RCRA's Universe: Solid and Hazardous Wastes

• Author: Susan M. McMichael
• Pages: 27-53

Page 27

Chapter 2

RCRA’s Universe: Solid and Hazardous Wastes

2.0 Introduction

EPA’s denition of “solid waste” is a “mind-numbing journey.”

—Judge Kenneth Starr, D.C. Circuit Court of Appeals1

RCRA §3005 requires a permit for the treatment, storage, or disposal of hazardous waste. is chapter addresses

the process of deni ng a material a s hazardous wa ste, which is a subset of solid waste. It is a four-step process

that has been described as “mind-numbing” (see Box 2.1).

e denitions of solid and hazardous waste a re not a mere issue of semantics; they are the cornerstone of

RCRA’s jurisdiction. Unfortunately, these denitions are neither concise nor straightforward. EPA itself has

conceded that the denition of solid waste is “complicated,” “convoluted,” and “too dicult to interpret.”2 EPA

rules dening solid waste have been litigated in various federal courts, which have both upheld and rejected the

agency’s interpretation. ese cases are discussed in this chapter.

e chapter also describes EPA’s recent initia-

tives to revise the denitions of solid waste, mili-

tary munitions, and new hazardous waste listings.

ese reforms have resulted in a dwindling of

RCRA requirements through the increased use of

exclusions and conditional exemptions from the de-

nitions of solid and hazardous waste. ese exclu-

sions and conditional exemptions generally result

from an EPA decision that the RCRA requirement

is duplicated or covered by another federal regu-

latory program—for example, the federal CWA,

the Atomic Energy Act of 1954, as amended, U.S.

Department of Transportation (DOT) rules, or

the Occupational Safety and Health Adminis-

tration—and would not provide additional pro-

tection to huma n health and the environment.

Other reforms, such as EPA’s 20 08 Revisions to

the Denition of Solid Waste (DSW Rule), streamline regulation of hazardous secondary materia l in response to

court decisions by removing unnecessary controls to encourage industrial rec ycling.

1. American Mining Congress v. EPA, 824 F.2d 1177, 1189, 17 ELR 21064 (D.C. Cir. 1987).

2. U.S. EPA, Rethinking the Denition of Solid Waste, EPA Forum Agenda at 8 (Apr. 28, 1993) (denition of solid waste is “convoluted”); U.S. EPA,

Hazardous Waste Management System: Denition of Solid Waste, 50 Fed. Reg. 614, 617 (Jan. 4, 1985). See also United States v. White, 766 F.

Supp. 873, 882, 22 ELR 20050 (E.D. Wash. 1991) (defendants argued that RCRA’s denition of solid waste was “unintelligible to the ordinary

person,” providing evidence that EPA ocials described it as very complex and dicult to understand and implement).

Box 2.1

The Solid Waste Puzzle

Step 1 Is th e mat erial a so lid wa ste?

Step 2 If s o, is it an excluded solid waste?

Step 3 Is th e sol id wa ste a hazar dous waste?

Step 4 If s o, is it an excluded hazardo us wa ste?

If not, it is a RCRA hazar dous waste.

Page 28 RCRA Permitting Deskbook

2.1 Denition of Solid Waste

To say that when something is saved it is thrown away is an extraordinary distortion of the

English language.

—Judge A. Raymond Randolph, D.C. Circuit Court of Appeals3

e permit requirement of RCRA Subtitle C applies only to discarded solid waste that meets both statutory and

regulatory denitions. It is important to untangle these denitions. Because haza rdous waste is by denition a

subset of solid waste, any material that is not dened as solid waste cannot be hazardous waste, and therefore is

not subject to RCRA. Material t hat is nonhazardous solid wa ste is regulated under the less rigorous standards

of RCR A Subtitle D. Radioactive mixed waste, in tu rn, is a subset of haz ardous wa ste (and is discussed in

Chapter 10). Within this framework of denitions, EPA has also crafted a system of exclusions and exemptions

to these denitions to create an intricate web linking RCRA jurisdiction to the level of regulatory requirements

that apply to a given material.

Statutory Test

e starting point to determine if a material is a solid waste is whether it meets RCRA’s statutory test (see Figure

2.1, the Solid Waste Maze). A material that meets the statutory test, but not the narrower regulatory denition

of solid waste, is not subject to Subtitle C permit requirements. Statutory solid wastes, however, may be subject

to RCRA’s imminent hazard provisions under §§7002 and 7003, and EPA inspection and monitoring require-

ments under RCRA §§3007 and 3013. RCRA’s imminent hazard provisions allow EPA and authorized states

to bring a lawsuit to clean up if there is imminent and substantial endangerment.4 Examples of RCRA statutory

3. Association of Battery Recyclers v. EPA, 208 F.3d 1047, 1053, 30 ELR 20512 (D.C. Cir. 2000).

4. 40 C.F.R. §261.1(b)(2)(i), (ii) (2008). See Simsbury-Avon Preservation Society, LLC v. Metacon Gun Club, 575 F.3d 199, 39 ELR 20173 (2d

Cir. 2009) (RCRA’s broader statutory denition of solid wastes may give rise to citizen lawsuits based on the fact that imminent hazardous lead

shot discharged at a shooting range is not considered a regulatory solid waste because it is used for its intended purpose); Military Toxics Project v.

EPA, 146 F.3d 948, 951, 28 ELR 21350 (D.C. Cir. 1998) (contains a good discussion on the dichotomy between statutory and regulatory solid