Take This Gunk Away! But Obey the Law, Please - ABA YLD 101 Practice Series

By David Johnson

With the complex and sometimes onerous requirements imposed by the Resource Conservation and Recovery Act ("RCRA"), 1 an unsophisticated utility whose processes generate by-products that are potentially hazardous or solid wastes could easily fall astray of RCRA's regulations. This could potentially leave that utility open to fines or even worse, a costly and time-consuming governmentally-mandated remediation.

The following checklist provides a synopsis of the steps to be taken by an attorney should a client present them the above situation. Please note that, given RCRA's complexity, an attorney who is not experienced in RCRA matters should seek the advice of an attorney specializing in these sorts of environmental law issues.

  1. Determine Whether the By-Products are Actually Wastes
    The first step to be taken when advising a client producing potential hazardous waste by-products is to determine if the by-product the client is producing is actually a waste. In principle, this seems rather obvious, but in reality, making this determination is perhaps the most complex and difficult piece of analysis a RCRA attorney must complete. Many by-products never leave the client's system, could be or are re-used by the client, could be re-used by other parties, could be recycled or are just not wastes at all. Unfortunately, due to the complex nature of this question, an analysis of the factors used to determine if a by-product is a waste is beyond the scope of this checklist. Accordingly, an attorney unfamiliar with this analysis should at least seek the advice of a specialist in this area before proceeding.
  2. Determine the Specific Materials Included in the Waste
    By-products of industrial processes can be made up of any number of chemicals. In some cases, a client will know what waste by-products they are generating. With an unsophisticated generator as a client however, an attorney needs to hire an independent engineering firm to perform a chemical analysis on the by-product. Knowing the composition of the by-products will be necessary to proceed to step 3 of this checklist.
  3. Determine if the Waste is a Hazardous Waste
    The EPA has defined hazardous wastes to be solid wastes 2 which exhibit certain characteristics. These characteristics require that hazardous wastes be either ignitable, 3 corrosive, 4 reactive 5 or toxic. 6 Fortunately, an attorney doesn't necessarily have to determine if a by-product exhibits these characteristics. In the years since the EPA promulgated the RCRA regulations, hundreds of wastes that exhibit at least one of these characteristics have been listed by the EPA. These lists, named the F-list for non-specific source wastes, 7 the K-list for source-specific wastes, 8 and the P-list and the U-list for discarded commercial chemical products, 9 should be examined to determine if the by-products contain a listed waste.

    Please note that there are certain wastes that exhibit one of these characteristics, such as radioactive wastes, agricultural wastes, domestic sewage and a number of others, that for various reasons have been specifically excluded from RCRA regulation. Further, an attorney must keep the mixture rule in mind when evaluating wastes. Should a waste that has been listed as hazardous by the EPA be mixed with any other waste, hazardous or not, the entire mixture will be considered as hazardous for RCRA purposes.
  4. Determine if any of the Hazardous Wastes are Acutely Hazardous Wastes
    Certain hazardous wastes, because of their acute ignitability, reactivity, corrosivity, or toxicity, have been listed by the EPA as acutely hazardous wastes. Any hazardous waste by-product that contains any of these acutely hazardous wastes will be considered, as a whole, an acutely hazardous waste and will subject its generator to more stringent requirements than "plain old" hazardous wastes. In order to determine whether a client's waste by-product contains acutely hazardous waste, an attorney can refer to lists promulgated by the EPA. 10
  5. Identify the Generator Classification of the Client
    If your client's by-product is a hazardous waste, you will need to know to what extent he will be regulated as a generator of hazardous waste. The EPA has distinguished three classifications for generators of hazardous waste, which depend on the quantity of hazardous waste produced. A client could be classified as a Large Quantity Generator (LQG), 11 a Small Quantity Generator (SQG), 12 or a Conditionally Exempt Small Quantity Generator (CESQG). 13 All LQG and SQG are required to comply with certain requirements. 14 These include:
    • Obtaining an EPA Identification number. These numbers can be obtained from each state's environmental office.
    • Comply with the manifest system. The Hazardous Waste Manifest System is a set of forms, reports, and procedures designed to seamlessly track hazardous waste from the time it leaves the generator facility where it was produced, until it reaches the off-site waste management facility that will store, treat, or dispose of the hazardous waste. The system allows the waste generator to verify that its waste has been properly delivered, and that no waste has been lost or unaccounted for in the process. 15
    • Handle the wastes properly before shipment. Depending on the type of facility and the specific wastes, this could require any number of steps, but generally, the utility must properly package, label, mark, placard and document the accumulation time of the wastes.
    • Comply with all record keeping and reporting requirements.

In addition to these requirements, the three types of generators are subject to other requirements. For a LQG, proceed to step 6(a). For a SQG, proceed to step 6(b). For a CESQG, proceed to step 6(c).

