The Listing and Classifying of Hazardous Wastes

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NOT FOR QUOTATION WITHOUT PERMISSION OF THE AUTHOR

THE

LTSlWG

_AND

- N G OF HAZARDOUS W -

Michael Dowling Joanne Linnerooth

April 1984 MP-84-26

Working Rzpers a r e interim reports on work of the International Institute for Applied Systems Analysis and have received only limited review. Views o r opinions expressed herein do not necessarily represent those of t h e Institute or of its National Member Organizations.

INTERNAllONAL INSTITUTE FOR APPLIED

SYSTEMS ANALYSIS

2361 Laxenburg. Austria

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PREFACE

This paper h a s been produced as part of IIASA's hazardous waste manage- m e n t work, which is t h e main component of t h e Institutional Settings and Environmental Policies project. The overall a i m of t h i s work, reflected in this paper, is t o systemize o u r understanding of interactions between institutional a n d technical factors i n policy making and implementation. The influence of institutional processes upon technical knowledge built into policy has been increasingly recognized. However, i t has yet to be adequately systematized in comparative research on different regulatory systems. Institutional structures cannot be easily transplanted from one culture t o another. Nevertheless, through the normal flux of policy, institutional development slowly occurs any- way, in more or less ad hoc fashion. Comparative insight may help t o direct reflection a n d adaptation in more deliberate and constructive ways.

This paper forms one chapter of an intended book on hazardous waste management. The r e a d e r will therefore notice references to other draft chapters in this study which a r e also being published separately, and which a r e available from IIASA

I would like t o t h a n k those policy makers a n d o t h e r s who generously gave of their time and experience in t h e many interviews which form a substantial input to this work A full list of acknowledgements will eventually be published.

Brian Wynne Research Leader

Institutional Settings and Environmental Policies

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THE

L I m G AND CLASSIFYING OF HAZARDOUS WASI'ES

Michael Dowing and Joanne Linnerooth

Central t o any regulatory program designed t o manage t h e disposal of hazardous wastes is t h e development of a system for defining and distinguishing hazardous wastes from t h e plethora of non-hazardous wastes. Such a system involves both defining t h e concept of waste in general and distinguishing t h a t subset of wastes considered "hazardous" and t h u s requiring special control. This process would seem t o be straightforward, involving t h e appropriate scientific expertise t o identify which wastes a r e potentially harmful t o health or t h e environment, and listing and classifying t h e m in some logical way.

Economic efAciency arguments would suggest t h a t this process would include developing a "degree of hazard" system, i.e., identifying those wastes which are most hazardous, less hazardous, etc., so t h a t resources could be efficiently allo- cated t o control t h e most hazardous wastes more stringently, and so on.

In reality, this process has not been straightforward a t all. In the variety of industrialized countries t h a t have attempted to deal with t h e problem, attempts to define and classify hazardous wastes have been characterized by:

lack of information; scientific uncertainty; differences i n legal versus administrative or scientific definitions; trade-offs between comprehensiveness, precision, a n d implementability; consideration of environmental protection and cost t o industry; problems in standardization and t h e need for flexibility; and finally wide differences in the political cultures t h a t affect responses t o all of these difficulties. As a result, definition and classification schemes vary

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significantly between countries and even between states or regions within countries. and a r e designed to meet different administrative purposes and institutional constraints. Although there has been strong pressure towards international harmonization, coordinating bodies have tried but failed to develop an internationally accepted system. In the report of a recent North Atlantic Treaty Organization (NATO) study of hazardous waste management, Dr. Bernd Wolbeck, one of t h e Federal Republic of Germany's leading hazardous waste experts has remarked:

"During t h e past ten years, the political and regulatory discussion has intensively focused on t h e questions of what constitutes a hazardous waste. Despite these efforts, an international consensus could not be achieved on the issue. One of t h e primary reasons for this seems to me t h a t the question has often been posed without indicating clearly enough t h e legal requirements which the definition and classification were to satisfy."[l]

British hazardous waste expert Ted Finnecy has observed that, in addition to legal requirements, hazardous waste classification schemes depend upon a complex s t r u c t u r e of regulatory and administrative purposes t h a t may vary significantly between countries.[2] Understanding how these variations arose and how explicit o r implicit criteria for listing and classifying wastes were chosen reveals much about the interaction between institutional constraints and science in developing environmental control regulations in general.

To examine some of these issues we will first outline the various types OF classiflcation systems t h a t can be employed. We will then turn to case studies of how hazardous waste classification systems were developed in two key countries, t h e United States and the Federal Republic of Germany (FRG). The U.S.

a n d the FXG were two of the first countries t o develop hazardous waste control systems. Within Europe, t h e

FRG

has served as a model for other countries, and in the U.S., the system developed by t h e Environmental Protection Agency (EPA) h a s been imposed as a model for t h e control systems in t h e various

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states. In addition, we will briefly compare them with the classification scheme of Austria that has been influenced by the

FRG.

Finally, we will discuss some of t h e key issues illustrated by these cases and their significance in t e r m s of the general implementation problems of such control legislation.

TYPES

OF HAZARDOUS

W A S J X

CLASSIFICATION

S Y S E M S

Before examining the classifications systems adopted by specific countries i t i s useful to outline the various kinds of classification systems t h a t can be used to regulate hazardous waste. One can define hazardous waste by: general characteristics, the presence of hazardous constituents, and determining t h a t specific wastes a r e hazardous a n d listing them.[3]

Hazardous Waste Characteristics

In t h i s approach, general hazardous waste characteristics, such as flammability, corrosivity, toxicity, etc., a r e defined. Specific t e s t procedures a r e given t o determine if a waste meets t h e criteria. For example, with regard to Aamma- bility a threshold flash point temperature is given, above which a waste is considered hazardous.

Hazardous Constituents

In this approach the presence of specific toxic chemical constituents, pos- sibly above a certain concentration, define a waste as hazardous. Wastes m u s t be t e s t e d for the presence of such constituents.

Hazardous Waste Lists

The most common approach t o waste classification is t h e listing of specific wastes identified as hazardous, t h e so-called inclusive list. N o testing is required. If the waste is on the list it is automatically regulated. Several types

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of inclusive lists can be used.

a Lists of "generic" hazardous wastes, t h a t is wastes arising in many different industries or from many sources. Examples a r e "waste lubri- cating oils" and "halogenated organic solvents";

Lists of industry specific wastes, such as pickling liquor from steel manufacturing";

Lists of specific chemical products, which if discarded, a r e to be considered hazardous, such as

DDT

or chlordane.

Another approach, previously used by t h e United Kingdom in its initial hazardous waste regulations is t h e exclusive list. An exclusive list describes wastes t h a t a r e not hazardous and therefore not regulated. (For a further discussion of exclusive lists see in this volume Ley. p.--) In t h e cases t h a t follow, we will examine how these classification schemes were developed and used in t h e various countries.

