LEGISLATION: Businesses Await EPA's Decisions On Hazwastes

Businesses will learn more about the Clinton administration's priorities when the Environmental Protection Agency (EPA) finishes its work this year on hazardous waste identification and recycling. EPA says it will propose rules on the definition of solid waste and on the management of contaminated materials and wastes from industrial sources. In the meantime, while in the midst of intensive debate on health care reform, Congress will tackle several major environmental bills, including interstate shipments of waste and a rewrite of the Superfund law.

After a federal appeals court struck down EPA's mixture and derived-from rules, an advisory committee was formed to help the agency rethink its approach. The rules required solid waste that was combined with, or generated from treatment of, hazardous waste to be regulated under Subtitle C.

The invalidated rules will be observed until the group, which represents generators, treatment facilities, government and environmental groups, finishes its job and a new rule goes into effect. The agency wants the group to develop separate regulatory proposals on contaminated media and process wastes by the October 1994 statutory deadline.

Another advisory committee, the Definition of Solid Waste Round-table, finished its formal meetings in November. The roundtable decided to revise how hazardous wastes were managed by changing the agency's definition of solid waste. Committee members recommended three approaches to regulating hazardous waste recycling.

The first option would require a company to notify the EPA that it was recycling specific hazardous wastes. The second level would create a recycling program considerably less demanding than the current Subtitle C rules and third stage would mandate full Subtitle C control over hazardous waste recycling.

While EPA says it will base its decision on the roundtable's recommendations, the agency's choices are limited. Under a 1987 federal appeals court ruling, the agency's authority in hazardous waste recycling extends only to discardable materials. Indeed, some roundtable members have vowed to fight any proposed rule that links regulatory control to environmental impact. As they see it, only discarded material can be considered waste.

For its part, Congress will be examining the nonhazardous wastes provisions of RCRA, especially interstate transport of municipal solid waste and local government flow control authority. Several pending bills would clarify state and local prerogatives in restricting the coming and going of trash.

The House Energy and Commerce Subcommittee on Transportation and Hazardous Materials, chaired by Rep. Al Swift (D-Wash.), is charging ahead with "a consensus package" on flow control, according to a subcommittee source. The panel will not wait for an upcoming ruling by the Supreme Court in the Clarkstown, N.Y., case. Many observers believe the high court's decision will be so narrowly worded as to have virtually no effect outside of the Clarkstown situation.

A major overhaul of the Comprehensive Environmental Response, Compensation and Liability Act will rank high on Congress' environmental agenda. A slew of reform proposals and efforts at consensus-building by interested parties only underscore the lack of agreement on many issues. Nevertheless, the affected groups and organizations agree that fundamental changes are necessary.

President Clinton talked about Superfund reform in his State of the Union address. "Some things work and some things don't," he said. "We should be subsidizing the things that work. I'd like to use Superfund to clean up pollution for a change and not just pay lawyers."

Whether all of the expected law changes can be made this year is another story, according to congressional sources. Reauthorization of the Clean Water Act probably will have a higher legislative priority in 1994.

The administration's Superfund bill, introduced in February, will be the starting point for reform of the law. Although EPA developed the proposal with advice from a variety of interest groups, the reform measure has received mixed reviews from legislators, environmentalists and industry.

The proposal includes a new tax on the insurance industry and a non-binding, non-judicial process whereby a neutral outsider would allocate cleanup costs among businesses that contributed hazardous wastes to a contaminated site. The tax would create a fund for settling lawsuits filed against insurers by polluting businesses who are liable for pre-1986 contamination.

The administration also seeks risk-based national cleanup standards that are pegged to current and proposed land uses. Thus, criteria for residential areas would be stricter than for industrial areas. EPA believes that selective use of such less-stringent requirements could trim cleanup costs by as much as 25 percent.

Local governments are worried about liability for contributing ordinary municipal solid wastes to a contaminated site. The administration's proposal would limit municipal liability to 10 percent or less. Municipalities that own or operate Superfund sites would pay based on a financial test.

With Congress facing a daunting national agenda, key committee staffers say that the administration will simply have to act forcefully if it expects to see its environmental priorities written into law.