You are the plant manager of Widgets, Inc. Your company produces painted widgets in a patented two step process. The first step produces the widget and the second step paints it. Producing the widget generates a dry solid waste which looks a lot like sand. This dry solid waste is collected in dumpsters and stored on site pending disposal as non-hazardous waste. Your paint facility uses a degreasing solvent consisting mainly of toluene prior to painting. The spent solvent is collected in an on-site underground storage tank and then shipped off site as an F005 hazardous waste for recycling. You have had analytical tests performed on the waste streams and you are confident that the waste is being handled properly.
Today, as you are walking toward the plant from your car, you observe a tractor trailer loading the spent solvent to take away for recycling. You think little about it until your pager goes off and an employee informs you that a loose coupling at the loading dock caused several gallons of the spent solvent to leak onto the concrete floor. The employee informs you that several buckets of the dry solid waste were taken out of a dumpster and were poured on the spill to absorb the spilled hazardous waste. The employee informs you that he and another employee shoveled the material. that absorbed the spill back into the dumpsters which are filled with the sand-like material.
Your first reaction is that you are thankful that no one was hurt. You go to the loading dock to investigate the situation. Your environmental manager is already there and together you look at the material shoveled into the dumpster which absorbed the solvent spill. Your environmental manager quietly takes you aside and indicates that you could have a problem. He believes that by shoveling the mixture of solid waste and hazardous waste into the dumpster, your employees may have caused the entire dumpster of solid waste to become regulated as a hazardous waste, thus requiring disposal as a hazardous waste. You realize that if your company is required to dispose of all the solid waste in the two dumpsters as hazardous waste, your cleanup costs for this single incident will be enormous. You contact your company's environmental attorney and ask him if the solid waste contaminated with the hazardous waste must be handled and disposed of as a hazardous waste. Your environmental attorney researches the question and informs you as follows.
To become subject to RCRA's comprehensive regulatory system, a material must be a hazardous waste, which RCRA defines, in part, as a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. 42 U.S.C. § 6903(5) (1976).
In determining what would be a hazardous waste and what would not be a hazardous waste, EPA relied almost exclusively on the dangers that such wastes pose. 45 Fed. Reg. 33,121 (40 C.F.R. §§ 261.10 and 261.11). EPA compiled a list of toxic constituents as a starting point and required that a waste be listed as hazardous if it (1) exhibits one of the four characteristics of hazardous waste identified in Subpart C of the regulations ("hazardous characteristics"), (2) meets certain toxicity criteria, or (3) contains any of the toxic constituents listed in Appendix VIII of 40 C. F. R. Part 261, unless EPA determines that the waste is not capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed. (40 C.F.R. § 261.11(a)(1)-(3)).
A waste under the third criteria above is a listed hazardous waste. A listed hazardous has specifically been designated by EPA in the regulations as hazardous. Often times, testing of the waste is not required since the waste is, by definition, a hazardous waste. The listed hazardous wastes are grouped into certain categories. For example, the spent solvents are "F" listed wastes. The waste being handled in this example was an F005 listed waste due to its toluene content. EPA takes the position that once wastes are listed as hazardous they are presumed to remain hazardous forever, even if mixed with other non-hazardous substances. EPA's rationale for this rule is to prevent industry from using the "Dilution is the solution to pollution" philosophy that occurred within certain industries prior to the promulgation of the hazardous waste regulations. EPA specifically stated its intent to continue to classify mixtures of hazardous and non-hazardous wastes as hazardous wastes, regardless of the ratio of hazardous to non-hazardous material, in 45 Fed. Reg. 33095-96 (1980); and the courts have upheld this determination. Chemical Waste Management, Inc. v. U.S. EPA, 869 F.2d 1526, 1538-40, (D.C. Cir. 1989).
Holding that a mixture of a non-hazardous waste and a hazardous waste is a hazardous waste, regardless of the quantity of hazardous waste in the mixture is known as EPA's so called "mixture rule." It was originally adopted in 1980 as part of EPA's first regulation defining hazardous wastes. In Shell Oil Co. v. Environmental Protection Agency, 950 F.2d 741, (D.C. Cir. 1991, as amended 1992), the rule was struck down due to a problem with how the rule was originally enacted, and then immediately reenacted by EPA on March 3, 1992. The new mixture rule, which for purposes of its effect on the regulated community today is identical to the old mixture rule was published in 57 Fed. Reg. 7628 (Mar. 3, 1992), and continues to have the same inequities and harsh effects on the regulated community as the original rule.
In this case, when the spent solvent, an F005 hazardous waste, spilled at the loading dock, the employees used the sand-like material, a non-hazardous waste, to clean it up. The effect of the spill was to convert the non-hazardous waste used to perform the clean up into a hazardous waste under EPA's mixture rule. The effect of shoveling the material into the dumpster converted all of the non-hazardous waste in the dumpster into hazardous waste. If the dumpster were taken to the landfill, arguably, everything in the landfill would be a hazardous waste since it is mixed with a hazardous waste. And your company could be liable for the clean up and disposal of everything in the landfill as a hazardous waste if EPA chose to take the mixture rule to its extreme. Although this may seem ridiculous, there are examples where companies have excavated and hauled waste from landfills to hazardous waste disposal sites because of the mixture rule in examples no more serious than this one. This result is neither logical, nor equitable, nor does it protect human health or the environment. However, until EPA comes up with a better way of preventing the less scrupulous people in industry from diluting hazardous wastes to avoid disposing of hazardous wastes properly, industry is stuck with the mixture rule.
My advice to clients is to be aware of the mixture rule. Never put anything which contains a hazardous waste or could even arguably contain a hazardous waste into a dumpster destined for a landfill. Make sure that your employees are properly trained in cleanup procedures for hazardous waste spills and make certain that your employees understand that no chemical spill is disposed of until the environmental manager or your outside consultant or environmental attorney has determined if the material should be treated as a hazardous waste. If you are faced with a situation that involves a spill, I recommend treating the material initially as a hazardous waste, isolated from all other wastes. If it is determined later that the material is not hazardous, you have lost nothing, but if you treat it as a non-hazardous waste and later find out you were wrong, you could find yourself paying to dispose of large amounts of harmless waste as hazardous waste, or you could even find that you are required to clean up a landfill.