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26 ELR 10304 | Environmental Law Reporter | copyright © 1996 | All rights reserved HWIR: A New Era in Hazardous Waste Management?Philip L. ComellaMr. Comella is Of Counsel with Seyfarth, Shaw, Fairweather & Geraldson, located in Chicago, Illinois. He received his J.D. from the National Law Center at George Washington University in 1983, and his B.A. from Beloit College in 1978. The history of hazardous waste management divides into two eras: the cradle-to-grave era (beginning in 1980)1 and the land disposal restrictions (LDR) era (beginning in 1986).2 Since the decision in Shell Oil Co. v. U.S. Environmental Protection Agency,3 however, the U.S. Environmental Protection Agency (EPA) has struggled to establish the foundation for what may be a new era. In this era, EPA must redefine hazardous wastes, limit the expansive reach of the mixture and derived-from rules, and no longer require treatment for the sake of treatment. On December 21, 1995, EPA released its latest attempt to restructure the hazardous waste management program within the boundaries of its existing statutory authority—the Resource Conservation and Recovery Act (RCRA).4 EPA proposed the Hazardous Waste Identification Rule (HWIR),5 which would create a risk-based system to give hazardous waste generators and other regulated entities a number of options for exiting much of the hazardous waste management program. The availability of relief for specific generators would depend on the type and concentration of hazardous constituents in their waste and on the disposal methods used. This Dialogue examines whether HWIR foreshadows a new era in hazardous waste management, or instead shows that only Congress can redesign the existing hazardous waste system. The Dialogue first summarizes key elements of the existing hazardous waste system, emphasizing the effect of the mixture and derived-from rules on hazardous waste management. It next examines how HWIR would limit the reach of the two rules and alter the way generators manage hazardous wastes. The Dialogue compares treatment standards under the LDR program with HWIR's proposed "exit levels" for selected constituents, and discusses how the proposed contingent management option would greatly relax many existing treatment requirements. It concludes that though HWIR addresses a major flaw in today's program, EPA may have exceeded its statutory authority in seeking a correction. In the first era, EPA promulgated the original set of hazardous waste regulations, intended to govern hazardous waste management from cradle-to-grave.6 These regulations, define the term "hazardous waste"7 and, among other things, require generators: to obtain EPA identification numbers;8 limit storage to a set number of days;9 properly package,10 label,11 and mark12 containers; complete hazardous waste manifests;13 ship their waste to authorized treatment, storage, or disposal facilities;14 and prepare biennial [26 ELR 10305] reports.15 EPA intended these controls to ensure that hazardous wastes arrive safely at facilities designed to manage the risks the wastes may pose. Under RCRA, a waste becomes hazardous by exhibiting one of four characteristics (ignitability, corrosivity, reactivity, or toxicity)16 or by appearing on one of EPA's regulatory lists.17 EPA compiled these lists by first reviewing data on numerous industries' waste streams and then designating wastes that, because of toxic constituent concentrations or other characteristics, may pose unacceptable health and environmental risks if mismanaged.18 A generator determines whether it has generated a characteristic waste by testing the waste or using knowledge of the production process.19 A generator determines whether it has generated a listed waste by finding whether EPA designated the waste on one of the regulatory lists.20 Characteristic wastes are classified by codes beginning with the letter prefix "D."21 Listed wastes are classified by codes beginning with the letter prefixes "F" (wastes from nonspecific sources), "K" (wastes from specific sources), "P" (acutely hazardous discarded commercial products), and "U" (toxic discarded commercial chemical products).22 Different rules apply to characteristic and listed wastes during the course of their management. If a characteristic waste is mixed with other materials, or treated, the resulting waste is hazardous only if it continues to exhibit a hazardous characteristic.23 Under EPA's "mixture" and "derived-from" rules, however, a listed waste remains hazardous regardless of how thoroughly it is mixed or treated.24 EPA explained that "because the potential combinations of listed wastes and other wastes are infinite, we have been unable to devise any workable, broadly applicable formula which would distinguish between