Resource Conservation and Recovery Act (RCRA)

Love Canal (see chapter 6) motivated Congress on two fronts. CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act) addressed how to clean up Love Canal and the hundreds of other hazardous waste sites that had accumulated due to poor disposal practices. The Resource Conservation and Recovery Act (RCRA)¹ deals with how to manage and dispose of hazardous waste to avoid creating any more Love Canals. Although RCRA was first enacted in 1976, Congress beefed it up following the Love Canal disaster.

The best way to protect health and the environment from hazardous wastes is to prevent exposure. RCRA’s first line of defense is to contain and isolate such wastes in a controlled setting designed to minimize the risk of escape. To achieve this, the act takes a systematic “cradle-to-grave” approach with respect to handling and disposal of hazardous wastes. Tracking and other key features of this approach are discussed in this chapter.

RCRA’s systematic approach has been reasonably effective. But escape can still occur, whether due to human error, unavoidable events such as a tornado, or other causes. So RCRA contemplates backup strategies. Some wastes can be treated to reduce toxicity, so they will do less harm if they escape. Treatment can also, in some cases, reduce mobility, so that escaped contaminants cannot spread as far. Another strategy is to discourage land disposal in favor of other methods, such as incineration, that reduce the volume of waste that might escape. Land disposal is subject to stringent regulation, for example, disapproving locations where there is high risk to groundwater and requiring installation of redundant detection and alarm systems for leaks.

Besides regulating disposal of wastes, RCRA also tackles another source of hazardous contamination: leaking underground storage tanks. RCRA has been fairly effective both in dealing with the problem of hundreds of thousands of preexisting buried tanks and in making new tanks safer.

Another stated goal of RCRA is to reduce the amount of hazardous waste generated in our society. But the act does not provide effective means to accomplish this goal, so little progress has been made.

RCRA is implemented by the EPA and by states with approved programs. To be approved, the state program must be at least as stringent as federal law.

WHAT IS A HAZARDOUS WASTE?

Definitions² play a key role in the implementation and enforcement of RCRA, and in the efforts by some people to escape its requirements. This chapter will discuss the definition and nature of hazardous wastes at some length before addressing how they are regulated.

In the most simplistic terms, a hazardous waste is a solid waste that is hazardous. As used in RCRA, the term “hazardous” is fairly straightforward, but the term “solid waste” is a bit counterintuitive.

What Is a Solid Waste?

Under RCRA the term solid waste encompasses pretty much all materials to be discarded, for example, spent material, sludge, by-products, commercial chemical waste, and scrap metal. The surprising aspect is that solid waste includes not just solids, but also liquids and containerized gases. Essentially, it encompasses wastes intended for land disposal—as opposed to air disposal (such as smokestack emissions regulated by the Clean Air Act) or water disposal (such as discharges to surface waters regulated by the Clean Water Act).

Hazardous waste is a subset of solid waste. The other categories are municipal waste (which includes household waste) and industrial waste. RCRA establishes federal control over hazardous waste. The act leaves nonhazardous solid wastes under the primary control of the states, with federal support and guidelines.³

Exception: Materials to be recycled or reused are a notable exception from the definition of solid waste. This exception has been exploited by some as a loophole to avoid the high cost of compliance with RCRA. This is discussed further in the next section.

What Makes a Solid Waste “Hazardous”?

RCRA defines hazardous waste as “a solid waste . . . which because of its quantity, concentration, or physical, chemical or infectious characteristics may

EPA has translated this broad statutory language into a concrete two-part definition. Hazardous wastes include anything on a list created by EPA (listed waste), as well as anything that has certain harmful characteristics (characteristic waste).

Listed Hazardous Wastes

The EPA has substantial discretion in deciding what to include on its list of hazardous wastes.⁵ The factors that the EPA considers include whether the waste is corrosive, ignitable, reactive, or toxic. These factors relate to the hazard (type of harm) a waste can cause, and they are the same qualities that can make something a characteristic waste. In deciding whether to list a waste, EPA also considers additional factors that make it more likely that humans, animals, or the environment will be exposed to the waste; that is, its persistence in the environment and whether it bioaccumulates.

Defining hazardous wastes by means of a list is an important tool of effective environmental protection. It means the EPA doesn’t have to analyze every waste stream from every waste generator, which would be almost impossible in our society today. Instead, the many wastes common enough to be on the list are hazardous wastes by definition. Each listed waste is given an identifying code number (ID code).

While listing is a common and helpful way of defining substances subject to regulation, there is a weakness. The list is finite; the possible types of hazardous waste seem infinite in number. A new waste, or a waste slightly modified so that it no longer qualifies under an ID code, would escape regulation if the list were the only definition. So the EPA has a backup definition.

Characteristic Wastes

A characteristic waste⁶ is any solid waste having any of the following characteristics:

• Corrosivity
  
• Ignitability
  
• Reactivity
  
• Toxicity

Sometimes these are referred to by the initials CIRT wastes is much different from the other characteristics, you will also see references just to CIR wastes. The EPA has standards that spell out how corrosive, ignitable, and so forth a waste must be to be deemed a characteristic waste—sometimes referred to as the “characteristic level.” Below the characteristic level, a CIR waste is not deemed a hazardous waste.

Loopholes and Exceptions

Compliance with regulations for the management and disposal of hazardous waste is very costly. A waste generator can avoid that cost if its wastes don’t fit the definition of “hazardous waste.” Thus, generators try to find loopholes, which EPA tries to close.

