Definition of “Solid Waste” in the RCRA Is Less Than Solid

EPA has spent almost 40 years wrestling with the definition of “solid waste” for purposes of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (RCRA). The statutory definition of the term contemplates that it includes “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities…” 42 U.S.C. § 6903(27). Whether something is discarded and thrown away is pretty clear. However, this statutory definition appears to give EPA the flexibility—and subject to EPA’s regulatory authority—to define solid waste to include materials that are sometimes discarded. Adding to the interpretive issues, a solid waste can be liquid or gaseous, depending on the statutory definition. EPA has also been wary of countenancing a recycling exception, which has created a morass of regulatory interpretation. With more frequency, courts are being called upon to consider this definition.  Below we discuss two such recent court decisions of interest.

In late February, the District Court for the Eastern Division of Illinois, in Northern Illinois Gas Company, dba Nicor Gas Co., v. City of Evanston, IL, et al., held that uncontained natural gas allegedly leaking from active gas pipelines and associated infrastructure into soil, groundwater and bedrock is not a solid waste subject to regulation under the RCRA. The question before the court—whether the definition of solid waste also included “uncontained” gaseous material—is one of first impression in the Seventh Circuit. It took note of the EPA’s statement in 1989 rulemaking that identified various hazardous wastes:

“Upon reconsideration of this issue (with the benefit of the comments received on the proposed rulemaking), EPA now believes our authority to identify or list a waste as hazardous under RCRA is limited to containerized or condensed gases (i.e., section 1004(27) of RCRA excludes all other gases from the definition of solid wastes and thus cannot be considered hazardous wastes).”

It also cited to recent opinions concluding that uncontained gases are not RCRA solid wastes.  See, for example, United States v. Sims Bros. Constr., Inc. (observing that “[f]or gaseous material to be ‘solid waste’ it must be ‘contained.’”); Helter v. AK Steel Corp., No. C-1-96-527, 1997 WL 34703718, at *12 (S.D. Ohio Mar. 31, 1997) (leaked of coke oven gas, in its gaseous form, is excluded from the definition of solid waste).

Just prior to the Northern Illinois Gas Company decision, on February 22, 2016, the U.S. Court for Appeals for the Eighth Circuit, in Krause v. City of Omaha, in an unpublished opinion, affirmed the District Court’s ruling that road salt routinely used for the control of snow and ice on highways was not a solid waste under RCRA. In its decision, it cited to Minn. Majority v. Mansky, 708 F.3d 1051, 1055 (8th Cir. 2013) and Ecological Rights Foundation v. Pacific Gas & Electric Company, 713 F.3d 502 (9th Cir. 2013).

The Ninth Circuit, in Ecological Rights Foundation, confirmed, in part, that the complaint “fail[ed] to state a claim under RCRA because wood preservative that escapes from the utility poles is not a  ‘solid waste'” that has been discarded. In doing so, the Ninth Circuit recognized that “[t]he key to whether a manufactured product is a ‘solid waste,’ then, is whether that product ‘ha[s] served [its] intended purpose … and [is] no longer wanted by the consumer.'” It further noted that, “absence of a more definitive statement from EPA, its treatment of PCP and wood preservatives generally supports our conclusion that PCP-based wood preservative that escapes from utility poles through normal wear and tear, while those poles are in use, is not a RCRA ‘solid waste.'” It was also cognizant that, “accepting [plaintiff’s] characterization of preservative that seeps from wooden utility poles as a RCRA ‘solid waste’ would lead to untenable results” given that “there [are] 36 million utility-owned wood poles in service across the United States that have been treated with PCP.”

Along with these latest cases, the history of this particular rulemaking effort shows how, sometimes, studied consideration over time does not inevitably make matters clearer. Just look to the EPA and RCRA, where, a full four decades after its introduction, the definition of “solid waste” continues to exist on decidedly nonsolid ground.