21 ELR 10063 | Environmental Law Reporter | copyright © 1991 | All rights reserved

Rethinking the Resource Conservation and Recovery Act for the 1990s

Ms. Williams is a Divisional Vice President for Environmental Policy and Planning for Browning-Ferris Industries and serves as Project Director for the company's Pacific region. She is also a former Director of the U.S. EPA Office of Solid Waste. Mr. Cannon is a partner with the Washington, D.C., office of Beveridge and Diamond. He is a former Deputy Assistant Administrator of the U.S. EPA Office of Solid Waste and Emergency Response (OSWER) and served as Acting Assistant Administrator of OSWER from March through November 1989.

The authors are indebted to several people who reviewed and commented on drafts of this Dialogue. They include Aaron Goldberg, Jon Greenberg, Gene Lucero, Robert Gulley, John Dernbach, and Debi Dobkowski.

[21 ELR 10063]

"The time has come," the Walrus said, "to talk of many things."

— Lewis Carroll, Through the Looking-Glass

The Resource Conservation and Recovery Act (RCRA)¹ regulatory regime contains more than 600 pages of complex regulations governing the management of waste. Economic estimates suggest that the RCRA system requires expenditures of $ 3-$ 6 billion per year for compliance. Whether these expenditures are obtaining the maximum environmental benefit is unclear.

Background

Issues of Environmental Effectiveness

The RCRA system comes up short in several respects when measured against its basic objectives. First, the worst problems are not being addressed. Although Subtitle C of RCRA, dealing with hazardous wastes, is an inch wide and a mile deep, and requirements are substantial for the wastes defined in it, the large volumes of industrial waste not subject to Subtitle C remain essentially unregulated at the federal level. These include much waste that is toxicologically similar to waste now regulated under Subtitle C. Second, it is not clear that the existing system improves the environment as quickly as possible, because the complexity of the permitting system precludes the rapid closing of poor-quality facilities or the opening of new, high-quality ones. Thus, the system tends to be biased in favor of existing facilities and against new technically superior facilities. Third, the current system creates the wrong incentives for achieving environmental benefits by making it easier for the regulated community to maintain the status quo rather than to initiate environmental improvements. Finally, compliance is extremely uneven, in large part due to the complicated regulatory framework. That complexity reduces voluntary compliance and also reduces the Environmental Protection Agency's (EPA's) ability to ensure and mandate compliance.

Not surprisingly, these shortcomings are traceable in significant part to the existing definitional framework of RCRA — a framework critical to the RCRA program. It determines what is regulated, what is not regulated, and what it means to be regulated. Unlike many regulatory programs that have clearly defined targets, RCRA gives EPA considerable latitude in defining what is a solid waste and, within the universe of solid waste, what should be dealt with as hazardous.² This discretion has proved both a blessing and a curse: a blessing because it allows EPA to shape the foundations of the RCRA program within the existing legislative mandate; a curse because it focuses intense pressure from competing interests on the basic definitional elements of RCRA — pressures that EPA must struggle to accommodate within the limits of its mandate.

This Dialogue examines how the RCRA definitional structure has evolved under these pressures, identifies problems associated with that structure, and suggests solutions.

A Context for Evaluating RCRA

In assessing the RCRA waste management framework, one should consider several lessons that 15 years of environmental regulatory history have taught the regulators and the regulated community. The first lesson is that RCRA is not the only statute that addresses the management of waste. The Clean Air Act³ and the Clean Water Act,⁴ which regulate air emissions and surface water discharges, respectively, deal with the generation of waste released into specific media. The second lesson is that wastes can easily be transferred between different media. The third lesson is that the line between waste and products is not bright. Products become waste and waste can also be made into products. These observations underscore the need for a coherent, integrated vision, both in evaluating environmental [21 ELR 10064] regulatory systems and in designing and implementing changes to them.

Accordingly, this Dialogue looks at RCRA in this broader context and suggests alternatives and improvements that would facilitate risk reduction, pollution prevention, compliance, and effective implementation and coordination of all environmental statutes. In crafting possible solutions, we took to heart the messages expressed in EPA's Unfinished Business Report⁵ and the recently released Science Advisory Board Report.⁶ Both reports stressed the need to allocate resources within and among programs in a way that maximizes risk reduction per dollar expended. Finding that the dollars spent in implementing the RCRA program are often spent on issues of borderline concern, while other vital environmental issues go largely unaddressed, this Dialogue advances possible solutions that would increase the level of environmental protection for the same resource expenditure.

Although waste definitional issues are a cornerstone of this Dialogue, it also ventures into related waste management areas, including the development of treatment standards, permitting, and the regulation of recycling and nonhazardous (Subtitle D) industrial wastes. Although the discussion of these topics is necessarily superficial, they are included because the definitional problems do not occur in isolation and it is helpful to trace their ramifications throughout the system. Additionally, it is difficult to propose definitional solutions without a sense of what an ideal regulatory system might look like.

Vehicles for Change

With RCRA due again for reauthorization, this is an auspicious time to examine whether changes in the framework for managing waste could help solve some of the problems and optimize risk reduction. Particularly in light of EPA's discretion to shape the definitional scheme, an examination may suggest that changes could be achieved regulatorily and would not necessarily need statutory change. However, when parts of a system become dysfunctional, it may often be useful to address the problem by reframing the legislative mandate.

Understanding the RCRA Definitional System

RCRA was passed in 1976 and its implementing regulations came out in the early 1980s. Among other things, they established a detailed definitional/classification system as the basic framework for all further waste regulations.

RCRA was reauthorized and underwent major changes in 1984;⁷ however, the basic waste classification system was not modified then, even though questions arose about some aspects of the system. Although EPA undertook several studies of possible regulatory alternatives to the classification system after reauthorization, in the rush of other business these alternatives were never fully developed or considered by Agency decisionmakers.⁸ Thus, the system has remained essentially unchanged since its inception.

As extensive new design and performance regulations were crafted for the hazardous waste program in the wake of the 1984 amendments, full evaluation and integration of the new regulations with the existing definitional structure were not undertaken. The result is a waste classification system that is perhaps adequate for getting a hazardous waste program up and running but currently needs some careful thought and attention.⁹

Definition of Solid Waste

The starting point for understanding the definitional framework of RCRA is the definition of solid waste. A waste must be a solid waste to be a hazardous waste. Also, if a material is not classified as a solid waste, it is not regulated under RCRA.

The regulations defining solid waste are the most complex environmental regulations ever written. The core of the definition revolves around whether the material is discarded. The EPA regulations that elaborate on this definition contain a series of special tests and exclusions.¹⁰ Some of the exclusions are required by statute; others are attempts by EPA to address problematic cases involving the reuse or reclamation of materials in industrial processes.¹¹ In EPA's recent study of RCRA, the Agency found that the definition of solid waste is "difficult to understand and implement for EPA, the states, and industry. Permitting and enforcement are hampered by the complexity of those definitions."¹² The Agency receives more than 1,000 calls each month on definitional issues.¹³

Definition of Hazardous Waste

Under RCRA, a solid waste must be treated as hazardous (and therefore subject to the whole range of Subtitle C requirements) if it exhibits a characteristic of hazardous waste or if it has been listed by EPA as a hazardous waste. This definitional system, with its own tests and exclusions, imposes another level of complexity on the definition of solid waste.