THE

UNITED

STATES

The Resource Conservation and Recovery Act (RCRA) of 1976 is the formal legislation for controlling hazardous wastes in t h e United States. This legislation replaced t h e previous Solid Waste Disposal Act of 1965 and placed more emphasis on "resource recovery" or t h e recycling of waste components such a s glass, metal, aluminum, etc. Subtitle C of t h e Act focused on the control of hazardous waste, which a t t h e time of its passage was viewed a s t h e least significant section of t h e law. Coming nearly two years before t h e widely publicized Love Canal episode, government, industry, and environmental groups generally did not view t h e problem of hazardous wastes a s a separate and distinct issue from the more general problem of handling and recycling solid industrial and municipal waste. Therefore, t h e Act was passed virtually unopposed by industry a n d unnoticed by environmental groups. Its passage, to a large extent, resulted from t h e efforts of a few individual Congressmen who felt that a law concerning solid wastes was the one unfinished piece of environmental

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protection legislation, after t h e passage in the U.S. of t h e Clean Air and Clean Water Acts in the early 1970's. Ironically, the EPA had little involvement in t h e preparation and passage of t h e legislation, yet i t was l a t e r charged with t h e task of developing the regulatory system outlined in it.[4]

Subtitle C of RCRA lays out a broad framework for the comprehensive control of hazardous wastes with five major elements:

1. a federal classification system;

2. a t r i p ticket control system;

3. federal standards for generators, transporters, and disposal facilities;

4. a permitting program;

5. t h e authorization of state programs as substitutes for t h e federal program.[51

i

The details of the framework were developed within t h e EPA a n d promulgated a s regulations on May 19, 1980.

The U.S.

Definition of Hazardous W a s t e

Material cannot be classified a s 'hazardous waste' unless it first qualifies a s a 'waste'. o r more specifically a s a 'solid waste', defined in Section 1004 (27) of

RCRA

as

"any garbage, refuse sludge

...

and other material including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining and agricultural operations, and from community activities."

Interestingly, t h e U.S. definition of 'solid' waste includes liquid and gaseous wastes. In o t h e r words, by "solid" t h e Act means "packageable wastes" a s opposed t o those discharged into the air and water which a r e regulated under t h e Clean Air and Water Acts. (For a discussion of the problems in defining t h e concept of "waste", s e e in t h i s volume Wynne and Thompson, page -). Hazard- ous waste is defined in Section 1004(5) of RCRA as:

"a solid waste, or combinations of solid wastes, which because of its quantity. concentration. or physical, chemical, or infectious

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a t t r i b u t e s may:

k cause, or significantly contribute t o an increase in mortality or a n increase in serious irreversible or incapacitating illness, o r

B.

pose a substantial present or potential hazard to h u m a n health or t h e environment when improperly treated, stored, transported or disposed of, or otherwise managed."[6]

Section 3001 of RCRA directed t h e EPA to develop criteria for identifying t h e characteristics of hazardous waste and criteria for listing particular hazardous wastes. In adopting these criteria, Section 3001 required t h e EPA t o take account of "toxicity, persistance and degradability in nature, potential for accumulation in tissue, and o t h e r related factors such a s flammability, corro- siveness, and other hazardous characteristics." In its regulations to implement t h i s legislation. t h e EPA developed a two-tiered system for a g e n e r a t o r of waste t o determine if a waste is hazardous. The generator c a n first check if t h e waste appears on one of t h e EPA's published lists or if t h e waste is not listed, t e s t t h e waste for four designated characteristics of hazardousness. We will discuss each of these tiers in turn.

The

EPA Lists

The EPA selected two sets of criteria for listing hazardous waste: c r i t e r i a for wastes t h a t a r e acutely hazardous wastes a n d criteria for o t h e r toxic wastes.

The criteria for listing acutely hazardous wastes were intended by t h e EPA t o m e e t P a r t A of t h e statutory definition, i-e., identify wastes which may "cause or significantly contribute to an increase in serious irreversible or incapacitating illness." The EPA defined these waste t o be either: (a) fatal to h u m a n s in low doses, or (b) have animal toxicities of oral LD 50 (lethal dose for 50% of t h e animals tested) of less than 50 mg/kg in rats, inhalation LD 50 of l e s s t h a n 2000 mg/cubic m e t e r in r a t s , or dermal LD 50 of less t h a n 200 mg/kg in rabbits.

These animal toxicities were equivalent to

U.S.

Department of Transportation, Consumer Product Safety Commission, a n d National Academy of Sciences

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definitions for poisonous or acutely toxic substances.[7]

Other wastes, t h a t were not acutely toxic, were t o be listed if t h e y were carcinogenic, mutagenic, teratogenic, phytotoxic or toxic t o aquatic species.

Using t h e s e characteristics, t h e EPA identified over 380 chemical substances t h a t , if p r e s e n t in a waste, would make i t hazardous, unless it could be shown t h a t t h e waste was not hazardous after consideration of 11 factors. The factors included, for instance, t h e n a t u r e of t h e toxicity of t h e constituent, t h e concentration of t h e constituent in t h e waste, t h e quantity of waste generated, and

"such o t h e r factors as may be appropriate."[8] As a result, t h e Administrator of t h e EPA had a large measure of discretion in deciding whether a waste m u s t be listed o r not. Although a n y of these 11 factors could be used to justify n o t listing a waste, t h e actual process was described by t h e EPA as follows. If a waste contained one of t h e 380 constituents identified as hazardous, it was t h e n analyzed t o see if t h e constituent or constituents were present in significant concentrations. If so, t h e waste was m o s t likely listed, unless t h e r e was "a very strong likelihood t h a t t h e constituents were incapable of migrating even if improperly managedW[9] The actual compilation of t h e hazardous waste list began with t h e identification of toxic constituents. However, toxicity testing, especially for carcinogens, is a complicated, costly procedure. Tests m u s t be carried o u t under carefully controlled laboratory conditions and a t best produce r e s u l t s t h a t usually require a judgement a s t o their significance. For- tunately for t h e EPA, o t h e r environmental legislation had required t h a t m a n y toxic constituents be identified. The EPA relied almost exclusively on t h e s e lists developed for other environmental regulations t o compile its list of 380 toxic constituents for RCRk Specifically, i t took approximately 300 e n t r i e s from t h e list prepared for t h e Clean Water Program, six or so from t h e Clean Air Program, approximately 20 from t h e EPA List of Toxic Substances, and approxi-

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mately 20 from those identified by the EPA Cancer Assessment Group.[lO]

Since data from the Clean Water Program were used so extensively, i t is interesting t o note how this list was compiled. The history of this list can be traced back to 1974 when environmental groups sued the EPA for not implementing Section 307 of t h e Clean Water Act, which required the EPA t o identify a n d regulate specific toxic water contaminents. In reaching a compromise with environmental groups t h e EPA hastily compiled an initial list from reviews of t h e scientific literature. One source provided the bulk of the information, a book titled Water Quality W t e r i a , edited by McKee and Wolf. I t was first published in 1952 and has been repeatedly revised up t o its last edition in 1971.

