non-enforcement of the 'State
Plan' provisions of The Solid Waste Disposal Act of 1976... It's time for a federal 'waste management' plan
The Solid Waste Disposal Act
of 1976 (also known as Resource Conservation and
Recovery Act-RCRA), Title II, Subtitle D - requires all states to implement 'Solid
Waste Plans' that MAXIMIZE waste reduction and recycling. These plans should
have been in effect by 1980, according to the timeline as stated in the
It appears that the EPA stopped
enforcing the 'state plan' requirements of the Act sometime during the Reagan
Administration. Since 1987, there
has been no oversight of state plans by the EPA. See: EPA 1987 'Status' Report on State Plans.
EPA takes the position that, compliance with Subtitle D
required as non-hazardous, solid waste management is a state matter. In addition,
the EPA says that since the Reagan
Administration pulled the funding for Subtitle D, therefore, EPA
does have to enforce it. The EPA is incorrect.
Congress gave the
Federal government the final authority in state waste management issues and took
that position is the following provision:
U.S.C. TITLE 42 - THE PUBLIC HEALTH AND WELFARE / CHAPTER 82 - SOLID WASTE DISPOSAL / SUBCHAPTER I - GENERAL PROVISIONS / Sec. 6901. Congressional findings (4) that while the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies, the problems of waste disposal as set forth above have become a matter national in scope and in concern and necessitate Federal action through financial and technical assistance and leadership in the development, demonstration, and application of new and improved methods and processes to reduce the amount of waste and unsalvageable materials and to provide for proper and economical solid waste disposal practices.
On the issue of
unfunded mandates, the EPA has no basis in law for not enforcing the 'state
plan' requirements of the Solid Waste Disposal Act of 1976. In fact, funding was
available from 1976-1980, the years in which the plans were required to be
approved and implemented.ALSO SEE!
THE SOLID WASTE
DISPOSAL ACT OF 1976 ESTABLISHED FEDERAL PRIMACY IN SOLID WASTE MATTERS:
U.S.C. TITLE 42 - THE PUBLIC HEALTH AND WELFARE / CHAPTER 82 - SOLID WASTE DISPOSAL / SUBCHAPTER I - GENERAL PROVISIONS Sec. 6901Congressional findings (a) Solid waste (4) that while the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies, the problems of waste disposal as set forth above have become a matter national in scope and in concern and necessitate Federal action through financial and technical assistance and leadership in the development, demonstration, and application of new and improved methods and processes to reduce the amount of waste and unsalvageable materials and to provide for proper and economical solid waste disposal practices.
FEDERAL REQUIREMENTS for
STATE SOLID WASTE PLANS
NOTE: The use of the word "shall" in
regulations (below) usually denotes a mandate.
In conversations with EPA headquarters,
officials told ZWA that they did not have information on state plans after 1987. They suggested that we contact their regional offices.
They insisted that the development and implementation of state
plans is voluntary. ZWA disagrees and presents federal laws and
regulations below as evidence to the contrary. Sections 6941 and
6942 of Solid Waste Disposal Act, Title II, Subtitle D: State or
Regional Solid Waste Plans (Public Law 89-272) were promulgated
under the U.S. Code of Federal Regulations: SUBCHAPTER I (1995/1996/1997) - SOLID WASTES / PART 256 (1995) - GUIDELINES FOR DEVELOPMENT AND
IMPLEMENTATION OF STATE SOLID WASTE MANAGEMENT PLANS (Adobe PDF). However, it appears that Sections 6946 and
6947 were not implemented. We believe that both the EPA and the
states failure to enforce these sections (6946 & 6947) of the
Act is grounds for legal action - see: Sec. 6972. Citizen Suit provisions & Sec. 6979b. Law enforcement authority
Note: The U.S. Code (i.e. statutes), always
supersedes CRFs: The Code of Federal Regulations (i.e.,
regulations). The Code is written by elected
representatives, whereas regulations are written by appointed
members of the executive branch. Regulations are
promulgated pursuant to specific statutes, and cannot conflict
with those statutes or go beyond the purpose of the statutes.
Solid Waste Disposal Act, Title II, Subtitle D:
State or Regional Solid Waste Plans (Public Law 89-272)
U.S.CODE, TITLE 42 - THE PUBLIC HEALTH
CHAPTER 82 - SOLID WASTE DISPOSAL
SUBCHAPTER IV - STATE OR REGIONAL SOLID WASTE
(ZWA NOTES: These sections were
promulgated under the U.S. Code of Federal Regulations: SUBCHAPTER I (1995/1996/1997) - SOLID WASTES / PART 256 (1995) - GUIDELINES FOR DEVELOPMENT
AND IMPLEMENTATION OF STATE SOLID WASTE MANAGEMENT PLANS (Adobe PDF).)
