THE RESOURCE CONSERVATION
AND RECOVERY ACT (RCRA)
BASICS
Presented by the
American Bar Association
Section of Environment, Energy, and Resources and
Center for Professional Development
American Bar Association
Center for Professional Development
321 North Clark Street, Suite 1900
Chicago, IL 60654-7598
www.americanbar.org
800.285.2221
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Resources or Center for Professional Development unless adopted pursuant to the bylaws of the
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Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and
readers are responsible for obtaining such advice from their own legal counsel. This book and any forms
and agreements herein are intended for educational and informational purposes only.
© 2016 American Bar Association. All rights reserved.
This publication accompanies the audio program entitled “The Resource Conservation and Recovery Act
(RCRA) Basics” broadcast on October 20, 2016 (event code: CE1610RCR).
The Resource Conservation and Recovery Act
(RCRA) Basics
Thursday, October 20, 2016 | 1:00 PM Eastern
Sponsored by the Section of Environment, Energy, and Resources and the ABA Center for
Professional Development
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RCRA Basics
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Faculty
Moderator:
• Larry Burke, Partner, Davis Wright Tremaine LLP
Speakers:
• Thomas V. Fusillo, Managing Principal, Ramboll
Environ US Corporation
• Hope Schmeltzer, Assistant Regional Counsel, U.S.
Environmental Protection Agency
• Kerry Shea, Partner, Davis Wright Tremaine LLP
**Please note: Each faculty member speaks on behalf of his or herself, and the
views of one speaker should not be attributed to others.
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Objectives
• Participants will be able to
 Assist clients: in identifying waste streams and proper
management
 Advise: potential hazardous waste generators regarding
their responsibilities under RCRA
 Explain: the unique opportunities and pitfalls of universal
waste laws
 Warn clients: regarding potential penalties under these
laws
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Objectives
• This program is for
 Beginner = Knowledge, Comprehension
 We are happy to assist on a more advanced level and
answer questions about Application of the regulations
or Analysis of situations
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RCRA Basics
HISTORY
AND
BACKGROUND
Larry Burke
Partner
Davis Wright Tremaine LLP
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Municipal solid waste generated and managed
in the U.S., 1960 - 2013
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Intensity of U.S. municipal solid waste
generation, 1960 - 2013
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RCRA hazardous waste generation and
management in the U.S., 2001 – 2011
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RCRA hazardous waste disposal to land in the
U.S. by practice, 2001 - 2011
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RCRA Basics
SOLID WASTE
Thomas V. Fusillo
Managing Principal
Ramboll Environ US Corporation
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Overview of RCRA
• Resource Conservation and Recovery Act
 Enacted in 1976 as an amendment to the Solid Waste
Disposal Act of 1965
 Subsequently amended in 1984 by the Hazardous
and Solid Waste Amendments
 Regulations codified at 40 CFR Parts 239-282
 Subsequent EPA guidance documents and policy
statements
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Overview of RCRA
• RCRA Goals
 Protect human health and environment from potential
hazards of waste disposal
 Conserve energy and natural resources
 Reduce volume of waste generated
 Ensure management of wastes in environmentally
sound manner.
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Overview of RCRA
• Major Components
 Subtitle D – Solid Waste Management
 Subtitle C – Hazardous Waste Management
 Subtitle I – Underground Storage Tanks
 Subtitle J – Tracking and Management of Medical
Waste
 Other subtitles deal largely with general provisions
and administrative aspects of the program
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RCRA - Subtitle D
• What is solid waste (spoiler alert: it’s not all solid!)
 Garbage (typical household waste)
 Refuse (scrap metal, empty containers, wall board)
 Sludges (from wastewater treatment, water treatment,
air scrubbers, etc.)
 Industrial wastes (manufacturing wastewaters, waste
solvents, non-wastewater sludges and solids)
 Other discarded materials (solid, semisolid, liquid or
contained gas resulting from various activities including
industrial, commercial, mining, agricultural, etc.)
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Solid Waste
Commons.Wikimedia.org/wiki/File:Solid_Waste_Types.jpg
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Waste Characterization
• First Step – Determine if it is a Solid Waste
 Does it meet the definition of a solid waste?