The book contains a survey of potential toxic contaminents of water with refer- ence t o t h e U.S. and foreign literature, giving general information on effects to aquatic life (not h u m a n s or other mammals)

With t h e help of these identified toxic constituents, t h e EPA developed i t s list of hazardous wastes. In this list, t h e EPA described wastes in two ways.

First, i t listed a large number of wastes from standard manufacturing or industrial processing operations known to contain toxic constituents. Second, t h e EPA also listed a large number of hazardous commercial products which became wastes when discarded. The waste lists were developed by examining some 200 studies of industrial wastes t h a t had been compiled a t t h e EPA prior t o the

RCFU

legislation. From these studies approximately 125 wastes were identified as hazardous.[l2] However. t h e EPA estimated t h a t t h e r e were over 10,000 major industrial waste processes; therefore, the identified wastes did not begin t o encompass t h e full gamut of hazardous wastes. To c a p t u r e t h e full range of wastes. t h e EPA developed definitions for hazardous waste characteristics and required generators to test their wastes to determine whether they

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were hazardous or not. This approach is discussed below.

Industrial studies a r e continuing a t t h e EPA and since t h e promulgation of t h e 1980 regulations some 10-12 additional wastes have been identified. Accord- ing t o one EPA staff m e m b e r , t h e program can never hope t o cover t h e dynamic universe of wastes produced. Indeed, some EPA staff m e m b e r s feel t h a t t h e lists should be dispensed with and t h a t t h e regulations should rely exclusively on t h e characteristic approach.[13]

The final list of wastes promulgated by t h e EPA contained t h r e e sections.

Section 261.31 listed 13 hazardous wastes resulting from non-specific sources (generic wastes) including various spent solvents, sludges, a n d similar material. Section 261.32 listed 76 hazardous wastes from specific sources, such a s waste water t r e a t m e n t sludge from t h e production of c h r o m e yellow and orange pigments (K003). In Section 261.33 t h e EPA listed more t h a n 400 hazardous chemical products such as acetaldehyde (P023). Such chemical pro- d u c t s became wastes only if discarded. Of' these products, 196 were listed as acutely hazardous and over 200 classified a s simply hazardous. The acutely hazardous wastes a r e subject t o m u c h tighter controls based on a quantity exclusion level.

The quantity exclusion level for wastes listed as acutely hazardous was a limited a t t e m p t by t h e EPA t o impose a degree of hazard system. Under t h e

RCRA

regulations, a hazardous waste is t o be regulated only if a g e n e r a t o r pro- duces m o r e t h a n 1000 kilograms of t h e waste per month. However, those wastes listed as acutely hazardous (Section 261.33e) m u s t be regulated if more t h a n o n e kilogram p e r month is produced. By introducing t h i s distinction t h e EPA recognized t h a t some wastes a r e m o r e dangerous t h a n o t h e r s a n d should be subject t o tighter control. The EPA also considered rnore detailed degree of hazard classification systems including: (a) using a threshold quantity for

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hazardous c o n s t i t u e n t s of a waste to determine if regulation is required, i.e., a concentration level for partcular constitutent t h a t m u s t be exceeded before the waste is considered hazardous; and (b) developing degree of hazard categories for particular wastes based on t h e i r characteristics. The EPA rejected these and other suggestions for degree of hazard systems because it felt that:

"given c u r r e n t knowledge and information these assessments cannot be made for most wastes with sufficient precision to determine t h e specific quantities which represent a threshold for finding a waste hazardous. T h e Agency m u s t , therefore, consider all quantities of any waste listed a s hazardous."[l4]

The detailed justification for listing each waste in t h e regulations were contained in background documents. The documents included:

1. A s u m m a r y of the Administrator's basis for listing each waste.

2. A brief description of t h e specific industry;

3. A description of t h e manufacturing process;

4. An identification of waste composition, constituent concentration; and annual quantity generated;

5. A discussion of t h e basis for listing e a c h waste stream;

6. A s u m m a r y of the diverse health effects of each of t h e constituents of concern.[l5]

Despite t h i s elaborate justification, the EPA admitted t h a t decisions to list a waste were often based on qualitative judgments, generally involving expert assumptions r a t h e r t h a n precise field rneasurement.[l6]

The original waste list was subjected first t o i n t e r n a l EPA review and then, according t o U.S. administrative law, was published for public comment in 1978.

Although this procedure generated many c o m m e n t s from industry, t h e content of t h e list was n o t substantially revised: some 6 o r 7 wastes were removed a s a

Finally, t h e regulations also provided a procedure by which any person can petition t h e Agency t o have a listed' waste "delisted". This challenge can be

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based on: (a) the contention t h a t the EPA reached an erroneous conclusion in its evaluation of t h e scientific grounds for listing, or (b) t h e assertion t h a t t h e waste of t h e petitioner is different from t h e material on which t h e EPA focused in listing t h e waste a s hazardous.[l8] The first approach is significantly more difficult since it requires t h e petitioner t o present scientific evidence rebutting t h e conclusions r e a c h e d by t h e EPA, requiring extensive scientific

These EPA lists included all t h r e e types of inclusive lists explained in t h e second section of t h i s paper, i.e., generic lists of wastes arising in m a n y industries, industry specific waste s t r e a m s , and a list of chemical products t o be considered hazardous if discarded.

The Characteristic Approach

As outlined above, t h e EPA felt t h a t its listing procedure would not comprehensively cover t h e e n t i r e range of hazardous wastes. To fill in t h e gap, t h e EPA decided t o require generators t o t e s t their wastes, if t h e y did not appear on t h e lists. t o determine if they exhibit certain hazardous characteristics. The draft regulations originally proposed eight c h a r a c t e r i s t i c s requiring testing, b u t t h e s e were reduced t o four in t h e final regulations. They include:

ignitability

-

liquids with a flash point of less t h a n 60 degrees cen- tigrade and flammable solids or semi-solids;

corrosivity

-

wastes t h a t have a pH of 2 or less, or of 12.5 o r more; or wastes t h a t corrode steel a t a r a t e g r e a t e r than 6.35 m m p e r year;

reactivity - wastes likely t o cause acute or chronic adverse health effects in persons exposed;

toxicity

-

wastes which cause a c u t e or chronic adverse h e a l t h effects in persons exposed.

The toxicity characteristic was by far t h e most controversial, mainly because t h e EPA encountered g r e a t dimculty in trying to develop testing procedures t o measure toxicity.[20] The EPA finally promulgated an Extraction Procedure

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Test t h a t specified t h e laboratory steps t o be followed i n analyzing r e p r e s e n t a - tive samples of e a c h waste for 14 contaminents listed i n t h e U.S. National Drinking Water Standards. If t h e s e contaminents were p r e s e n t , i n a n aqueous leachate e x t r a c t e d from t h e waste, a t levels 100 times o r g r e a t e r t h a n t h e con- c e n t r a t i o n s allowed in drinking water, t h e n t h e waste is considered hazardous.

This t e s t a n d t h e "100 times" s t a n d a r d have been subjected to heavy criticism, due t o t h e large scientific u n c e r t a i n t y involved.[21.]

