Federal and state laws govern “hazardous waste”—the federal law is commonly called RCRA, after the Resource Conservation and Recovery Act of 1976. However, RCRA itself was enacted as an expansion of the prior Solid Waste Disposal Act (SWDA) of 1965, and requirements for both solid and hazardous waste have been revised many times in recent decades. The US Environmental Protection Agency (EPA) administers these requirements nationally, delegating many provisions to individual states that qualify for authorization to assume regulatory roles.
This article summarizes the first half of provisions under which the facility that first produces hazardous wastes—the “generator”—determines if a material has become a “waste” and, if so, whether that waste is “solid waste.” My next article will summarize provisions for determining whether a “solid waste” qualifies as a “hazardous waste.”
SWDA and RCRA are only triggered once a material has become a waste. Typically this transformation is obvious—chemicals go into a process, and come out contaminated and unusable. But other scenarios can also convert materials into wastes.
EPA’s regulations include additional qualifiers. According to these regulations, in order to be considered a solid waste, a solid material generally must be “discarded,” which means any one of the following:
Materials may become abandoned by being disposed of, burned or incinerated, or accumulated, stored, or treated (but not recycled) before or instead of being disposed of, burned, or incinerated. Note that the “instead of” can introduce a subjective element, which inspectors sometimes use to question the purpose why materials are still there – if you can’t tell an inspector what use is planned for suspect chemicals, then he or she may decide it’s being accumulated instead of being disposed. If so, your facility might be penalized for exceeding time limits on accumulation.
RCRA considers recycling to be a good thing, when it meets regulatory standards. EPA excludes materials from its definition of solid waste when they are recycled in any of the following ways:
These recycling activities are still subject to RCRA regulation. In addition, inspectors are alert for “sham recycling.” RCRA regulations define materials as solid wastes when recycled (or accumulated, stored, or treated before recycling), when they are used in the following ways:
These include attempts to dilute wastes below regulatory thresholds by adding them into other material streams. One infamous example involved addition of wastes as (unnecessary) components of asphalt that was then laid down as roadbeds.
Inherently wastelike includes material that may pose a substantial hazard to human health and the environment even if recycled. These include materials with high concentrations of toxic organic compounds or bromine.
Military munition provisions define terms and uses to conform with Department of Defense provisions for use and routine disposal, to identify when specific materials are outside those provisions.
If you know that SWDA was established to deal with municipal wastes, it shouldn’t be surprising that determination whether a material is a “solid” waste does not depend on its physical state, but instead on its source. As set forth in the legislation:
“[t]he term ‘solid waste’ means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities.”
Most wastes would be captured by this very broad definition. However, the RCRA statute and EPA regulations provide a variety ofexclusions from this definition; qualifying materials are not considered “solid wastes” and therefore can be managed without any reference to SWDA or RCRA provisions.
The statute excludes the following:
EPA regulations cover several dozen specific wastestreams, which can be grouped as follows:
As a first step in RCRA compliance, generators need to determine when materials streams have become “wastes,” and then parse through inclusions and exclusions to determine whether which “wastes” are “solid wastes.”
Has my organization developed an inventory of materials onsite at its facilities, including:
Has my organization determined whether there is a definite plan for the use of each such material?
Has my organization determined which materials are no longer useful, or to be used, for the purpose for which they were acquired (spent, off-spec, expired, etc)—and which therefore are “wastes”?
Has my organization determined whether any “wastes” qualify for exclusion from SWDA and RCRA?
Does my organization manage all “wastes” in ways that meet applicable requirements?
Where Can I Go For More Information?
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 16 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law. Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. This article is republished with permission from Specialty Technical Publishers.
Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include: Federal Toxics Program Commentary, Environmental Compliance: A Simplified National Guide, a range of Air Quality MACT Standards Guides, Environmental Auditing: Federal Compliance Guide, The Complete Guide to Hazardous Materials Enforcement and Liability: California.