mixtures which are and are not hazardous."25 With regard to treated (i.e., derived-from) wastes, EPA explained that it was "not now in a position to prescribe waste-specific treatment standards which would identify those processes which do and do not render [listed] wastes or residues nonhazardous."26 Generators who believe their listed wastes pose no hazard have only one option: they must convince EPA to remove their waste from the regulatory lists through the rulemaking process ("delisting").27 From this summary, one flaw in EPA's original system is apparent: the mixture and derived-from rules may encompass wastes posing little or no hazard. In fact, the rules as applied to listed wastes have no minimum threshold. They apply to residuals from the best treatment systems in the same manner that they apply to raw, newly generated toxic wastes. Wastewaters generated by cleaning containers of listed waste remain hazardous even if they pose no hazard. EPA, seeking to capture hazardous waste within a tightly controlled management system, cast its net too far. The Second Era: The Land Disposal Restrictions Congress revisited the state of hazardous waste management during the passage of the Hazardous and Solid Waste Amendments of 1984 (HSWA),28 but did not address the overbreadth of the mixture and derived-from rules. Instead, its primary focus was on leaking hazardous waste landfills.29 Prior to HSWA, generators shipped hazardous waste to authorized facilities, but absent any requirement to treat the waste, much of it was deposited directly into surface impoundments, landfills, and other land disposal units.30 To limit reliance on land disposal, Congress, as part of HSWA, directed EPA to set treatment standards for roughly 550 different hazardous wastes by five statutory deadlines, beginning on November 8, 198631 and ending four and one-half years later.32 RCRA § 3004(m) required EPA to specify "those levels or methods of treatment, if any … which substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized."33 EPA transformed this mandate into the LDR program.34 In general, EPA based LDR treatment standards on the best demonstrated available technology (BDAT)35 —the technology best able to "substantially treat" hazardous constituents in a particular waste. Whether substantial treatment occurs depends on the number and types of hazardous constituents treated, the concentration of constituents in treatment residuals, and the percent of constituents removed.36 Consistent with the statutory schedule, EPA first set treatment standards for hazardous wastes by waste code.37 After EPA set these standards, the same chemical (e.g., lead) was often subject to different standards depending on the waste [26 ELR 10306] in which it was contained.38 To alleviate this inconsistency, EPA promulgated the Universal Treatment Standard (UTS) Rule on September 19, 1994.39 In this rule, EPA modified the LDR treatment standards so that each chemical is subject to one treatment standard (e.g., 0.37 mg/l for lead).40 These LDR standards elevate the roles that the mixture and derived-from rules play in the RCRA program. As EPA said in one of its LDR rulemakings: "All of the residues resulting from treatment of the original listed wastes are … considered to be the listed waste by virtue of the derived-from rule contained in 40 C.F.R. 261.3(c)(2)."41 Tracking the derived-from rule, RCRA § 3004(m)(2) provides that once a generator treats a waste to the specified LDR standard, the "waste or residue thereof" may be disposed in a Subtitle C (hazardous waste) land disposal facility.42 An important provision affecting these Subtitle C land disposal facilities is RCRA § 3004(o), which sets forth minimum technological requirements (MTR).43 That section requires all new landfills and surface impoundments, or replacements and expansions of existing units, to be installed with two or more liners, at least one leachate collection system (two for landfills), and groundwater monitoring.44 Additionally, under RCRA § 3005, land disposal facilities must be subject to either interim status or a RCRA permit before accepting hazardous waste.45 Here then is the problem: once a regulated entity generates a hazardous waste, that waste is generally subject to the LDR program unless and until the waste is delisted. Thus, the waste must be treated to technology-based standards before land disposal. But regardless of how successfully treatment reduces the hazardousness of the waste, the derived-from rule says the treater failed—treatment to § 3004(m) standards does not allow waste to exit the RCRA hazardous waste system but merely allows it to be placed in a hazardous waste disposal facility that meets stringent MTR.46 How can EPA solve the overbreadth of the mixture and derived-from rules within a system that