I. The Regulatory Framework

The Resource Conservation and Recovery Act of 1976, Public Law 94–580, codified as amended at 42 U.S.C. § 6901 et seq., is the principal federal statute governing the management of solid and hazardous waste in the United States.¹ Subtitle C of the Act, codified at 42 U.S.C. §§ 6921–6939g, establishes what the Environmental Protection Agency calls a “cradle-to-grave” system: hazardous waste is tracked from the point of generation, through transportation, to its ultimate treatment, storage, or disposal.² The system has three kinds of participants. Generators generate. Treatment, storage, and disposal facilities treat, store, and dispose. Transporters transport. Every link in the chain is regulated. The middle link is the subject of this investigation.

Section 3003 of the Act, 42 U.S.C. § 6923, directs the Administrator to promulgate standards applicable to transporters of hazardous waste, including requirements respecting recordkeeping, labeling, and the manifest system.³ The resulting regulations appear at 40 CFR Part 263. They were developed jointly by the EPA and the Department of Transportation, because hazardous waste transporters move regulated wastes on public roads, highways, rails, and waterways, and the two agencies’ authorities overlap on the asphalt.⁴

The regulatory definition is functional, not credentialed. The EPA defines a hazardous waste transporter as any person engaged in the off-site transportation of hazardous waste within the United States.⁵ Off-site transportation includes shipments from a generator’s facility or property to another facility. The regulations expressly provide that transporter requirements apply to shipments of hazardous waste between noncontiguous properties that require travel on public roads.⁶ The trigger is movement between properties via public roads. It is not a license plate. It is not a commercial driver’s license. It is the movement.

II. The Identification Number

The first substantive requirement of the transporter regulations is stated without qualification. Section 263.11(a) of Title 40 of the Code of Federal Regulations provides:

“A transporter must not transport hazardous wastes without having received an EPA identification number from the Administrator.”⁷

A transporter who has not received an EPA identification number may obtain one by applying to the Administrator using EPA Form 8700-12. Upon receiving the request, the Administrator will assign an EPA identification number to the transporter.⁸ The EPA keeps track of hazardous waste transporters by requiring each transportation company to obtain an EPA ID number, and a transporter is forbidden from transporting hazardous waste without one.⁹

There is a detail in the EPA’s implementation guidance that deserves attention. Unlike generator EPA ID numbers, which are site-specific, transporter ID numbers are assigned to the transportation company as a whole. Each individual truck uses the number issued to the company’s headquarters location and does not receive its own unique number.¹⁰ The system assumes, in other words, that the transporter has a headquarters. It assumes a place of business. It assumes a filing cabinet, or at minimum a Form 8700-12 with a mailing address on it.

These assumptions will matter.

III. The Manifest

The identification number is only the beginning. The transporter regulations impose a continuous documentary discipline on every shipment. Before transporting the hazardous waste, the transporter must sign and date the manifest acknowledging acceptance of the hazardous waste from the generator, and must return a signed copy to the generator before leaving the generator’s property.¹¹ The transporter must ensure that the manifest accompanies the hazardous waste during transport.¹² The transporter must deliver the waste to the designated facility named on the manifest, or to the next transporter, and obtain the dated signature of the receiving party.¹³ The transporter must retain the signed manifests and related records for three years.¹⁴

In addition, the transporter must obey all applicable Department of Transportation hazardous materials regulations, documented at 49 CFR Parts 171–180, covering labeling, marking, placarding, the use of proper containers, and the reporting of discharges.¹⁵ A shipment of hazardous waste traveling on public roads without the required placards is in violation the moment it rolls.

The manifest is the linchpin of the cradle-to-grave system. It is a multi-copy shipping document that follows the waste from generator to transporter to disposal facility, with each party signing for custody. The system’s integrity depends on every transporter in the chain being identified, documented, and reachable. A gap in the chain is not a paperwork oversight. It is a break in the cradle-to-grave continuity that Congress designed the statute to prevent.