Summary

In s u m m a r y . t h e regulatory s y s t e m developed by t h e EPA t o i m p l e m e n t t h e

RCRA

legislation r e p r e s e n t s , i n t h e words of a f o r m e r Deputy Administrator of t h e EPG "one of t h e m o s t i n t r i c a t e and bewildering regulatory frameworks t h a t exist in a n y a r e a of federal law."[22] It is an a t t e m p t t o devise a c o m p l e t e con- t r o l s y s t e m and i n developing i t s classification a n d listing s c h e m e , t h e EPA t r i e d t o cover all of t h e hazardous wastes being produced t h r o u g h o u t t h e United States. The s y s t e m included all t h r e e types of classification s c h e m e s , waste lists, c h a r a c t e r i s t i c s , a n d c o n s t i t u e n t s lists, although t h e r e was n o men- tion of specific concentration levels. This approach p r e s e n t e d formidable implementation challenges n o t only t o federal a u t h o r i t i e s b u t also t o s t a t e authorities if t h e y chose t o t a k e over t h e m a n a g e m e n t of hazardous wastes in t h e i r s t a t e s . In s o choosing, s t a t e programs were r e q u i r e d t o be a t l e a s t a s s t r i n g e n t a s t h e federal program. In contrast, European r e g u l a t o r y s y s t e m s a n d classification s c h e m e s g e n e r a l l y a r e less complex a n d a r e developed with m o r e cooperation between federal, s t a t e , a n d i n d u s t r y representatives.

THE F'EDERAL REPUBLIC

OF GERMANY

The Federal Republic of Germany, one of t h e first c o u n t r i e s in Europe t o deal with t h e hazardous waste problem, was also o n e of t h e first t o grapple with

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classifying and listing hazardous wastes. The history of hazardous waste classification and listing begins with t h e Waste Act of 1972, ammended in 1976.

(For a more detailed description of t h e Act, see in this volume Linnerooth and Davis , page -.) The Federal Waste Act was designed to deal with t h e disposal of all wastes. After its e n a c t m e n t , a series of scandals occurred concerning hazardous wastes from industry which led t o pressure from t h e s t a t e s t o change t h e Act so i t would deal more specifically with industrial wastes. On J u n e 21, 1976, a m e n d m e n t s t o t h e Act were passed which led t o changes in t h e definition of wastes a n d t h e introduction of control measures directed towards

, hazardous wastes including: r u l e s for siting t r e a t m e n t and disposal facilities;

requirements for disposal Facilities t o appoint plant waste supervisors; and a strengthening of penalties for violations.[23] The changes in t h e Act included specific authority for t h e promulgation of regulations defining wastes which led t o t h e first federal list of hazardous wastes in t h e FRG.

Two

Definitions

In Germany t h e t e r m "special waste" is used r a t h e r t h a n "hazardous waste". In t h e a m e n d m e n t s t o t h e Waste Act, two related, but somewhat different definitions of special wastes were given. The d r s t definition was a technical one defining c e r t a i n wastes from industrial sources that:

"because of t h e i r n a t u r e , composition, or quantity a r e especially dangerous t o health, air, or water quality, a r e explosive. flammable or could promote infectious diseases, and therefore special requirements for t h e i r control a r e necessary."[24]

The second definition was an administrative one, stating t h a t certa.in wastes:

"because of t h e i r n a t u r e and quantity should be excluded from disposal with household wastes."[25]

In t h e negotiations between t h e federal goverrlment a n d t h e s t a t e s t h a t took place prior t o t h e passage of t h e 1978 amendments, t h e t e r m s "hazardous" and

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"special" were completely left out of t h e Act. The s t a t e s felt t h a t t h e t e r m

"hazardous" would cause unnecessary public alarm. The t e r m "special" did not include t h e wastes covered by t h e second definition, which a r e really "exclud- able" wastes. In t h e end, both t h e words "special" and "hazardous" were left out. The t e r m "special" is still used. but its meaning is somewhat ambiguous.

In general, "special wastes" a r e those referred t o by t h e first definition above s e t o u t in Section 2, Paragraph 2 of t h e Waste Act.[26] However, t h e t e r m special is still used by some authorities t o mean any waste excluded from disposal with household wastes. This confusion h a s y e t t o be cleared up. Efforts t o do so a r e underway and a r e discussed below.

Section 2 Paragraph 2 of t h e Act as amended, required t h e government t o define m o r e exactly which wastes were covered by t h e a c t by issuing regulations. However, before these regulations were issued, t h e r e had been a t t e m p t s t o define t h e concept of "waste" in general.

LAGA and the W a s t e Catalog

After passage of t h e 1972 Waste Act, which required t h e s t a t e s t o develop waste disposal plans,[27] t h e s t a t e governments decided they should work together in developing a nomenclature system for all wastes from which a list of special wastes requiring more stringent controls could be derived.[28] The forum for this cooperation was an organization called t h e Landerarbeitsgemein- schaft Abfall (LAGA), t h e State Working Group on Wastes. LAGA is a n organization of t h e various environmental ministries responsible for waste disposal f r o m t h e 11 German states and also includes representatives from t h e federal government. I t h a s no legislative or executive functions, b u t serves mainly as a n advisory body t o t h e federal government, providing t h e s t a t e governments t h e opportunity t o m e e t and work o u t common positions on issues regarding waste law and policy. LAGA m e e t s twice a year in plenary session, b u t often

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forms smaller working committees on particular issues.[29]

In 1974, LAGA formed a working group for special wastes. The committee consisted of approximately 12 representatives from the states, t h e Ministry of Interior, and t h e Umweltbundesamt (UBA), t h e Federal Environment Agency, in Berlin. The t h e committee was charged with making t h e concept of "special waste" more concrete. In order t o do t h a t , the committee decided t o first organize categories of wastes into a coherent system, so t h a t the sub-set of special wastes could be more easily defined. As t h e chairman of the committee put it, "The catalog was really a by-product of our main objective; however, it has proven to b e t h e more lasting contribution."[30]

The basis of the catalog was a comprehensive survey of waste producers in the FRG s t a t e of Baden-Wiirttemberg, conducted from 1970-1973. This survey had gathered detailed data on waste types, amounts and disposal practices. The LAGA committee took the typology developed in the survey and refined i t with the help of t h e Federal Statistics Agency. Wastes were divided into five major groups subdivided into sub-groups, and finally listed as individual waste types identified with a five digit number. The nomenclature system was a mixture of chemical compounds and generic industrial process descriptions. For example:

a Waste Number 55315 Methanol

a Waste Number 31103 Ovenash from Metal Processing The five major categories were:

1. plant and animal waste;

2. mineral waste;

3. chemical waste from processed and synthetic products;

4. radioactive wastes;

5. municipal wastes.

Over 600 individual waste types were listed.[31]

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From this list of wastes, t h e LAGA group developed a smaller inclusive list of "special wastes" which in t h e i r opinion required special handling a n d disposal. This special waste list served a s t h e basis for individual s t a t e regulations.