Listed Wastes. In deciding whether to list a waste, EPA considers many factors, such as the toxic nature of the constituent or constituents of concern, the constituent concentrations [21 ELR 10065] in the waste, the potential for constituents to migrate when improperly managed, and the types of improper management to which the wastes could be subjected.¹⁴ The burden of listing a waste is on EPA, and the listing process is expensive, currently averaging more than $ 1 million per listing. Approximately 400 wastes have been listed as hazardous, including many defined by major industrial processes or product lines, although only a handful of new wastes have been listed in the last five years.¹⁵ Each of these wastes has been given a unique code, which stays with the waste through all subsequent management steps. Once a waste has been listed as hazardous, it is always a hazardous waste, unless it successfully undergoes delisting. Diluting listed wastes in mixtures with other wastes does not change their status as hazardous wastes, because EPA's "mixture" rule, promulgated in 1980, provides that any mixture of a listed hazardous waste and a solid waste is itself a hazardous waste.¹⁶ The mixture rule thus prevents dilution of wastes for the purpose of escaping RCRA Subtitle C regulation. Even the treatment of a listed waste does not allow it to escape regulation as hazardous. EPA's "derived-from" rule states that any waste derived from the treatment, storage, or disposal of a listed waste is itself hazardous.¹⁷ A corollary to the mixture and derived-from rules is the "waste-code carry-through" principle, which states that a derived-from or mixed waste contains all of the same waste codes as the original waste.¹⁸

Although EPA acknowledged that the mixture and derived-from rules might be overly broad when they took effect in 1980, these rules were nevertheless thought necessary to prevent generators from evading Subtitle C requirements by simply co-mingling listed wastes with nonhazardous wastes.¹⁹ As this Dialogue demonstrates, when combined with the recent land disposal restrictions, these definitional rules contribute to an extremely (if not unworkably) complex management system, the internal logic of which can lead to irrational results.²⁰

As the only alternative to being regulated as a listed waste, delisting is not easy. It is a rulemaking process that proceeds from notice and comment to a final EPA decision. It is resource intensive, slow, and burdensome.²¹ The Agency has addressed the historical backlog of delisting petitions. However, the present manageable size of the delisting workload is largely attributable to the regulated community's view that delisting is too slow and too expensive to be a viable waste management option. During the pendency of the delisting, the waste must be managed as hazardous. Frequently, this requires large capital expenditures that cannot be recovered, even if the delisting effort is successful.

The purpose of delisting is to determine whether a waste threatens human health or the environment if it is improperly managed.²² Using a mathematical model, EPA predicts the concentration of waste contaminants in groundwater applied to a hypothetical drinking water well near a hypothetical disposal area.²³ This requires a number of assumptions. For example, the hypothetical drinking water well is assumed to be 500 feet downgradient from where the waste has been disposed. More unrealistically, EPA assumes that the disposal area is a municipal landfill without any protective liners, leachate collection system, or other safeguards.

EPA uses a generic model (the Vertical and Horizontal Spread or "VHS" model) to predict the spread of contaminants in the groundwater. If the model shows that the concentration of all contaminants of concern will not exceed the relevant health-based threshold level²⁴ at the assumed point of exposure, the waste may be delisted. With the VHS model, EPA typically delists wastes where contaminant concentrations are 6 to 32 times the health-based numbers, depending on the volume involved. This factor accounts for the dilution of contaminants as they migrate from their sources, and is commonly called the "dilutionattenuation factor" (DAF). The DAF is a major determinant both of delisting levels and of toxicity characteristic levels, as discussed below.

Characteristic Wastes. The other way solid wastes become hazardous is by exhibiting any of four defined hazardous characteristics: ignitability, corrosivity, reactivity, and toxicity. Our focus is on the last of these.

The toxicity characteristic defines the toxicity of a waste based on the potential for contaminants in the waste to leach out and contaminate groundwater at levels of concern. The universe of wastes covered by the toxicity characteristic is large and growing. Recently, EPA enlarged the toxicity characteristic, adding 25 organic chemicals to eight metals and six pesticides/herbicides already classified as toxic.²⁵ EPA intends to add more toxic constituents, but Congress may require the Agency to consider a much larger group of constituents in the reauthorization of RCRA. Congress may also set default levels in the event that the Agency does not act timely.

The analysis used to set toxicity characteristics is the same one used in the delisting process: does a waste pose [21 ELR 10066] a threat to human health or the environment if it is mismanaged?²⁶ The basic mechanics are the same: EPA identifies health-based thresholds and establishes a DAF using a model; then it multiplies the health-based level by the DAF to calculate the allowable waste concentrations. But there are differences. In deriving DAFs for the toxicity characteristic, the Agency used a mismanagement and exposure scenario similar to that used in delisting (i.e., a drinking water well downgradient from an uncontrolled municipal landfill disposal site). For delisting, however, the Agency used a different groundwater model (a subsurface fate and transport model (EPACML)) and some different assumptions and came up with a significantly different DAF. The DAF for purposes of the toxicity characteristic is 100 rather than the range of six to 32 in delisting. As a result, characteristic levels are significantly less stringent than delisting levels for the same contaminants.

The different DAFs are not the only significant difference between the characteristic and delisting rules. In some cases, the health-based reference levels used to establish "no hazard" levels under the delisting program differ from those used to establish characteristic levels. For example, "delisting uses a more conservative risk factor of 10 <-6> for carcinogens, compared to the use of a 10 <-5> risk factor in the TC rule."²⁷ The delisting program also employs a different method to determine how likely toxic constituents are to leach from solid wastes into the groundwater.

Although EPA proposes to eliminate some differences, it does not intend to eliminate all of them, contending that delisting is properly more stringent than the setting of characteristics.²⁸ As discussed in the section of this Dialogue entitled "Problems With the Current Definitional System," EPA's perpetuation of a conceptual divide between the delisting and characteristic programs, despite their similar purposes, is a significant barrier to achieving a simpler, more rational hazardous waste classification system.

Land Disposal Restrictions

The land disposal restrictions program is another component of the hazardous waste system that affects and is strongly affected by definitional issues. RCRA prohibits land disposal of hazardous wastes unless the person disposing of the wastes can show that there will be no migration of the waste or unless the wastes have been treated to standards set by EPA. With the promulgation of the so-called third-third rule in May 1990, EPA has established land disposal restrictions (treatment standards) for all wastes that were identified or listed as hazardous as of 1984.²⁹

Perhaps the most important feature of EPA's treatment standards is that they are generally technology-based rather than risk-based. Thus, industry is required to treat hazardous wastes to levels or in a manner dictated by best demonstrated available technology, regardless of the risk involved. In contrast, EPA's first proposal for the land disposal restrictions considered restricting the application of technology-based standards to waste contaminants that exceeded risk-based screening levels. This approach was analogous in concept to the toxicity characteristic levels and delisting levels because it used fate and transport models and risk-based threshold levels to determine cutoff levels. Even though EPA acknowledged that the technology-based approach was not the only one allowed by law, it rejected the risk-based screening levels and has since largely ignored risk factors in setting land disposal restrictions.³⁰

Several industry groups sued EPA when it abandoned the risk-based approach. In response to that suit, the D.C. Circuit directed EPA to explain its preference for technology-based treatment standards over the approach based on screening levels.³¹ In response, the Agency stated that its "objective is not to require further treatment of prohibited wastes containing threshold levels of hazardous constituents at which listed wastes themselves would no longer be deemed hazardous," but added that it was "presently unable to promulgate such levels."³² Given its experience with the delisting and characteristic programs, EPA's statement that it is unable to set threshold levels is difficult to understand unless interpreted to reflect the lack of resources for such an effort. But more to the point, now that the Agency seems to have declared its ultimate objective not to require treatment below levels at which the waste would be considered hazardous, the question is: What "threshold levels" should EPA set and how should those levels fit in with the already existing levels for determining "hazardousness" in the context of the characteristic and delisting programs?

An informal Agency proposal for addressing screening levels in the context of the land disposal restrictions, known as the "de minimis rule," would require that listed wastes meet health-based levels (i.e., be capable of being safely eaten or drunk) as a condition of exiting the system. This proposal offers no real relief for the problems that it purports to address and would threaten, if pursued in its proposed form, to throw the definitional system into even greater confusion by creating yet another set of levels (in addition to the characteristic and delisting levels) for determining whether a waste is hazardous.