Sec. 6941. Objectives of
The objectives of this subchapter
are to assist in developing and encouraging methods for the
disposal of solid waste which are environmentally sound and which maximize the utilization of valuable resources including energy
and materials which are recoverable from solid waste and to
encourage resource conservation. Such objectives are to be
accomplished through Federal technical and financial assistance
to States or regional authorities for comprehensive planning
pursuant to Federal guidelines designed to foster cooperation
among Federal, State, and local governments and private industry.
In developing such comprehensive plans, it is the intention of
this chapter that in determining the size of the waste-to-energy
facility, adequate provision shall be given to the present and
reasonably anticipated future needs, including those needs
created by thorough implementation of section 6962(h) of this
title, of the recycling and resource recovery interest within the
area encompassed by the planning process.
Sec. 6942. Federal guidelines
(a) Guidelines for identification
For purposes of encouraging and facilitating the development of
regional planning for solid waste management, the Administrator,
within one hundred and eighty days after October 21, 1976, and
after consultation with appropriate Federal, State, and local
authorities, shall by regulation publish guidelines for the
identification of those areas which have common solid waste
management problems and are appropriate units for planning
regional solid waste management services. Such guidelines shall
(1) the size and location of areas which should be included,
(2) the volume of solid waste which should be included, and
(3) the available means of coordinating regional planning with
other related regional planning and for coordination of such
regional planning into the State plan.
(b) Guidelines for State plans
Not later than eighteen months after October 21, 1976, and after
notice and hearing, the Administrator shall, after consultation
with appropriate Federal, State, and local authorities, promulgate regulations containing guidelines to assist in the
development and implementation of State solid waste management
plans (hereinafter in this chapter referred to as ''State
plans''). The guidelines shall contain methods for achieving the
objectives specified in section 6941of this title. Such
guidelines shall be reviewed from time to time, but not less
frequently than every three years, and revised as may be
(c) Considerations for State plan
The guidelines promulgated under subsection (b) of this section shall consider -
(1) the varying regional, geologic, hydrologic, climatic, and other circumstances under which different solid waste practices are required in order to insure the reasonable protection of the quality of the ground and surface waters from leachate contamination, the reasonable protection of the quality of the surface waters from surface runoff contamination, and the reasonable protection of ambient air quality;
(2) characteristics and conditions of collection, storage, processing, and disposal operating methods, techniques and practices, and location of facilities where such operating methods, techniques, and practices are conducted, taking into account the nature of the material to be disposed;
(3) methods for closing or upgrading open dumps for purposes of eliminating potential health hazards;
(4) population density, distribution, and projected growth;
(5) geographic, geologic, climatic, and hydrologic characteristics;
(6) the type and location of transportation;
(7) the profile of industries;
(8) the constituents and generation rates of waste;
(9) the political, economic, organizational, financial, and management problems affecting comprehensive solid waste management;
(10) types of resource recovery facilities and resource conservation systems which are appropriate; and
(11) available new and additional markets for recovered material and energy and energy resources recovered from solid waste as well as methods for conserving such materials and energy.
ZWA NOTES: According to EPA
officials, these sections were NOT promulgated under the U.S.
Code of Federal Regulations: SUBCHAPTER I (1995/1996/1997) - SOLID WASTES / PART 256 (1995) - GUIDELINES FOR DEVELOPMENT
AND IMPLEMENTATION OF STATE SOLID WASTE MANAGEMENT PLANS (Adobe
Sec. 6946. Procedure for
development and implementation of State plan
(a) Identification of regions
Within one hundred and eighty days after publication of
guidelines under section 6942(a) of this title (relating to
identification of regions), the Governor of each State, after
consultation with local elected officials, shall promulgate
regulations based on such guidelines identifying the boundaries
of each area within the State which, as a result of urban
concentrations, geographic conditions, markets, and other
factors, is appropriate for carrying out regional solid waste
management. Such regulations may be modified from time to time
(identifying additional or different regions) pursuant to such
(b) Identification of State and
local agencies and responsibilities
(1) Within one hundred and eighty days after the Governor promulgates regulations under subsection (a) of this section, for purposes of facilitating the development and implementation of a State plan which will meet the minimum requirements of section 6943 of this title, the State, together with appropriate elected officials of general purpose units of local government, shall jointly (A) identify an agency to develop the State plan and identify one or more agencies to implement such plan, and (B) identify which solid waste management activities will, under such State plan, be planned for and carried out by the State and which such management activities will, under such State plan, be planned for and carried out by a regional or local authority or a combination of regional or local and State authorities. If a multi-functional regional agency authorized by State law to conduct solid waste planning and management (the members of which are appointed by the Governor) is in existence on October 21, 1976, the Governor shall identify such authority for purposes of carrying out within such region clause (A) of this paragraph. Where feasible, designation of the agency for the affected area designated under section 1288 of title 33 shall be considered. A State agency identified under this paragraph shall be established or designated by the Governor of such State. Local or regional agencies identified under this paragraph shall be composed of individuals at least a majority of whom are elected local officials.
(2) If planning and implementation agencies are not identified and designated or established as required under paragraph (1) for any affected area, the governor shall, before the date two hundred and seventy days after promulgation of regulations under subsection (a) of this section, establish or designate a State agency to develop and implement the State plan for such area.