IV. The Animal

The common raccoon, Procyon lotor, is a medium-sized nocturnal mammal native to North America, found in every one of the 48 contiguous states.¹⁶ Wildlife agencies commonly report population densities of 9 to 45 individuals per square mile, a range the U.S. Fish and Wildlife Service accepts as the basis for active raccoon management programs.¹⁷ The raccoon is distinguished by its dexterity: it has five toes on its front paws that act much like human hands, allowing it to grasp, twist, pull, and carry.¹⁸ Its behavioral repertoire includes the nightly raiding of trash bins, refuse containers, and commercial dumpsters, an activity so characteristic that the animal has earned the vernacular name “trash panda.”¹⁹

The mechanics of the behavior are well documented by anyone who has ever set out a trash bin. The raccoon approaches the container, defeats the lid using its forepaws, extracts items of interest, and carries them away. It does not consume everything on site. It transports. Containers are dragged across driveways, carried across streets, and deposited on other properties, in storm drains, in culverts, and in waterways. The activity peaks between dusk and dawn, which is to say it occurs entirely outside the operating hours of every EPA regional office.

The raccoon is, by every functional measure the regulations establish, engaged in the off-site transportation of waste between noncontiguous properties requiring travel on public roads. It crosses the street. The street is public. The properties are noncontiguous. The waste is off-site the moment it leaves the bin.

V. The Cargo

The question is what the raccoon is carrying. The contents of residential trash bins and commercial dumpsters routinely include materials that the EPA lists as hazardous waste. A partial inventory, cross-referenced to the regulatory listings:

Oil-based paints and paint thinners contain spent solvents. The F003 and F005 listings at 40 CFR § 261.31 cover spent solvent mixtures including xylene, toluene, and methyl ethyl ketone, the standard carriers in oil-based coatings.²⁰ A half-empty can of oil-based paint dragged from a trash bin is a container of F-listed spent solvents in transit.

Used motor oil is regulated under the used oil management standards at 40 CFR Part 279, which impose handling requirements from generation through recycling precisely because used oil frequently contains lead, cadmium, chromium, and chlorinated solvents.²¹ The plastic jug of used 10W-30 behind the garage, the one the homeowner meant to take to the collection center, is a known raccoon target.

Pesticide containers carry P-listed and U-listed commercial chemical products. Mothballs, a common household item, are composed of naphthalene, listed as U165 at 40 CFR § 261.33.²² Discarded rat poison, ant killer, and weed killer containers routinely enter the same bins the raccoons work.

Batteries and fluorescent lamps complete the inventory. Spent lead-acid batteries are regulated as universal waste at 40 CFR Part 273.²³ Fluorescent lamps contain mercury, a D009 characteristic waste.²⁴ The raccoon does not distinguish between a D-listed waste and a sandwich. It carries both with equal dedication.

None of this is speculative. Municipal solid waste studies have documented household hazardous waste in the residential waste stream for decades. The raccoon’s cargo is drawn from the same stream, one forepaw at a time.

VI. The Exclusion

At this point the careful reader will raise the household waste exclusion. It exists, and this investigation will not pretend otherwise. Section 261.4(b)(1) of Title 40 provides that household waste, including household waste that has been collected, transported, stored, treated, disposed, recovered, or reused, is not a hazardous waste for purposes of the RCRA regulations.²⁵ The exclusion is real. It is broad. It covers the paint can in the bin.

It does not, however, do what its proponents need it to do. Three limitations apply.

First, the exclusion excludes the waste. It does not exclude the transporter. Nothing in § 261.4(b)(1) issues an EPA identification number to anyone. Nothing in it signs a manifest. The exclusion is a definitional provision about waste classification, not a transporter licensing program, and it has never been mistaken for one by anyone except, presumably, the raccoons.

Second, the exclusion covers household waste moving through the household waste collection system: collected, transported, stored, treated, disposed, recovered, reused. A raccoon dragging a solvent can out of a bin at 2 a.m. and abandoning it in a storm drain is not the household waste collection system. The exclusion’s list of covered activities describes municipal management. It does not describe nocturnal freelance redistribution into waters of the United States.

Third, and decisively, raccoons do not restrict themselves to household bins. They work commercial dumpsters with equal enthusiasm: the auto repair shop’s used oil jugs, the dry cleaner’s perchloroethylene containers, the print shop’s solvent rags, the small manufacturer’s off-spec drums. None of that was ever household waste. The exclusion never attached. The waste was hazardous when it entered the dumpster, it was hazardous when the raccoon removed it, and it was hazardous when the raccoon carried it across the parking lot, which is a public road for purposes of the transporter regulations the moment the wheels – or paws – cross it.

