Chapter 5 - § 5.2 • RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)

• Jurisdiction: Colorado

§ 5.2 • RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)

RCRA establishes a broad, comprehensive program to address solid and hazardous waste management and disposal issues, including providing assistance and funding to states to establish state programs to address these issues. RCRA governs the generation, transportation, treatment, storage, and disposal of waste.

§ 5.2.1—Goals

The underlying goals of RCRA are to promote: (1) innovation of better waste management systems and technology; (2) resource recovery and waste recycling; (3) waste minimization; and (4) ensuring that hazardous waste management practices are conducted in a manner that protects human health and the environment.⁷ Land disposal is the least favored manner for managing hazardous wastes.

§ 5.2.2—Definitions Of Solid And Hazardous Waste

RCRA provides definitions for the terms "solid waste" and "hazardous waste." The statutory definitions are broad, and may be interpreted as applying in the context of inspections, corrective actions, and citizen suit actions. EPA has adopted narrower regulatory definitions that typically apply to operational, permitting, and manifesting requirements.

Statutory Definitions

Congress defined "solid waste" under RCRA as any garbage, refuse, or sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility, and any other discarded solid, liquid, semi-solid, or contained gaseous material except:⁸

• Domestic sewage;
• Industrial discharges that are point sources regulated under the Clean Water Act;
• Irrigation return flows; and
• Radioactive source material, special nuclear material, or by-product material.

The statutory definition for "hazardous waste" is broad enough to include almost any solid waste that may pose a substantial hazard to public health or the environment.⁹

Regulatory Definitions

EPA has developed its own regulatory definitions to implement the requirements of RCRA. "Solid waste" is defined under the regulations as any discarded material, including "abandoned," "recycled," or "inherently waste-like" materials, except specifically excluded materials.¹⁰ EPA's list of exclusions in the regulations is broader than the statutory list of excluded materials.¹¹ EPA regulations also contain exclusions from the definition of solid waste for certain recycled materials.¹²

EPA regulations define "hazardous waste" as any solid waste that: (1) is a "listed" hazardous waste; (2) is mixed with or derived from a listed hazardous waste; or (3) exhibits a hazardous waste characteristic; and (4) is not otherwise exempt.¹³

• Listed Wastes — Listed under 40 C.F.R. part 261, subpart D (40 C.F.R. §§ 261.30 to 261.35). There are three lists:

• ○ Nonspecific source wastes (40 C.F.R. § 261.31) ("F" coded wastes).
• ○ Specific source wastes (40 C.F.R. § 261.32) ("K" coded wastes).
• ○ Discarded or off-specification chemical products, and container or spill residues thereof (40 C.F.R. § 261.33) ("acute hazardous" wastes are "P" coded wastes; "Toxic wastes" are "U" coded wastes).

• Mixed Wastes — Mixed with, or derived from the treatment of, any listed hazardous waste. EPA's "mixture rule" says that a mixture of any listed hazardous waste and anything else results in the entire mixture being regulated as that same listed hazardous waste. EPA's related "derived from" rule says that a waste material derived from the treatment of a listed hazardous waste is potentially still regulated as the same listed hazardous waste.¹⁴

• Characteristic Wastes — Exhibit a characteristic of hazardous waste under 40 C.F.R. part 261, subpart C (40 C.F.R. §§ 261.20 to 261.24). There are four hazardous characteristics:

○ D001 — ignitability (flash point • ○ D002 — corrosivity (pH = 2 or = 12.5).
• ○ D003 — reactivity.
•○ D004-D043 — toxicity (determined using the Toxicity Characteristic Leaching Procedure (TCLP), which is designed to mimic landfill conditions and determine whether leachate from the waste is likely to contain toxic concentrations of specific contaminants, such as lead, arsenic, or tetrachloroethylene).