Problems With the Current Definitional System

EPA's various approaches to defining hazardousness are problematic in several ways. Although no one should expect [21 ELR 10067] perfection from any definitional system, one should expect a system that subscribes to logic, common sense, and a general sense of controls matched to risk. Unfortunately, more effort has been spent preserving the RCRA definitional structure than evaluating its continued appropriateness.³³

In assessing the current definitional system and the concurrent waste management framework, it is useful to begin by identifying criteria that an optimal program would meet. First, the program should regulate the full range of waste activities to an equal risk level, recognizing that not all wastes are the same. Second, a waste classification system should be easy to understand and be enforceable equally across all business segments so as to ensure high levels of compliance. Third, the program should provide proper incentives. Fourth, the program should encourage market investments in and improved approaches to pollution prevention and waste management.

Unfortunately, the current system fails to achieve these four criteria. In fact, the failure to meet the first two criteria almost precludes a system capable of meeting the final two criteria. Thus, this section of the Dialogue focuses on a set of system flaws pertaining to the first two criteria.

The first problem with the existing system is the extensive amount of both underregulation and overregulation and the difficulty of striking the right balance under a definitional system and corresponding management framework unrelated to risk. Second, the problem of overregulation inherent in the original definition of hazardous waste has been compounded by EPA's approach to land disposal restrictions. Third, EPA's definitional system suffers from a lack of coordination between delisting and characteristic levels (and potentially between those levels and the "screening" or "de minimis" levels that are currently being considered for the land disposal restrictions program). Finally, a further lack of cohesion exists between the RCRA definitional system and the regulation of toxic constituents under other EPA-administered statutes.

Underregulation and Overregulation of Wastes

Nonhazardous solid waste covers a broad range of waste, including oil and gas exploration and production waste, mining waste, industrial chemical waste, agricultural waste, municipal sludges and ashes, and municipal garbage. To date, these nonhazardous wastes have been subject to minimal regulatory control at the federal level, even though some of these wastes contain high levels of toxic constituents. The degree of control at the state level varies significantly, but in certain areas, such as industrial wastes, it is uniformly lax.³⁴

In contrast to the 10 billion metric tons per year of generated nonhazardous waste, 0.25 billion metric tons per year of hazardous waste are subject to stringent controls under the RCRA Subtitle C federal program. A set of procedural requirements dictates how wastes defined as hazardous are to be identified and tracked from cradle to grave. The regulations also impose stringent technical controls on the types of treatment, storage, and disposal facilities that can accept these wastes. These technical controls cover four broad areas. First, monitoring requirements cover both groundwater and air, depending on the type of facility. Second, location standards define acceptable and unacceptable locations for different types of facilities. While the current location requirements are relatively modest, EPA is proceeding to impose much more stringent standards in response to a 1984 statutory requirement. Third, design and performance standards exist for various types of facilities, including liner and leachate collection requirements for land disposal units. Fourth, corrective action requirements prescribe that any facility that needs a permit to actively manage hazardous waste or a closure permit must ensure that the entire facility has been cleaned up from all previous hazardous and nonhazardous waste activities and is environmentally safe.

In addition to these technical controls, administrative requirements cover such items as financial assurance, contingency plans, training, and waste analysis plans. Finally, in addition to the requirements for facilities managing waste, requirements exist to control the composition of the waste itself as a condition of its being placed in certain facilities. The major regulations addressing such waste controls are the land disposal restrictions that EPA promulgated between 1986 and 1990.

Because the disparity between requirements applicable to hazardous waste and those applicable to nonhazardous waste is so significant, the definitional box into which the waste is classified has enormous economic and resource consequences for waste generators. These consequences are often difficult to justify based on differences in the health and environmental effects of the waste. Furthermore, the present system classifies as hazardous some waste that is not. For example, mixtures of listed wastes that include dilute aqueous waste streams³⁵ and treatment residuals at very low levels of contamination continue to be regulated as hazardous wastes. The cramped point of exit afforded by the delisting process ensures that these wastes predominately remain under Subtitle C, although they are below levels that EPA uses to determine which wastes are high priority for management in a hazardous waste framework.

In addition, the definition of hazardous waste relies on procedures and assumptions for predicting risks that may overestimate actual risks. A good example is the assumption behind the delisting and characteristic rules that all wastes are mismanaged by disposal in an uncontrolled municipal landfill, which represents the "reasonable worst case," in EPA's terminology, for potential leaching to groundwater. In fact, only a small percentage of industrial wastes go to such landfills. Industrial wastes that do not go to uncontrolled landfills may go to controlled landfills, to solid waste incinerators, or to monofills — any of which would be more environmentally sound.

At the same time, waste currently classified as nonhazardous [21 ELR 10068] may look toxicologically identical to hazardous waste. One example is certain discarded, off-specification pesticide products that contain multiple active ingredients. While most discarded pesticide products that contain single active ingredients are classified as hazardous waste, products that contain multiple active ingredients are not classified as hazardous waste.

A second example is the wastes containing hazardous constituents not identified in EPA's Appendix VIII list of toxic constituents.³⁶ EPA based its identification of hazardous waste on the presence of approximately 300 chemical constituents for which toxicological data were available in the late 1970s. Since 1980, however, the Agency has obtained additional health and environmental data. There are more than 50,000 chemicals in commerce, of which more than 300 are likely to show significant toxicological effects at concentrations likely to be present in wastes. For example, there are more than 1,000 active ingredient pesticides, many of which are toxicologically significant based on data submitted to support their pesticide registrations. Moreover, in recent regulations under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980³⁷ and the Superfund Amendments and Reauthorization Act of 1986,³⁸ the Agency has identified close to 700 hazardous constituents of concern. EPA has not yet begun to identify waste containing additional toxicologically significant constituents not included on its original Appendix VIII list. In fact, EPA is still working to identify as hazardous all wastes containing high concentrations of its original 300 or so constituents. To date, it has identified only a subset of those wastes.

Meanwhile, EPA is developing tailored management standards for some industrial solid waste, such as oil and gas production waste, mining waste, and municipal waste ash. However, the Agency has not presented an overall vision of its goals, and this regulatory development effort has been extremely slow, due largely to resource constraints and priorities assigned statutorily to other components of the program. EPA has been working onthese categories for more than four years and, to date, no proposed rules have emerged. In the case of municipal landfills, for which the Agency began work on setting management standards in 1985, the final rule is expected to be promulgated in 1990 — a five-year timeframe. For solid waste categories not mentioned above, the Agency has not yet started the development of a regulatory framework. These unaddressed categories cover more than two billion metric tons per year of solid waste.³⁹

EPA's failure to move more quickly on industrial solid waste keeps the pressure high on the Agency to bring more waste into the hazardous waste system and to keep waste that is already in the system from getting out. That is the only way, many believe, that the waste receives any definitive environmental controls in the federal system. The Environmental Defense Fund successfully sued to require EPA to continue to meet deadlines established in the Hazardous and Solid Waste Amendments of 1984 (HSWA)⁴⁰ for bringing additional waste into the hazardous waste system through new listings and new characteristics.⁴¹ Subsequently, EPA promulgated the organic toxicity characteristic rule,⁴² which applies to an additional 730 million metric tons per year of wastewaters and approximately one to two million metric tons per year of sludges and solids. In addition, EPA is listing additional waste streams identified in the HSWA, including EBDC (ethylene bisdithiocarbamic acid) waste and UDMH (1,1 dimethyl hydrazine) waste.⁴³ The pressure to regulate additional waste under the system has also begun to play as a major RCRA reauthorization issue.⁴⁴

Despite pressures to classify more wastes as hazardous, the extremely demanding requirements of the current RCRA Subtitle C system have lead EPA understandably to exempt some waste categories from the hazardous waste definitional category. These wastes are exempted not because they are toxicologically different in all cases from wastes that are included, but because their volumes are so large that they would be unmanageable in the current hazardous waste system.