The Mixture Rule

A common environmental mantra is that dilution is not the solution to pollution. Reflecting this dictum, EPA adopted the mixture rule.⁷ This rule says that a hazardous waste, when mixed with another solid waste, is still a hazardous waste. There is good reason for this rule: mixing does not reduce toxic burden; it just results in more total waste to cope with. Thus, dilution by mixture can be harmful, not helpful, to environmental protection.

The mixture rule applies to listed wastes and to toxic characteristic wastes. CIR wastes are different—mixing can actually mitigate their harmfulness. Thus, wastes identified as hazardous solely because of their corrosive, ignitable, or reactive characteristics are exempt if they fall below characteristic levels due to mixing.

The Derived-From Rule

Some hazardous wastes can be destroyed by incineration. But the ash left behind may itself be toxic. The same is true when hazardous waste changes its physical form in other ways. Rather than having to analyze such changes on a case-by-case basis, EPA adopted the derived-from rule.⁸ This rule says that a solid waste derived from a hazardous waste is still a hazardous waste. As with the mixture rule, CIR wastes may be exempt if the derivative falls below characteristic levels.

The Contained-In Policy

This policy applies when a hazardous waste spreads into soil, groundwater, or other medium, for example, due to a leak. In that event, the entire contaminated matrix is considered a hazardous waste. This is because there is no practical way to unmix the contaminant from the medium.⁹

In essence, the contained-in policy complements the mixture rule in closing loopholes. Under the mixture rule, you can’t escape hazardous waste status by mixing with another solid waste. Under the contained-in policy, you can’t escape hazardous waste status by mixing with a nonwaste medium such as soil or groundwater.

Recycle Exemption

RCRA encourages recycling. Because they are not discarded materials, recycles don’t meet the definition of solid waste. And because hazardous waste is a subset of solid waste, recycles are automatically excluded from the definition of hazardous waste, no matter how hazardous they are. But distinguishing whether something is a legitimate recycle—or a discard masquerading as a recycle—is a difficult challenge that has led to a lot of litigation and confusing regulations.

Recycles, including hazardous recycles, are not regulated under RCRA. RCRA imposes no requirements for safe handling and storage of hazardous recycles. Further, RCRA does not provide for monitoring to make sure they are really used as recycles, nor set any deadline after which they will lose their recycle status. States may have laws regulating hazardous recycles. But once a hazardous material is classified as a recycle, it falls off RCRA’s radar—a potentially huge loophole.

As a result, if a purported recycle program is really a sham, or if a good faith plan to recycle goes awry, hazardous materials may reside indefinitely in an uncontrolled condition and location, with none of RCRA’s protections for public health and the environment. For this reason, the EPA (and the courts) may scrutinize a hazardous waste generator’s purported recycle plan to determine whether it is genuine. Basically, the EPA tries to determine the generator’s intent: will it really recycle the hazardous materials? Or is this just a ruse to discard hazardous waste without complying with costly regulations? Generally, hazardous material is recognized as a legitimate recycle (and therefore escapes regulation) if it fits into one of the categories in List 1, and does not fall into any of the categories in List 2.¹⁰

List 1: To be a legitimate recycle, hazardous material must be

• Directly used as an ingredient in a production process, or
  
• Used as an effective substitute for a commercial product, or
  
• Returned to the production process directly and without further treatment.

List 2: A hazardous material is not a recycle if it is

• Used as fill, or otherwise placed on land in a manner that is essentially disposal, or
  
• Burned as a fuel, or
  
• Accumulated speculatively for indefinite future use.

Exclusions

RCRA and EPA regulations exempt a number of substances from the definition of hazardous waste.¹¹ Therefore, those items are not subject to regulation under RCRA, even though they are discards that may be both voluminous and toxic.

One exception is for household hazardous waste, such as paints, pesticides, fertilizers, and batteries. Although each household’s waste is miniscule, the aggregate of all household wastes is a large quantity and a large problem. But it is a problem that would be difficult to control by regulation at the federal level.

Other exceptions apply to various special interests, some possibly due to difficulties of regulation, some in deference to other governing statutes, some perhaps due to political influence. In the agricultural industry, irrigation returns are exempt, as well as certain wastes used as fertilizer. Drilling wastes from oil and gas exploration and production are excluded, as are some mining wastes. The list goes on, and it’s something of a hodgepodge.

CRADLE-TO-GRAVE REGULATION

RCRA calls for “cradle-to-grave” regulation,¹² meaning from the time a hazardous waste is generated by some industrial process until the time it is finally disposed of, and even beyond disposal. The major tools of hazardous waste regulation are permit requirements, packaging and labeling standards, a tracking system for waste, and shared responsibility among everyone who handles the waste, including generators, transporters, and disposal facilities.

Some general requirements apply to all categories of hazardous waste handlers. All must train their workers in proper handling of hazardous waste. All must file notification with the EPA and thereby obtain an identification number. Thus, each individual waste handler has its own identification code, just as each listed hazardous waste has its own identification number. Although there are variations among the different categories, all handlers must keep detailed records of the hazardous wastes they handle, including source, ID codes, quantities, and disposition.

Besides requirements that apply to all hazardous waste handlers, there are additional regulatory requirements for each category of waste handler. These are discussed in the following sections.

Generators

Anyone whose activities create hazardous wastes is a generator