules, from less than 1 year to more than 31 years, says the OIG. No state has been authorized by the EPA for all required rules. For the 173 required rules, the number of rules not authorized ranges from 6 to 98 per state; eight states have not been authorized for more than 50 rules."
In some cases, the EPA must implement and enforce rules in states with rule authorization. But that may not be the case in states with an authorized base program "that is, authority to implement non-HSWA rules, or rules promulgated before passage of the 1984 Hazardous and Solid Waste Amendments (HSWA) to RCRA. Under the 1976 statute, the EPA may not enforce non-HSWA rules until states with base program authorization have been authorized for those rules. In the HSWA, Congress tried to correct this roadblock by removing the precondition that the EPA may enforce a new rule only if a state has been authorized for that rule.
Still, Congress intended that the states conduct the great majority of RCRA implementation and enforcement, and the lack of state authorizations means the goals of RCRA are not being met, says the OIG. Absence of state authorization has resulted in "regulatory gaps" that "create risks to human health and the environment," the OIG states. Moreover, the OIG believes the EPA does not have a clear picture of where state applications for rule authorizations stand and why decisions on these applications have not been made. The EPA's Office of Land and Emergency Management (OLEM), which implements RCRA and the HSWA, had reservations about some of the OIG's observations and findings, but basically agreed to recommendations the OIG made to improve the RCRA rule authorization process.
Read the entire article EPA's OIG Says RCRA State Authorizations Are Lagging.