(c) Interstate regions
(1) In the case of any region which, pursuant to the guidelines published by the Administrator under section 6942(a) of this title (relating to identification of regions), would be located in two or more States, the Governors of the respective States, after consultation with local elected officials, shall consult, cooperate, and enter into agreements identifying the boundaries of such region pursuant to subsection (a) of this section.
(2) Within one hundred and eighty days after an interstate region is identified by agreement under paragraph (1), appropriate elected officials of general purpose units of local government within such region shall jointly establish or designate an agency to develop a plan for such region. If no such agency is established or designated within such period by such officials, the Governors of the respective States may, by agreement, establish or designate for such purpose a single representative organization including elected officials of general purpose units of local government within such region.
(3) Implementation of interstate regional solid waste management plans shall be conducted by units of local government for any portion of a region within their jurisdiction, or by multijurisdictional agencies or authorities designated in accordance with State law, including those designated by agreement by such units of local government for such purpose. If no such unit, agency, or authority is so designated, the respective Governors shall designate or establish a single interstate agency to implement such plan.
(4) For purposes of this subchapter, so much of an interstate regional plan as is carried out within a particular State shall be deemed part of the State plan for such State.
Sec. 6947. Approval of State
plan; Federal assistance
(a) Plan approval
The Administrator shall, within six months after a State plan has
been submitted for approval, approve or disapprove the plan. The
Administrator shall approve a plan if he determines that -
(1) it meets the requirements of paragraphs (1), (2), (3), and (5) of section 6943(a) of this title; and
(2) it contains provision for revision of such plan, after notice and public hearing, whenever the Administrator, by regulation, determines -
(A) that revised regulations respecting minimum requirements have been promulgated under paragraphs (1), (2), (3), and (5) of section 6943(a) of this title with which the State plan is not in compliance;
(B) that information has become available which demonstrates the inadequacy of the plan to effectuate the purposes of this subchapter; or
(C) that such revision is otherwise necessary. The Administrator shall review approved plans from time to time and if he determines that revision or corrections are necessary to bring such plan into compliance with the minimum requirements promulgated under section 6943 of this title (including new or revised requirements), he shall, after notice and opportunity for public hearing, withdraw his approval of such plan. Such withdrawal of approval shall cease to be effective upon the Administrator's determination that such complies with such minimum requirements.
(b) Eligibility of States for
Federal financial assistance
(1) The Administrator shall approve a State application for financial assistance under this subchapter, and make grants to such State, if such State and local and regional authorities within such State have complied with the requirements of section 6946 of this title within the period required under such section and if such State has a State plan which has been approved by the Administrator under this subchapter.
(2) The Administrator shall approve a State application for financial assistance under this subchapter, and make grants to such State, for fiscal years 1978 and 1979 if the Administrator determines that the State plan continues to be eligible for approval under subsection (a) of this section and is being implemented by the State.
(3) Upon withdrawal of approval of a State plan under subsection (a) of this section, the Administrator shall withhold Federal financial and technical assistance under this subchapter (other than such technical assistance as may be necessary to assist in obtaining the reinstatement of approval) until such time as such approval is reinstated.
(c) Existing activities
Nothing in this subchapter shall be construed to prevent or
affect any activities respecting solid waste planning or
management which are carried out by State, regional, or local
authorities unless such activities are inconsistent with a State
plan approved by the Administrator under this subchapter.
CODE OF FEDERAL REGULATIONS
Title 40, CHAPTER I, SUBCHAPTER I, PART 256, Subpart A,
Sec. 256.02 Scope of the state solid waste management
(a)(1) The State plan shall address all solid waste in the State
that poses potential adverse effects on health or the environment
or provides opportunity for resource conservation or resource
recovery. The plan shall consider:
(i) Hazardous wastes;
(ii) Residential, commercial and institutional solid waste;
(iii) Wastewater treatment sludge;
(iv) Pollution control residuals;
(v) Industrial wastes;
(vi) Mining wastes;
(vii) Agricultural wastes;
(viii) Water treatment sludge; and
(ix) Septic tank pumpings.
(2) The State plan shall consider the following aspects of solid
(i) Resource conservation;
(ii) Source separation;
(vii) Processing (including resource recovery);
(viii) Treatment; and
(b) The State Plan shall establish and justify priorities and
timing for actions. These priorities shall be based on the
level of solid waste management planning and implementation
within the State, the extent of the solid waste management
problem, the health, environmental and economic impacts of the
problem, and the resources and management approaches available.
(c) The State plan shall set forth an orderly and manageable
process for achieving the objectives of the Act and meeting the
requirements of these guidelines. This process shall describe as
specifically as possible the activities to be undertaken,
including detailed schedules and milestones.
(d) The State plan shall cover a minimum of a five year time
period from the date submitted to EPA for approval.
(e) The State plan shall identify existing State legal authority
for solid waste management and shall identify modifications to
regulations necessary to meet the requirements of these