LEGISLATION: New Hazwastes Rule Causes Industry Concerns

Chris Voell

As the Environmental Protection Agency (EPA) drafts the Hazardous Waste Identification Rule (HWIR), members of the solid waste industry are wondering how they will be affected.

HWIR is intended to replace the RCRA rules which state that any waste mixed with or derived from a listed hazardous waste is considered hazardous - even if the waste doesn't retain its hazardous nature.

HWIR covers two types of waste: process and contaminated media wastes. Process wastes include listed wastes from industrial processes, sludges and discarded commercial chemical products among others. Contaminated media wastes include contaminated soil, groundwater and sediments.

Under HWIR, process wastes that are contained in municipal solid waste (MSW) below constituent-specific, risk-based threshold concentrations would no longer fall under Subtitle C; instead, Subtitle D regulations would apply. EPA has proposed to establish "exit" criteria for approximately 400 constituents.

The exit levels would apply to all wastes, regardless of origin. By setting these exit levels, EPA aims to protect humans from carcinogenic concentrations that increase the statistical level of cancer by more than one-in-one-million (1 x 10[superscript]-6). For non-carcinogens, EPA's goal is to protect humans from concentrations where the hazard quotient exceeds one.

In addition, EPA is considering eliminating land application as a disposal option. Under this alternative, exempt non-wastewater waste streams could not be land applied.

Some major concerns have arisen from this rule. For example, it allows facilities to perform their own waste testing to determine if they meet non-hazardous levels. This self-implementing policy would make it difficult to prove disposal violations. In addition, many states may consider HWIR too lenient, choosing to impose more strict regulations. This could result in cross-border waste transport to avoid the expense of state-specific disposal mandates.

In a separate proposal under HWIR, contaminated media wastes also would be allowed to exit Sub-title C regulations - as long as they fall below a risk-based concentration known as the "bright line."

The bright line is defined as concentrations below the 10[superscript]-3 risk level. Under this rule, as much as 80 percent of contaminated media waste could exit from Subtitle C regulation, according to the Solid Waste Association of North America (SWANA), Silver Spring, Md.

Concerns exist, however, that the "bright line" rule may not account for additive or synergistic effects of multiple constituents that together may exceed the 10[superscript]-3 level. In addition, at the 10[superscript]-3 risk level, the concentration of hazardous waste within contaminated media waste could exceed the HWIR process waste exit levels. It's also possible that Toxicity Characteristic (TC) wastes will fall below the bright line.

Clearly, HWIR will have significant ramifications for MSW management professionals. For example, if certain process and contaminated media wastes are no longer regulated by Subtitle C, generators will seek new disposal options. These will include Subtitle D facilities - namely landfills and municipal waste combustors.

Consequently, MSW facility managers are questioning the prudence of accepting wastes that were previously regulated, but which are now technically acceptable. In addition, communities that currently contract MSW collection or disposal are realizing they may have little or no control over the types of waste accepted at the facilities. Considering that possibility, other questions arise. For instance, if the MSW facility decides to accept these recently deregulated wastes and if the HWIR regulations change in the future, would the community become a potentially responsible party due to its waste contributions to the facility?

Hopefully, many of the policies and procedures necessary to respond to this rule already exist in MSW facilities. Although HWIR adds a new dimension and a new volume of waste to the MSW management stream, the techniques needed to identify, deny or accept, and appropriately manage the waste are no different than for wastes currently accepted.

To help ensure worker health and safety as well as environmental protection, facility managers should take the following measures:

* Train personnel at all levels and occupations to identify and report unacceptable wastes. Develop a written plan of management strategies and emergency procedures for discovering unacceptable wastes.

* Establish a random waste screening plan to discourage haulers and generators from illegally disposing of unacceptable wastes in the MSW stream. Again, staff must be properly trained and a written plan is essential.

* Target high-risk generators or known offenders through a non-random waste screening program.

* For special wastes (those delivered from sources on a recurring basis), implement a testing program. Require the generator to conduct appropriate tests to ensure that the waste is legally non-hazardous. Generators should provide documentation.

* Never accept a suspect waste load without appropriate records. Reserve the right to turn away waste if you believe the potential liability is too high.

These programs are critical if MSW facilities are to protect their employees, the environment and themselves from potential future liability.

For more information, contact Chris Voell or Larry Covert, SWANA, P.O. Box 7219, Silver Spring, Md. 20907-7219. (301) 585-2898. Fax: (301) 589-7068.