Perhaps the primary example of the deferral of wastes from the Subtitle C system is a series of EPA decisions to regulate certain large-volume wastes, such as mining wastes and oil exploration and production wastes, as nonhazardous solid waste, even though some portion of these wastes would otherwise meet EPA's toxicological definition of hazardous waste. These decisions were made pursuant to special statutory language, the "Bevill Amendment," authorizing EPA to consider such factors as cost, which normally are accorded no place in deliberations under Subtitle C. Among the reasons given by EPA for these decisions to regulate was the prospect that, if EPA attempted to regulate facilities in these industries under Subtitle C, the permitting burden would overwhelm the system and ongoing activities in these industries would be disrupted. Similar reasoning (although in this case without congressional sanction) underlay the Agency's recent decision in the March 1990 toxicity characteristic rule, at least tentatively, to exempt from Subtitle I underground storage tank cleanup wastes that would otherwise be classified as hazardous.

Thus, EPA has recognized that the hazardous waste system as crafted is not feasible for many types of wastes, even wastes that may be toxicologically similar to other wastes that are caught in the system. Particularly given the absence of a defined alternative RCRA Subtitle D system, however, demands continue from some quarters that EPA's decisions in this area, or portions of them, be revisited.

Curing problems of underregulation and overregulation will require that the hazardous waste system expand in some areas and contract in others. It will require that the [21 ELR 10069] present universe of Subtitle C wastes be significantly refined to exclude wastes whose main impact on the system is to use scarce and expensive treatment capacity and administrative resources that could be much better used for other wastes. It will require broad initiatives to begin to bring under appropriate controls (either under Subtitle C or Subtitle D) wastes that have so far escaped even the most rudimentary management requirements. Having recognized the infeasibility of Subtitle C regulation for many large volume wastes, EPA must now move forcefully to establish a workable alternative under Subtitle D that will yield requirements appropriate to the risks posed by those wastes.

Disparity Between Product and Waste Regulation

As with nonhazardous waste, no RCRA standards apply to most products and processes involving the recycling or reclamation of hazardous waste.⁴⁵ Products and processes involving virgin materials are also unregulated under RCRA (unless and until some element of discard is involved); RCRA's reach is, by its terms, limited to waste.

Unfortunately, the regulatory distinction between wastes and products has led to discrepancies that are not defensible from an environmental standpoint. For example, certain pesticides that can be applied directly to the land at high concentrations cannot be legally disposed in state-of-the-art hazardous waste landfills unless they have been chemically pretreated. Spills of dilute forms of these same approved pesticides, however, may trigger emergency response action and cleanup. Similarly, chemical treatment processes that are part of chemical production are relatively unregulated compared with chemical waste processes that are part of waste disposal.

The definitional construct that produces these results is not conducive to environmental protection. It grows even more problematic as recycling becomes a desirable component of waste management.

Historically, a facility performing "legitimate" recycling has been exempt from many of the environmental management standards that apply to facilities deemed to be managing hazardous waste. In part, this exemption was granted because the hazardous waste management system, as currently crafted, was too cumbersome to apply to recycling and provided an economic disincentive to recycling. Yet a long list of recycling facilities, including oil refiners, battery recyclers, and scrap metal recyclers, have ended up as Superfund sites. Moreover, some facilities that claimed the recycling exemption (e.g., certain thermal facilities) look amazingly similar to hazardous waste treatment facilities, yet the same recycling facilities are allowed to reuse their ash as product while the hazardous waste incinerator must continue to treat its ash as hazardous waste, regardless of how clean that ash is.

Land Disposal Restrictions and the Mixture and Derived-From Rules

Some of the most serious problems in RCRA's definitional system for wastes captured as hazardous waste have been exacerbated by the land disposal restrictions. The RCRA definitional system is itself complex; the land disposal restrictions have layered on top of it yet another complex system, often with perverse results.

For example, because the land disposal restrictions do not take into account risk-based levels, they sometimes require wastes to be treated to levels substantially below those that would warrant delisting. Then, under the present system for listed wastes, even those treatment residues must continue to be managed as hazardous wastes (i.e., disposed of in a RCRA Subtitle C landfill) unless and until a delisting is obtained.⁴⁶ On a policy level, little justification exists for this kind of inconsistency in the definitional system of hazardous waste management.⁴⁷ Perhaps EPA agrees, but having recently reaffirmed its technology-based approach to land disposal restrictions and declared its current inability to address risk-based considerations, it may believe that it has no easy way of dealing with this inconsistency.

Beyond the purely definitional concerns, the system generates mind-boggling complexities for mixed streams and treatment residuals due to the linking of the mixture rule with the land ban. The chemical-specific treatment standards are based on pure waste streams. EPA's rationale has been that generators can always separate waste streams if mixing makes treatment standards unachievable. But many streams were mixed before land disposal restrictions came into existence, and mixing of many waste streams is hard-wired into the manufacturing process. Moreover, separate wastewater treatment for each of a number of different process streams (50 or more in some cases) makes no sense from a process and technology standpoint. Yet, EPA applies these standards to all mixtures of waste streams as well as the residuals from treatment of any of the original waste streams.

Assume, for example, that two waste streams exist. The standard for waste stream A is: chemical X = 1 part per million (ppm). The standard for waste stream B is: chemical X = 10 ppm. In setting each of these standards for chemical X, EPA used the best demonstrated available technology on each stream. When waste streams A and B are mixed, under the waste-code carry-through principle the mixture of the two streams must meet the most stringent standard. Therefore, the mixture would have to meet a standard of X = 1 ppm. This is clearly a problem because, if waste stream B could have been treated to one ppm, that is what the waste stream B chemical X standard would have been set at originally. It is therefore highly unlikely that the mixture of these two waste streams will meet the required treatment standard; the only way the [21 ELR 10070] generator can technically comply with the EPA treatment standard is never to mix the two waste streams.

Both the complexity and irrationality of this example are exacerbated by increases in the number of streams, the number of chemical-specific standards, and the number of technologies that EPA considers appropriate for these streams. The inconsistencies and problems become extremely difficult to comprehend and the rules extremely difficult, if not impossible, to comply with.

An even more difficult situation may occur with the application of the EPA treatment standards to derived-from wastes. According to EPA, the treatment residual or derived-from waste must meet all of the standards of the underlying pretreated waste streams. Unfortunately, the premise that treatment residuals can always meet treatment standards designed for the original pure waste stream is not always borne out in fact. A particularly acute form of this problem was present in the early land disposal restriction rules when EPA set a "no-land-disposal standard" for a pure waste stream. This automatically resulted in a no-land-disposal standard for downstream treatment residuals. Obviously, this Catch-22 made ultimate disposal impossible.

Again, a simple example will demonstrate the problem. EPA set a treatment standard for waste A, in the nonwastewater form, of no-land-disposal. EPA set a wastewater treatment standard for waste A of: X = 1 ppm. Since waste stream A was generated sometime in the past, any leachate coming from previous disposal sites was required to carry the code of waste stream A because of the derived-from rule and the waste-code carry-through principle. This wastewater had a treatment standard and could be put through a wastewater treatment plant or a deep well. Unfortunately, the wastewater treatment plant (or the deep well) generated filter cake or other solid treatment residuals. The treatment standard for these solid treatment residuals that carried the waste stream A code was no-land-disposal. Thus, no matter what was done, it was impossible to dispose of these treatment residuals.

EPA has corrected this problem for one class of derived-from wastes, multi-source leachates, by issuing a special multi-source leachate code.⁴⁸ However, the root sources of the problem in the waste coding system have not been addressed and may continue to cause difficulties for derived-from wastes in nonleachate forms.

A similar problem (and one that has not been corrected) arises when a listed hazardous waste stream (stream A) is mixed with a nonhazardous waste stream (stream B), which contains the same constituents or some of them. (This is often done at wastewater treatment facilities and incinerators.) Stream A may be treated before the mixing of the wastes, and indeed, if mixing occurs at the point of final disposal, it is required to have been treated to the levels mandated by the land disposal restrictions. The mixture of stream A and stream B results in the mixture's being treated in its entirety as a stream A waste. Stream B, however, containing one or more of the constituents for which stream A has been treated, may bring the mixture or the treatment residual above the levels that stream A has already been treated to meet. In that case, the entire mixture must be treated again before disposal or it will violate the land disposal restrictions. This problem occurs frequently at complex facilities involving many waste streams, and instances of its occurrence have been documented at wastewater treatment facilities, deep wells, and incinerators. For reasons already discussed, a solution to the problem that would involve segregating waste streams may require creation of separate disposal facilities, extra time spent storing wastes, or special dedicated campaign treatment runs that are expensive and inefficient. In many cases, these "regulatory" solutions are not defensible from an environmental standpoint.

