Hazardous Waste Management

The Controversial Contained-In Policy

One way, called the contained-in policy, attempted to smooth over the pre-existing position held by the Agency that contaminated soil that either contained a listed hazardous waste or exhibited a hazardous waste characteristic must be managed and disposed of according to all regulations governing hazardous waste (RCRA Subtitle C). Also, soil that contained listed hazardous waste or exhibited a characteristic of hazardous waste was prohibited from land disposal unless it had been treated to meet the standards applicable to pure industrial hazardous waste.

The high cost of following stringent RCRA guidelines when large quantities of contaminated soil were involved effectively discouraged remediations. Therefore, the objective of the contained-in policy was to allow new definitions of when contaminated media can be considered to no longer contain hazardous waste. Since EPA issued the contained-in policy, RCRA-authorized states have been working to adjust it to their own industrial, remediation, and environmental circumstances. Those adjustments are ongoing.

The contained-in policy recognizes that treatment standards applicable to pure industrial hazardous waste are generally either unachievable or inappropriate for contaminated media, which includes water but usually refers to soil. The policy specifically refers to a process whereby a site-specific determination is made that concentrations of hazardous constituents in any given volume of contaminated media are low enough to determine that the media does not “contain” hazardous waste. “Typically, these so called ‘contained-in’ determinations do not mean that no hazardous constituents are present in environmental media, but simply that the concentrations of hazardous constituents present do not warrant management of the media as hazardous waste,” stated EPA in the 1998 action (May 26, 1998, FR).

The major condition associated with the contained-in policy is that it does not carry an automatic exclusion from EPA‘s land disposal restrictions (LDR). The LDRs generally prohibit land disposal (or placement in land-based units) of hazardous wastes until the wastes have met applicable treatment standards. EPA has taken the position that even contaminated media that have been de-characterized of a hazardous waste characteristic remain subject to the LDRs. For example, contaminated media exhibits a hazardous waste characteristic when first generated (i.e., removed from the land). The waste is then de-characterized. EPA‘s general approach at this point, and one that has been upheld by the D.C. Circuit Court (Chemical Waste Management vs. EPA), is that threats can continue even after a waste is not longer identified as hazardous. Accordingly, in its 1998 action, the Agency stated that it was not able to make a generic finding that all contained-in determinations can automatically result in a finding that all threats posed by subsequent land disposal have been minimized. In such cases, the LDR requirements must be applied.

On the other hand, EPA or an authorized state could determine at any time that any given volume of environmental media did not contain (or no longer contained) any solid or hazardous waste (i.e., it is only media). These types of determinations might be made, for example, if concentrations of hazardous constituents fall below background levels or are at non-detectable levels. Such a determination would terminate all RCRA Subtitle C requirements, including LDRs.

Without such a determination, land disposal of de-characterized contaminated soil would remain subject to three requirements:

  1. The soil must be treated to meet applicable LDR treatment standards before land disposal. Generators may choose between meeting the universal treatment standard (UTS) for the contaminating hazardous waste or meeting the alternative soil treatment standards. Meeting the UTS would require treatment of the formerly characteristic constituents and all underlying hazardous constituents to the UTS. Meeting the alternative soil treatment standards would require treatment of the formerly characteristic constituent and all underlying hazardous constituents to reduce constituent concentrations by 90 percent or to achieve ten times the UTS. As with any other material subject to the LDRs, contaminated soil may qualify for treatment variances under certain circumstances.
  2. The decharacterized contaminated soil subject to the LDRs must be stored and treated in appropriate units (i.e., units that are not land disposal units) until treatment standards are met.
  3. If stored, the decharacterized contaminated soil can only be stored for the purpose of accumulating necessary quantities of hazardous wastes to facilitate proper recovery, treatment, or disposal.

The contained-In policy is limited to media (soil and water), and does not provide flexibility for other remediation wastes such as debris; nor does it provide flexibility for highly concentrated media.

Clearly the requirements of the contained-in policy are not insubstantial, but the management costs will generally be one-third to one-half less than those associated with compliance with the complete Subtitle C program.