demands that the best disposal (MTR) follow the best treatment (BDAT)? The third era of hazardous waste management began with the D.C. Circuit's decision in Shell Oil. In that case, the court decided, a decade after it was filed, a challenge to the mixture and derived-from rules as promulgated in the original 1980 regulations.47 Finding that EPA failed to provide sufficient notice and opportunity to comment on those rules when it published its 1978 proposed regulations, the court vacated and remanded the mixture and derived-from rules.48 The Shell Oil court did not address the substance of the two rules, which remain in place pursuant to an emergency interim publication and subsequent legislation.49 Nonetheless, the Shell Oil decision marks the beginning of EPA's retreat from a management system based on a presumption of hazardousness—a presumption that seems unnecessary if data show the waste poses no hazard. Having now recognized the overbreadth of the mixture and derived-from rules,50 EPA's challenge in this new era is to rationalize the definition of hazardous waste within the framework of the LDR program. In the proposed rule, EPA makes an elaborate and creative attempt to reconcile its solution for overbreadth of the mixture and derived-from rules with the LDR program. To gauge the effectiveness of EPA's approach, it is first necessary to summarize the proposal. The proposal's key feature is that it would set risk-based concentration levels that would allow listed wastes to exit Subtitle C without EPA approval. The proposed concentration levels would be listed in Tables A and B in both Appendices X and XI to 40 C.F.R. part 261, which set forth mostly risk-based concentration levels for hazardous waste constituents.51 Under the proposal, a listed hazardous waste could exit most Subtitle C requirements if it contained hazardous constituents at levels at or below the values set forth in the applicable table. This would differ from "delisting" because there would be no need for generators or other claimants to obtain EPA approval before taking waste out of the system.52 [] Exit Levels. HWIR would add two additional sets of concentration levels to RCRA: exit levels to be set forth in a new Appendix X,53 and conditional exit levels to be set forth in a [26 ELR 10307] new Appendix XI.54 In turn, each of these sets of concentration levels would contain modeled levels, extrapolated levels, and exemption quantitation criteria levels (EQC). EPA began developing HWIR exit levels from a master list of 506 constituents,55 which EPA reduced to a list of 376.56 The modeled levels are based on risk analyses that EPA performed for 189 of the 376 constituents.57 For the other 187 constituents, EPA extrapolated risk-based levels.58 In many instances, however, EPA found that modeled or extrapolated risk levels fell below the levels at which most laboratories can reliably measure constituent concentrations. For these constituents, the EQC becomes the exit level.59 In still other instances, the Agency was unable to set EQCs and no exit levels appear. For those constituents, the LDR standard applies.60 EPA derived the exit levels through a multipathway risk assessment61 that assumed disposal of the waste in a Subtitle D (i.e., solid waste) disposal unit.62 The proposal, however, contains two sets of exit tables because EPA considered two separate sets of Subtitle D disposal units in its risk assessment. The Appendix X exit levels are based on the disposal of nonwastewaters through land application, ash monofills, and waste piles, and the disposal of wastewaters in open treatment tanks and surface impoundments.63 To derive the Appendix XI conditional exit levels, EPA removed the riskiest disposal option—land application—from its risk assessment.64 This alternative approach affects only nonwastewaters because as a practical, if not legal matter, a claimant would not land apply wastewaters.65 The alternative approach is termed contingent management because the application of the more relaxed levels is contingent on the disposal of the wastes in a landfill or monofill, and not by land application.66 [] Opportunities to Exit. The proposal would give generators and other claimants two opportunities to exit: at the point of generation,67 and after treatment or mixing.68 Waste that exited at the point of generation would be exempt from most Subtitle C requirements, including those in 40 C.F.R. parts 262 (generator requirements), 263 (transporter requirements), 264 (governing owners and operators of treatment, storage, and disposal (TSD) facilities), 265 (governing owners and operators of interim status TSD facilities), 266 (standards for materials being recycled or reused), 268 (LDR), and 270 (EPA-administered permit programs).69 Waste that exited after the point of generation would