These efforts were soon overshadowed, however, by a federal initiative t o adopt a list of special wastes on t h e basis of t h e 1976 amendments t o t h e Waste Act.

The

Federal Regulations

In t h e 1976 a m e n d m e n t s t o t h e 1972 Waste Act, t h e definition of special wastes (without calling t h e m t h a t ) in Section 2, Paragraph 2, also authorized t h e government t o issue regulations listing wastes t h a t were t o b e included in t h e trip-ticket control system. These regulations, listing some 86 waste types were promulgated on May 24, 1977.

The preparatory work for these regulations began a t t h e UBA in Berlin, when t h e Minister of t h e Interior asked t h e UBA t o develop a s e t of draft regulations. The in-house experts a t t h e UBA were forced from t h e beginning t o choose between two strategies. They could either develop a n inclusive waste list based on t h e LAGA catalog, o r p u t together a list of toxic constituents which, if p r e s e n t in a waste, would subject the waste t o regulation. They also considered fixing concentration levels for these hazardous constituents in order for a waste t o be controlled by t h e system. In t h e e n d t h e y decided t o stay with t h e system developed by LAGA for a number of reasons: Scientific analysis was not advanced enough t o make the testing of concentration levels very practical;

I t

would be t o o easy t o circumvent t h e regulations by simply diluting or mixing wastes; The s t a t e s had already developed regulations based on the LAGA catalog a n d a new system would have been very difficult to implement.

The UBA scientists chose wastes for their list based on t h e following criteria:

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Source of t h e Waste Composition

Amounts Produced Disposal Practices Environmental Dangers

These criteria were not weighted in any quantified m a n n e r , but one of t h e com- pilers of the list felt t h a t emphasis was placed on the environmental dangers of t h e substances in t h e wastes.[32] This process led to a r a t h e r long list of wastes t h a t was then shown to s t a t e authorities for comment. The s t a t e s protested a t t h e length of the list and felt t h a t t h e federal regulations should only include those wastes t h a t were produced in all of t h e states.[33] Industrial associations were also involved in discussions about t h e list after a first draft was prepared by t h e UBk In addition, the UBA considered the lists of o t h e r countries ( t h e Netherlands, Denmark, and Canada) and t h e list proposed for a n European Economic Community Directive on hazardous wastes. Finally, a m u c h smaller list was submitted by the UBA to t h e Ministry of the Interior which adopted i t in i t s regulations. This list was to be used. n o t as a comprehensive list, but a s a description of the most problematic wastes t h a t should be controlled by all of t h e states.[34] There was n o procedure given for adding o r subtracting wastes from this list, but s t a t e governments had t h e authority to require t r i p ticket regulation for o t h e r wastes a n d some did increase t h e number of regulated wastes substantially (see t h e discussion of Bavaria and Hesse below). The federal regulations contained no explicit production quantity cut-offs a s did t h e U.S. regulations for t h e wastes listed. But rather. t h e FRG chose t o subtly add quantity considerations i n t h e description of t h e source of t h e waste, which was done as follows. Column 1 of t h e list gives the generic name of t h e waste, Column 2 gives t h e chemical n a m e and t h e waste number, and column 3 lists t h e industrial source of t h e waste. For example:

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Column 1 Column 2 Column 3

Halogen Containing Chlorobenzene 55202 From t h e Chemical

Organic Solvents Industry, Gas Works,

P h a r m a c e u t i c a l s Chloroform 55203

In listing t h e s o u r c e s in Column 3, t h e UBA listed only those industries, o r production processes t h a t t h e y thought would produce significant quantities of t h e listed waste. So a waste comes u n d e r t h e regulations if it is listed in columns 1 a n d 2, and is produced by one of t h e i n d u s t r i e s o r a s a r e s u l t of one of t h e processes listed in column 3. The s a m e waste, produced by an i n d u s t r y not given in c o l u m n 3 isn o t covered by t h e federal regulations.[35]

In c o n t r a s t t o t h e EPA in t h e U.S., t h e UBA relied only on t h e listing m e t h o d for classifying hazardous wastes. It did not a d o p t t h e c h a r a c t e r i s t i c s approach for identifying hazardous wastes not covered by t h e lists. They felt t h a t t h e scientific analyses required for testing waste c h a r a c t e r i s t i c s were both difficult t o standardize a n d would place unacceptable c o s t burdens o n industry.

The listing of t h e hazardous c o n s t i t u e n t s was considered, b u t for t h e previously mentioned r e a s o n s , rejected.

State

Lists -

Bavaria and Hesse

In addition t o t h e 86 wastes t h a t m u s t be controlled u n d e r t h e federal regulations, s t a t e environmental a u t h o r i t i e s were f r e e t o r e q u i r e trip-tickets a n d o t h e r controls for additional wastes. The two G e r m a n s t a t e s t h a t became m o s t actively involved i n hazardous waste regulation were Bavaria a n d Hesse.

Their waste l i s t s m a k e a n i n t e r e s t i n g comparison t o t h e federal one.

Bavaria h a d developed, before t h e federal regulation, i t s own waste list.

This list was also b a s e d o n t h e LAGA catalog but included q u a n t i t y cut-ofls for four classes of waste. For each category, t h e r e was a m i n i m u m a m o u n t t h a t h a d t o be produced in order t o trigger regulation.

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Class I 1 ton/ year

Class I1 10 ton/year

Class 111 100 ton/year

Class IV 1000 ton/year

This was, in effect, a degree of h a z a r d system with t h e wastes in Class I t h e m o s t hazardous, those in Class 11 l e s s so, etc. It was p u t t o g e t h e r by s c i e n t i s t s within t h e Bavarian Ministry Land Development a n d Environment with s o m e consultation with i n d u s t r y experts. Since Bavaria had very early c o n s t r u c t e d t r e a t m e n t facilities (see in this volume, Linnerooth a n d Davis, page --) i t a l r e a d y h a d a good idea of t h e a m o u n t s a n d n a t u r e of wastes being produced i n t h e s t a t e . These regulations h a d t o be scrapped, however, when t h e federal regulations were adopted since t h e y did n o t m a t c h t h e federal system. Bavarian a u t h o r i - ties expressed frustration a t having developed i t s s y s t e m too e a r l y a n d t h e n being forced t o change i t a t considerable cost.[36]

Bavaria finally p r o m u l g a t e d new regulations with a list t h a t i n c o r p o r a t e d t h e federal one plus t h o s e wastes t h a t i t wanted t o regulate in addition. They printed t h e e n t i r e LAGA catalog i n t h e i r regulations a n d distinguished f o u r types of wastes with t h e following designations in t h e catalog.

Wastes t h a t should generally not. or only u n d e r c e r t a i n conditions, be disposed of with household wastes. b u t do n o t require a trip-ticket.

N Wastes t h a t require a trip-ticket and special disposal.

Bold P r i n t Wastes t h a t under t h e federal regulations r e q u i r e a t r i p ticket and special disposal.

No Marking Wastes t h a t c a n be disposed of with household wastes.

