I. WHAT EPA COULD HAVE DONE UNDER RCRA

In 1985, the Resource Conservation and Recovery Act (RCRA), Subtitle D, was adopted to govern waste disposal at municipal waste landfills in the United States, and the provision is administered by EPA. Regulations established under Subtitle D ban open dumping of waste and set minimum federal criteria for the operation of municipal waste and industrial waste landfills – landfills classified as “open dumps” are non-compliant with the federal minimum standards.

PR-Paper-Photos-430x288-4Puerto Rico, which falls under Region 2 of the EPA, is included under RCRA Subtitle D.

Minimum operational requirements for municipal landfill operation impose: access control, liner protection for landfill cells, protection from and monitoring of methane gas build-up, liquid leachate collection and groundwater monitoring, and the daily coverage of municipal waste.

The minimum standards also include design criteria, location restrictions, financial assurance, corrective action (cleanup), and closure requirement. States play a lead role in implementing these regulations and may set more stringent requirements. In order to qualify as the lead in implementing Subtitle D, states were required to apply to the EPA for a public review of their planned permitting program, and EPA approval of the adequacy of the state’s permitting program.

The EPA is authorized to revoke its approval given to state permitting programs that are “inadequate”, and unilaterally implement federal minimum standards upon landfills in states, or in jurisdictions like Puerto Rico.

So while a state or territory like Puerto Rico has authority to implement its permitting authority, EPA has sole power to revoke it, and importantly, it also has its own separate regulatory authority under RCRA Section 7003 to take action on the handling, transportation, or storage of solid waste where it may present “imminent and substantial endangerment to health and the environment” to bring lawsuits or issue orders. Citizens are also entitled to bring suit under RCRA 7002 against any person, including any governmental entity, who is “alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition or order which is effective pursuant to RCRA”.

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