also be exempt from parts 262-266 and 270, but not from the LDR requirements of part 268.70 To determine whether—and how—the proposal would affect a given waste stream, a generator would need to know: which constituents to test for; which tests to run; which exit levels apply to each constituent; and whether the intended disposal option is land application. [] What to Test For. To claim an exemption under the HWIR proposal,71 generators would have to test for all 376 constituents listed in Appendices X and XI, except those they determined should not be present in their waste.72 (Hereinafter, constituents for which a generator would have to test are referred to as "target" constituents.) Generators would be required to document the basis for eliminating each constituent from their lists of target constituents.73 Moreover, EPA lists five categories of constituents for which an exemption claimant would be unable to make a "not present" determination. a. constituents identified in Appendix VII to 40 C.F.R. § 261 as the basis for listing the waste; b. constituents listed in 40 C.F.R. § 268.40 as requiring treatment under the LDR program; c. constituents detected in any previous analysis of the same waste conducted by or on behalf of the claimant; d. constituents introduced into the process that generates the waste; and e. constituents that the claimant had to believe are by-products or side reactions to the process that generates the waste.74 The proposal would require all claimants to have sampling and analysis plans in place that set forth the procedures for complying with the rule's testing requirements.75 [] Which Tests to Run. Under the LDR program, EPA published treatment standards for all hazardous wastes in a long table to 40 C.F.R. § 268.40.76 For inorganic wastes, the treatment standards are expressed as a concentration in the waste extract, and EPA requires treaters to demonstrate compliance by performing the toxicity characteristic leaching procedure (TCLP).77 For organic wastes, treatment standards are expressed [26 ELR 10308] as a concentration in the total waste, and EPA requires treaters to demonstrate compliance by performing total constituent analyses (TCA).78 HWIR would supplement this system by requiring exemption claimants to perform both a TCLP (or a calculational screen) and a TCA on nonwastewaters, and a TCA on wastewaters.79 The requirement that claimants perform both a TCA and TCLP on nonwastewaters reflects EPA's multipathway risk assessment. The TCLP test is associated with the groundwater pathway; the TCA is associated with all pathways, including inhalation, ingestion, and dermal exposure.80 [] Applying the Exit Levels. Once a generator or other claimant identified target constituents and performed the requisite analyses, the next steps would be to compare the test results to the exit levels, and to comply with public notice and agency notification requirements.81 Different rules for exit would apply depending on whether the waste met exit levels at or after the point of generation. The following rules would apply at the point of generation: 1. If a generator's waste met the concentration levels listed in Appendix X, then the waste would exit and EPA would consider a hazardous waste not tohave been generated.82 2. If no exit level for the constituent existed, the waste would have to meet the LDR standard in order to exit.83 If the waste as-generated exceeded one or more exit levels, then a hazardous waste would have been generated and relevant Subtitle C requirements, including LDR requirements, would apply.84 This means that even if the waste later qualified for exit, it would still be required to meet LDR standards prior to land disposal.85 The court's decision in Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency,86 compels this conclusion. In that decision, the court held that § 3004(m)(1)'s "minimize threat" standard means that characteristic waste generators must treat their waste to below the level at which it is classified as hazardous.87 Similarly, EPA reasoned in the HWIR proposal that if an LDR standard were lower than an exit level, the generator would have to meet the lower level.88 Reconciliation With the LDR Program EPA's proposed exit levels are based on the disposal of wastes in a Subtitle D unit. If a certain exit level would be safe for Subtitle D disposal, then it would make little sense to require treatment to a lower standard under the LDR program, since that program contemplates more protective Subtitle C disposal. EPA addressed this dilemma by proposing to raise the LDR treatment standards to those exit levels that are based on modeled (but not extrapolated) risk data. Therefore, just when it appears that generators will have to meet an overly protective technology-based standard to exit Subtitle C, EPA's