 Is it an exempted waste?
 Domestic sewage
 Industrial point source discharges
 Radioactive waste
 Closed-loop recycling
 Spent wood preservatives
 Processed scrap metal
 Shredded circuit boards
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Waste Characterization
• Second Step – Determine if it is a Hazardous Waste
 Assuming that it meets the definition of a solid waste
 Is it a listed hazardous waste?
 Is it a characteristic hazardous waste?
 Is it an excluded hazardous waste?
 Household hazardous waste
 Agricultural waste
 Arsenically-treated wood
 Petroleum-contaminated media from UST cleanup
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Non-Hazardous Solid Waste
• RCRA Requirements for Non-Hazardous Solid Waste
 RCRA non-hazardous regulations largely focus on:
 Comprehensive state plans for waste management
 Criteria for solid waste landfills and other solid waste disposal
facilities
 Bans open dumping of solid waste
 40 CFR Part 243 covers storage and collection of
residential, commercial and institutional solid waste
 State regulations typically play a significant role in nonhazardous waste management
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Non-Hazardous Solid Waste
• Specific Federal requirements applicable to solid waste
generators:
 Solid waste receptacles should comply with good design and
operations specifications (40 CFR 243.200)
 Solid waste generators should identify and document all nonhazardous waste streams (40 CFR 262.11)
 Any facility that uses non-hazardous secondary materials as fuel
or as ingredients in combustion units needs to evaluate whether
that material is solid waste to determine if there are applicable
Clean Air Act regulations (40 CFR 241)
 Facilities that generate electronic wastes must determine if those
wastes are subject to regulation as hazardous wastes (40 CFR
262.11)
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Non-Hazardous Solid Waste
• Most other requirements are based on state rules and
regulations, local fire code requirements, etc.:
 Ensuring that hazardous and non-hazardous wastes are not being
mixed
 Complying with state licensing or permitting requirements, if
applicable
 Complying with training and certification requirements, if
applicable
 Complying with recordkeeping and reporting requirements, if
applicable
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Used Oil Requirements (40 CFR 279)
•
•
Used oil is any oil that has been used and as a result of that use has
been contaminated by physical or chemical impurities
Requirement for management of used oil include:
 Store in appropriate tanks or containers that are in good condition
 Label all containers as “Used Oil”
 Take steps to prevent leaks and immediately clean up any spills
 Generators do not need a USEPA ID number but transporters do
 Generators may need a state or local permit
 Used oil is typically recycled; in some cases may be burned as fuel
 Records of transfer of used oil need to be maintained for 3 years
 Mixtures of used oil and hazardous waste are subject to hazardous
waste standards
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Examples of Some State-Specific
Solid Waste Requirements
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State Requirements - Texas
• Generators of industrial solid waste are subject to
specific requirements
 Classification of wastes in accordance with Texas regulations
 Four classifications:
 Hazardous
 Class 1 – Non-hazardous wastes that pose danger to human health and
environment if not properly managed (toxic, corrosive, flammable, irritants,
etc.)
 Class 2 - Non-hazardous wastes not classified as Hazardous or Class 1 or 3
 Class 3 – Relatively inert solid wastes (rock, brick, glass, etc.)
 Each industrial waste is assigned an 8-digit code
 Generators required to register with TCEQ and submit
information on types of wastes generated and quantities
 Manifesting requirements for Class 1 non-hazardous wastes
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State Requirements - Texas
• Requirements for Used Oil Generators
 Use of used oil as dust suppressant is banned.
 Disposal of used oil filters in landfills is also banned.
 Used oil generators subject to storage management and release
response requirements.
 TCEQ recommends secondary containment for used oil storage.
 Generators not subject to reporting to TCEQ.
• Registration and reporting to TCEQ required for used oil
transporters, transfer facilities, processors and rerefiners, and burners.