Some important exclusions from the definition of hazardous waste include household wastes, agricultural wastes, certain oil and gas exploration and production wastes, cement kiln wastes, wastes legally discharged into Publicly Owned Treatment Works (POTWs), industrial wastewater discharges that are regulated as Clean Water Act "point source" discharges, some specific mining and milling wastes, and certain recycled materials.¹⁵ Hazardous wastes that are recycled are subject to a number of separate requirements.¹⁶ In 2015, EPA promulgated the Definition of Solid Waste Rule, which modified aspects of the recycling exemption to provide more stringent requirements for hazardous waste recyclers to prevent mismanagement of hazardous secondary materials, to prevent sham recycling, and to minimize the impacts to local communities from hazardous waste recycling.¹⁷ After vacatur of certain portions of the rule, in 2018, EPA published a modified Definition of Solid Waste Rule that added three additional exclusions.¹⁸ While EPA encourages states to adopt the 2018 version, Colorado previously adopted the 2015 version, and because it is more stringent, Colorado is not required to revise its program.¹⁹

On February 22, 2019, issued the "Pharmaceutical Rule" addressing the management of hazardous waste pharmaceuticals²⁰ and in the process addressed a long-standing controversy as to when unsold products become wastes (known as the "point of generation"). Understanding the "point of generation" is critical because it determines which party is deemed the "generator" of a waste, and the point at which responsibility attaches for compliance with applicable waste handling requirements. EPA concluded that unsold retail products returned by a retailer to the vendor or shipped to "reverse logistics facilities" for manufacturer credit and disposition are not wastes if they have a reasonable expectation of being legitimately used or reused for their intended purpose or reclaimed.²¹ EPA also addressed five common "point of generation" issues that arise in the context of reverse logistics of unsold consumer products, including recalls, expired products, "destroy dispositions" (e.g., business rules the manufacturer has established that require the items to be discarded after being evaluated for credit), and broken/damaged/leaking items.²² Further, because unused prescription pharmaceuticals are almost always discarded when returned for manufacturer credit at "reverse distribution facilities," EPA determined that they become wastes at the healthcare facility (e.g., hospitals, physician's offices, long-term care facilities, and retail pharmacies) and are subject to regulation at that point.²³

Recognizing that EPA's broad definition of "hazardous waste" can result in overly stringent regulation, under its universal waste program, EPA has adopted more relaxed management standards for certain common categories of hazardous waste (batteries, pesticides, mercury-containing equipment, lamps, and aerosol cans).²⁴ Colorado has broadened the list of wastes that may be managed as universal waste to include electronic devices and electronic components.²⁵

§ 5.2.3—Generator Regulations

A "generator" is the person or entity that first causes a hazardous waste to become subject to regulation, whether by creating the waste, importing it, or taking other action that causes RCRA regulations to apply to the waste.²⁶

In 2016, EPA promulgated the Hazardous Waste Generator Improvements Rule (Generator Improvements Rule), which reorganized existing regulations to make it easier for generators to find applicable requirements, codified many EPA interpretations regarding how the hazardous waste rules apply to generators, revised the rules in ways to provide greater flexibility for generators, and added a number of new, more burdensome requirements.²⁷

RCRA does not require generators to obtain permits, but generators who generate 100 kilograms or more of hazardous waste per month must file notice of their hazardous waste activities and comply with the applicable hazardous waste management regulations and obtain a generator identification number.²⁸ It is the generator's responsibility to determine whether it generates hazardous waste, that is, to perform a waste determination.²⁹ Generators can determine whether their waste is "hazardous" through chemical analyses, process knowledge, or a combination of the two.³⁰ The determination generally should be a regular or continuing process, since changes in a facility's operations may change the nature of the waste produced. There are three categories of generators under RCRA, based upon how much hazardous waste they generate each month: (1) large quantity generators (LQGs); (2) small quantity generators (SQGs); and (3) very small quantity generators (VSGQs, formerly referred to as "conditionally exempt small quantity generators").³¹ Notably, EPA's 2016 Generator Improvements Rule allows SQGs and VSQGs to avoid changing generator status when generating non-routine "episodic" waste provided the episodic waste is properly managed.³² However, the Generator Improvements Rule also provides that failure to comply with specific requirements applicable to a generator's status effectively voids that status and subjects the generator to hazardous waste storage permitting requirements.³³ Even minor violations of rules applicable to a particular generator category could result in a facility being subject to multiple permit violations and associated penalties.³⁴

Large Quantity Generators

LQGs are facilities that generate (1) 1,000 kilograms or more per month of hazardous waste; (2) over one kilogram per month of acute hazardous waste; or (3) over 100 kilograms per month of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill of any acute hazardous waste.³⁵ LQGs are subject to...