Fair Notice Lacking in EPA’s
RCRA “Empty”
Gale Lea Rubrecht
The recent settlement of an environmental enforcement
case involving barge-cleaning operations in West Virginia has
highlighted the need for the U.S. Environmental Protection
Agency (EPA) to undertake rulemaking concerning its interpretation of the Resource Conservation Recovery Act of 1976
(RCRA) empty container exemption at 40 CFR § 261.7 (July
1, 2007). The settlement resulted from a civil enforcement action filed by the State of West Virginia alleging hazardous waste
violations against a small barge-cleaning facility that had contracted to clean barges that were represented to contain residues
from “empty” barges for an out-of-state company. The material
in the barges was sampled. The sampling was done not for regulatory purposes but for the purpose of getting the material into
a licensed treatment, storage, and disposal (TSD) facility. The
barge-cleaning company removed the contents of the barges by
pumping, the standard industry practice for emptying a barge.
The liquid in the barges and water were the sole rinsing agents
used to clean the barges. The material was trucked to licensed
TSD facilities. There was no evidence that one drop of the
material had been spilled. The complaint in the civil enforcement action was the first notice the barge-cleaning company
received of alleged hazardous waste violations. To settle the
case, the company ultimately paid a substantial sum and agreed
to continue shipping the material to a TSD facility.
Section 3001 of the RCRA requires EPA to identify the
characteristics of and to list those solid wastes that must be
managed as hazardous waste. On May 19, 1980, EPA promulgated a comprehensive set of regulations to implement RCRA.
These regulations included requirements for identifying and
listing hazardous waste, establishing standards for generators
and transporters of hazardous waste, and establishing management and permit requirements for owners and operators of
facilities that treat, store, and dispose of hazardous waste. 45
Fed. Reg. 33,066. The regulations, which West Virginia has
adopted, are intended to ensure hazardous waste is properly
managed from “cradle-to-grave.”
The May 1980 regulations were silent on the applicability
of the hazardous waste regulations to “empty” containers and
hazardous waste residues in “empty” containers. In response to
questions from the regulated community regarding the applicability of the hazardous waste regulations to empty containers
and residues contained in empty containers, EPA stated that
while not articulated in the regulations, the Agency did not
intend to regulate hazardous waste residues in “empty” but
unrinsed containers, except for acutely hazardous waste. On November 25, 1980, EPA published an amendment to the regulations to state expressly that after a container has been emptied,
any hazardous waste that remains is not subject to regulation
by promulgating Section 261.7(a). EPA also created a defined
term, “empty container,” at Section 261.7(b) to implement
EPA’s decision not to regulate residues in empty containers. The
empty container definition consists of the following three parts
and is keyed to the type of waste in the container: (1) containers that have held hazardous waste other than gases and acutely
hazardous materials, (2) compressed gas containers, and (3)
containers that have held acutely hazardous materials.
For containers that are covered by the first part, the empty
container regulation requires that the contents be removed
using the practices commonly employed to remove materials
from that type of container. At the time of this initial regulation, the regulation allowed up to one inch of residue to
remain on the bottom of the container.
In the November 25, 1980, preamble, EPA clarified its
intent regarding the regulation of residues in empty containers, stating that
EPA is concerned, however, that drum conditioners and other
facilities that clean large numbers of “empty” containers may
accumulate and treat or dispose of significant amounts of
unregulated residues which may pose a substantial hazard to
human health or the environment. EPA is currently considering three options to deal with this possible problem.
Id. at 78,526/cols. 2–3.
The three options EPA identified were (1) triple rinsing for
all containers, (2) regulation of the residue when it is removed from the container, and (3) limitation on the amount
of unregulated residue. To address these three options, EPA
requested comments and data regarding whether the residues
left unregulated by Section 261.7 may pose a substantial
hazard to human health or the environment and, if so, which
of the three options or some other alternative was preferred to
deal with the problem.
Nearly two years later, on August 18, 1982, EPA revisited
the issue. 47 Fed. Reg. 36,091. To address comments that
requested an equivalent weight alternative to the “one-inch”
rule established in 1980, EPA did revise the definition of
“empty” under Section 261.7 (b)(1). Specifically, EPA substituted a 0.3 percent weight alternative to the one-inch measurement for containers larger than 110 gallons and amended
Section 261.7 to incorporate the 0.3 percent alternative to the
one-inch measurement. The majority of the comments indicated that control of the residue in empty containers after it is
removed is most desirable. EPA recognized that the regulation
allows large volumes of material to be outside the hazardous
waste management program, noting that one inch of residue
amounts to approximately 50 gallons in a 20,000 gallon tank
car. EPA stated it favored regulation but was not at that time
amending the regulations to cover these activities. EPA said it
had no intention of amending the regulations until it undertook further study and analysis of the problem. To date, EPA
has not conducted additional rulemaking to impose additional
requirements on residues in empty containers.
Since August 1982, EPA has revisited 40 CFR § 261.7 in
Published in Natural Resources & Environment Volume 23, Number 2, Fall 2008. © 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
the Federal Register on five occasions. In none of these Federal
Registers does EPA regulate the empty container materials.
First, EPA made a nonsubstantive change in regulatory reference due to renumbering of RCRA regulations (48 Fed. Reg.
14,294, Apr. 1, 1983). Second, EPA added dioxin to the list
of substances requiring triple rinsing (50 Fed. Reg. 1999, Jan.