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State Requirements - Pennsylvania
• Solid wastes are classified as either municipal wastes or
residual wastes
 Municipal wastes – nonhazardous wastes resulting from
residential, municipal, commercial or institutional establishments
or community activities
 Residual wastes – nonhazardous wastes from industrial, mining,
and agricultural operations and nonhazardous sludge from an
industrial, mining or agricultural water supply treatment,
wastewater treatment or air pollution control facility. Also
includes:
 Waste oil that is not hazardous waste oil
 Waste tires and auto fluff
 Contaminated soils
 Used asphalt
 Asbestos and PCB-containing wastes
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State Requirements - Pennsylvania
• Requirements for generators of residual wastes
 Residual wastes may not be stored more than one year.
 Generators of more than an average of 2,200 pounds of
residual wastes per location per month must submit a biennial
report and source reduction strategy.
 Generators that produced a total of more than 2,200 pounds
of residual waste in any single month in the previous year must
provide a chemical analysis of their wastes.
 Generators of residual wastes must maintain records for five
years, including:
 Types and amounts of wastes generated
 Date the waste was generated
 Date on which the waste was disposed of or processed onsite
 Name, address, and telephone number of the transporter and the processing
or disposal facility
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State Requirements - Pennsylvania
• Requirements for Waste Oil Generators
 Waste oil must be stored in containers and aboveground tanks
meeting regulatory requirements and labeled as “Waste Oil”.
 Preparedness, Prevention and Contingency Plans required for
waste oil generators and waste oil burners that are not subject to
federal SPCC requirements.
 Generators who transport waste oil or process or re-refine waste
oil are subject to additional requirements.
 Waste oil to be transported only by transporters with ID numbers.
 Recordkeeping requirements for 3 years.
 Source reduction strategy required of all waste oil generators.
 Biennial reports due by March 1 of each odd numbered year.
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State Requirements - California
• Generators of industrial solid waste are subject to
specific requirements:
 Identify and document all non-hazardous waste streams.
 Ensure that all solid wastes are accumulated in a safe and
sanitary manner.
 Garbage containers must meet specific requirements.
 Refuse may not remain on the premises for more than seven
days, except under certain circumstances.
 Mandatory commercial recycling program for any business that
generates more than 4 cubic yards of commercial solid waste, but
excludes industrial waste
• Some hazardous wastes are handled as special wastes
(e.g., sewage sludge, industrial sludge, asbestos, shredder waste)
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State Requirements - California
• Requirements for Used Oil Generators
 Used oil is considered a hazardous waste in California, unless it
meets certain specifications for recycled oil.
 State has recycling program for used oil as well as land disposal
requirements for used oil that cannot be recycled.
 Used oil may not be burned as fuel or incinerated in space heaters
or similar devices.
 Used oil generators must obtain a ID number, unless they generate
100 kg (220 lbs) or less of hazardous waste a month (including
waste oil) and ship their used oil under a modified manifest.
 Generators must submit certification to transporter that the oil
meets the definition of used oil and does not contain PCBs above 5
ppm.
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Conditionally Exempt Small
Quantity Generators of
Hazardous Waste
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Conditionally Exempt Small Quantity Generators
of Hazardous Wastes (CESQG)
• Facilities that generate less than 100 kg (220 lbs) of
hazardous waste per calendar a month [and less than 1
kg (2.2 lbs) of an acutely hazardous waste per month].
• Also limits total accumulation to 1,000 kg (2,200 lbs) of
hazardous waste.
• USEPA estimates that there are between 293,000 to
470,000 CESQGs.
• RCRA exempts CESQGs from:
 Obtaining a USEPA ID number
 Following the manifest system
 Recordkeeping and reporting requirements
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Conditionally Exempt Small Quantity Generators
of Hazardous Wastes (CESQG)
• CESQGs are required to:
 Identify their hazardous wastes
 Comply with waste accumulation limits
 Ensuring that waste treatment or disposal is at:
 A permitted or interim status hazardous waste facility
 A state hazardous waste facility
 State permitted or licensed soil waste disposal facility
 A state municipal solid waste landfill
 A recycling facility
 A universal waste facility
• In some cases, states have more stringent requirements
for CESQGs or do not recognize CESQGs
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Conditionally Exempt Small Quantity Generators
of Hazardous Wastes (CESQG)
• State requirements:
 Texas adopted the CESQG designation and does not require a
permit for CESQGs. Requirements for CESQGs include:
 Properly classify wastes using the Texas eight-digit waste codes
 Retain onsite documentation of waste sampling procedures and analytical
results
 Maintain records of all the hazardous and Class 1 wastes they generate.
