CHAPTER 2 THE UNIVERSE OF SOLID WASTE AND ITS REGULATORY LIMITS UNDER RCRA: EVOLVING PRINCIPLES AND “NEW FOUND” APPLICATIONS”

I. INTRODUCTION

A. Overview of Act and Regulations.

1. The enactment of the Resource Conservation and Recovery Act of 1976 ("RCRA"), amending the Solid Waste Disposal Act, created comprehensive environmental regulation of solid waste disposal. 42 U.S.C. § § 6901-6992k.

2. In 1984, RCRA was amended by the Hazardous and Solid Waste Amendments ("HSWA"), which created more stringent requirements for managing hazardous wastes (e.g., landfill liners, LDR requirements).

3. With RCRA's enactment, Congress believed it closed "the last remaining loophole in environmental law" regarding the unregulated land disposal of discarded materials and wastes. H.R. Rep. No. 1491, 94th Cong. 1st Sess. 4 (1976).

4. Congress found that prior to RCRA's enactment, environmental efforts focused on removal of pollutants from air and water, with resulting pollutants oftentimes placed or disposed on land in an environmentally unsound manner.

5. RCRA establishes a regulatory framework to —

a. control previously unrestrained dumping of various waste materials on land in order to protect human health and environment;

b. provide a comprehensive management system of "cradle to grave" tracking and manifesting of hazardous wastes from point of origin to final management;

c. encourage economical solid waste disposal practices and conservation of natural resources directly or through management, effective reuse, or recovery of solid wastes; and

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d. encourage States to implement equivalent programs.

6. RCRA consists of three major operative parts:

a. Subtitle C of the Act addresses hazardous waste management (providing a distinct scheme for those solid wastes determined to be "hazardous").

b. Subtitle D of the Act deals with management of non-hazardous. solid wastes; and

c. Subtitle I of Act pertains to regulation of "underground storage tanks" containing petroleum or hazardous substances.

B. Threshold Questions for RCRA Jurisdiction.

1. Whether a particular material or waste is a "solid waste."

2. Whether a particular solid waste is a "hazardous waste."

a. Even if a material is "hazardous," if it is not a "solid waste," RCRA jurisdiction does not exist.

b. "Hazardous materials" are regulated under the Hazardous Materials Transportation Act. 49 U.S.C. § 1801 , et seq.

c. "Hazardous substances" are controlled under the Clean Water Act or the Comprehensive Environmental Response Compensation & Liability Act ("CERCLA").

3. Whether a statutory or regulatory exemption exists.

4. Whether a particular secondary material or waste can be or is recycled. 40 C.F.R. § 261.1, .2 and .4.

C. The Definition of Solid Waste.

1. Understanding the definition of solid waste is fundamental to understanding the breadth of RCRA. Its complexity has two sources: statutorily mandated exclusions and regulatory inclusion of materials that may be destined for recycling.

a. The statutory definition of solid waste is broad and generally is utilized in determining the scope of Subtitle D and used in RCRA's broad and powerful remedial provisions of Subtitle G (e.g., § 7002(a)(1)(B) for citizens and § 7003 for federal authorities.

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b. EPA's regulatory definition of solid waste is much more expansive and complex and is used to determine the scope of Subtitle C jurisdiction. 40 C.F.R. § 261.2.

2. Under RCRA, "solid waste" is not confined to "solids" but broadly defined to include:

[A]ny garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities ... 42 U.S.C. 5 6903(27) (emphasis added).

3. Excluded from the statutory definition of solid waste are the following:

a. solid or dissolved material in domestic sewage;

b. solid or dissolved materials in irrigation return flows;

c. industrial discharges which are point sources permitted or subject to regulation under section 402 of the Federal Water Pollution Control Act (Clean Water Act); or

d. source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954.

42 U.S.C. § 6903(27).

D. The Definition of Hazardous Waste.

1. The waste must be a solid waste. 42 U.S.C. § 6903(5).

2. Even if the waste is a solid waste, it will be a hazardous waste only if it:

a. Is listed by the EPA as a hazardous waste. 40 C.F.R. § 261.31 -.33.

(1) wastes from non-specific sources ( 40 C.F.R. § 261.31);

(2) wastes from specific sources ( 40 C.F.R. § 261.32); or

(3) wastes that are discarded commercial chemical products ( 40 C.F.R. § 261.33).

b. Is a solid waste mixed with a listed hazardous waste. 40 C.F.R. § 261.3(a)(2)(iv).

c. Is a solid waste derived from the treatment, storage, or disposal of a listed hazardous waste. 40 C.F.R. § 261.3(c)(2)(i).

