The United States EPA administers what is often called a "cradle to grave" system of hazardous waste management. The administration of this program is almost entirely under the Resource Conservation and Recovery Act, or "RCRA". (RCRA programs are in particular circumstances interrelated to programs under other laws including the Safe Drinking Water Act, Toxic Substances Control Act, Clean Water Act and Clean Air Act. Those relationships are not discussed here.)
The Resource Conservation and Recovery Act (RCRA) is designed to govern the handling and disposal of "hazardous wastes" at sites that are (or were) currently active. It affects sites where such wastes were treated, stored or disposed of since November 19, 1980. (This is in contrast to Superfund, which includes historic as well as current sites, and which governs a broader universe of "hazardous substances".) Thus, typically, any person that generates "hazardous waste" currently is governed, as are persons that treat, store or dispose of hazardous wastes.
Definition of Hazardous Waste
The definition of hazardous waste under RCRA is truly one of the most bureaucratic and technical constructs of our age.
First, waste is not a "hazardous waste" unless it is a "solid waste". Lest the reader presume to understand the latter term in terms of colloquial English, be cautioned that the term solid waste includes solids, liquids and containerized gasses. Generally, the material must be "discarded", although again caution is needed, since "discarded" material includes "recycled" material or anything "inherently" waste-like. Major exclusions from the definition of solid waste are: sewered discharges to POTWs or pursuant to NPDES permits, domestic sewage, in-situ mining materials, source special nuclear materials, reused spent sulfuric acid...well, you get the idea that you need to be sure you have a "solid" waste before you are dealing with RCRA waste.
I should note that not all "recycled" material is solid waste. There are exclusions, which have been the source of serious litigation over RCRA's proper scope. If a material is directly reused within an industrial process, despite being leftover from another or the same part of the process, it usually is excluded from definition as a solid waste. Each case must be carefully evaluated on the facts. Also excluded form the "solid waste" definition, at least at present, are certain sludges and by-products that are only hazardous because they possess a "characteristic" of hazardous waste, as opposed to containing a "listed waste". (To begin to understand the difference, please read on below.)
Second, in order to be a "hazardous waste" the solid waste(s) must be capable of causing an increase in mortality or serious illness or present a real or potential threat to human health or the environment if improperly managed. Important exclusions apply, including exclusions for: household waste, agricultural waste used as fertilizer, mining overburden at a mine site, utility coal combustion wastes, oil and gas drilling waste, and some other source specific wastes.
A waste will be deemed "hazardous" if it is a waste "listed" by the EPA and/or if it meets certain technical characteristics. The "characteristic" tests include: ignitability, corrosivity, reactivity (chemical), and toxicity. There are several "lists" of wastes, including lists by the nature of the process of generation: the"F" list of nonspecific source types, the "K" list of specific manufacturing and other source wastes, and the "P" and "U" lists of discarded and unused commercial chemicals. EPA published background documents that are helpful in understanding some of the listings. There are hundreds of specific "hazardous wastes" carrying listing classifications in a format that gives the letter code for the "list" and the position or number of the waste compound on the list (e.g. F003, P031, U165).
Generally, once you have a listed waste you must go through a demanding process known as "delisting" before you can handle the material otherwise than as a hazardous waste. For example, even if your "listed waste" is highly diluted or mixed with non-hazardous material, the mixed material is considered hazardous waste and it must be treated, stored and disposed as hazardous waste. There are limited exceptions to this principle which should be relied on only after careful legal and engineering review.
Any person or entity that creates or otherwise causes hazardous waste to be generated is deemed a "generator". A generator has the burden of determining if wastes it creates are hazardous wastes. All hazardous waste generators in the United States must notify USEPA of the fact they are initiating such activity and they must get a generator identification number (generator i.d.). Generators have a duty to store their hazardous wastes properly and to properly label them. Generally wastes can be properly stored for up to 90 days without triggering responsibility for obtaining a storage permit under RCRA. Small quantity generators (less than 1,000 Kilograms monthly) and extremely small quantity generators (less than 100 Kg. per month) have more storage time and some leeway on other requirements. However, during the generator storage period, technical obligations on the integrity of the storage area and the containers used, record keeping and inspection requirements apply.