In addition t o t h e 86 wastes covered by federal law, Bavaria added 153 wastes t o

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its list for a total of 239 wastes under its regulatory system.[37]

The s t a t e of Hesse also began early to regulate hazardous wastes. This was the result of some highly publicized scandals in the early 1970s in Hesse which led to public pressure for more active government control. This pressure led t o the organization of the central Hesse authority for hazardous waste disposal, HIM (see Linnerooth and Davis, p. --) and to state regulations. The waste list developed by Hesse was also based on the LAGA catalog. Again, in-house scien- tists advised the Environment Ministry in Hesse as to which wastes to regulate.

Hesse divided the wastes listed in t h e LAGA catalog into t h r e e categories, based not on quantity cut-offs, but on which kind of disposal was best suited for a particular waste. The three categories are:

Category 1: Wastes t h a t generally can be disposed of with household wastes.

Category 2 Industrial wastes that cannot be disposed of with household wastes and must be disposed of in special waste facilities, for example, secure landfills.

C a t e g o r y 3 Industrial wastes that are especially hazardous require special disposal techniques in special waste facilities, for example, special incineration or deposition.[38]

These categories in effect produced a degree of hazard classification system based not on quantity cut-offs as in the U.S., but on guidelines on how to dispose of particular wastes. Such a system reflects degree of hazard if one assumes that treatment categories are ranked according to r i s k There a r e exceptions;

for example, heavy metal wastes might be disposed of more safely in a landfill (category 2) than by incineration (category 3),

In developing this system, authorities in Hesse consulted with industry trade associations on the make-up of t h e list. A t first, industry was very resis- tant to the system and many meetings and conferences were held with industry by t h e State Environment Ministry. In t h e end, the authorities persuaded t h e m that t h e system would both be easier, and reduce both analysis costs a n d t h e

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time required to process wastes.[39]

The final Hesse list included 312 waste types in categories I1 and 111, including t h e 86 wastes in t h e federal regulations. Hesse, therefore listed over 70 more wastes t o be regulated than Bavaria. Ironically, two of the states, which h a d pushed for a short federa! list, went on t o develop considerably longer lists on their own, a n d significantly different systems of classification. These differences led to problems in tracking of cross-state shipments of hazardous wastes and h a s led to pressure for t h e development of a more comprehensive federal system.[40]

Proposed Changes in the Federal Regulation

Because of t h e difficulties presented by t h e differing waste lists of t h e s t a t e s , work is c u r r e n t l y underway in t h e FRG with t h e a i m of developing a m o r e comprehensive, unified list for all of t h e states. This t i m e t h e work is being conducted by t h e LAGA. not t h e UBA. again by a smaller working group.

The group is currently revising t h e LAGA waste catalog a n d is proposing t o develop a special waste catalog, i.e., listing only those wastes t h a t should n o t be disposed of with household wastes. (This was also t h e goal of t h e earlier LAGA working group.) This new catalog would categorize special wastes by t h e pre- ferred disposal method, similar to the Hessian t h r e e category system, b u t also reflecting s o m e refinements made by Austria (see below) i n developing its hazardous waste regulations. The LAGA hopes t h a t this special waste catalog will be promulgated by t h e federal government a s binding for all t h e states, grently enlarging t h e c u r r e n t federal waste list.[ll] This time, because t h e LAGA is compiling t h e list, and all t h e s t a t e s a r e represented, it will be difficult for the s t a t e s t o object to t h e system. Again industry consultation is planned before a final list is developed. Industrial t r a d e associations do not participate directly in development of the list, but when the LAGA h a s a draft, it plans t o

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discuss i t with industry. Also, t h e g r o u p plans t o conduct discussions with s o m e e n v i r o n m e n t a l groups in t h e FRG who a r e beginning t o t a k e an active i n t e r e s t i n t h e a r e a of hazardous waste management.

The FRG's somewhat pioneering work on t h e listing of hazardous wastes h a s served a s a model for o t h e r c o u n t r i e s in Europe. For example, Hungary, in i t s h a z a r d o u s waste legislation, adopted t h e catalog originally published by LAGA a n d refined by Hesse. Austria h a s also made extensive use of t h e FRG catalog in developing i t s own hazardous waste regulations. Austria's s y s t e m will be briefly discussed below.

AUSTRIA

Austria began relatively l a t e t o develop a hazardous waste control system.

As i n o t h e r industrialized countries, several well-publicized scandals concerning illegal dumping and poor m a n a g e m e n t of wastes s p u r r e d r e g u l a t o r y action.

Austria p a s s e d i t s Special Waste Act t o deal with t h e problem o n March 2, 1983, a n d i t w e n t i n t o effect on J a n u a r y 1, 1984. When t h e Austrian a u t h o r i t i e s h a d t o identify wastes t o b e controlled, t h e y took advantage of t h e i r l a t e s t a r t t o observe t h e experiences of o t h e r countries. However, t h e m e c h a n i s m by which t h e y developed t h e i r waste list i s unique i n t h e way cooperation between indus- t r y a n d g o v e r n m e n t was c a r r i e d out.

The t a s k of developing a waste list in Austria was given t o t h e Oesterreich- ishes Normungsinstitut. The Austrian Standards Institute, a non-governmental, t e c h n i c a l s t a n d a r d setting body t h a t advises t h e g o v e r n m e n t o n a whole variety of standards--from fire extinguishers t o t h e size of t r a s h cans. Its work is con- d u c t e d by a n u m b e r of Fachnormenausschusse (F'NA). Expert S t a n d a r d Commit- tees. These c o m m i t t e e s a r e divided into smaller working groups on p a r t i c u l a r subjects. The m e m b e r s h i p of t h e FNAs includes representatives f r o m federal.

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s t a t e , and local g o v e r n m e n t , scientific experts f r o m t h e academic community a n d industrial r e p r e s e n t a t i v e s , usually from industrial t r a d e associations a n d t r a d e unions. When t h e FNAs divide into working groups t h e y also may invite experts f r o m outside t h e FNA t o assist thern.[42]

The Standards I n s t i t u t e ' s FNA-157 for Waste Disposal was given responsibility for developing a waste list by t h e Federal Ministry for Health a n d Environ- m e n t . A s a first s t e p t h e FNA defined t h e t e r m of special waste for Austria:

"Special wastes a r e solid or liquid wastes which because of t h e i r composition o r q u a n t i t y c a n n o t be disposed of with municipal waste, ie..

household garbage, without special preparation.[43]"

This was an administrative definition similar t o t h e one used i n FRG. On t h e basis of t h i s definition t h e FNA developed a special waste catalog t h a t was pat- t e r n e d a f t e r t h e FRG catalog a n d used t h e s a m e 5 digit numbering system. But it contained only special

-

n o t all - wastes listing over 400 waste types. In addition, t h i s catalog, r a t h e r t h a n specify t h e s o u r c e of t h e waste listed, gave t h e t r e a t m e n t m e t h o d s b e s t suited for disposal of e a c h of t h e wastes listed simi- l a r t o t h e s y s t e m developed i n Hesse in t h e FRG. The m e t h o d s included:

