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Toxicity: Environmental Protection Agency (EPA) Expands Its Definition of Hazardous Waste

By: Frederick W. Addison, III
Texas Bar Journal
March 1991

Implementation of regulations recently promulgated by the United States Environmental Protection Agency (“EPA”) is resulting in recharacterization of the wastes of thousands of businesses nationwide. The harsh and expensive impact on businesses, and particularly small businesses, of EPA’s Toxicity Characteristic (“TC”) Rule is only now being felt. The effect of the new regulations is even more widespread and unsettling than predicted by EPA.

The Hazardous and Solid Waste Amendments of 19841 required the EPA to review and revise the criteria for toxicity under the Resource Conservation and Recovery Act (“RCRA”), and directed EPA to expand the list of constituents characterized as toxic.2 The EPA responded on March 29, 19903 by promulgating the TC Rule, which revised the toxicity characteristics used to identify and classify those hazardous wastes which are subject to regulation under Subtitle C of the RCRA.4 The TC Rule broadens the scope of the EPA’s hazardous waste regulatory program by expanding the list of constituents to be considered when determining whether a waste is hazardous due to its toxicity.5 It also requires that the listed constituents be subjected to a more sensitive test than previously used to measure toxicity. As a result, more chemical wastes will be classified as hazardous, and more small businesses will be subjected to the “cradle to grave” regulatory framework of RCRA’s hazardous waste regulatory program.

The final rule—which became effective Sept. 25, 1990 for large quantity generators and treatment, storage, and disposal facilities (“TSDF”) and on March 29, 1991 for small quantity generators—adds 256 organic chemicals to the eight metals and six pesticides on the existing list of constituents regulated for toxicity under RCRA. (See Table) The TC Rule also establishes regulatory levels7 for the 25 newly listed substances and replaces, the Extraction Procedure Leach Test (“EP Tox Test”) with the Toxicity Characteristic Leaching Procedure (“TCLP”).8 The EPA cautions that the new rule may result in previously non-hazardous used oil being classified as hazardous because of the oil’s constituents. For the time being, media which is contaminated by petroleum from underground storage tanks (“USTs”) is excluded from coverage under the rule.9 Under the new rule, businesses that produce or use any of the constituents listed in the table must determine the amount of the chemical present in their waste and used oils. If testing is required, the TCLP, rather than the EP Tox Test, must be used. If wastes or used oils exhibit concentrations above regulatory levels the waste is deemed hazardous. Regulatory levels remain the same for the eight metals and six pesticides previously identified as hazardous waste under the EP Tox Test. (See Table)

The TCLP is designed to measure the presence and mobility of organic and inorganic constituents. To perform the test, a sample of sludge, soil, or materials is taken and mixed with distilled water.10 This solution is then stirred approximately 18 hours in an effort to dissolve as much of the material as possible. At that time, the solids are filtered out and separated from the liquids. The liquids which are left are then tested.11 By simulating the amount of leaching that occurs as acid rain falls through waste in a landfill, the EPA believes its TCLP test can detect levels of the listed substances that the traditional EP Tox Test cannot.12 It is also believed that the TCLP more accurately reflects the leaching potential for the constituents it measures.

By employing a test with greater detection capability than the EP Tox Test, and by expanding its lists of toxic substances, EPA officials estimate the amount of waste characterized as hazardous may quadruple.13 The EPA predicts that the annual increase in regulated hazardous waste will include two million tons of non-wastewater solid wastes and 800,000 tons of wastewater. Costs of testing will also increase.14 The EPA claims that the industries that will be most greatly affected by the TC Rule include the oil and gas, heavy construction, food products, textile mills, chemical and allied products, petroleum refining, paper and pulp, and primary metals industries.15

Since its publication, the TC Rule has caused a fire storm of debate. Critics have contended that the EPA, in an effort to minimize and understate the harsh and immediate effect of the rule on business and industry, have produced a Regulatory Impact Analysis (“RIA”) of the new rule that utilizes an insufficient and incomplete database, and ignores readily available or easily obtainable industrial impacts. Based primarily on National Pollution Discharge Elimination System (“NPDES”) data, the EPA estimated 15,000 to 17,000 generators of waste nationwide would be affected by the new regulation.16 More then 5,000 TSDFs may also be regulated under the rule.17 The EPA estimates compliance costs range from $250 million to $450 million annually.18 Reductions in groundwater and other resource damages are estimated by EPA at $3.8 billion.19 Future clean-up costs to be avoided are estimated at $15 billion.

Even a cursory analysis reveals that EPA’s estimates grossly underestimate the practical impact of the TC Rule. Three of the most frequently heard complaints directed to the EPA concerning the impact of the TC Rule are its effect on non-UST petroleum product remediations, impact on solid waste (non-hazardous) landfills, and the EPA’s failure to evaluate realistically the rule’s effect on 125,000 service stations nationwide.