The main source of these problems is the yoking of two concepts that are intrinsically foreign to each other: the 1980 mixture and derived-from rules were never reevaluated in conjunction with the treatability concept that evolved in 1985 as the basis for the land disposal restrictions. These two concepts were brought together in a shotgun marriage in the land disposal restriction regulations. Although the first of these regulations was promulgated in 1986, it was not until the first-third rule in 1988 that EPA clearly articulated the applicability of the mixture and derived-from rules in the context of the treatment standards that it was promulgating.⁴⁹

The complexity of the land disposal restrictions system continues to pose additional problems as waste handlers try to implement the system. In many cases, regulated persons are in a compliance quandary because EPA has not resolved and corrected inadvertent problems before the effective date of the rules.⁵⁰

Lack of Coordination Between Delisting and Characteristic Levels

Another problem affecting the RCRA definitional system is the lack of coordination between delisting and characteristic levels. EPA's recent decision to use one model for both purposes and to improve consistency in other respects may decrease the disparity between the two. Nevertheless, the Agency continues to argue that a single set of concentration levels in the characteristic and delisting programs may not be appropriate. Its rationale for this position is twofold. First, a waste may be listed out of concern for constituents other than those subject to a toxicity characteristic. Second, the Agency may determine, under the circumstances, that a constituent has impacts that render it hazardous at levels below the generic toxicity levels.⁵¹

Even yielding to EPA's arguments, the question remains whether it makes sense to expend resources in maintaining [21 ELR 10071] and administering a separate delisting program. And, if it may have made sense in the past, it may not continue to make sense as the characteristic rule is developed to include more and more toxic constituents and as the characteristic levels are further refined.

No program will be perfect. Some benefits will always attach to maintaining a separate listing/delisting program. But the costs of maintaining that system are substantial. They include the burdens of the process itself for EPA and for petitioners, as well as the cost to society of using scarce treatment and disposal capacity for wastes that may safely be managed in a less restrictive manner. Rather than assuring, at the micro level, that nothing wrongly escapes the system, resources would be better spent ensuring, at the macro level, that broad classes of threatening wastes are properly managed. This emphasis would serve to assure, among other things, the most protective use of treatment, storage, and disposal capacity.

Lack of Integration Between RCRA and Other EPA Regulatory Programs

Regulatory linkages between RCRA and the two primary media programs, the Clean Water Act⁵² and the Clean Air Act,⁵³ also need to be better integrated. The regulatory frameworks of these two acts rely on two types of standards: technology-based standards applied to types of facilities and ambient standards applied to individual constituents of concern in emissions or discharges. The technology standards may require application of particular technologies or achievement of certain performance levels/percent reductions. Neither program encompasses the concept of individually coded waste streams that keep their coded identity, even when mixed or treated.

This discrepancy in the basic classification framework further adds to regulatory complexity. It is often difficult to determine the way in which multiple rules, all covering the same industry or constituent, interact with each other at a real facility. Perhaps a more serious problem is the difficulty those conflicting classification systems have on the accurate measurement of source reduction/pollution prevention progress and the degree to which problem constituents are shuffled between media.⁵⁴

Possible Solutions

What has emerged in this analysis is a complex, hard-to-understand, hard-to-enforce system that is losing touch with its basic objectives. It is increasingly difficult to make small adjustments to the system to address its flaws. The program needs an expanded vision based on achieving equivalent risk protection for all waste activities. Once articulated, this vision must be supported with a definitional system and management frameworks for all waste activities. Such a vision will almost certainly require significant structural changes. We propose a set of possible solutions intended to simplify the definitional structure, to broaden the federal regulatory scheme to include a larger group of wastes, and to develop regulatory frameworks that seek to regulate at equal risk levels.

Establishing a New Definitional Framework and Treatment Regime for Hazardous Waste

In its recent de minimis straw-man proposal, EPA recognized, however tentatively, the concept of a concentration-based approach to exempting low-risk listed wastes from the system without undergoing the delisting process.⁵⁵ From that recognition, it is a short step (conceptually, if not politically) to envision a framework that harmonizes the delisting, characteristic, and land disposal restrictions programs while maximizing the protection of human health and the environment.

This framework could be based on a comprehensive chemical- or constituent-based definition of what waste belongs in the hazardous waste system. One of the goals of such an approach would be to get the wastes posing the greatest threat into the hazardous waste system as quickly as possible,⁵⁶ while at the same time allowing wastes that do not pose a sufficient threat to exit the system. This approach could also eventually eliminate the need for separate listed and characteristic hazardous waste classification, help simplify the treatment requirements for hazardous waste, and assist the Agency's efforts to integrate RCRA with other programs and to regulate effectively across media.

[] Developing a Constituent-Based Approach. The most challenging aspect of this approach would be to develop an appropriate list of compounds and threshold levels for those compounds to determine which wastes should be considered hazardous. Some type of collaborative regulatory negotiation approach could be used to identify a list of constituents and levels for those constituents.⁵⁷ Appendix VIII chemicals could serve as a starting point for developing these constituent-based levels.⁵⁸ The Agency could also use recent health effects data developed by its Office of Research and Development to supplement the 1980 vintage Appendix VIII.

The objective would not be to identify the precise concentration at which a constituent would or would not cause a health effect or alter the environment. The objective would be to identify a large number of constituents quickly [21 ELR 10072] and ensure that wastes containing high levels of those constituents are brought into the hazardous waste system quickly. A helpful model might be the EPA reportable quantity regulations that divided constituents into three categories based on prioritizing toxicity concerns.⁵⁹

Mixing of hazardous waste would be considered treatment and would need to be done under the auspices of a treatment permit. The permitting process could determine whether legitimate treatment was occurring or whether the treatment was merely sham dilution. In the latter case, a permit would not be granted. This permit could be streamlined, aiming only to ensure that mixing was legitimate treatment.

[] Developing a New Approach to Treatment Requirements. As discussed earlier, the original coding system for waste was developed mainly to determine whether individual waste streams were in or out of the hazardous waste system.⁶⁰ The fact that a waste was given one code rather than another was of no great importance, since all hazardous waste codes were treated identically from a regulatory standpoint. With the introduction of the land disposal restriction rule, however, codes have a more important meaning that was not contemplated at the time they were devised: Now the codes can indicate what treatability group the waste belongs in. The treatability group is a set of wastes that lend themselves to the same type of treatment.

It is unnecessary to continue to link the definition of hazardous waste (for listed and characteristic wastes) with the coding scheme applied to wastes once they are classified as hazardous. In fact, an optimal coding scheme would develop the smallest number of codes necessary to characterize treatability group and, perhaps, risk group. At a minimum, a treatability group coding scheme would have to account for the physical form of the waste (e.g., wastewater, sludge, or solid) and the type of chemical constituents (e.g., organic, inorganic, metals, cyanide, etc.). For risk purposes, it might also be desirable for the waste code to capture rough concentration ranges of the constituents.

Such a coding/treatability system could probably be developed with less than 30 unique codes, which appropriately cover all pure and mixed waste streams. Such a system would have many advantages, including a direct relationship between the appropriate codes for mixture and derived-from wastes and the type of treatment needed for those wastes. A side benefit of this approach would be that it could streamline permitting by addressing broad treatability groups rather than individual codes.