 Pennsylvania adopted the CESQG designation but does not
allow CESQGs to dispose of hazardous wastes in a
Pennsylvania municipal or residual waste landfill.
 California did not adopt the CESQG designation, so all
generators are subject to Subtitle C requirements for hazardous
waste generators.
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RCRA Basics
HAZARDOUS WASTE
Hope Schmeltzer
Assistant Regional Counsel
U.S. Environmental Protection Agency
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The Most Complicated Environmental Statute
“. . . After reading and
rereading the regulations
several times, the court
recognizes, as do the
defendants, that the
regulations are in fact
dense, turgid, and a bit
circuitous. . .” US v.
White, 766 F. Supp. 873
(E.D. Wash. 1991)
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RCRA Subtitle C: Cradle to Grave
•
•
•
•
Generator Requirements 
Hazardous Waste Manifest 
Transporter Requirements 
Treatment, Storage & Disposal Requirements
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What is Hazardous Waste?
•
•
•
•
Characteristic
Listed
Mixture
Derived from
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Characteristic Waste
• 40 CFR Part 261
– Ignitable
– Corrosive
– Reactive
– Toxic
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Listed Waste
• 40 CFR Part 261
– F wastes: non-specific sources - Part 261.31
– K wastes: specific sources - Part 261.32
– P wastes: acutely hazardous commercial
chemical products - Part 261.33(c)
– U wastes: toxic commercial chemical
products Part 261.33(f)
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Mixture Rule
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Derived From Rule
Material generated from the treatment, storage or
disposal of hazardous waste is still a hazardous
waste *unless* the derivative is from a
characteristic waste and the characteristic is no
longer present.
Chem Waste Management v. EPA 873 F.2d 1477
(D.C. Cir. 1989)
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Hazardous Waste Generators
• Large Quantity
– ≤ 1000 kg per month
• Small Quantity
– < 100 kg per month < 1000 kg per month
•
Conditionally Exempt small quantity generators (CESQGs)
– No more than 100 kg in one month
•
Households
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Generator Requirements 262
• Hazardous Waste Determination (Subpart A)
• Manifests (Subpart B)
• Pre-transport requirements (Subpart C)
• Recordkeeping and reporting (Subpart D)
• Exports, Imports, Labs, etc.
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Onsite Accumulation
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Rules for TSDFs
Typical Facilities Requiring Permits
Land Disposal Facilities
Incinerators
Boilers/industrial furnaces
Treatment facilities
Exception
Wastewater treatment units
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Rules for TSDFs
• General Requirements – training,
recordkeeping, etc




Contingency plan, emergency procedures
Closure & Post closure
Financial requirements
Corrective action
• Permit Applications: Part A & Part B
Operating requirements, financial assurance,
corrective action, etc.
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State Requirements: California
Includes more wastes, more requirements, more
regulatory bodies (e.g. CUPAs)
Examples:
 RCRA and non-RCRA hazardous wastes
 Toxicity characteristic
 TSDF regulations
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Preamble, Regulations, Guidance…
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RCRA Basics
UNIVERSAL WASTE
Kerry Shea
Partner
Davis Wright Tremaine LLP
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Universal Waste -- Overview
• Universal Waste
– Regulations
– Definitions and examples
– Who is regulated?
– Handling – Universal Waste Management
– Disposal -- Recycle
– Other requirements – training, recordkeeping
– Penalties
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Universal Waste – Regulations
• In general
– Exempt from hazardous waste requirements
(40 CFR 262-270) if handled properly
– Requirements
• 40 CFR 261.9
• 40 CFR 273
– Subpart A – General
– Subpart B – Standards for Small Quantity Generators of
Universal Waste
– Subpart C – Standards for Large Quantity Generators of
Universal Waste
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What is Universal Waste?
