Hazardous Waste Recycling under the Resource Conservation and Recovery Act: Problems and Potential Solutions
Needleman, Barry, Environmental Law
When Congress passed the Resource Conservation and Recovery Act (RCRA)(1) in 1976, one of its primary objectives was "assuring that hazardous waste management practices are conducted in a manner which protects human health and the environment."(2) As the laws name implies, Congress also wanted to "conserve valuable material and energy resources by ... encouraging process substitution, materials recovery, properly conducted recycling and reuse, and treatment."(3) Thus, RCRA is supposed to protect public health and the environment from improper hazardous waste management while encouraging recycling.
To accomplish these goals, "hazardous waste" had to be defined. Since hazardous waste is a subset of solid waste, this process has two steps: (1) defining solid waste, and (2) defining which solid wastes are hazardous. Congress provided some direction on this matter when it included a cursory definition of solid waste in the statute.(4) However, the Environmental Protection Agency (EPA) did the majority of the work when it promulgated the various regulatory definitions of solid waste.(5) Determining whether a material is a solid waste can be extremely complicated. By comparison, it is relatively simple to determine if a solid waste is hazardous.(6)
The complexity of the definition of solid waste comes, in part, from the difficulty in distinguishing between secondary materials that are wastes and those that are products. This complex waste/product dichotomy is at the center of the recycling issue because RCRA regulates wastes and waste-related processes, but it generally does not regulate products and product-related processes. Thus, deciding whether a secondary material is a waste or a product can have significant economic and environmental implications.
Despite eighteen years of experience with RCRA, serious problems with its implementation persist. The definition of solid waste, particularly as it relates to hazardous waste recycling, is so complex and confusing that it hampers enforcement and compliance, encourages litigation, and may be responsible for causing more environmental damage than it has prevented.
This article focuses on RCRA's hazardous waste recycling program. Part II discusses the recycling scheme's foundations. Part III provides an explanation of the definition of solid waste, focusing particularly on how it relates to hazardous waste recycling. It also discusses the major cases that have dealt with this issue. Part IV analyzes the specific problems with the recycling program. Part V surveys some potential solutions. Part VI concludes that, although complex, solutions are available and should be implemented with haste.
II. The Foundations Of The Hazardous
Waste Recycling Scheme
RCRA'S roots extend back to the Solid Waste Disposal Act of 1965 (SWDA).(7) SWDA focused primarily on research, though it also "required environmentally sound methods for disposal of household, municipal, commercial and industrial refuse."(8) Congress amended the SWDA in 1970 to provide federal grants for developing new solid waste management technology.(9) Congress continued, however, to view solid waste management as predominantly a local responsibility, and SWDA remained essentially a nonregulatory statute.(10)
During the mid-1970s Congress recognized the obvious: enormous volumes of solid waste were being produced each year in the United States,(11) and much of this waste, and particularly the hazardous waste, posed significant threats to human health and the environment.(12) Moreover, Congress also began to recognize that transferring pollution from one medium to another was not a satisfactory method of handling wastes.(13) In 1970, Congress enacted the Clean Air Act(14) to control air pollution, and, in the Clean Water Act,(15) to address water pollution. However, land-based waste disposal remained largely unregulated in the early 1970s. As a result, it was easier and cheaper to dispose of solid waste in the unregulated medium of land rather than comply with the extensive and burdensome regulations accompanying waste disposal in the air or water. For example, incinerating wastes might cost anywhere from $300 to $1,000 per ton while placing them in a landfill would cost as little as $50 per ton.(16)
In 1976, Congress "eliminate[d] the last remaining loophole in environmental law, that of unregulated land disposal of discarded materials and hazardous wastes,"(17) by amending SWDA to include RCRA.(18) The principal aims of RCRA were to protect public health and the environment from the improper disposal of hazardous wastes,(19) and to prevent future problems caused by poor hazardous waste disposal practices.(20) Unlike the Clean Air Act and the Clean Water Act, which regulated pollutants only at the point of emission or in the ambient medium, RCRA established a scheme for regulating hazardous wastes from "cradle to grave."(21) RCRA sought to accomplish this objective by dividing regulated wastes into two categories: non-hazardous solid wastes covered by subtitle D,(22) and hazardous wastes covered by subtitle C.(23) Subtitle C established: (1) methods for listing and identifying hazardous wastes; (2) a tracking system; (3) standards that generators, transporters, treaters, and disposers of hazardous waste must meet; and (4) a detailed permit system to enforce the program.(24)