Once a reasonable number of waste/treatment codes have been developed, it would be feasible to develop appropriate treatment technology trains for each class of waste. For example, a set of treatment steps would be specified for wastewaters that contained mixed metals and organics. In cases where EPA is aware of multiple acceptable treatments, more than one approach could be specified. The approach would cover not only the original treatment of the wastewater but also the appropriate treatment steps for residuals of treatment. A waste generator or waste treatment facility that has an alternative technology could provide sample data to EPA for evaluation.⁶¹

To ensure use of the most cost-effective forms of treatment in meeting environmental goals, streamlined consideration of equivalent technology petitions would be necessary. Alternatively, the treatment requirements might be framed to allow the regulated facility the option either of installing and operating the approved technology or of meeting specified residual levels with any other kind of technology.

The primary argument against this approach is that if EPA specifies technology without specifying performance standards for that technology, it would be possible to use the proper technology without the technology operating correctly. One response to this concern would be for the Agency to develop a nationwide standard for individual technologies as has been done with incinerators. Another response would stress the effective use of permits, which are already required of each hazardous waste treatment, storage, and disposal facility. EPA could use its permitting and compliance programs to ensure that every permitted treatment facility is properly designed, maintained, and operated.⁶² Independent audits could also be used to provide EPA extra assurance of ongoing operation. This is currently done for certain types of treatment facilities. For example, incinerators must do trial burns to establish that they are effective in treating waste. This type of trial test could also be implemented for wastewater treatment facilities, stabilization facilities, and other types of treatment facilities.

This approach would make it significantly cheaper for EPA to stay up-to-date with regard to new technologies. Compliance by the regulated community and EPA enforcement would be easier and generally more understandable for everyone in the system. The result would be improved environmental protection.

This approach would also allow EPA to repeal the mixture and derived-from rules, and would greatly reduce the analytical testing requirements and the analytical problems with detection levels. Moreover, it would recognize the practical consideration that the land disposal restriction rules do not have to stand on their own; that they can and should be integrated into the permitting system. Finally, because this approach mandates technology, not performance levels, it would obviate the present conflicts between delisting levels and treatment levels and should lead to a regulatory scheme that is more easily integrated with the air and water regulatory programs.

Management-Based Approach

An alternative to (or variation on) a unified constituent-based [21 ELR 10073] system⁶³ would be a system relying on differences in the way wastes are managed. Under this system, different characteristic/delisting levels would be set for categories of wastes depending on how they are managed (e.g., incineration or land disposal). Although this approach would be administratively more complicated than the single-concentration-level approach, it provides a fall-back if it proves infeasible at the present time to develop a single set of characteristic/delisting levels.

A management-based approach has distinct advantages. It recognizes, among other things, that risks are related to factors other than the characteristics of the waste. In fact, it recognizes that the most dramatic differences in risk result from differences in management practices. It also addresses the unreal assumption, underlying both the delisting and toxicity characteristic levels, that all wastes not subject to RCRA Subtitle C regulation are disposed of in an uncontrolled municipal landfill. By allowing some wastes to escape Subtitle C regulation on the condition that they be incinerated or subjected to other stringent treatment, this approach would create incentives for protective waste management practices.

As EPA has recognized, a management-based approach to hazardous waste identification could complicate implementation of RCRA. A system would have to be implemented to ensure that wastes that escape regulation based on a particular management option are in fact managed as agreed. However, the current manifest system for hazardous waste could be modified and applied to solid wastes subject to management conditions to ensure that those conditions are carried out. In assessing the burdens of this option, one should remember that the wastes thatwould be subject to management-based conditions would otherwise be subject to the entire range of RCRA Subtitle C controls.⁶⁴

Transitional Considerations for a New Hazardous Waste Definitional Framework

Whether the ultimate goal is a unified constituent-based system or the management-based variant, a period of transition will be necessary. One of the first steps should be to expand the characteristic rule in order to quickly move the wastes of most concern into the system. At the same time, to remove the wastes of least concern from the system, an immediate de minimis rule could be established for listed wastes with levels set at current delisting levels. Listed wastes, including mixtures and derived-from wastes, would be excluded from RCRA Subtitle C regulation upon certification that their constituent levels were at or below the regulatory levels in the most recent delisting decisions. At a minimum, this certification should be designed to create a presumption that would shift the burden to EPA to show, within a specified time period after receiving the certification, why the waste should remain in the system. The need for a separate de minimis approach would disappear over time, as the Agency continued to improve the accuracy and comprehensiveness of the toxicity characteristic. Listings would be dropped entirely as they effectively became subsumed within the improved toxicity characteristic. Alternatively, EPA might chose to retain the listings to the extent that listed wastes would be presumed hazardous unless and until it was shown that their constituents were at or below the characteristic levels.

Industrial Subtitle D Standards

A major step in any solution to the current dilemma is to address the problem of underregulation of industrial wastes. This is essential to take the undue pressure off the hazardous waste program and to make less radical the distinction between hazardous and nonhazardous waste.⁶⁵ In developing a set of standards for nonhazardous waste, it will be necessary to differentiate between classes and categories of waste so that appropriate management approaches are selected. Of prime importance is a federal regulatory framework for industrial Subtitle D that accommodates the need for a strong state role in the development and implementation of the program. In addition, the procedural complexities that have made implementation of Subtitle C so laborious must be avoided. The immense number of Subtitle D facilities alone makes a Subtitle C approach impracticable.

Setting reasonable goals for a solid waste regulatory program is key to ensuring that the implementation of such a program does not become a 10 to 20 year process. One goal would be to achieve substantial improvement (e.g., 80 percent) in waste management practicesquickly. EPA could then move on a slower track to improve the program from 80 percent to 95 percent. If basic fixes are not soon achieved in the nonhazardous waste industrial category, the drive to call more and more wastes hazardous, including wastes that do not warrant regulation as hazardous, is likely to go unabated; the resistance to allowing any waste (even in its most dilute forms) to exit the system will continue; and the unwieldiness of the current system will worsen.

At the core of a reasonable approach is avoiding paralysis in undertaking an overambitious data collection program, designed to develop the 99 percent perfect regulatory program. Given the history of hazardous waste management, it should not be necessary to replow old issues. For example, land management, if done poorly, is likely to cause a problem for nonhazardous waste as well as hazardous waste. Of paramount importance is to move quickly to close or modify clearly inadequate facilities.

The selected regulatory framework for nonhazardous wastes should quickly address obvious needs in a manner that does not depend on the availability of extensive government resources. Additional sophistication may be phased in as data and resources become available.

A core set of requirements including manifesting, reporting, closure, and financial assurance could be developed. Early development and national consistency are critical, because as state regulatory approaches are developed, environmentally unsound facilities will begin to close and [21 ELR 10074] waste will move interstate. For land-based nonhazardous waste facilities, automatic hammers could be used to require groundwater monitoring and the equivalent of self-implemented RCRA facility assessments. These requirements could be phased in gradually by type of facility and volume of waste managed, taking the riskiest first. To address the legitimate EPA and state resource issues, facility owners could be required to have an independent engineer certify the quality of the groundwater system and the facility assessment. Tools like public reporting of waste generated and mandatory waste minimization audits for large-volume waste generators could be built into the system so that states could focus on site-specific tailoring.

Establish a Smoother Link Between Waste and Product Management

Hazardous and solid waste recycling activities must be managed in an environmentally protective way. History has shown that a lax regulatory program invites sham recycling operations in which wastes are "recycled," because it is less expensive than proper waste treatment and disposal.⁶⁶ At the same time, proper recycling is a critically important component of an effective waste management system. Thus, a framework that provides the proper incentives to encourage high quality recycling is imperative. Such a framework must examine the link between manufacturing/virgin product regulation and recycling/waste-derived product regulation.

Two factors must be considered in developing such a regulatory structure. One must address the recycling facility itself: the recycling process used and the air, water, and waste emissions generated by the process. The other component must address the environmental quality of the waste-derived product. In both components, the regulatory scheme should put recyclers and virgin product manufacturers on a comparable footing environmentally.