  1. (a) Large Quantity Generators
    LQGs are, obviously, subject to the most stringent requirements under the RCRA regulatory system. LQGs may only accumulate their waste on site for ninety (90) days, but they do not have a limit on the amount of hazardous waste that can be accumulated on site. While managing this waste, the LQG must always have an employee available to respond to any emergency and the LQG must have detailed, written contingency plans for handling an emergency. Finally, LQG must submit a biennial hazardous waste report.
  2. (b) Small Quantity Generators
    In addition to the above requirements in step 5, SQGs are subject to other requirements that are less strict than the LQGs. Hazardous waste kept by an SQG may only be accumulated on site for 180 days without a permit (or up to 270 days if shipping a distance greater than 200 miles). At no time may the quantity of hazardous on site waste ever exceed 6,000 kilograms. This 6,000 kilogram number includes all of the wastes on site. Finally, like the LQG, an SQG must always have one employee on site that is available to respond to an emergency. However, an SQG is not required to have contingency plans.
  3. (c) Conditionally Exempt Small Quantity Generators
    CESQGs, unlike their bigger cousins, are not subject to the requirements listed in step 5. But CESQGs are subject to certain requirements. Specifically, they must identify all hazardous waste generated and at no time may an CESQG accumulate more than 1,000 kilograms of hazardous waste at any time. Like the SQG above, this 1,000 kilogram limit includes all hazardous on site waste. Finally, should a CESQG decide to transport their wastes off-site, the CESQG must ensure that the hazardous waste is delivered to a person or facility that is authorized to manage hazardous waste.
  4. Make Sure the Client Hasn't Become a Storage Facility
    Please note that should your client, whether a LQG, a SQG or a CESQG, exceed either of the time limits or the quantity limits on the storage of hazardous waste on site, the client's facility may become a hazardous waste storage facility. This will require a facility permit with requirements that are truly onerous. As such, an attorney needs to strenuously remind their client of the need to monitor the time and amount of hazardous waste on site.
  5. Transport of the Waste to an Off-Site Disposal Facility
    A generator of a hazardous waste must (if they are a LQG, SQG or decide as a CESQG to dispose of the waste) transport the wastes off site to an authorized disposal facility. Particular care must be given when selecting a transporter and a disposal facility to select one with the proper credentials from the state agency and the Department of Transportation. Bear in mind that hazardous waste generation, transportation and disposal is subject to strict liability and the choice of a less-than-reputable transporter could result in massive liability should that transporter live up to their reputation. The same care must be taken when selecting a certified, reputable disposal facility and in contacting the disposal facility after the wastes have been disposed of to make sure that the transporter has actually brought the client's waste to that facility. 

1 Formerly Solid Waste Disposal Act ("SWDA").
The term "solid waste" under RCRA goes well beyond the common sense meaning of these words. RCRA has defined a "solid waste as 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, but does not include solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 1342 of Title 33, or source, special nuclear, or byproduct materials as defined by the Atomic Energy Act of 1954, as amended. 42 U.S.C. § 6903(27). Further, the EPA's regulatory definition of "solid waste" is even more definitive than the RCRA definition and should be consulted as well. However, for space purposes, that definition cannot be included here. 40 C.F.R. § 261.2.
Ignitable wastes can create fires under certain conditions, are spontaneously combustible or have a flash point less than sixty (60) degrees Celsius. Examples include waste oils and used solvents. See 40 CFR § 261.21.
4 Corrosive wastes are acids or bases (pH less than or equal to 2 or greater than or equal to 12.5) that are capable of corroding metal containers, such as storage tanks, drums and barrels. Battery acid is an example. See 40 CFR § 261.22.
Reactive wastes are unstable under "normal" conditions. They can cause explosions, toxic fumes, gases or vapors when heated, compressed, or mixed with water. Examples include lithium-sulfur batteries and explosives. See 40 CFR § 261.23.
6 Toxic wastes are harmful or fatal when ingested or absorbed (e.g., containing mercury or lead). When toxic wastes are land disposed, contaminated liquid may leach from the waste and pollute ground water. Toxicity is defined primarily though a laboratory procedure called the Toxicity Characteristic Leaching Procedure. See 40 CFR § 261.24.
40 CFR § 261.32.
8 40 CFR § 261.32.
9 40 CFR § 261.33.
10 A current listing of these wastes can be found in the P-List at 40 CFR § 261.33.
11 A Large Quantity Generator is a generator of 1,000 kilograms per month or more of hazardous waste, or more than 1 kilogram per month of acutely hazardous waste. 40 CFR § 262.
12 A Small Quantity Generator is a generator of between 100 and less than 1,000 kilograms per month of hazardous waste. 40 CFR § 262.34(d).
13 A Conditionally Exempt Small Quantity Generator is a generator of less than 100 kilograms per month of hazardous waste or less than 1 kilogram per month of acutely hazardous waste. 40 CFR §§ 261.5(a) and (e).
14 See 40 CFR § 262.
15 The key component of this system is the Uniform Hazardous Waste Manifest which is a form prepared by all generators who transport, or offer for transport, hazardous waste for off-site treatment, recycling, storage, or disposal. The manifest is a paper document containing multiple copies of a single form. When completed, it contains information on the type and quantity of the waste being transported, instructions for handling the waste, and signature lines for all parties involved in the disposal process. The manifest is required by both Department of Transportation and EPA. Each party that handles the waste signs the manifest and retains a copy for themselves. This ensures critical accountability in the transportation and disposal processes. Once the waste reaches its destination, the receiving facility returns a signed copy of the manifest to the generator, confirming that the waste has been received by the designated facility.


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About the Author

Admitted in New York and Connecticut; L.L.M. Environmental Law 2006, Pace University School of Law; J.D. 2004, Southern Methodist University Dedman School of Law; B.A. 2001, Southern Methodist University.

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