One particular aim of Subtitle C was to promote increased recycling of hazardous wastes.(25) Waste recycling makes economic and environmental sense for several reasons. Any waste that can be incorporated into a production process saves the producer the costs of obtaining raw materials. Waste recycling also reduces disposal costs and eases the burden on the environment by reusing materials instead of placing them in the land, air, or water. Congress understood these advantages and placed great emphasis on encouraging recycling in RCRA.(26) In doing so, Congress gave EPA wide latitude to craft the regulations that would cover hazardous waste recycling; latitude that has proven to be "both a blessing and a curse."(27)
In creating RCRA's recycling framework, Congress had to carefully strike a balance between encouraging hazardous waste recycling and interfering with the industrial production process.(28) For EPA, forging the regulations that would implement this scheme proved very difficult and led to many of the problems associated with hazardous waste recycling today.(29) This distinction is critical for one simple reason. Regulated wastes - those wastes outside the production process - fall under the extensive, onerous RCRA program. Unregulated wastes - those wastes that may be part of the production process (which includes many forms of recycling) - generally escape RCRA regulation. The line between regulated "wastes" and unregulated recycled "products" has always been hazy, though drawing the distinction is critical to understanding the recycling regulations. The battle over this point, which defines the scope of RCRA's jurisdictional boundary over hazardous waste recycling, has spawned a number of major cases.(30) It has also provided the momentum for creating the regulations that define solid waste; regulations that have been called "the most complex environmental regulations ever written."(31)
RCRA only provided a bare framework for the hazardous waste recycling program. The engine that drove the program came in 1980 when EPA promulgated the first set of regulations implementing Subtitle C.(32) EPA followed Congress, lead when they wrote the 1980 RCRA regulations; EPA was hesitant to interfere with the production process by regulating too intrusively.(33) This reluctance led to the creation of a lax recycling scheme that left the regulated community to police themselves.(34)
The 1980 regulations defined recycling broadly to include virtually any use or reuse of hazardous waste.(35) If a generator or recycler of waste determined that its management practice was "beneficial" in accordance with the regulations, then the waste was exempt from RCRA's regulatory scheme.(36) Except for imminent hazards,(37) this exemption applied even if the recycling practice caused environmental harm, provided the recycler gained some benefit from the recycling activity.(38) Since many of these "beneficial" recycling activities were exempt from RCRA, the recyclers had no obligation to notify EPA about their operations.(39) Consequently, abuses of the beneficial use exemption were difficult or impossible to detect.(40) Despite the good intentions of Congress and EPA, this recycling scheme produced bad results as the following examples illustrate.
Under the 1980 regulations, burning hazardous waste in furnaces or boilers for "energy or materials recovery" was permitted, ostensibly because this practice met the beneficial use exemption.(41) Eventually, EPA curtailed this practice by declaring that this use was not beneficial,(42) though not before it led to serious air pollution problems and the creation of several Superfund sites.(43) Unsafe storage of hazardous wastes prior to recycling also created serious environmental problems. Improper storage of byproduct slag from smelting operations, prior to resmelting, led to run-off polluted with heavy metals that leached into groundwater drinking supplies.(44)
The scheme seemed to be working at cross-purposes. The beneficial use exemption excluded an enormous amount of waste from regulation while the 1980 regulatory definition appeared so broad that it potentially extended RCRA jurisdiction to all wastes, regardless of how they were recycled.(45) These internal inconsistencies and RCRA's statutory and regulatory deficiencies prompted Congress to revisit the issue in 1984 and make significant changes.(46)
The 1984 amendments to RCRA, entitled the Hazardous and Solid Waste Amendments (HSWA),(47) addressed the recycling issue in several ways. HSWA regulated the burning of fuel for energy recovery,(48) banned certain uses of hazardous waste (such as for dust suppression),(49) controlled small generator recycling,(50) and regulated the storage of hazardous waste more stringently.(51) These amendments "fundamentally altered the RCRA program and EPA's management of it" by providing extremely detailed and comprehensive legislative coverage.(52) This statutory detail reflected Congress' lack of confidence that EPA would develop an effective regulatory program.(53)
Following HSWA, EPA issued a new regulatory definition of solid waste in an attempt to remedy earlier deficiencies.(54) The new definition focused on drawing a clear line between reuse practices that are more related to waste management and disposal, and those processes that are more closely related to production.(55) Instead of clearly defining RCRA's regulatory boundary, however, the 1985 solid waste definition only added to this "painful,"(56) process and perpetuated a highly complex, confusing, and "mind numbing"(57) problem: determining which wastes the definition of solid waste actually covers.
