94 LUNCHEON ADDRESS: THE MYSTERY OF THE CERCLA
AND RCRA LIABILITY CYCLE
John M. Kyle, III, Attorney
Barnes and Thornburg
Indianapolis, Indiana 46204
A. DISCUSSION
1. I have been asked to discuss the interrelationship between the federal RCRA and CERCLA
programs.
a. First, RCRA; the federal hazardous waste management program
b. Second, CERCLA; Superfund; developed to clean up abandoned facilities.
2. Have found the best way to discuss the topic is chronologically and with a specific case example
as backdrop. Therefore assume an industry started in '60s:
a. on-site landfill—took lots of plant waste
b. finishing lagoon — received treated wastewater from electroplating line prior to discharge to
River under NPDES permit
c. stopped using landfill—in '78; covered with soil vegetation; stopped using before RCRA
(11/19/80)
d. impoundment still operating
B. RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)
1. Statute passed 1976; EPA regulations published 5/19/80, effective 11/19/80.
2. Established comprehensive cradle-to-grave regulatory system:
a. Defined waste subject to RCRA (Subtitle C) regulation:
i) listed
ii) characteristic
b. Established regulatory system regulating;
i) generators of hazardous waste
ii) transporters of hazardous waste
iii) facilities which treat, store or dispose ("TSD") of hazardous waste.
a) detailed regulations
b) if are a TSD (to require "S" permit, must store longer than 90 days) need a permit to
operate. Also, if "close" one of these facilities need closure permit and if land
disposal, need post-closure permit.
c) interim status vs. Part B
3. Regulatory program prospective only:
a. 5/19/80 Federal Register-only regulated "active" TSD facilities which received waste after
11/19/80.
b. Back to our hypo
(1) Surface Impoundments receiving hazardous waste F006. Would have to file for interim
status in 1980 and later obtain a Part B permit.
(2) Landfill-no permit required because did not accept RCRA waste after 11/19/80;
therefore completely outside RCRA program as adopted in 1980.
(3) Distinction clear and well understood.
(4) Possible fuzziness of distinction —§ 7003.
C. COMPREHENSIVE ENVIRONMENTAL RESPONSE. COMPENSATION AND LIABILITY
ACT (CERCLA)
1. This is where things stood in 11 /80: RCRA regulations just becoming effective when CERCLA
passed.
2. CERCLA passed in waning days of Carter administration after 11/80 elections which swept
Mr. Reagan into office and handed Republicans control of Senate:
a. Hostily drafted compromise legislation —left many questions unanswered.
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