proposal would provide relief by relaxing that standard. One catch, however, is that the alternate "minimize risk" standards would require more testing—a totals analysis for inorganic nonwastewaters and a TCLP for organic nonwastewaters.89 The effect of this approach would be to decrease the treatment required for many hazardous waste constituents. Instead of having to meet a technology-based standard prior to disposal in a Subtitle C landfill, the generator would have to meet a less stringent risk-based standard prior to disposal in a Subtitle D unit. Of course, the usefulness of this approach would depend on the chemical content of individual waste streams. An example may help. Example Table A below compares the LDR standards for listed waste K061 (electric arc furnace dust) with the proposed exit levels.
[] The Contingent Management Disposal Scenario. As noted above, EPA developed the alternative exit levels in Appendix XI by deleting the riskiest disposal scenario—land treatment—from its risk assessment.91 Consequently, these relaxed standards for exit would be applicable only if the generator disposed of the waste in a landfill or monofill.92 This condition raises the following question: at what point in its management does the waste exit Subtitle C? EPA proposed two suboptions.93 Under EPA's Option 1A, a waste would not exit until it was actually placed into a Subtitle D landfill or monofill. Until then, the waste would remain subject to all relevant Subtitle C requirements, including manifesting and the LDR program.94 Under Option 1B, a waste would be exempt from most Subtitle C requirements, including LDR,95 if it met the alternative exit levels at the point of generation and the claimant certified that the waste would be disposed in a landfill or monofill.96 Again, an example may help. Suppose that at the point of generation, the total lead and TCLP lead concentrations of a K061 waste were 1,000 parts per million (ppm) and 30 ppm, respectively. Under the base option, this waste could not exit Subtitle C because it would not meet Appendix X exit levels. Under the contingent management option, however, the waste could exit (at least under Option 1B), provided that the generator certified that it would dispose of the waste in a landfill or monofill. On the other hand, if the waste's TCA and TCLP lead concentrations were 2,000 ppm and 50 ppm, respectively (which are above the Appendix XI levels), the waste would have to be treated before exiting and would also have to meet LDR treatment standards. The proposed rule, however, would raise the lead LDR standard to the Appendix XI exit levels of 1,600 ppm TCA and 41 ppm TCLP.97 Thus, in instances involving modeled exit levels, the requirement that a waste not meeting the exit levels at the point of generation also meet the LDR standard would not impose an additional treatment obligation. Example Table B concerns the chemical toluene. [26 ELR 10310] Toluene is regulated as a listed hazardous waste (U220) if, among other things, it is a discarded commercial product consisting of the commercially pure grade of the chemical, or a formulation in which the chemical is the sole active ingredient.98 Prior to the promulgation of toluene treatment standards on June 1, 1990,99 there was no federal restriction on disposing of toluene, except in liquid form.100 Currently, however, if a generator decided to incinerate toluene to comply with the LDR treatment standard, the ash would retain the U220 waste code under the derived-from rule, even if toluene could not be detected in the ash.101 Similarly, if toluene spilled on the ground, any contaminated soil would also be regulated as U220 waste, even if the toluene it contained was barely detectable.102
This approach may have its greatest use in the context of spill cleanups. Current guidance states that a waste is generated when contaminated soil is excavated.106 But, under HWIR, as long as the toluene-contaminated soil contained concentrations at or below exit levels, Subtitle C would not require that it be incinerated or disposed of in a hazardous waste landfill. HWIR no doubt addresses a fundamental flaw in the current Subtitle C program—the overbreadth of the mixture and derived-from rules. But EPA did not propose HWIR in a vacuum. Despite EPA's creative efforts to reconcile HWIR and LDR, there are still grounds for questioning the proposal's legality. In HSWA, Congress mandated treatment of listed wastes to a "minimize threat" level prior to disposal in a Subtitle C disposal facility. In Hazardous Waste Treatment Council v. U.S. Environmental Protection Agency107 (HWTC III), the D.C. Circuit, quoting the Oxford English Dictionary, said that "minimize" means to "reduce [it] to the smallest possible amount, extent, or degree."108 Nonetheless, the court found that