Despite the problems with recycling, the recent legislative focus on municipal solid waste and source reduction(58) suggests that hazardous waste recycling will not receive the congressional attention it deserves. Instead, Congress has begun focusing its attention on the municipal solid waste disposal"crisis."(59) While these problems merit the attention, it would be unfortunate if this new focus came at the expense of increased effort directed toward the hazardous waste recycling problem. Apparently, Congress seems content to let the complex and frequently unworkable definition of solid waste stand as it is, at least for now. Perhaps Congress recognizes its own limitations in this complex area, and instead of trying to provide a legislative solution, it is content to rely on EPA to find a regulatory solution.
In the face of this congressional reluctance, general criticism of the present RCRA system continues. Critics point out that large volumes of hazardous waste are still unregulated and the existing system is sluggish in reacting to problems, thus allowing old, poor-quality facilities to remain open while newer, high-quality facilities remain bogged down in the permitting process.(60) EPA has also recognized that the solid waste definition is difficult to implement and understand, and this complexity hampers compliance and enforcement.(61)
The present recycling scheme continues to produce poor and often inequitable results. Many legitimate hazardous waste facilities ties become Superfund sites.(62) Many other facilities escape regulation by claiming some form of recycling exemption, even though these facilities often operate in a manner nearly identical to heavily regulated disposal facilities.(63)
The original purpose of excluding recycling facilities from RCRA regulations was to encourage recycling by providing a favorable economic climate.(64) While this original goal made sense, experience has demonstrated that in practice it does not work. Frequently, the recycling activities that Congress sought to encourage end up causing significant environmental damage,(65) and some even become Superfund sites,(66) more than negating any recycling benefits. Without regulations, recycling cannot be controlled. EPA recognized this problem as early as 1985, yet the problem remains: [u]nfortunately, experience has shown that merely because a waste has sufficient value to warrant recycling does not mean that it will be managed safely."(67)
EPA has begun reexamining the definition of solid waste and focusing in particular on hazardous waste recycling.(68) In October 1992, EPA formed the Definition of Solid Waste Task Force. In April 1993, the task force organized a two-day meeting of EPA officials, industry representatives, and environmentalists to summarize the problems and solicit input on possible solutions.(69) The formation of this task force, and this meeting, may signal the beginning of a genuine and comprehensive regulatory effort to address these critical issues.
Despite all the problems associated with recycling, it is important to remember that not all recycling operations are malevolent. Many facilities are wen operated and provide environmental and economic benefits. However, when dealing with hazardous materials, only a few bad actors are necessary to create serious environmental and health risks, Bad recycling is worse than no recycling at all and should receive the most attention.(70) As long as these operations continue, human health and the environment will be threatened. Moreover, the taxpayer will continue to bear some of the costs when these "legitimate" recycling facilities become Superfund sites.
It is therefore in society's collective interest, from an environmental, health, and economic standpoint, to control hazardous waste recycling more stringently. Any efforts at reform in this area must begin with the complex statutory and regulatory definitions of solid waste, since they govern how hazardous waste is recycled.
III. THE DEFINITION OF SOLID WASTE
RCRA's solid waste definition, with its various exclusions, essentially attempts to draw a line between materials that are part of the ongoing production process and materials that are discarded as waste. This dichotomy determines the difference between being regulated and being free from regulation., which side of the line a material falls on can have substantial financial and environmental implications.
In the broadest context, all "solid wastes" are subject to RCRA jurisdiction. Conversely, if a substance does not meet the definition of solid waste, or if it is specifically excluded, RCRA does not cover it. Hazardous wastes are a subset of solid waste(71) and are covered by RCRA subtitle C.(72) A waste is considered hazardous if EPA lists it as hazardous or if it possesses certain characteristics.(73)
Congress defined solid waste along with several specific statutory exclusions in 1976.(74) EPA interpreted the statutory definition by promulgating its first solid waste regulations in 1980(75) and refining the regulations in 1985.(76) However, the original statutory definition and EPA's subsequent interpretations did a poor job of defining the extent of RCRA's regulatory boundaries. As a result, the definitions have generated several significant cases and have led to uneven and often counter productive results.
