Stranger Things in the RCRA Hazardous Waste Regulations
Principal Aaron Goldberg (Austin and Washington, DC) authored an article, “Stranger Things in the RCRA Hazardous Waste Regulations,” for the Spring 2026 edition of the American Bar Association's Natural Resources & Environment publication.
Federal judges have variously described the hazardous waste regulatory program under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901, et seq., as Cloud Cuckoo Land, Alice in Wonderland, a topsy-turvy universe, and a mind-numbing journey. See, e.g., American Petroleum Institute v. EPA, 862 F.3d 50, 65 (D.C. Cir. 2017), decision modified on reh’g, 883 F.3d 918 (D.C. Cir. 2018) (“topsy-turvy universe”). One judge went so far as to declare that “[t]he people who wrote [the rules] ought to go to jail.” Judge Critical of Both Parties in Marine Shale Case, Pesticide & Toxic Chemical News, Sept. 7, 1994, at 20.
These judges are not alone in this assessment. Indeed, the rules explicitly anticipate that they will sometimes create “substantial confusion” in the regulated community. 40 C.F.R. § 270.10(e)(2). They provide a formal mechanism for the EPA to rectify at least some of those situations, which the agency has employed on several occasions. See, e.g., 56 Fed. Reg. 7134 (Feb. 21, 1991) (extending deadlines because of substantial confusion over the status of halogen acid furnaces and carbon regeneration units).
While there is stiff competition for the title of Biggest Head Scratcher in the RCRA rules, this article reviews some of the top contenders. In each case, RCRA’s implementation could be significantly improved through regulatory reform.
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Published in Natural Resources & Environment Volume 40, Number 4, Spring 2026. © 2026 by the American Bar Association or the copyright holder. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