EPA has discretion to base the "minimize threat" standard on either risk or technology.109 EPA has so far relied on technology-based treatment for the LDR program because of scientific uncertainty about when a waste is safe.110 But at least for constituents for which it has developed modeled exit levels, EPA now believes that is has learned enough to reduce the required treatment.111 The Agency explained: Since EPA's responses to the HWTC III remand in 1990, the state-of-the-art in making quantitative determinations of risk has advanced and available methods have improved significantly. In addition, the increased sensitivity of analytical methods has lowered achievable detection limits, better bioassays exist than in the past, and more extensive biological data is available for extrapolation. As a result, the universe of available health-based and ecological data has grown significantly, and the reliability of this information has improved. The Agency now believes that these data can [26 ELR 10311] be used to establish levels that minimize threats to human health and the environment.112 This reasoning makes perfect sense except for one fact: it is arguably inconsistent with RCRA § 3004(m)(2). That section—not cited in the HWIR proposal—provides that "if a hazardous waste has been treated to the level or by a method specified … such waste or residue thereof … may be disposed in a land disposal facility which meets the requirements of this subchapter."113 "This subchapter" is Subtitle C, entitled "Hazardous Waste Management." In short, current law states that the benefit to a generator of treating listed hazardous waste to § 3004(m) "minimize threat" standard is land disposal—but only in a hazardous waste until.114 HWIR contemplates disposal only in Subtitle D land disposal units.115 Therefore, even though HWIR would appear to provide generators with increased flexibility in making hazardous waste decisions, buried beneath the proposed exit tables, appendices, and risk assessments is a lingering problem: Congress may need to amend § 3004(m)(2) to make this new era conform to the law. The proposed HWIR addresses a fundamental flaw in the current Subtitle C regulatory program—the overbreadth of the mixture and derived-from rules. For generators of waste that can meet the new exit and alternate minimize threat levels, the rule would add significant flexibility to hazardous waste management decisions. Because it represents an attempt by EPA to move from technology-based to risk-based treatment standards—and thus avoid requiring treatment for treatment's sake—the proposal may signal a new era in the regulation of hazardous waste management. The question is whether it can survive judicial scrutiny. 1. The U.S. Environmental Protection Agency (EPA) published its initial hazardous waste regulations on May 19, 1980, to be effective six months later. Hazardous Waste Management: General, 45 Fed. Reg. 33066 (May 19, 1980) (codified at 40 C.F.R. § 260). EPA's initial regulatory program focused on defining the term "hazardous waste," tracking its movement, and regulating its disposal. Id.; see Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency, 976 F.2d 2, 8, 23 ELR 20024, 20026-27 (D.C. Cir. 1992). The first regulations mandated neither treatment, nor waste reduction. 45 Fed. Reg. 33066. 2. EPA's promulgation of pretreatment standards for various listed solvent and dioxin wastes in November 1986 marked the beginning of the LDR program. See Hazardous Waste Management: Land Disposal Restrictions, 52 Fed. Reg. 40572 (Nov. 7, 1986) (codified at 40 C.F.R. §§ 260-265, 268, 270, 271). By May 8, 1990, EPA had issued treatment standards for nearly all hazardous wastes listed or identified as of November 8, 1984, in accordance with § 3004(g) of the Resource Conservation and Recovery Act (RCRA). See Land Disposal Restrictions for Third Third Scheduled Wastes, 55 Fed. Reg. 22520 (June 1, 1990) (codified at 40 C.F.R. §§ 148, 261, 262, 264, 265, 268, 270, 271, 302). See infra notes 31-40 and accompanying text. 3. 950 F.2d 741, 22 ELR 20305 (D.C. Cir. 1991, amended 1992). 4. 42 U.S.C. §§ 6901-6991, ELR STAT. RCRA §§ 1001-11012. 5. 60 Fed. Reg. 66344 (to be codified at 40 C.F.R. §§ 260, 261, 268) (proposed Dec. 21, 1995). EPA issued its first proposal for a Hazardous Waste Identification Rule on May 20, 1992, 57 Fed. Reg. 21450 (proposed May 20, 1992), but withdrew it five months later. 57 Fed. Reg. 49280 (Oct. 30, 1992). 6. See supra note 1; see also Hazardous Waste Management: Overview and Definitions, 45 Fed. Reg. 12722 (Feb. 26, 1980) (codified at 40 C.F.R. § 260); Standards Applicable to Generators of Hazardous Wastes, 45 Fed. Reg. 12724 (Feb. 26, 1980) (codified at 40 C.F.R. § 262); Standards Applicable to Transporters of Hazardous Wastes, 45 Fed. Reg. 12737 (Feb. 26, 1980) (codified at 40 C.F.R. § 263). 