Resource Conservation and Recovery Act (RCRA)

Resource Conservation and Recovery Act (RCRA)  42 U.S.C. §6901 et seq

RCRA Overview

Resource Conservation and Recovery Act (RCRA):   This act, which regulates land-based disposal of waste (and focuses on hazardous waste) has the goal of reducing waste and encouraging recycling.  This is not a ban on land-based disposal, but rather a regulation thereof, which uses "manifests" and the "cradle-to-grave" tracking system.  All hazardous waste must obtain an identification number, and be accompanied by a "manifest" which tracks the waste.  Each time the waste changes hands, a copy is sent back, ensuring that everyone along the chain is informed, and preventing unidentified wastes from arriving at disposal facilities.   A part of Environmental Law.

 

Title D:  Solid Waste

Although RCRA is limited to solid wastes that are discarded, this is strangely interpreted.  Under the statutory definition (42 USC § 6903(27)), solid waste is very broadly defined, and includes solids, sludge, liquid, semisolids, or contained gaseous material.  In defining waste, the EPA was focused on actual waste, not materials that were still part of the manufacturing process (to avoid unnecessary interference with manufacturing).  The EPA wanted to exclude (not regulate) real recycling, but didn't want to allow sham recycling to be backdoor to the statute.  Thus, the EPA uses a 5 factor test to determine what is waste:

  • Whether the material is typically discarded on an industry-wide basis
  • Whether the material replaces a raw material when it is recycled and the degree to which its composition is similar to that of the raw material.
  • The relation of the recovery practice to the principal activity of the facility.
  • If the material is handled prior to reclamation in a secure manner that minimizes loss and prevents releases to the environment
  • Other factors, such as the length of time the material is accumulated.

 

Title C:  Solid Hazardous Waste

Solid hazardous wastes are subject to greater regulation under Title C.  To become subject to title C, the solid waste (see Title D) must also be hazardous.  A waste can be considered hazardous in two ways:

  • Waste that exhibits a hazardous characteristic:  If the waste is ignitable, corrosive, reactive, or toxic
  • Waste that is specifically listed as hazardous (or is mixed with a listed waste, or is derived from a listed waste)

 

Persons Covered

RCRA divides the pertinent actors into three categories:

  • Generators:  Generators must determine if they are creating hazardous waste.  If so, they must obtain a tracking number and manifest, ensure proper storage and labeling of waste, and keep records.
  • Transporters:  Transporters must ensure they comply with EPA and Dept. of Transportation requirements for transportation of hazardous materials ("hazmat") and must ensure proper packaging, labeling, reporting and record keeping.
  • Treatment, Storage and Disposal Facilities (TSD):  Treatment, Storage and Disposal Facilities have by far the most onerous requirements.  They must obtain permits, which require inspections and monitoring, as well as comply with the manifest system.

 

Exemptions from RCRA

  • Waste covered by other statutes is exempt from RCRA (for example, waste covered by the CWA or the CAA)
  • There are statutory exemptions in the definition of solid waste.  Domestic sewage, irrigation return flows and mineral extractions are exempt.
  • Closed Loop Recycling:  By-products of a production process that are stored safely and used within 90 days in the same process are exempt from the definition of solid waste.  This is a result of the case of American Mining Congress v. EPA (AMC II)
  • The Generator Controlled Exclusion:  Excludes hazardous secondary materials that are legitimately reclaimed under the control of the generator
  • Transfer-Based Exclusion:  Exempts materials transferred to a third party for recycling or reclamation.  The generator must show this is legitimate recoiling, not a sham operation.