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Tuesday, August 20, 2013

Background on and Implementation of the Bevill and Bentsen Exclusions in the Resource Conservation and Recovery Act: EPA Authorities to Regulate “Special Wastes”

Linda Luther
Analyst in Environmental Policy

The federal program to manage hazardous waste was established in 1976 by the Resource Conservation and Recovery Act (RCRA). Under RCRA Subtitle C, Congress directed the Environmental Protection Agency (EPA) to promulgate standards applicable to persons who generate, transport, treat, store, or dispose of such waste. Under the program, federal waste handling requirements govern every phase of waste management, from its generation to its final disposition and beyond (“cradle to grave”).

The stringent Subtitle C standards apply only to waste identified as “hazardous” according to regulatory criteria established by EPA. This report discusses waste excluded from the regulatory definition of hazardous waste pursuant to amendments to Subtitle C in the Solid Waste Disposal Act Amendments of 1980. Sometimes referred to by the names of their sponsors, Representative Thomas Bevill and Senator Lloyd Bentsen, the amendments exclude specific large-volume industrial solid waste from Subtitle C, as follows:

The Bevill Amendment—fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels; solid waste from the extraction, beneficiation, and processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore; and cement kiln dust (42 U.S.C. §6921(b)(3)(A)(i)-(iii)).

The Bentsen Amendment—drilling fluids, produced waters, and other wastes associated with the exploration, development, and production of crude oil or natural gas or geothermal energy (42 U.S.C. §6921(b)(2)(A)). The exclusions were temporary, pending EPA study of each waste, followed by reports to Congress and regulatory determinations explaining whether or not regulation under Subtitle C was warranted. 

Regulatory Determinations for Bevill-Bentsen Waste 

EPA issued regulatory determinations for each type of waste between 1988 and 2002. With limited exceptions, the agency determined that regulation under Subtitle C was not warranted. EPA noted that the exclusion is not equivalent to determining the waste is nonhazardous. EPA identified conditions under which management of each waste poses some threat to human health and the environment. The exemption meant that Subtitle C’s strict cradle-to-grave management may not be practical for the waste, but that other potentially applicable state or federal requirements could be adequate to address waste-specific risks. For example, wastewater excluded from Subtitle C may be subject to National Pollutant Discharge Elimination System permitting requirements established under the Clean Water Act (CWA) if its disposal involves discharge to surface water or processing at a municipal wastewater treatment facility. 

Existing EPA Authority to Regulate Bevill-Bentsen Waste 

Two categories of Bevill-Bentsen wastes that have recently drawn national attention include wastewater generated from natural gas production that involves hydraulic fracturing and coal combustion waste (CCW) generated at coal-fired power plants (e.g., “coal ash”). That attention has been due, in part, to changes in the volume or nature of the waste or as a result of risks to human health and the environment associated with improper management of the waste.

The potential for EPA to regulate spent fracking fluid, CCW, or any other Bevill-Bentsen wastes has drawn the attention of some Members of Congress, generally for two opposing reasons: (1) given its current authority under RCRA, EPA may not be able to regulate the waste adequately to address risks associated with its disposal; or (2) given existing state and other federal requirements applicable to the management of the waste, EPA will subject the waste to unnecessary requirements that are costly and burdensome to states and to industry.

This report discusses EPA’s existing authorities under RCRA Subtitle C (with regard to hazardous waste management) or Subtitle D (solid waste management) from which the agency could draw to establish new requirements applicable to Bevill or Bentsen wastes, including any limitations on its Subtitle C authorities established under the Bevill-Bentsen amendments. The report does not attempt to identify or discuss issues specific to each Bevill-Bentsen waste, such as risks associated with improper management, or what EPA has identified as improper management.

Date of Report: July 15, 2013
Number of Pages: 14
Order Number: R43149
Price: $29.95

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