The exclusion, in short, covers the waste in the bin. It does not cover the animal carrying it away.

VII. The Route

The EPA’s own guidance draws the regulatory line with unusual clarity: transporter requirements apply to shipments of hazardous waste between noncontiguous properties that require travel on public roads, and do not apply to on-site transportation within a facility’s property or boundary.²⁶ The raccoon’s nightly route falls on the regulated side of this line as a matter of routine.

Consider a representative shipment. At approximately 11:40 p.m., a raccoon removes a one-gallon can of oil-based paint, approximately one-third full, from a residential trash bin at the curb. The generator’s property ends at the curb. The raccoon carries the can across the street – a public road – to the opposite sidewalk, which is a different property. It continues to a storm drain inlet, where it abandons the can. The can tips. The contents enter the municipal separate storm sewer system, which discharges to waters of the United States without treatment.

Every element of the regulatory trigger is present. The waste moved off-site. The properties are noncontiguous. Travel on a public road was required and occurred. The transporter held no EPA identification number. No manifest was signed. No copy was returned to the generator before the transporter left the generator’s property, because the generator was asleep and the transporter does not carry forms.

The destination, it should be noted, was not a designated facility. Section 263.21 requires delivery to the facility designated on the manifest. There was no manifest, and the storm drain is not a permitted treatment, storage, and disposal facility. It is, if anything, the opposite of one.

VIII. The Scale

The regulated universe, for comparison, is thoroughly documented. EPA’s RCRAInfo system, the national database of hazardous waste activity, reports 168,743 manifested hazardous waste shipments comprising 1,863,790 tons of hazardous waste shipped within the regulated system.²⁷ Every one of those shipments traveled with an EPA ID number, a signed manifest, and a designated destination. The system works, for the shipments it sees.

The unregulated universe is not documented, because no one has ever asked a raccoon to file. But the parameters can be bounded. Raccoons occupy every one of the 48 contiguous states at densities of 9 to 45 animals per square mile. They forage nightly. A material fraction of foraging involves the removal and relocation of containers from bins and dumpsters. In suburban and urban areas, where bin density is highest and raccoon density follows the food, the nightly volume of unmanifested container movements across a single metropolitan area plausibly exceeds the manifested hazardous waste shipments of several regulated carriers combined.

The regulated carriers file their manifests. The raccoons file nothing. The RCRAInfo database contains 168,743 shipments and zero raccoons. The actual number of nightly unmanifested waste movements by Procyon lotor in the United States is unknown, unreported, and – given the density figures – larger than anyone in the regulated community would find comfortable.

IX. The Paperwork

Return to the documentary requirements, because they repay attention. The transporter must sign and date the manifest acknowledging acceptance of the hazardous waste from the generator, and return a signed copy to the generator before leaving the generator’s property. The transporter must ensure the manifest accompanies the waste. The transporter must retain records for three years.

The raccoon satisfies none of these requirements, and the reasons are structural rather than attitudinal. The raccoon has no EPA identification number because it has never filed EPA Form 8700-12, and it has never filed EPA Form 8700-12 because the form requires a mailing address, a site location, and a certification signature under penalty of law. The raccoon has no mailing address. The raccoon’s site location is, variously, a storm drain, a hollow tree, and the space under a porch. The raccoon cannot certify anything under penalty of law because it cannot write, and the manifest system – designed around the assumption that the transporter is a transportation company with a headquarters – has no procedure for a transporter whose entire operation consists of forepaws.

Nor does the raccoon placard its shipments. The DOT hazardous materials regulations require placards on vehicles transporting regulated quantities of hazardous materials. The raccoon is not a vehicle. It carries no placards. A gallon of oil-based paint moving across a public road at midnight in the jaws of a mammal is, from the standpoint of 49 CFR Part 172, an unmarked, unplacarded, undocumented shipment of hazardous waste in active transit.

The record retention requirement presents its own arithmetic. Three years of manifests, at even one shipment per night, is 1,095 documents per raccoon. At suburban densities, a single neighborhood’s raccoons owe the administrative record tens of thousands of pages. The cumulative national filing deficit – every manifest never signed, every record never retained, every Form 8700-12 never filed – is the largest paperwork delinquency in the history of the RCRA program.