1 municipal landfill 2. special waste landfill 3. municipal i n c i n e r a t o r 4. special waste i n c i n e r a t o r 5. cornposting

For each waste t h e recornmended t r e a t m e n t m e t h o d was indicated by a numbering system indicating if t h e m e t h o d was 1) suitable; 2) suitable under c e r t a i n conditions; 3) n o t suitable. This s y s t e m effectively r e s u l t e d in a degree of h a z a r d classification system. For example, waste n u m b e r 55315, methanol, was listed a s not suitable for a municipal landfill, conditionally suitable for a municipal i n c i n e r a t o r , a n d suitable for e i t h e r a special waste landfill o r special incinerator. [44]

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The development of t h e catalog was relatively uncontroversial since i t was non-binding legally a n d only m a d e recommendations. Controversy arose when t h e Ministry of Environment asked t h e FNA t o develop from t h e catalog a list of hazardous special wastes, t o be regulated u n d e r t h e Austrian trip-ticket system r e q u i r e d under i t s new legislation. The Ministry agreed t o a c c e p t in i t s regulations a list, a n d t h e compromises i t involved, worked out within t h e FNA. How- ever, if t h e FNA failed, t h e Ministry would develop its own list.

To produce t h i s list of h a z a r d o u s special wastes t h e special waste working g r o u p of FNA-157 expanded i t s m e m b e r s h i p t o a record 120. The majority of t h e m e m b e r s were i n d u s t r y representatives from t r a d e associations a n d firms, b u t also included federal, s t a t e , a n d local g o v e r n m e n t officials a n d a few scientific e x p e r t s f r o m universities.

Because of t h e unique i n t e r e s t in t h e issue, t h e F N A decided in t h i s case t o allow a n y i n d u s t r y r e p r e s e n t a t i v e who asked t o participate (usually only s e l e c t e d representatives a r e c h o s e n by t h e FNA). However, c e r t a i n environmen- talists who asked t o participate were excluded, namely a group called "Critical Chemistry". The FNA voted n o t t o allow t h i s group t o participate with t h e rea- s o n t h a t " t h e r e were already enough c h e m i s t s on t h e committee."[45] I t also decided, in a change of t h e rules, t o allow t h e e n t i r e working g r o u p a n d t h e m e m b e r s of t h e FNA t o vote on t h e final list of wastes. The working group f o r m e d a smaller sub-group of 1 5 m e m b e r s t o make an initial selection of wastes for t h e list. They began by listing those wastes in t h e special waste catalog t h a t were designated a s requiring t h e m o s t s t r i n g e n t disposal methods.

They also examined t h e hazardous wastes list of o t h e r countries, m o s t notably t h e FRG a n d Switzerland. Their d r a f t list contained some 160 wastes, which was t h e n r e d u c e d in a negotiation process within t h e full working group.

Interestingly, t h e r u l e s of t h e S t a n d a r d Tnstitute required t h a t working

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groups reach decisions unanimously. A member of t h e group told us t h a t t h e representatives from particular industries protested t h e inclusion of their wastes on t h e list, and they theoretically could have vetoed any decision. But t h e r e was strong pressure to compromise, because the Ministry of Health and Environment could always take over the process if agreement was not reached.

He claimed they were most often persuaded by health effects arguments made by the scientific experts. In addition, t h e earlier classification system developed for t h e special waste catalog, p u t together with t h e help of industry representatives, gave clear guidelines for which wastes to include. It was very difficult for industry representatives, who had accepted t h a t catalog, t o argue for changes in i t s principles.[46]

Finally a compromise list of 148 wastes was agreed upon and published by the Standard Institute for public comment. About 25 objections were submitted, reviewed by t h e FNA, and rejected. The list was published in h a 1 form on December 1, 1903.[47] It was agreed in the F'NA t o call these wastes "special wastes requiring supervision," rather than hazardous special wastes because, a s in the FRG, they wanted to avoid public alarm. On February 9, 1904. t h e Minis- t r y of Health a n d Environment issued regulations t h a t declared t h e list binding and introduced a trip-ticket system for all of t h e listed wastes. The regulations also introduced quantity production cut-off levels similar t o those in t h e U.S.

For nine waste types, the wastes a r e regulated if more t h a n 20 kilograms p e r year (kg/year) a r e produced. For all other wastes listed, 200 kg/year m u s t be produced before regulation is required.[48]

In summary, the Austrian system like t h a t of FRG, relies on an inclusive hazardous waste list and does not include characteristics or constituent approaches. It does, however, use quantity cut-offs in a n informal degree of hazard system as i n the U.S., and makes recommendations as to t h e appropri-

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a t e d_lsposal method, similar to Hesse's t h r e e category list. The most interesting aspect of Austria's list is the process by which it h a s developed, especially t h e degree of industry participation in t h e process. We will now discuss this issue a n d others in more detail.

THE

INST?TUTIONAL

FTbWtNG OF HAZARD

The case studies of t h e development of hazardous waste classification sys- t e m s in t h e United States, t h e Federal Republic of Germany, and Austria illus- t r a t e how both science and institutional needs shaped t h e regulatory programs t h a t were constructed. In addition to t h e scientific uncertainty surrounding delinitions and classification systems for hazardous waste, t h e rules adopted in each country. a n d therefore t h e outcomes of an apparently scientific problem, ultimately reflect political a n d legal frameworks, t h e objectives of each country, and explain t h e difficulties encountered by international organizations attempting t o develop standardized classification systems.

Dealing with Scientific Uncertainty

In developing hazardous waste classification systems, science is con- strained and shaped by institutional needs. One of t h e most important con- s t r a i n t s in hazardous waste control is t h a t t h e scientific information concerning t h e hazards associated with these wastes is either uncertain, unknown, or unknowable (for a f u r t h e r discussion see in t h i s volume Wynne p.--). The role of science is illustrated by t h e deliberations over using degree of hazard systems for classifying wastes. Both t h e FRG a n d t h e U.S. have seriously considered.

b u t decided against, developing complicated degrees of hazard systems for their regulatory control programs, including establishing concentration levels for hazardous constituents in a waste t h a t m u s t be exceeded before it is regulated. Few dispute t h e theoretical advantages of classifying wastes by different

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levels of risks so t h a t t h e control systems could be designed and resources allo- c a t e d accordingly. Unfortunately, t h e information needed For such classification is difficult, if not impossible, to obtain. The "hazard" of waste depends on a variety of factors including physical form, composition, concentration of constituents, toxicity of constituents, method of disposal, etc. All of these factors a r e difficult t o m e a s u r e and standardize i n some form of classification system. Toxicity testing, for example, is filled with u n c e r t a i n t y concerning dose-response relationships, extrapolating a n i m a l models t o humans, and t h e lack of standardized testing procedures. The fate of wastes once disposed c a n vary depending on t h e properties of t h e waste, i.e., solubility, volatility. pH, etc.. a n d t h e conditions of disposal, i.e., soil conditions, geology, etc.[49] Such uncertainties l e d t h e EPA t o conclude:

"The agency does not believe any of t h e degree of h a z a r d s y s t e m s sug- gested by c o m m e n t a t o r s (or any t h e Agency could itself conceive) a r e capable of actually distinguishing different degrees of hazard among t h e myriad hazardous wastes a n d also relating management standards to t h e degrees in a technically a n d legally defensible ways.[50]"

However, t h e EPA, because of political a n d economic pressure, did introduce a limited degree of h a z a r d system with its distinction of small quantity cut-offs for some acutely hazardous wastes. Federal authorities in t h e FRG also rejected t h e idea of introducing a formal degree of hazard system in t h e i r regulations. On t h e o t h e r hand. s t a t e authorities t h e r e have not been as reluctant.