7. 40 C.F.R. pt. 261 (1995). 8. Id. § 262.12. 9. Id. § 262.34. 10. Id. § 262.30. 11. Id. § 262.31. 12. Id. § 262.32. 13. Id. § 262.20. 14. Id. § 262.20(b). 15. Id. § 262.41. 16. Id. §§ 261.20-.24. 17. Id. §§ 261.30-.35. 18. See Hazardous Waste Management System: Identification and Listing of Hazardous Waste, 45 Fed. Reg. 33084; 33106-07 (May 19, 1980) (codified at 40 C.F.R. § 262); see also 60 Fed. Reg. at 66346. 19. 45 Fed. Reg. at 33142-43; 40 C.F.R. § 262.11(c) (1995). 20. 40 C.F.R. § 262.11(b) (1995). 21. Id. § 261.24. 22. Id. § 261.32; § 261.33(e); § 261.33(f). 23. 45 Fed. Reg. at 33095. 24. 40 C.F.R. § 261.3(a)(2)(iii), (iv) (1995) (mixture rule); 40 C.F.R. § 261.3(c)(2)(i) (1995) (derived-from rule). The rules are subject to various exceptions set forth in the regulations. 25. 45 Fed. Reg. at 33096 (codified at 40 C.F.R. § 261). 26. 45 Fed. Reg. at 33095. 27. 40 C.F.R. §§ 260.20, .22 (1995). 28. Pub. L. No. 98-616, 98 Stat. 3221. 29. Congress at the time faced what the House Energy and Commerce Committee called a "growing body of evidence that land disposal of hazardous waste is not providing, and in some cases cannot provide, protection against groundwater contamination and in many cases poses threats to public health and the environment." H.R. REP. NO. 1998, 98th Cong., 2d Sess., pt. 1 (1983). 30. As Sen. John H. Chaffee (R-R.I.) noted, "Land disposal is extremely cheap when compared with the available alternatives such as incineration or physical or chemical-physical treatment." 130 Cong. Rec. S13818 (1984) (statement of Senator Chaffee). 31. 42 U.S.C. § 6924(e), ELR STAT. RCRA § 3004(e). 32. Id. § 6924(g)(6)(C), ELR STAT. RCRA § 3004(g)(6)(c). 33. Id. § 6924(m)(1), ELR STAT. RCRA § 3004(m)(1). 34. 40 C.F.R. § 268 (1995). 35. See 52 Fed. Reg., supra note 5, at 40588-92 (codified at 40 C.F.R. §§ 260-262, 264, 265, 268, 270, 271) (outlining how EPA sets BDAT). 36. Id. 37. 40 C.F.R. § 268.41-.43 (1994). 38. For example, the treatment standard for lead was 0.51 mg/l in listed waste F006, but 0.021 in K028. Land Disposal Restrictions Phase II: Universal Treatment Standards for Organic Toxicity Characteristic Wastes and Newly Listed Wastes, 59 Fed. Reg. 47982, 47998 (Sept. 19, 1994) (codified at 40 C.F.R. §§ 148, 260, 261, 264-266, 268, 271). 39. 59 Fed. Reg. at 47980. 40. See id. at 48106. The treatment standard for a waste exhibiting a toxicity for lead (D008), however, remains 5.0 mg/l, 40 C.F.R. § 268.40 (1995), though EPA has proposed to lower the standard to .37 mg/l. Land Disposal Restrictions—Phase IV: Issues Associated With Clean Water Act Treatment Equivalency, and Treatment Standards for Wood Preserving Wastes and Toxicity Characteristic Metal Wastes, 60 Fed. Reg. 43654 (to be codified at 40 C.F.R. §§ 148, 268, 271) (proposed Aug. 22, 1995). 41. Land Disposal Restrictions for First Third Scheduled Wastes, 53 Fed. Reg. 31137, 31142 (Aug. 17, 1988) (codified at 40 C.F.R. §§ 264-266, 268, 271). 42. 42 U.S.C. § 6924(m)(2), ELR STAT. RCRA § 3004(m)(2). 43. Id. § 6924(o), ELR STAT. RCRA § 3004(o). 44. Id. 45. Id. § 6925(a), (e), ELR STAT. RCRA § 3005(a), (e). 46. On this same point, the Shell Oil court commented that, "the derived-from rule becomes counter-intuitive as applied to processes designed to render wastes non-hazardous. Rather than presuming that these processes will achieve their goal, the derived-from rule assumes their failure." Shell Oil Co. v. U.S. Environmental Protection Agency, 950 F.2d at 752, 22 ELR at 20309. 47. 60 Fed. Reg., supra note 5, at 66346. 48. Shell Oil, 950 F.2d at 752, 22 ELR at 20310. 49. See Mobil Oil Corp. v. U.S. Environmental Protection Agency, 35 F.3d 579, 24 ELR 21472 (D.C. Cir. 1994). 50. 60 Fed. Reg. at 66346. 51. See id. at 66445-54. The levels in Table B of both Appendices are "quantitation-based." These are levels based on measurement technology that would apply where EPA has concluded that risk-based levels would be below "reasonable analytical quantitation limits." Id. at 66377. 52. See id. at 664431, 66444. In addition, the exit tables would set national standards in contrast to delisting standards, which are site- or waste-specific. 40 C.F.R. §§ 260.20, .22 (1995). 53. 60 Fed. Reg. at 66445 (to be codified at 40 C.F.R. § 261). 54. Id. 55. 60 Fed. Reg. at 66350. 56. Id. 57. Id. at 66349. 58. Id. at 66377. 59. Id. at 66378. 60. Id. at 66378-79. 61. A multipathway risk assessment examines the movement of "many different waste constituents from their waste management units, through different routes of exposure or pathways, to the points where human and ecological receptors are potentially exposed to these constituents." Id. at 66355. In a prior proposal, EPA had evaluated only groundwater ingestion exposures from landfill units. Id.; see 57 Fed. Reg., supra note 5, at 21450. For the HWIR proposal, EPA examined a number of human and ecological exposure pathways, including inhalation, dermal exposure, and direct contact. See 60 Fed. Reg. at 66418-22 62. Id. at 66357-59, 66438. 