One framework for developing protective facility standards would be a newly created subtitle for recycling under RCRA. This framework could support a flexible regulatory program specifically designed for recyclers and recycled materials that would be distinct from Subtitle C or Subtitle D wastes. The program would have to distinguish appropriately among a broad range of recycling processes and secondary materials, both hazardous and nonhazardous. Some facilities, perhaps those processes fully contained in tanks, could be managed with a permit-by-rule approach. More complex processes resembling thermal treatment would require a site-specific permit. In both cases, financial assurance, recordkeeping/reporting, and closure requirements would be appropriate.

Without exception, these facilities would be subject to the same air and water permits applicable to manufacturing facilities. If the recycling facilities generate hazardous waste as part of the recycling process and treat or dispose of that waste on site, they would also need a RCRA Subtitle C permit, as required of manufacturers using virgin materials.

The RCRA recycling permit should be designed to avoid the detailed process for Subtitle C hazardous waste permitting. This permit process should be state-managed and comparable to the process for manufacturing facilities. Corrective action should be required for recycling facilities to the degree it is required for manufacturing facilities. However, assigning to recycling facilities the responsibility for cleaning up all old solid waste management units is appropriate only if the competitor manufacturing facilities have the same requirement.⁶⁷

The second component of the proposed regulatory framework deals with regulation of the waste-derived product. Comparability with the virgin product is critical. From an environmental perspective, it is senseless to require recycled products to be cleaner than the virgin products for which they are substituted. Thus, the appropriate regulatory framework would require recycled products to be comparable to virgin products with regard to toxic constituent levels or to meet de minimis levels of those constituent in cases where the virgin product contains none of those constituents or only trace amounts of them. Preventing recycled products from replacing virgin products in the marketplace does not make sense if both are equivalent toxicologically or if neither presents a significant risk.⁶⁸

This Dialogue does not suggest that products containing problematic levels of hazardous constituents should be left unregulated, whether they are made from recycled materials or virgin materials. The proper regulatory framework for addressing this problem is the Toxic Substances Control Act (TSCA).⁶⁹ TSCA is designed to look at both risks and benefits attributable to products before deciding whether restrictions are in the public interest.⁷⁰ In fact, with a renewed emphasis on recycling in this country, EPA should consider using TSCA to develop a strategy for assessing and managing, where appropriate, large volume virgin/recycled product markets. Under TSCA, EPA also has the ability to consider the benefit of the product and the costs of alternatives in determining the most appropriate mix of controls.

Conclusion

EPA has worked hard to implement the Subtitle C regulatory structure under demanding deadlines established by Congress in the 1984 RCRA Amendments.⁷¹ With that initial effort largely behind it, the time has come to evaluate and refine that structure and to address environmental problems that are not touched by Subtitle C.

To meet that need, this Dialogue has offered several suggestions:

Priority attention to the development of a system [21 ELR 10075] under Subtitle D that would bring industrial nonhazardous wastes under tailored management controls in an effort to address an area of perceived under-regulation, to relieve pressure on the already overstressed Subtitle C system, and to promote pollution prevention.

Phased movement toward a unified and simplified hazardous waste classification system that would integrate the hazardous waste definitional scheme with the new land disposal requirements, address problems of overregulation and underregulation, and strengthen incentives for treatment.

A new approach to the regulation of recycling operations and products of those operations that would place recyclers on comparable footing with virgin product manufacturers, reduce room for sham recyclers, and encourage high quality recycling operations.

These suggestions are not the only alternatives capable of meeting the current evolutionary demands on RCRA. But we are persuaded that, if implemented, they would make the waste management system easier to understand, easier to comply with, more cost-effective, and more protective.

1. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 001-050.

2. The degree of ambiguity in the statutory definition of solid waste has been the subject of three major federal appellate opinions. See, e.g., American Mining Congress v. EPA, 907 F.2d 1179, 20 ELR 21415 (D.C. Cir. 1990); American Petroleum Inst. v. EPA, 906 F.2d 729, 20 ELR 21091 (D.C. Cir. 1990); American Mining Congress v. EPA, 824 F.2d 1177, 17 ELR 21064 (D.C. Cir. 1987).

3. 42 U.S.C. §§ 7401-7626, ELR STAT. CAA 001-052.

4. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA 001-068.

5. U.S. EPA, UNFINISHED BUSINESS: A COMPARATIVE ASSESSMENT OF ENVIRONMENTAL PROBLEMS (1987).

6. U.S. EPA, SCIENCE ADVISORY BOARD, REDUCING RISK: SETTING PRIORITIES AND STRATEGIES FOR ENVIRONMENTAL PROTECTION (1990).

7. Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, 96 Stat. 3221.

8. EPA held several public discussions on the "wastes futures" and "continuum of control" concepts. These studies scope out possible alternatives to the current classification system.

9. In its recent study of RCRA, THE NATION'S HAZARDOUS WASTE MANAGEMENT PROGRAM AT A CROSSROADS [hereinafter RCRA IMPLEMENTATION STUDY], EPA acknowledged the need to revise and simplify RCRA's definitional system and, more generally, to revisit existing regulations to understand how well the new and the old requirements are working together. OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. EPA, No. 205-001 (July 1990).

10. Identification and Listing of Hazardous Waste, 40 C.F.R. § 261.1, .2, .4 (1989).

11. Judicial decisions; amendments to the regulations proposed in 1988 but never promulgated or withdrawn; and numerous opinions, interpretations, and responses to inquiries that are provided by EPA on a daily basis provide further gloss on the definition of solid waste.

12. RCRA IMPLEMENTATION STUDY, supra note 9, at 38.

13. Id.

14. 40 C.F.R. § 261.11.

15. The most recent of these are hazardous waste nos. F32, F34, F35, 55 Fed. Reg. 50450 (Dec. 6, 1990) and F037, F038, 55 Fed. Reg. 46354 (Nov. 2, 1990).

16. 40 C.F.R. § 261.3(a)(2)(iv), .3(b)(2). Similarly, under EPA's "contained in" rule, media that are not wastes at all, such as soil, are treated as if they are hazardous wastes if they "contain" listed wastes. See U.S. EPA Memorandum from Marcia Williams to Patrick Tobin (Nov. 13, 1986).

17. The mixture and derived-from rules are under judicial challenge. Shell Oil Co. v. EPA, No. 80-1532 (D.C. Cir. filed May 2, 1980).

18. See 53 Fed. Reg. 31138, 31148 (Aug. 17, 1988).

19. 55 Fed. Reg. 11798, 11831 (Mar. 29, 1990); see Fed. Reg. 33066, 33095 (May 19, 1980).

20. EPA never reevaluated the purpose of the mixture and derived-from rules in the context of the new land disposal restrictions.

21. EPA acknowledges that the process is "burdensome to the petitioner and to EPA." 55 Fed. Reg. at 11805.

22. While site-specific delisting has been suggested, EPA has not pursued it. Delisting is based on generic assumptions about where the waste will be disposed.

23. In addition to predicting hypothetical concentrations, EPA also examines existing groundwater monitoring data, where such data are available.

24. For contaminants in groundwater, health-based levels are generally as follows: maximum contaminant levels (MCLs) for contaminants for which MCLs have been promulgated; for carcinogens for which MCLs have not been promulgated, levels based on a 10 <-6> lifetime risk of cancer; for noncarcinogens (i.e., systemic toxicants) for which there are no MCLs, reference doses designed to avoid any appreciable risk.

25. 55 Fed. Reg. at 11798.

26. EPA would probably characterize this explanation as an oversimplification, if not inaccurate. The toxicity characteristic is based on concentrations for which there is, as the Agency says, a high degree of certainty that wastes at those levels present a threat to human health and the environment. See 55 Fed. Reg. at 11833. EPA argues that under some circumstances, wastes with constituents at or below characteristic levels may also pose a threat and that one of the purposes of the delisting process is to examine that possibility for the particular waste in question. Thus, in effect, the Agency posits different standards of proof for the delisting and characteristic programs.

Those different standards, however, are not a function of any inherent difference in risk between listed and characteristic wastes; many characteristic wastes pose a greater threat than many listed wastes. From a risk perspective, the purpose of these programs remain the same — to identify all wastes that pose a sufficient threat to warrant management as hazardous.