14, 1985). Third, EPA added 40 CFR Part 268, the “land ban”
regulations, to the list of regulations from which empty containers and residues are exempt (51 Fed. Reg. 40,637, Nov. 7,
1986). Fourth, EPA amended Section 261.7(b)(1) by substituting 119 gallons for 110 gallons as the threshold for containers to comport with the U.S. Department of Transportation’s
1991 revised definition of “bulk container” as 119 gallons or
greater (70 Fed. Reg. 10,815, Mar. 4, 2005). Fifth, EPA added
40 CFR Part 267, standards for hazardous waste management
facilities operating under a standardized permit, to the list
of regulations from which empty containers and residues are
exempt (70 Fed. Reg. 53,453, Sept. 8, 2005).
In addition to these Federal Registers, EPA responded to a
comment and clarified how the existing “empty container”
regulation operates in an unrelated final rule published on October 4, 2005. 70 Fed. Reg. 57,769. The preamble discussion of
Section 261.7 arose in the context of EPA’s response to a comment concerning rinsates from empty containers. Although
outside the scope of the proposed rulemaking, EPA took the
opportunity to respond. EPA explained that a container can
contain a small amount of nonacute hazardous waste and still
be considered “empty” for the purpose of hazardous waste regulation and that the waste remaining in this “empty” container
is not subject to hazardous waste regulation. EPA stated that
when the residue is removed from an “empty” container,
the residue is subject to regulation as hazardous waste if the
removal or subsequent management of the residue generates
a new hazardous waste that exhibits any of the characteristics
of hazardous waste. EPA further explained that Section 261.7
does not directly exempt rinse water from regulation as a
hazardous waste. EPA said that if the rinsing agent includes a
solvent (or other chemical) that would be a listed hazardous
waste when discarded, the rinsate from an “empty” container
would be considered a listed hazardous waste.
To date, EPA has not made any further relevant revisions
to the requirements of 40 CFR § 261.7. This conclusion is
confirmed by EPA as recently as September 2005 in a container training manual. In the September 2005 container training
manual, EPA states that it is still reviewing whether residues
or rinsate from an empty container that exhibits a characteristic of hazardous waste is exempt or regulated.
The conclusion that residues in or removed from an empty
container are not regulated as hazardous waste is also consistent with EPA guidance. The EPA Office of Solid Waste and
Emergency Response (OSWER) directives explicitly state that
even the burning, direct land disposal, or spillage of residuals from drum cleaning is not regulated as hazardous waste,
notwithstanding the fact that the residuals would exhibit a
characteristic of hazardous waste. A RCRA inspection manual
also confirms that if the residues in an “empty” container are
subsequently exhumed and managed, the resulting material
is not subject to hazardous waste regulation, including the requirement to determine if the solid waste exhibits a hazardous
characteristic. The manual notes that wastes under Section
261.7 are not included in determining quantities for generator
status as conditionally exempt small quantity generator, small
quantity generator, or large quantity generator.
In addition to the October 4, 2005 Federal Register, EPA has
responded to inquiries on rinsates from “empty” containers in
OSWER directives. A 1983 OSWER directive states that the
use of water and rinsing agents to clean empty containers is not
hazardous waste treatment. An April 1990 OSWER directive
provides that rinsates from an “empty” container are totally
outside the regulatory program, including the requirement that
a generator make a hazardous waste determination. However,
an EPA letter issued to a private law firm on April 12, 2004,
rescinds that portion of the April 1990 OSWER directive and
states that the empty container rinsate would not be a hazardous
waste unless the rinsing agent met one of the hazardous waste
characteristics or would be listed when discarded. West Virginia
focused on this letter as well as the preamble in the unrelated
October 4, 2005, rulemaking in support of its allegations of
RCRA violations by the barge-cleaning company.
Under EPA’s rulemakings two conditions must be met to
satisfy the requirements of a RCRA “empty” container: (1)
all wastes have been removed that can be removed using the
practices commonly employed to remove materials from that
type of container and (2) for a barge, the quantity remaining
must not exceed either 1 inch or 0.3 percent by weight of the
total capacity of the barge. EPA’s regulations and other public
statements fail to notify a regulated party that residues in a
barge that is “empty” are subject to regulation under RCRA.
Likewise, EPA’s regulations do not provide notice that residues
that are removed from an “empty” barge and managed in
another barge are subject to regulation where removal and
management do not generate a new hazardous waste. Similarly, EPA’s regulations do not give notice that rinsate from
cleaning an “empty” barge is subject to regulation where the
rinsing agent used is water or not characteristic of hazardous
waste or a listed hazardous waste when discarded.
EPA should complete the study and analysis it promised nearly
three decades ago and undertake rulemaking to address regulation of residues and rinsates from “empty” containers. In addition
to the potential harm to public health and environment, EPA’s
failure to do so may undermine its own enforcement actions as
well as undermine its credibility with regulated parties.
Ms. Rubrecht is a member of Jackson Kelly PLLC, in Charleston,
West Virginia, and a member of the editorial board of Natural
Resources & Environment. She may be reached at galelea@
jacksonkelly.com. Ms. Rubrecht represented the West Virginia
barge-cleaning facility in the civil enforcement action.
Published in Natural Resources & Environment Volume 23, Number 2, Fall 2008. © 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.