X. The Penalties

Section 3008(g) of RCRA, 42 U.S.C. § 6928(g), establishes civil penalties for violations of the Subtitle C hazardous waste program. As adjusted for inflation under the Federal Civil Penalties Inflation Adjustment Act, the maximum penalty stands at $90,702 per day per violation.²⁸ Transporting hazardous waste without an EPA identification number is a violation. Transporting without a manifest is a violation. Each day of unpermitted transportation is a separate violation. Each shipment is a separate violation.

The arithmetic is left as an exercise, but its outlines are clear. A single raccoon moving a single can of oil-based paint without an EPA ID number accrues $90,702 in potential penalty exposure per day. A metropolitan raccoon population numbering in the tens of thousands, each conducting nightly unmanifested shipments across a foraging season of roughly 365 nights – raccoons do not observe federal holidays – generates a penalty exposure that exceeds the enforcement budget of the EPA’s Office of Enforcement and Compliance Assurance by several orders of magnitude. The agency could devote its entire civil enforcement apparatus to raccoons for a century and not clear the docket for a single county.

It has not tried. The number of RCRA enforcement actions ever filed against a raccoon is zero. The number of EPA identification numbers ever issued to a raccoon is zero. The number of manifests ever signed by a raccoon is zero. The enforcement gap is total, and it has been total since the statute was enacted in 1976.

XI. The Precedent

The federal government’s historical relationship with raccoons is, if anything, one of accommodation. In 1926, President Calvin Coolidge received a live raccoon, intended for the White House Thanksgiving dinner, and instead adopted her as a pet. Rebecca the raccoon lived in the White House for two years, walked on a leash, and attended the annual Easter egg roll.²⁹ She was, by all accounts, the only raccoon ever to hold a position – albeit an unofficial one – within the executive branch.

Rebecca predated RCRA by half a century, and no inference about her regulatory status should be drawn. But the episode establishes the pattern: when the federal government encounters a raccoon, it does not reach for the Code of Federal Regulations. It reaches for a leash. The agency that requires every transportation company moving hazardous waste on public roads to obtain an identification number, sign every manifest, and retain every record for three years has never once applied any of these requirements to the most active nocturnal waste transportation network on the continent.

The reason is obvious. Everyone understands that RCRA was not written to regulate raccoons. But “was not written to” and “does not, by its own terms, apply to” are different statements. Section 263.11(a) does not say “a transportation company must not transport hazardous wastes.” It says “a transporter must not transport hazardous wastes without having received an EPA identification number from the Administrator.” The raccoon is a transporter. It transports. It has received no EPA identification number from the Administrator. The regulation says what it says.

XII. Conclusion

The facts are not in dispute. RCRA Subtitle C requires every transporter of hazardous waste to obtain an EPA identification number before transporting, to sign and date the manifest, to ensure the manifest accompanies the waste, to deliver the waste to a designated facility, and to retain records for three years. The common raccoon, Procyon lotor, present in all 48 contiguous states at densities of up to 45 animals per square mile, equipped with five-toed forepaws that function like hands, removes containers of oil-based paint, spent solvents, used motor oil, pesticides, and batteries from trash bins and commercial dumpsters every night and carries them across public roads to other properties, storm drains, and waterways.

No raccoon has ever obtained an EPA identification number. No raccoon has ever filed EPA Form 8700-12. No raccoon has ever signed a manifest, returned a signed copy to a generator, ensured that a manifest accompanied a shipment, delivered waste to a designated facility, placarded a shipment under DOT regulations, or retained a single record for three years. The household waste exclusion covers the waste in the bin; it does not cover the animal carrying it away, and it never covered the commercial dumpsters at all.

The noncompliance is total. It is nightly. It spans the continent. It has continued without interruption since 1976, through every administration, every EPA administrator, and every revision of the manifest form. The largest unpermitted hazardous waste transportation network in America operates in the open, on public roads, between dusk and dawn, staffed entirely by masked mammals with excellent manual dexterity and no headquarters.

The statute says what it says. The regulation requires what it requires. The raccoons transport what they transport. Everything else is enforcement discretion.