B. The Statutory Definition of Solid Waste
RCRA defines solid waste as "any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semi-solid or contained gaseous material, resulting from industrial, commercial, mining, and agricultural operations, and from community activities."(77) The definition makes clear that "solid waste" is not necessarily solid., it may also be "liquid, semi-solid, or contained gaseous material."(78) It also lists those materials that are solid wastes and concludes with the phrase "and other discarded material."(79) The definition excludes certain materials.(80) Thus, RCRA divides the universe of solid wastes into two parts: (1) listed materials plus other discarded materials, and (2) excluded materials. Since the universe of potentially included materials is so vast, the logical departure point for analyzing the solid waste definition is to begin with the excluded materials.
The statutory definition of solid waste contains four exclusions for: (1) "solid or dissolved material in domestic sewage" (the domestic sewage exclusion); (2) "solid or dissolved materials in irrigation return flows;" (3) "industrial discharges which are point sources subject to permits under section 1342 of title 33" (discharges under Clean Water Act (CWA) NPDES permits); and (4) "source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954."(81) Most of these exclusions exist because other environmental laws regulate the excluded materials. For example, the domestic sewage exclusion represents a policy choice by Congress to regulate hazardous wastes that are mixed with domestic sewage and destined for a publicly owned treatment works under the Clean Water Act rather than RCRA. These statutory exclusions have limited application to hazardous waste recycling. By contrast, the regulatory exclusions and exemptions have a significant impact on recycling and merit considerable attention.
C. Regulatory Exclusions and Exemptions
In 1980, EPA promulgated its first set of regulations interpreting the statutory definition of solid waste.(82) In 1983, EPA published proposed modifications to the 1980 regulations, paying particular attention to hazardous waste recycling: "Not only can materials destined for recycling or being recycled be solid and hazardous wastes, but the Agency clearly has the authority to regulate recycling activities as hazardous waste management."(83) While EPA sought to assert its jurisdiction over certain aspects of the recycling process,(84) it was still hesitant to regulate on-going production processes.(85) Consequently, when EPA published its current regulatory definition of solid waste in 1985, it incorporated a wide variety of exclusions and exemptions.(86)
The regulatory exclusions take three forms: (1) a simple exclusion for certain primary materials,(87) (2) an exclusion for certain processes that produce secondary materials that are not considered solid waste (the process-specific exclusions),(88) and (3) three discretionary variances from the solid waste definition (the facility specific exclusions).(89) The first regulatory exclusion, for certain primary materials, is divided into two categories: materials that are not solid waste(90) and materials that are solid wastes but not hazardous.(91) This regulatory exclusion supplements the statutory exclusions and has little impact on recycling. However, it can be problematic because it may exclude certain wastes that should be regulated.(92) By contrast, the other two types of exclusions, and the process-specific exclusions in particular, play significant roles in hazardous waste recycling.
1. The Process-Specific Exclusions
EPA's 1985 regulations recognized that certain industrial processes generate materials that may be reinjected productively into the manufacturing process.(93) Rather than regulate the use of these materials as waste management, EPA recognized three limited process-specific exclusions for: (1) use or reuse of the material in an industrial production process as an ingredient or feedstock,(94) (2) use or reuse of the material as an effective substitute for a commercial product,(95) and (3) returning the material to the original process from which it was generated.(96) To satisfy the first and third exclusions, the material must be used directly and not reclaimed first.(97) Reclamation involves any regeneration or processing to recover materials from the waste.(98)
These exclusions illustrate EPA's policy choice not to regulate certain materials as hazardous waste because it was hesitant to regulate the production process too closely. EPA chose to exclude these processes because "they are like ordinary production operations or ordinary usage of commercial products," not waste management.(99) While these exclusions do not apply in afl circumstances,(100) they serve several useful purposes. They encourage the reuse of what otherwise might be waste, reduce the cost of production by using materials already available, and permit industry to forgo the costs associated with hazardous waste disposal. However, whether these benefits outweigh the costs remains questionable.