27. 55 Fed. Reg. at 11832.

28. Id.

29. Id. at 22521 (June 1, 1990).

30. 51 Fed. Reg. 40572, 40578 (Nov. 7, 1986).

31. Hazardous Waste Treatment Council v. EPA, 886 F.2d 355, 19 ELR 20063 (D.C. Cir. 1989).

32. 55 Fed. Reg. 6640, 6641 (Feb. 26, 1990).

33. EPA recently stated in its RCRA Implementation Study that the lack of clear policy direction for RCRA "has resulted in an apparent overemphasis on legal consistency and defensibility, an inability to correct past mistakes (due to legal and/or political vulnerability and resource constraints), and disincentives for creativity and risk taking." RCRA IMPLEMENTATION STUDY, supra note 9, at 32.

34. Some states (e.g., California, New York, Ohio, and Pennsylvania) are moving to implement stringent industrial waste requirements.

35. EPA has established some specific exemptions to the mixture rule for wastewaters, e.g., 40 C.F.R. § 261.3(a)(2)(iv)(A) and (B) (spent solvents). Despite these exemptions, however, the rule continues to sweep in large quantities of wastes that do not warrant regulation as hazardous.

36. 40 C.F.R. § 261 app. VIII.

37. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 001-075.

38. Pub. L. No. 99-499, 100 Stat. 1613.

39. OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. EPA, No. 530-SW-86-054, SUBTITLE D STUDY: PHASE I REPORT, at ES 207 (Oct. 1986). Unaddressed categories include: construction and demolition debris; agricultural waste; small-quantity generator hazardous waste; household hazardous waste; and municipal sludge.

40. Pub. L. No. 98-616, 96 Stat. 3221.

41. EDF v. EPA, No. 89-0598 (D.C. Cir. Mar. 8, 1989).

42. 55 Fed. Reg. 11798 (Mar. 29, 1990).

43. 40 C.F.R. § 261 apps. VII, VIII.

44. Congressman Luken (D-OH) introduced a broad RCRA reauthorization bill in the 101st Congress (H.R. 3735). In its earlier versions, it would have brought large amounts of additional wastes into the hazardous waste system, based on concentrations of Appendix VIII constituents in the wastes. Although this provision was removed in subcommittee markup, the issue promises to be very much alive in the RCRA reauthorization debate.

45. Waste-derived products are generally not considered solid waste (and therefore cannot be hazardous waste) unless they are "used in a manner constituting disposal, or used to produce products that are applied to the land." 40 C.F.R. § 261.2(e)(2)(i). For other limitations on the exclusion of waste-derived products, see 40 C.F.R. § 261.2(e)(2)(ii)-(iv).

46. In the proposed third-third rule, EPA intended also to require the treatment of many characteristic wastes to below characteristic levels. Despite criticism from environmental advocates, the Agency for the most part retreated from its proposal in this regard, although treatment of some pesticide-containing wastes to below characteristic levels is required by the final third-third rule. The Agency set treatment standards for most characteristic wastes at the characteristic levels. At the same time, the Agency stated that best demonstrated available technology (BDAT) might require treatment levels below those levels defined as hazardous and warned that future treatment standards for characteristic wastes containing organic contaminants might well be set below characteristic levels.

47. For example, it is inconsistent to require continued treatment and management of wastes as hazardous even though they are below the levels at which they would be deemed to pose a risk worth regulating under Subtitle C.

48. EPA agreed to create a multi-source leachate code in response to litigation on that issue, but has shown limited inclination of its own to deal with similar potential problems. Also, similar potential problems exist where technology-specific standards are required. While these standards were appropriate for the original pure waste stream (e.g., incineration of certain P and U wastes), they may be inappropriate for mixtures or derived-from wastes that carry these same codes. This may be a particular problem for single-source leachate (e.g., water removed from tank sludge, or sand and grit removed from ongoing underground injection well maintenance) and with leachates from nonhazardous waste landfills that fail the characteristic test and must carry multiple codes.

49. 53 Fed. Reg. 31148-49 (1988).

50. A recent example is the area of measurement methodology. Analytical methods and acceptable detection limits for these methods are based on relatively clean samples. In many cases, regulated entities applying approved analytical methods cannot achieve measurements as low as the levels required by BDAT. EPA has not yet legally clarified whether these wastes are acceptable for land disposal.

51. 55 Fed. Reg. 11831 (1990).

52. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA 001-068.

53. 42 U.S.C. §§ 7401-7626, ELR STAT. CAA 001-052.

54. In its RCRA Implementation Study, EPA acknowledges that "[t]he program has not had the time to examine overlaps or inconsistencies with other environmental programs. This type of analysis is inherently difficult, given the different statutory frameworks for the environmental programs. Nevertheless, it may be important if one of the unintentional effects of the RCRA regulations was to encourage a shift of pollution to the air or water." RCRA IMPLEMENTATION STUDY, supra note 9, at 10.

55. An alternative approach to the de minimis rule is reflected in Chemical Manufacturers Association's Petition to EPA for Rulemaking for a De Minimis Exclusion from the Mixture Rule, Derived-from Rule, and Contaminated Media Rule/Interpretation (May 5, 1989).

56. The addition of new wastes and facilities to the system would have to phased in, in order to insure that an already overburdened Subtitle C system did not break down.

57. EPA applied this approach in developing the toxicity characteristic leaching procedure, 51 Fed. Reg. 21649 (June 13, 1986), and the criteria for determining action levels for a corrective measure study, 55 Fed. Reg. 30815, 30816 (July 27, 1990).

58. For wastes that are not chemically stabilized, constituent levels would be compared with the concentration of that particular constituent in the waste product. A complex leaching test, such as EPA's current toxicity characteristic leaching procedure, would be used only to determine whether chemically stabilized wastes were still hazardous.

59. 40 C.F.R. § 302.4.

60. See supra notes 14-24 and accompanying text.

61. A treatment technology train approach to the land disposal restrictions could be implemented separately from the development of a new coding/treatability system. However, if the problems in the coding system are not addressed, the approach to treatment requirements described here would continue to encounter problems in its downstream application to multi-source wastes. Only by modifying the coding system can we harmonize waste identification with waste treatability. This is a highly desirable goal, since there is no reason for multiple hazardous waste codes unless they help uniquely define what one should do with the waste.

62. Simple percent reduction requirements or specified operating parameters could be imposed in the permits to ensure proper facility operation.

63. See supra notes 57-59 and accompanying text.

64. The management-based approach follows, to some degree, the model of the proposed sludge management regulations under § 405(d) of the Clean Water Act. Its adoption could, therefore, bring RCRA more in line with approaches used or being considered for use by other programs.

65. An alternate approach is to capture more waste in the Subtitle C system but develop a variety of management frameworks under Subtitle C. California has implemented this approach to some extent. However, given the statutory inflexibility inherent in Subtitle C's technical requirements, such an approach would require statutory changes.

66. Currently, 35 solvent recovery facilities, for example, are listed on the CERCLA National Priority List.

67. Only manufacturing facilities actively managing hazardous waste on site are currently required to do corrective action.

68. Comparability could be established by either a total concentration or a leaching test, depending on the type of product. Comparability would be found if recycled products did not pose a significantly greater threat than similar products composed of virgin materials.

This concept was considered in a somewhat different context in EPA's proposal for burning of hazardous waste in boilers and industrial furnaces. In that proposal, kiln dust from facilities burning hazardous waste was compared to facilities burning virgin products. 55 Fed. Reg. 17862 (Apr. 27, 1990); see also 54 Fed. Reg. 43718 (Oct. 26, 1989).

69. 15 U.S.C. §§ 2601-2671, ELR STAT. TSCA 001.

70. TSCA has the ability to regulate product composition and to regulate quality control in production.

71. Pub. L. No. 98-616, 96 Stat. 3221.

21 ELR 10063 | Environmental Law Reporter | copyright © 1991 | All rights reserved