A generator is required to have its wastes transported, treated and disposed only by properly licensed parties. To assure this result, a manifest system is in place nationally. Specific container integrity requirements apply, and Department of Transportation labeling requirements apply as well. The manifests are in prescribed forms that show the identity of the generator, transporter and disposal facility and the volume and classification of the waste (e.g.F003, U122). Copies are kept by each party, and generators must track their waste shipments and be able to show that its wastes were properly received at their destination. If there is a problem doing so for a particular shipment, an exception report must be made.
Treatment, Storage and Disposal Facility Permits and Obligations
When RCRA was enacted, facilities for the treatment storage or disposal of hazardous wastes were all required to notify EPA of their activities and submit information that formed part of what is known as a "Part A" permit. Having a "Part A Permit" was required in order to keep operating. Failure to have such a permit normally would trigger a requirement that a facility go through"closure", a shut down process designed to assure that no environmental or health injury occurs once the operations cease. Companies lawfully operating under Part A permits are in what is called "interim status".
At this point in time, most treatment, storage and disposal facilities should have "Part B" permits, which are more detailed and demanding in their requirements. "Part B permits" include a myriad of specific technical safeguards, location standards, monitoring, inspection, training and reporting requirements, provision of financial assurances, and closure plans. The standards are too complex to elaborate upon here in a useful way. Depending upon whether the facility is in a State where there is a state program that EPA has approved, the permit may be issued either by the State or by the EPA.
Included within Part B permits or separate EPA orders there may be specific corrective action requirements. These are measures that address problems that exist at an operating site, such as residues of past spill events. The negotiation and enforcement of "corrective action" requirements is an important, complex and controversial topic. EPA has assumed broad authority to order corrective action, and the standards and cost of corrective action requirements rival and resemble the remedial actions necessary under the Superfund. Given the rigidity of the EPA definitions of "hazardous waste", there has been a lot of pressure from the regulated community upon the EPA to set realistic cleanup goals that are measured in terms of real world risk, rather than the presence of minute molecular residues or unrealistic future exposure scenarios.
The Land Ban
In 1984, Congress passed and the President signed the Hazardous and Solid Waste Amendments (HSWA). In addition to providing EPA with authority to require corrective action at operating sites, HSWA imposed requirements that would lead to phasing out and elimination of land based disposal of the majority of hazardous wastes, especially of hazardous wastes liquids. Such disposal is to occur only if and after specific wastes subject to the land ban are treated to a standard that represents what EPA determines is a level that takes away the toxicity of a waste or its ability to migrate in the environment so as to no longer pose any threat to human health or the environment. Dilution of wastes is specifically prohibited; they must be treated.
One exception to the "land ban" requirement exists for disposal at facilities from which the wastes can be shown not to be able to escape. These so-called "no migration" facilities must make a very demanding showing to be authorized to receive untreated hazardous waste. The showing is next to impossible for landfill type units. Generally, disposal into very deep wells, where wastes enter rock formations that are far below any useful groundwaters may qualify as "no-migration" units, if they can show that there is no physical way the waste could move out of the permitted formation.
Other temporary exceptions to the land ban exist and may be applicable in a given setting or circumstance. For example, capacity variances may be available. Also, some storage in surface impoundments has been possible provided certain procedures regarding sludge removal were followed and retrofits were timely installed.
The result of the RCRA requirements is that treatment costs for hazardous wastes can be serious financial burdens. This in turn stimulates a rational business operation to reduce or even eliminate hazardous waste generation. This normal economic process is further encouraged by the "waste minimization" program requirements of RCRA.
Although at least one Federal Court of Appeals has described RCRA as a "mind numbing" law, violation of its regulatory strictures and requirements subjects violators to severe civil and criminal penalties. EPA may commence a procedure of gathering information by issuance of an order to a suspected violator, or it may issue an administrative complaint. EPA and the Department of Justice may also proceed in Court. (However, a recent Court of Appeals decision indicates EPA power to proceed in a given State may depend upon whether the State has been authorized to conduct a program.)
Civil penalties range up to $25,000 per violation per day. Criminal conviction for "knowing" violations includes a potential $50,000 penalty per violation per day, plus up to two (or in some cases five) years in jail. The penalty doubles for repeat offenders. "Knowing endangerment", or the placing of a person at risk of death or serious injury by an unlawful hazardous waste activity, may result in a $250,000 fine for individuals and imprisonment for up to fifteen years. Organizations (e.g. corporations) may be fined up to $1,000,000.
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Copyright © 1999 Harvey M. Sheldon, P.C.