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d. Exhibits a hazardous waste characteristic — ignitability, corrosivity, reactivity, toxicity pursuant to prescribed tests or procedures.

e. Any contaminated land or water resulting from a spill or discharge of a listed waste.

40 C.F.R. § 261-20 -.24.

3. Certain solid wastes are not considered hazardous wastes and are excluded from Subtitle C jurisdiction, including the following:

a. drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy (Bentsen Amendment);

b. fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated from combustion of coal or fossil fuels;

c. solid waste from the extraction, beneficiation, and processing of ores and minerals (although only 20 listed processing wastes remain excluded, by virtue of EPA's regulatory action) (Bevill Amendment); and

d. cement kiln dust when not produced by burning fuel that contains hazardous waste. See Horsehead Resource Development Co., Inc. v. Browner, 16 F.3d 1246 (D.C. Cir., Feb. 22, 1994). On February 7, 1995, EPA published its regulatory determination that it would lift the current exemption for cement kiln dust under Subtitle C of RCRA and apply "tailored" waste management standards to disposal of the waste. See 60 Fed. Reg. 7366. A citizens' suit challenging this determination was filed in May 1995. Safe Cement Alliance v. Texas v. EPA, No. 95-1252 (D.C. Cir., May 8, 1995). EPA is currently seeking to enter into an enforceable agreement with the cement kiln industry to establish hazardous waste management standards. EPA has proposed to amend the RCRA regulations governing cement kilns to incorporate Maximum Achievable Control Technologies Standards under the Clean Air Act. 61 Fed. Reg. 17357 (Apr. 19, 1996) (final rule expected in March of 1998).

42 U.S.C. § 6921(b)(2)(A)-(3)(A); 40 C.F.R. § 261.4(b).

4. Special Hazardous Waste Rules.

a. "Empty Container" Rule. An empty container that contains hazardous waste, except for acute hazardous waste, may not be

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subject to RCRA regulation as a hazardous waste. 40 C.F.R. § 261.7.

(1) A container is "empty" when all wastes that can be removed by pouring, pumping, etc. are removed and no more than one inch of residue remains or no more than 3% by weight remains in a container which is smaller than 110 gallons.

(2) If the container is greater than 110 gallons, then no more than 0.3% by weight can remain as residue.

(3) Containers holding "acute" hazardous wastes must be triple rinsed with a solvent that will remove the wastes before they are considered an empty container. If considered empty under the regulations, the container can be disposed of as a non-hazardous solid waste under RCRA.

b. "Mixture" Rule. The "mixture" rule applies to the regulation of "hazardous wastes" under Subtitle C, and states that mixing or combining a RCRA "listed" hazardous waste with other non-hazardous waste causes the entire resultant mixture automatically to be considered hazardous. 40 C.F.R. § 261.3(a)(2).

c. "Derived From" Rule. The "derived from" rule provides that any solid waste generated from the treatment, storage, and disposal of a listed hazardous waste will be considered a hazardous waste, unless it is delisted. Thus, it is imperative that no RCRA listed wastes become mixed with other wastes. 40 C.F.R. § 261.3 (c)(2).

d. Note: In 1991, the "derived from" and "mixture" rules were struck down and remanded to EPA for failure to provide adequate APA notice when they were promulgated. Shell Oil v. Environmental Protection Agency, 950 F.2d 741 (D.C. Cir. 1991).

(1) On March 3, 1992, EPA reinstated the "derived from" and "mixture" rules on an interim basis, pending revisions to the hazardous waste identification provisions of the RCRA regulations. 57 Fed. Reg. 7628 (1992). The reenacted rules were to automatically expire on April 28, 1993, but EPA lifted the sunset provision on October 30, 1992 and decided that the rules would be maintained until EPA takes final action to revise them after obtaining and evaluating advice and technical data from all interested parties. 57 Fed. Reg. 49278 (1992).

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(2) On September 8, 1992, the Senate passed the Chafee Amendment, which set October 1, 1994 as the earliest date by which EPA could issue a final replacement rule and postpones the deadline for issuing the final rule to October 1, 1994.

(3) On October 3, 1994, the Chemical Manufacturers Association ("CMA") and the Environmental Technical Council ("ETC") filed lawsuits against EPA for EPA's failure to issue final "derived from" and "mixture" rules by the October 1, 1994