• Hazardous wastes that are:
– Waste
– Hazardous
– Ubiquitous in our society, yet not as harmful
• Qualify for less stringent standards for handling,
accumulating, disposing.
• Universal Waste “Handlers” are subject to regulations
– Household waste is exempt
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Universal Waste -- Examples
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Universal Wastes under RCRA
• Batteries - alkaline batteries, as well as
lithium, rechargeable nickel-cadmium,
silver button, mercury … [40 CFR 273.2]
• Pesticides [40 CFR 273.3]
• Mercury-containing equipment –
some thermostats, mercury switches,
mercury thermometers, pressure or
vacuum gauges … [40 CFR 273.4]
• Lamps [40 CFR 273.5]
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State Additions
• Important to check state defined Universal
Wastes – COMMON to have additional items
• Examples:
– Electronic Devices (8 states explicitly list and regulate)
– Aerosol Cans (2)
– Other items such as CRTs (3), antifreeze (1), thermostats (11),
pharmaceuticals (1) oil based finishes (1)
• Check your local requirements too!
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Who is Regulated? [Definitions 40 CFR 273.9]
•
•
Transporters
UW destination facilities
•
Handlers
o Small Quantity Handler of UW
o
<5,000 kg (11,000 lbs.) on site at one time
[Requirements listed in Subpart B of 273]
o Large quantity Handler of UW (LQHUW)
o 5,000 kg or more
o [Requirements listed in Subpart B of 273]
o Households exempt [40 CFR 273.8(a)(1)]
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Requirements in General
• DETERMINE if it’s a waste
• CHARACTERIZE - set policy to determine if waste is
hazardous
• Store in CONTAINers and keep intact to prevent release
• Segregate and LABEL by type
• Do not ACCUMULATE on-site for more than one year
• TRAIN personnel who manage universal waste or who
supervise those who manage it
• RECORD shipments and NOTIFY EPA if LQUWG
• DISPOSE properly – Recyclers
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Waste Determination and
Characterization
• Is it a waste?
– Discarded?
– Recalled?
– Other?
• Is it hazardous?
– Listed as Universal
– Test/analyze – does it exhibit characteristics?
• Effect of characterizing
• Practice Tip – encourage client to have waste stream
analysis
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Contain, Label, Accumulate
• CONTAIN properly
• LABEL containers by type
– “Universal Waste – Batteries”
– “Universal Waste – Lamps”
• ACCUMULATE
– For up to a year
– Variety of methods to keep track: log, date
label on container, scheduled collections
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Examples
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Train, Record, Notify
• TRAIN employees on appropriate handling of Universal
Waste
•
•
– Appropriate to job responsibilities
– Frequency– no federal schedule – check state!
Keep RECORDS
– Small Quantity – not necessary [273.19]. Really?
– Large Quantity – necessary [273.39]
NOTIFY the EPA?
– Small Quantity – not necessary [273.12]
– Large Quantity – necessary. In writing, before reaching 5,000 kg
threshold [273.32]
• LQUWG – must receive an EPA ID number
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Batteries
• Batteries
–
–
–
–
Check your state!
Check condition -- corrosion?
Sort or mix?
Special steps – discharging or disassembling
optional (effect?)
• What about Lead Acid Batteries?
– 40 CFR 266, subpart G;
• 266.80 Reclaim chart lays out if/then scenarios
– Still subject to HW characterization – 262.11
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Advising Clients
• Compliance methods
– Waste streams
– A good Consultant
• Impact of Non-Compliance
– Who regulates?
– Who investigates?
– What are potential penalties?
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Penalties
• Regulators’ matrix for penalties -- basic model
Extent of Deviation from Requirement
MAJOR
MODERATE
MINOR
MAJOR
$37,500
to
$28,330
$28,330
to
$21,250
$21,250
to
$15,580
MODERATE
$15,580
to
$11,330
$11,330
to
$7,090
$7,090
to
$4,250
MINOR
$4,250
to
$2,130
$2,130
to
$710
$710
to
$150
Potential for
Harm
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Any Questions?
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