While application of the TC Rule to soils and other media contaminated by leaking underground storage tanks has been deferred, contamination by petroleum spills and/or leaks of petroleum products from above ground storage tanks, pipelines or transporting vehicles falls squarely within the ambit of the rule. Those sites contaminated with gasoline will almost certainly fail the TCLP because of the high benzene content of gasolines. While fuel oil or lubricating oil contains a lower level of benzene, in many instances, sites contaminated with such oils may also fail the TCLP because of high benzene levels. The state of New York, in its petition to the EPA to reconsider the rule20 estimates costs associated with responding to non-UST petroleum contamination will increase by a factor of three.21

The reasons for cost increase are obvious. Hydrocarbon contaminated soils which are hazardous may no longer be disposed of at municipal landfills, Increased costs are associated with the disposal of petroleum contaminated soils at appropriate, permitted facilities. The variety of alternative technologies used to treat and remediate hydrocarbon contamination will be discouraged since treatment of TC-toxic soil will now require the equivalent of a RCRA Part B permit.22 TC-toxic soils which must be disposed of offsite will require manifests and transport as a hazardous waste. Disposal of TC-toxic soil at a hazardous waste facility will increase the likelihood the generator will become a potentially responsible party (“PRP”) at a future superfund site. Contaminated groundwater, even after treatment, may not be re-injected into the ground.23

The impact of the TC Rule on Subtitle D solid waste disposal facilities in Texas may be equally harsh. A large number of both active and inactive solid waste landfills have accepted what has previously been classified as non-hazardous hydrocarbon contaminated soils and other media. Leachate from those landfills accepting such waste must now he tested using TCLP and may well he classified as hazardous because of high benzene levels.24

The repercussions of such a re-characterization of landfill waste could be devastating. Large numbers of solid waste landfills, frequently owned by municipalities, may be reclassified as hazardous waste facilities. The reclassified landfills would be forced to comply with the requirements of Subtitle C of RCRA. Some percentage of closed and abandoned landfills producing leachate that fails the TCLP will become RCRA, CERCLA, or inactive hazardous waste disposal sites. Their cleanup, under federal or state law, will result in increased costs which may strain resources available under federal or state superfund programs. Formerly useful solid waste regulations governing financial responsibility of existing open landfills will become meaningless. Additionally, POTW’s in an abundance of caution, may refuse to accept landfill leachates because of the inherent liability associated with treatment of hazardous waste. States such as New York see no demonstrable economic or environmental benefit associated with what will be the reclassification of solid waste landfill leachate as hazardous waste. The EPA’s RIA fails to even consider these potential impacts.

The effect of the TC Rule on service station owners is equally onerous. In a study performed by the state of New York it was determined that service station owners regularly dispose of so-called “tank bottoms” which are aqueous wastes that must be removed from petroleum storage tanks approximately once every two years. This routinely generated waste, not associated with underground storage tanks, will more than likely be characterized as hazardous under the new TC Rule because of its benzene content. Because tank bottoms are disposed of approximately every two years, in any given year approximately one-half of the service stations in the country (approximately 60,000 service stations) may generate tank bottoms. New York’s investigation revealed tank bottoms constitute approximately two percent of the tank’s capacity.25 If a service station has storage tanks with capacities of 10,000 gallons each, then once every two years approximately 200 gallons of hazardous tank bottoms will be disposed of from each tank.

Under the TC Rule, disposal of the tank bottoms from one tank would make a service station a small quantity generator and require appropriate notification, manifest, and offsite disposal of the tank bottoms as a hazardous waste.26 if a service station cleans two or more tanks it would be classified as a full generator and subject to all of the requirements that entails. The cost of compliance for a “mom and pop” owned service station when compared to the size of that service station as a generator, and the environmental benefit associated with the service station’s recharacterization as a hazardous waste generator, may very well be unjustified. Additionally, if the impact of the TC Rule on service stations and other businesses generating tank bottoms is considered the rule impacts approximately 150,000 sources nationwide, instead of the 15,000 to 17,000 estimated by EPA. Although representatives of EPA have estimated implementation of the TC Rule will have no effect on gasoline prices, EPA’s estimation was made without consideration of the reclassification of service stations as small quantity generators because of tank bottom wastes.

The TC Rule will have a far reaching effect. By expanding its definition of listed toxic substances and employing the TCLP, the EPA assures a vastly larger volume of waste will be characterized as hazardous. By applying the rule to non-UST petroleum or hydrocarbon wastes and to Subtitle D solid waste landfills EPA signals the end of the era in which “used oils” have been treated and disposed of as non-hazardous substances. Businesses which have previously monitored their waste streams-to accurately characterize the waste stream’s non-hazardous nature will be required to retest their waste streams using the TCLP. Thousands of small and large quantity generators will now have waste streams classified as hazardous. The rule also assures that a substantial number of currently non-hazardous, solid wastes landfills, will be reclassified as hazardous wastes facilities. Waste handling costs will greatly increase for many small businesses and will result in repercussions which permeate society far beyond the 15,000 to 17,000 businesses estimated to be affected by the EPA in its Regulatory Impact Analysis.

