A federal court in New York has adopted specific definitions for two common terms, “land disposal” and “active management,” for purposes of a criminal enforcement under the Resource Conservation and Recovery Act (RCRA). United States v. Tonawanda Coke Corp., No. 10-CR-219S, (W.D.N.Y. 2/25/13). The definitions were contested in connection with a coke plant’s defense against allegations that it had illegally disposed of hazardous waste. Tonawanda Coke operated as a RCRA waste generator, but was not a treatment, storage or disposal facility.
For the phrase “land disposal,” the focus was an exclusion from regulation for recycled material. The exclusion required that “there [be] no land disposal of the wastes from the point they are generated to the point they are recycled to coke ovens or tar recovery or refining processes, or mixed with coal tar.” The statute and regulations do not define the term “land disposal.” The defendant argued that the court should use the narrower definition of “land disposal” found in the RCRA provisions applicable to hazardous waste treatment, storage and disposal facilities. Under this definition, “‘land disposal’ includes, but is not limited to, ‘any placement of such hazardous waste in a landfill, surface impoundment, waste pile, injection well, land treatment facility, salt dome formation, salt bed formation, or underground mine or cave.’” Finding that the defendant was not an owner or operator of the facilities to which this definition applied, the court concluded that the broader RCRA statutory definition of “disposal” would be used to define “land disposal” for the jury. Under that definition “land disposal” means “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 or discharged into any waters, including ground waters.”
The concept of “active management” was relevant to assess whether materials that might have been in place before RCRA’s enactment had become subject to RCRA because they were actively managed. The court chose a definition that appeared in a 1992 Federal Register preamble. Thus, the court decided to instruct the jury that “‘Active Management’ means physically disturbing accumulated wastes within a management unit or disposing of additional hazardous wastes in existing units containing previously disposed wastes. In other words, it means taking some action to disturb or disrupt contained hazardous waste or adding hazardous waste to previously contained materials.”