How does the Resource Conservation and Recovery Act (RCRA)—the primary federal law governing the disposal of solid and hazardous waste—regulate a liquid that emits volatile gases into the atmosphere? In United States v. Mountain State Carbon, LLC, a federal district court answered this question in a manner that provided both clarity and, perhaps, confusion.

The court provided clarity by stating that disposal occurs when materials are allowed to evaporate and emit their vapors into the environment. This is an area of RCRA that had previously received little regulatory or judicial attention. The court may have provided confusion, however, by suggesting that the “emissions are regulated by the RCRA” as solid waste. The U.S. Environmental Protection Agency (EPA) has long held that gases are regulated as solid wastes only when they are contained (i.e., uncontained gases are not regulated as solid wastes), and the United States did not argue otherwise in its briefs in Mountain State Carbon.

The Mountain State Carbon case is notable in that it is one of the rare federal cases that address the RCRA status of gases, much less the status of non-gaseous materials that emit gases. For the reasons discussed below, however, the court’s statement that “emissions are regulated by the RCRA” is best viewed as imprecise dicta regarding how materials that emit vapors into the environment are regulated by RCRA as a solid waste. It does not appear that the court intended to rewrite twenty-five years of EPA guidance on uncontained gases.

  1. The Role of Gases In the Definition of Solid Waste

RCRA’s definition of solid waste is labyrinthine, but one way a material can become a solid waste is to be disposed of. Disposal is defined, as relevant here, as “the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air…”1

Consequently, air emissions can convert a material into solid waste. For example, if someone were to set on the ground a drum full of solvent sealed so that its contents could not “enter the environment or be emitted into the air,” the drum might not be a solid waste. If the drum were unsealed and the solvents evaporated “into the air,” however, the drum might then become a solid waste because of the evaporation.

And if the drum is waste, are the air emissions waste as well? Perhaps surprisingly, the answer is no. RCRA defines “solid waste” in pertinent part as “any … discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations… .”2 Thus, uncontained air emissions are not themselves solid wastes.

EPA settled on this treatment of gaseous material only after extensive debate with the regulated community. EPA originally proposed, in 1984, that only “true gases, namely those which are not capable of being condensed and which remain gases at standard temperature and pressure… ”3 would be excluded from the definition of solid waste. But in 1989, after numerous objections, EPA reconsidered: “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).”4 EPA has consistently maintained this position since 1989 and, the court’s opinion notwithstanding, the United States did not argue otherwise in its briefs in Mountain State Carbon.

  1. United States v. Mountain State Carbon, LLC

In 2012, EPA filed a complaint against Mountain State Carbon, LLC (MSC), asserting numerous claims under RCRA and the Clean Air Act related to MSC’s Folansbee, West Virginia facility.5   In one of its RCRA claims, EPA alleged that MSC generates a RCRA hazardous waste— coke oven gas condensate (COGC) that consists of, among other things, benzene—and MSC’s management of the COGC violates RCRA and the West Virginia Hazardous Waste Management Program.6

MSC’s Folansbee facility manufactured coke and coke oven gas.7 MSC pumped refined coke oven gas through a pipeline wherein the gas cooled and COGC formed as condensate on the pipeline. The COGC then flowed to collection points scattered along the pipeline known as “drip legs.” MSC collected the COGC from these drip legs with a tank truck equipped with a vacuum pressure hose. In the course of removing the COGC from the drip legs, EPA alleged that vapors from the COGC were emitted into the atmosphere. The truck then transported and deposited the COGC into an uncovered, open air trench and sump system prior to the COGC ultimately being recovered in MSC’s coke manufacturing process.8

At summary judgment, the United States and MSC disputed whether the COGC was a solid waste. The United States argued that the COGC was a solid waste because it was disposed of, since MSC allowed the COGC vapors to be emitted into the atmosphere when: (1) removed from the drip legs by the tank truck; and (2) discharged into the open air trench and sump system.9 MSC countered that, among other things, the COGC emissions could not be solid waste because they were uncontained.10

The United States responded that this was irrelevant because the COGC emissions were not at issue—“COGC, though a liquid, is the solid waste at issue here, not the volatile gases and vapors emitted from it during transit through the open conveyance trench and pit sump.”11 In other words, the gases and vapors established that COGC had been disposed of (and hence that the COGC was a solid waste), but they were not themselves solid wastes.

When the court summarized the United States’ argument, it seemed to miss the distinction between gaseous emissions as attributes of a non-gaseous solid waste, and gaseous emissions as solid waste themselves. The court began by asserting “the United States claims that when COGC’s constituent benzene is allegedly emitted during transfer of the liquid COGC, the RCRA statute permits regulation constituents of solid or hazardous waste that are emitted into the air.”12 This implies that the uncontained gases were solid wastes.

The court next asserted that RCRA’s definition of disposal “extends to air emissions of volatilized COGC,” again implying that the uncontained gases were solid wastes (because they were disposed of).13 Finally, the court asserted that “[a]ccordingly, any such emissions are regulated by the RCRA,”14 apparently as solid waste. All of these implications are incorrect. As discussed above and as the United States argued in its briefs, the solid waste at issue was the liquid COGC, not its gaseous emissions.

  1. Conclusion

Does Mountain State Carbon mean that uncontained gases now are solid waste, undoing twenty-five years of EPA guidance? Most likely not. First, none of the parties argued that uncontained gases are solid waste. Indeed, the United States went out of its way to make clear it was not arguing this. Second, it seems unlikely that the court would undo long-held EPA guidance without acknowledging that it was doing so. And finally, the court’s discussion of RCRA’s regulation of gases is dicta, since the court found that the non-gaseous COGC at issue were exempt from RCRA for other reasons.

In summary, the Mountain State Carbon court offered clear guidance on how gaseous emissions might convert non-gaseous materials into solid waste, but confusing guidance on how these emissions might be regulated. This confusing guidance—that RCRA can regulate uncontained gases, perhaps as solid waste—is best viewed with caution, as imprecise dicta regarding how materials that emit vapors into the environment are regulated by RCRA as a solid waste.