Resource Conservation and Recovery Act RCRA

Volume I Chapter 2. Landfill Solar Rhode Island Renewable Energy Siting Partnership

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EGAL AND R EGULATORY C ONSIDERATIONS Existing policies and regulations at both the state and federal levels represent an important source of guidance on the planning and permitting of solar energy projects on closed landfills. While the majority of these policies and regulations do not specifically address this type of renewable energy project as a regulated activity, they nonetheless have a bearing on the development of such projects, particularly due to concerns about landfill use and closure. State and federal policies and regulations most relevant to the type of projects reviewed in this assessment include waste and landfill regulations, legal options for transference of landfill site control to solar energy project developers, solar access laws, and environmental laws. In addition, several state and federal incentives for renewable energy may be of interest when planning solar energy projects such as those reviewed here. Finally, local ordinances and zoning practices will play a central role in the planning and permitting of solar energy projects on capped landfills. 4.1 Federal Landfill Regulations A variety of federal laws and regulations govern waste management and disposal at landfill sites and may be relevant when considering solar development on a landfill. Occasionally, development on a landfill may require compliance with new regulations adopted since the closure of the landfill. For instance, landfills capped many years ago may not meet current standards for caps or lining; alternatively some linings andor caps may have lost integrity during intervening years since closure. In these cases, landfills may need to be brought up to current regulatory standards before they can be used for solar electricity generation. The two major federal laws pertaining to landfills and waste are the Resource Conservation and Recovery Act RCRA and the Comprehensive Environmental Response, Compensation, and Liability Act CERCLA.

4.1.1 Resource Conservation and Recovery Act RCRA

Passed in 1976, RCRA 42 U.S.C. §§ 6901 et seq. gives the Environmental Protection Agency EPA authority to regulate generation, transportation, treatment, storage, and disposal of hazardous and non-hazardous solid waste. Prior to the enactment of RCRA, there was little federal or state oversight of the dumping of hazardous wastes on land, and leaching of waste into public water supplies was commonplace EPA 1976. 1 RCRA applies to both hazardous and non-hazardous waste. Section C of RCRA pertains to hazardous wastes. It enables the EPA to track hazardous wastes form “cradle to grave”, by imposing strict reporting requirements on the generation, transport, treatment, and disposal of 1 Interestingly, there is not a one-to-one match between the laxer regulations of pre-1970s landfills and the danger posed by hazardous waste contained in such landfills. This is because enactment of solid waste regulations coincided with increasing use and disposal of hazardous materials, primarily petrochemicals. Landfills capped prior to 1960 often contain fewer hazardous materials because petrochemicals were not as widespread in their use at that time Dennen, personal communication. Page 215 Volume I Chapter 2. Landfill Solar Rhode Island Renewable Energy Siting Partnership hazardous waste. Section D pertains to non-hazardous waste, including household garbage, non- recyclable household appliances, residue from incinerated automobile tires, refuse such as metal scrap, construction and demolition debris, and sludge from industrial and municipal waste water facilities and drinking water treatment plants. The EPA’s implementing regulations for hazardous and non-hazardous waste management are found in 40 C.F.R. § 264. Section N applies specifically to landfills, and explains requirements for how a landfill must be lined, capped, and cared for after closure. RCRA enables the EPA to delegate its regulatory authority over waste activities to state agencies where appropriate. State standards must be at least as strong as federal standards for this to take place. RIDEM has been approved to carry out the RCRA program for Rhode Island. The Hazardous and Solid Waste Amendments HSWA of 1984 strengthened RCRA by extending the scope of the law to cover generators, transporters, and disposers of small quantities of hazardous wastes and by banning all land-based disposal of hazardous waste except when EPA deems that it is not injurious to public health. The HSWA gave EPA the specific authority “to establish national regulations for all municipal solid waste landfills to ensure the protection of human health and the environment 40 C.F.R. § 258a.” The relevance of the RCRA and HSWA to the siting of solar energy facilities on landfills stems from the fact that the primary purpose of a landfill is to isolate wastes from the surrounding environment. If a particular landfill fails to comply with RCRA or any other federal or state solid waste regulation, that landfill must go through the proper procedures to be brought into compliance in order to make any secondary use, such as solar energy, financially and legally secure. RIDEM’s Landfill Closure Program LCP; discussed in Section 4.2 consolidates requirements from RCRA, Superfund, and other applicable regulations; thus, landfills obtaining a closure certificate through the LCP are also assumed to be compliant with RCRA.

4.1.2 Comprehensive Environmental Response, Compensation, and Liability Act, or Superfund