  1. 42 U.S.C. §89601 et. seq. (1988).
  2. Id.
  3. 55 Fed. Reg. 11798, as corrected, 55 Fed. Reg. 11798-11877 (codified at 40 C.F.R. Parts 261, 264, 265, 268, 271 and 302). The rule was released by order of the United States District Court for the District of Columbia. See Environmental Defense Fund. Inc v Reilly, 31 Env’t Rep. Cas. (BNA) 1046 (D.D.C. 1990).
  4. Under RCRA, a solid waste is “hazardous” if it may “pose a substantial present or potential hazard to human health and the environment when improperly treated, stored, transported, disposed or otherwise managed” 42 U.S.C. §86903(5)(B).
  5. Toxicity is one of four characteristics used by the EPA to determine whether a waste is hazardous. The three other characteristics used to establish the hazardous nature of a waste are ignitibility, corrosivity, and reactivity. Under current regulations, a waste is defined as hazardous either by listing “the waste” or by the nature of its hazardous characteristics. The listing procedure involves identifying industries or processes that produce wastes that pose hazards to human health and the environment. In identifying a waste as hazardous because of its “characteristics,” the EPA tests properties exhibited by a waste to determine its hazardous nature.
  6. An additional 13 chemicals were deleted from the final rule.
  7. Regulatory levels are set by the EPA for hazardous chemicals on health-based concentrations thresholds and a dilution/attenuation factor (“DAF”) specific to each chemical. The concentration threshold indicates the adverse effect of the chemical on human health. The DAF, which is derived by application of a subsurface transport and fate computer model, indicates the ease with which a chemical can seep leach into groundwater. The levels set in the TC Rule were determined by multiplying the health base number by a dilution/attenuation factor of 100. Environmental Protection Agency, EPA Environmental Fact Sheet, Toxicity Characteristic Rule Finalized, EPA/530-SW-89-045 (Mar. 1990).
  8. 40 C.F.R. §8261, App. II The TCLP is also known as Method 1311.
  9. Regulation of five specific wastes has been deferred or excluded from the TC Rule: (a) Petroleum contaminated UST media subject to 40 C.F.R. §8280 are exempted until a more thorough analysis of the UST impacts can he completed. The EPA will promulgate revised regulations addressing this Issue in the future. 40 C.F.R. §8261.4(b)(10). (b) Solid wastes consisting of discarded wood or wood products, which fail the TCLP solely because of arsenic and are not a hazardous waste for any other reason, 40 C.F.R. §8261.4(b)(9). (c) Solid wastes that fail the TCLP test because of Chromium but not any other TCLP chemical and are not a characteristic waste because of any other criteria, 40 C.F.R. §8261.4(b)(6)(i). (d) PCB containing fluids or equipment, provided they are regulated under 40 C.F.R. 761, and hazardous only because they exhibit a TCLP chemical coded D018 to D043, 40 C.F.R. §8261.8.(e) Wastewater when mixed with certain listed spent solvents, 40 C.F.R. §8261.3(a)(2)(iv).
  10. 40 C.F.R. § 261, App. II.
  11. Id.
  12. More Chemicals Now Fall Under RCRA Regulations, Chemical Engineering Magazine, Apr. 1990, at 25.
  13. Interview with Judy Sophianopoulos, EPA Region 4, as reported in The Nashville Business Journal, Aug. 13, 1990.
  14. Most estimates indicate the increase in costs of performing the TCLP rather than the EP Tox Test at 30 to 40 percent. The cost of performing TCLP may range from approximately $1,300 to $4,500.
  15. Interview with Judy Sophianopoulos, EPA Region 4, as reported in The Nashville Business Journal, Oct, 15, 1990.
  16. Interview with Steve Cochran, EPA Region 9, as reported in The Orange County Business Journal, June 25, 1990.
  17. Id.
  18. See supra n.13.
  19. Id.
  20. New York State Department of Environmental Conservation Petition for Reconsideration of Toxicity Characteristic Rule (filed Aug. 7, 1990 pursuant to 40 C.F.R. #8360.20) [hereinafter “New York Petition”].
  21. Id.
  22. Treatment of hydrocarbon contamination characterized as hazardous under the TCLP will now be regulated under 40 C.F.R. #8264. Classification as a TSDF and appropriate RCRA permitting may accompany this changed status.
  23. Currently, petroleum contaminated groundwater is most often remediated by so called “pump and treat” methods. Once petroleum contaminated groundwater (which is presently characterized as a non-hazardous waste) becomes, according to TCLP results, a hazardous waste it can no longer be reintroduced into the ground. At many site locations, costs of treatment or disposal of remediated groundwater may increase dramatically.
  24. Additionally, the EPA has estimated each person disposes of .4 gallons of liquid household hazardous waste annually. Solid waste landfill leachate may also fail the TCLP based on high levels of other volatile organic compounds emanating from household waste streams.
  25. Supra n.21.
  26. The classification of a service station as a small quantity generator will also subject it to periodic compliance and enforcement inspections under RCRA.