63. Id. at 66358. 64. Id. at 66396; 66401. 65. Id. at 66401. 66. Id. at 66442 (to be codified at 40 C.F.R. § 261.37(a)). 67. Id. at 66442 (to be codified at 40 C.F.R. § 261.36(e)). 68. Id. at 66441 (to be codified at 40 C.F.R. § 261.36(d)). 69. Id. at 66440-42 (to be codified at 40 C.F.R. § 261.36(a), (e)). 70. Id. at 66440 (to be codified at 40 C.F.R. § 261.36(a)). 71. See supra notes 67-70 and accompanying text. 72. 60 Fed. Reg. at 66440 (to be codified at 40 C.F.R. § 261.36(b)). 73. EPA asks for comment on the alternative approach of requiring claimants to test only for those constituents that "could be present." Id. at 66391. 74. Id. 75. Id. at 66440-41 (to be codified at 40 C.F.R. § 261.36(b)(1)). Importantly, generators' right to seek exemptions from Subtitle C requirements by testing for target constituents would not supplant their duty to determine whether they have generated hazardous waste under § 262.11. See id. 76. 40 C.F.R. § 268.40 (1995). 77. See id. § 268.41 (1994), as revised at 40 C.F.R. § 268.40 (1995). 78. See 40 C.F.R. § 268.43 (1994), as revised at 40 C.F.R. § 268.40 (1995). 79. 60 Fed. Reg. at 66388-89. 80. Id. at 66384. 81. Id. at 66440-41 (to be codified at 40 C.F.R. § 261.36(b)). 82. 60 Fed. Reg. at 66441-42 (to be codified at 40 C.F.R. § 261.37(e)). 83. Id. at 66379. 84. Id. at 66385; 66440. 85. Moreover, waste that exited after the point of generation by meeting an EQC level would have to meet LDR standards regardless of whether it was intended for land disposal. Id. at 66441 (to be codified at 40 C.F.R. § 261.36(b)(2)). 86. 976 F.2d 2, 23 ELR 20024, 20035 (D.C. Cir. 1992). 87. Id. at 14, 23 ELR at 20030. 88. 60 Fed. Reg. at 66384-85. 89. Id. at 66384, 66465. 90. Unless the generic exclusion levels apply. 40 C.F.R. § 261.3(c)(2)(ii)(C) (1995). 91. See supra text accompanying note 64. 92. 60 Fed. Reg. at 66442 (to be codified at 40 C.F.R. § 261.37). 93. Id. at 66401. 94. Id. 95. On this point, the preamble seems to conflict with the proposed regulation. Id. EPA states that a nonwastewater is exempt from all hazardous waste requirements "except part 268" as soon as it meets the exit levels. In the proposed regulations, EPA states that the waste is also exempt from part 268. If it meets the exit levels at the point of generation, see proposed § 261.37(a) and § 261.37(f) at 66442-43. See also 60 Fed. Reg. at 66405. 96. Id. at 66443 (to be codified at 40 C.F.R. § 261.37(b)(4)). 97. Id. at 66468 (to be codified at 40 C.F.R. § 268.70). 98. 40 C.F.R. § 261.33(d) (1995); the U220 listing, like other commercial chemical product wastes, also encompasses off-specification products, container residues, and spill residues. Id. 99. 55 Fed. Reg., supra note 2, at 22712. 100. See 42 U.S.C. § 6924(c), ELR STAT. RCRA § 3004(c). 101. 40 C.F.R. § 261.3(c)(2)(I). 102. This conclusion results from the "contained-in" policy, which covers mixtures of listed wastes and environmental media. 60 Fed. Reg., supra note 5, at 66347; see Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency, 869 F.2d 1526, 19 ELR 20641 (D.C. Cir. 1989). If toluene is not detected in the mixture, then it seems a strong argument can be made that no mixture occurred, or that the mixture stopped. In contrast, even if no toluene is detected in ash from the incineration of toluene, the ash seems captured by the derived-from rule, since it derived from the treatment of a listed waste. 103. 55 Fed. Reg. at 22712. 104. 59 Fed. Reg., supra note 38, at 47980, 47994, 48103 (to be codified at 40 C.F.R. § 268.40). 105. 60 Fed. Reg. at 66467-68 (to be codified at 40 C.F.R. § 268.70). 106. Memorandum from Sylvia K. Lowrance, Director, Office of Solid Waste, U.S. Environmental Protection Agency, to Waste Management Division Directors, Clarification and Possible Modification of the 90-Day Generator Rule, Apr. 24, 1989. 107. 886 F.2d 355, 19 ELR 21398 (D.C. Cir. 1989). 108. Id. at 361, 19 ELR at 21401. 109. Id. at 362-64, 19 ELR at 21402-03. 110. 60 Fed. Reg., supra note 5, at 66380. 111. Id. at 66381. 112. Id. 113. 42 U.S.C. § 6924(m)(2), ELR STAT. RCRA § 3004(m)(2) (emphasis added). 114. In other words, Congress, in RCRA § 3004(m)(2), contemplated that hazardous waste treatment residuals would be disposed of in a double-lined MTR landfill, not Subtitle D landfills, monofills, waste piles, or land treatment units which, by law, are not subject to the MTR requirement. The MTR apply only to land disposal units permitted under Subtitle C. See id. § 6924(o), ELR STAT. RCRA § 3004(o). 115. 60 Fed. Reg. at 66348. 26 ELR 10304 | Environmental Law Reporter | copyright © 1996 | All rights reserved |