Hesse, with i t s t h r e e categories of wastes, h a s in fact used a simple degree of hazard system. In t h e U.S. several s t a t e s have adopted degree of h a z a r d sys- t e m s in developing t h e i r own regulations t o implement t h e RCRA program.[51]

An interesting comparative example is t h e Netherlands. In regulations implementing i t s Chemical Waste Act, t h e Netherlands differentiated between f o u r classes of hazardous wastes and determined conceritration l i m i t s of chemical constituents for wastes t o be considered hazardous.[52] These were r a t h e r

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arbitrarily fixed by negotiation between t h e Ministry of Economic AfTairs, representing industrial i n t e r e s t s , and g o v e r n m e n t waste disposal experts.

Other c o u n t r i e s have expressed an i n t e r e s t , a n d industries have lobbied heavily, for using s u c h c o n c e n t r a t i o n limits in hazardous waste regulation, b u t outside t h e Netherlands t h e y have been r e j e c t e d as impractical, for several reasons. First, i t is very difficult a n d t i m e consuming t o s a m p l e a n d t e s t wastes t o d e t e r m i n e t h e c o n c e n t r a t i o n s of particular substances. Second, t h e spirit of t h e regulations could easily be circumvented simply by diluting or mixing wastes so t h a t hazardous c o n s t i t u e n t c o n c e n t r a t i o n s a r e below t h e cut-off point.

The notion of classifying hazardous wastes on t h e basis of degree of hazard is so compelling, t h a t p r e s s u r e for t h e adoption of s u c h s y s t e m s will undoubt- ably increase. But regulators faced with developing s u c h systems, a n d limited by s c a r c e resources,will have to carefully consider w h e t h e r complicated, precise classifications a r e possible given t h e f u n d a m e n t a l u n c e r t a i n t y of t h e scientific information on hazardous wastes. For example, a s Giandomenico Majone h a s pointed out:

"...even in t h e United S t a t e s with i t s e n o r m o u s scientific, technical, a n d financial resources--no m o r e t h a n 500 chemicals c a n be t e s t e d e a c h y e a r because of t h e limited availability of t r a i n e d toxicologists, laboratory facilities, a n d t e s t animals. This is barely sufficient t o keep u p with t h e flow of new chemicals, l e t alone t o investigate t h e existing s t o c k of well over 50,000 chemicals in c o m m e r c i a l use. International cooperation i n toxicological testing would have obvious benefits; b u t serious (if ill-understood) differences i n methodology, risk philoso- phies, a n d regulatory approaches make cooperation difficult, a n d even r e d u c e t h e value of t h e limited a m o u n t of information t h a t is available."[53]

I t should be mentioned t h a t t h e Organisation for Economic Cooperation and Development (OECD) h a s been relatively successful in developing i n t e r n a - tional protocols for toxic goods. Wastes, however, a r e m u c h m o r e dimcult t o t e s t because of t h e i r heterogeneous nature. Hazardous goods a r e often t e s t e d

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by procedures t o ensure quality control, but t h e r e is little incentive for such testing of wastes.

Political Objectives

Because of t h e i n h e r e n t scientific uncertainties involved in hazardous waste classification, it is not surprising t h a t the process used a n d t h e outcomes achieved reflected t h e political a n d social goals of the regulators. In t h e United States, t h e original goals of t h e RCRA program were t o control all hazardous wastes generated in t h e U.S. This comprehensive system was clearly mandated by Congress because i t felt t h a t a uniform system was necessary in order to ensure t h a t some s t a t e s would not become "dumping grounds" for others.[54]

Later, as t h e EPA began to develop its regulations, t h e legal and economic constraints of a total control system began to be recognized and compromises in t h e philosophy of total control were introduced, such as t h e procedure for de- listing wastes and t h e exclusion of small quantity generators from t h e regulations.

In t h e FRG, t h e purpose of federal regulation was not t o develop national all-inclusive standards. As with o t h e r types of regulation, t h e responsibility for implementing hazardous waste control was handed to t h e states. Federal regulations identified only those wastes t h a t needed t o be controlled in every s t a t e but t h e s t a t e s were allowed t o develop and greatly expand t h e i r own classification systems. The decision not t o adopt a constituent list approach in t h e federal regulations was also based in p a r t on t h e fact t h a t s t a t e govern- m e n t s had already developed t h e i r systems from t h e LAGA catalog. This defer- e n c e to s t a t e authority a n d t h e traditional role of t h e UBA as a technical advi- sor, not as regulator and supervisor ( t h e role of t h e EPA i n t h e U.S.), is reflected in t h e hazardous waste control system t h a t was developed. The disad- vantages of t h e system. namely t h a t decentralized control can lead to'wide

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disparities between t h e different s t a t e regulations and make cross-border tran- sport m o r e difficult, has now led to pressure for a more centralized classiflcation system and standards.

Finally, in Austria, t h e implementation of t h e system was thought to be impossible without t h e consent and cooperation of industry. The traditional spirit of social partnership, holds t h a t all social and economic problems can be dealt with through negotiation and cooperation between government, industry, and labor unions. [55] This belief l e d to a process t h a t from t h e beginning involved both industry and government in developing a compromise list of wastes, with t h e explicit recognition t h a t t h e definition hazard was politically constructed (whether wastes were t o be included was voted on).

Scientfic Justification

In addition t o t h e different political goals t h a t influenced t h e process of hazard classification in the countries studied, t h e r e were differences in t h e amount a n d kind of scientific evidence presented t o support t h e inclusion of certain wastes on the lists. In t h e U.S. each individual waste was supported by a background document giving detailed justification for t h e listing of a particular waste. Such detail is supplied in part a s a precaution against f u t u r e legal challenges. As Ronald Brickman e t a1 have pointed out in t h e i r comparison of carci- nogen regulations in four countries. the courts in t h e U.S. play a m u c h broader role in reviewing administrative action t h a n in Europe. For example, they point o u t t h a t public i n t e r e s t groups and industry enjoy a m u c h more liberal access to t h e c o u r t s i n t h e U.S. than in t h e FRG or Austria, where rules for who can have access to c o u r t s a r e much more restrictive. In addition, U.S. law offers comparatively clearer definitions of agency responsibilities, and statutory dead- lines which have allowed environmental groups a n d industry over the last 15 years t o challenge (or compel) agency actions. Finally. U.S. c o u r t s have gone