The first process-specific exclusion applies to secondary materials used or reused as an ingredient or feedstock to make other products.(101) If a material is first reclaimed and then reused, this exclusion does not apply.(102) The 1985 rule provided two examples of this exclusion: using fly ash as an ingredient in cement manufacturing, and using the distillation bottoms produced when carbon tetrachloride is manufactured as an ingredient in the production of tetrachloroethylene.(103)
The next process-specific exclusion applies to secondary materials used directly in place of raw materials within the production process.(104) An example of this exclusion would be using by-product hydrochloric acid from chemical manufacturing to pickle steel.(105) This exclusion is easily abused, and EPA consequently has defined certain instances in which it does not apply. These instances include situations where the secondary material is not effective for the claimed use, it is not as effective as the material it is replacing, more of the secondary material is used than is necessary, or the secondary material is managed inconsistently with its status as a raw material or commercial product component.(106)
The final process-specific exclusion applies to materials that are returned to the original production process from which they were generated, without first being reclaimed (closed loop recycling),(107) The returned material must be a substitute for a raw material feedstock.(108) Some incidental processing is permitted under this exclusion, however, and distinguishing the permitted incidental processing from unpermitted reclamation may be very difficult.(109) For example, if dust collected from emissions control equipment at a zinc smelting furnace were returned to the zinc smelting process, that would qualify as acceptable closed-loop recycling. However, if the same dust were placed in a cadmium recovery operation at the same facility, this process would be considered reclamation, not closed-loop recycling, because the original process was designed for zinc smelting, not cadmium processing.(110)
2. The Facility-Specific Exclusions
The regulations also permit the EPA regional administrator, or the authorized state, to grant case-by-case variances from classification of materials as solid waste.(111) A facility may be eligible for a variance of three types of materials:
(1) Materials accumulated speculatively, without a certain amount being recycled, where the applicant shows that a sufficient amount of the material will be recycled in the following year.(112)
(2) Materials reclaimed and then reused in the original production process if the reclamation is an essential part of the ongoing production process.(113)
(3) materials requiring several levels of reclamation before reuse, "if, after initial reclamation, the resulting material is commodity-like."(114)
Several recycling practices are not addressed under these limited statutory and regulatory exclusions. Consequently, further analysis of whether a material satisfies the regulatory solid waste definition is necessary.
D. Regulatory Definition of Solid Waste
The statutory definition of solid waste includes certain specific items plus any other "discarded material."(115) The regulations then define a "discarded material" as one that is abandoned, inherently waste-like, or recycled in a certain manner.(116) To understand how recycling is affected by the application of the definition of "discarded material," it is necessary to examine these three categories. However, before beginning this analysis, two important points are worth noting. First, certain applications of the definition of "discarded material" negate the process-specific regulatory exclusions.(117) For example, some materials will be solid waste, and thus subject to regulation, even if they normally might qualify for an exclusion, such as materials recycled in a closed loop.(118) Other examples include wastes used in a manner constituting disposal(119) and materials that are accumulated speculatively.(120) Second, a material may be covered by the definition of solid waste yet not be hazardous. However, for the purposes of the following section, the application of the definition of solid waste applies only to hazardous materials.(121) "This creates the nicely circular situation that a waste must be a solid waste to be a hazardous waste and hazardous to be a solid waste. This is the first step of the journey into the wonders of EPA's definition of solid waste."(122)
1. Abandoned Material
Abandoned material is the simplest application of the solid waste definition. a material is abandoned if it is thrown away.(123) Abandonment may include: general disposal, burning or incineration; or accumulation, storage, or treatment before or in place of abandonment.(124) If, however, a material is recycled,(125) EPA does not consider it abandoned.(126)
2. Inherently Waste-like Materials
EPA considers certain wastes, such as those containing dioxin, to be so dangerous that it has elected to regulate them regardless of how they are managed. The regulations refer to these wastes as inherently waste-like materials.(127) The EPA may add certain wastes to this list, such as: materials ordinarily incinerated, burned or disposed; materials that contain high amounts of toxic constituents not used during the production process; or materials posing substantial risks to human health or the environment if recycled.(128)
3. Certain Recycling Activities
The RCRA regulatory scheme, under the process-specific exclusions, does not generally apply to certain forms of hazardous waste recycling.(129) RCRA does regulate, however, certain types of solid waste recycling, though EPA's treatment of recycling processes and recycled materials is complicated:(130) "The amended definition [of solid waste] adopts the approach that for secondary materials being recycled, one must know both what the material is and how it is being recycled before determining whether or not it is a Subtitle C waste."(131) Determining the nature of the material in question, and the process to which it is subjected, requires a knowledge of the five types of secondary materials(32) and the four listed recycling activities involved.(133) By consulting the matrix provided in the regulations,(134) it is possible to determine which class of secondary material, when subjected to a certain recycling practice, is a solid waste under RCRA.
a. Classifying Secondary Materials
The regulations identify five types of secondary materials that are potentially solid waste, depending on how they are recycled.
(1) Spent Materials
A spent material is one that has been used and, as a result of contamination, is no longer usable for the purpose for which it was manufactured without first being treated.(135) The 1985 definition recognized that classification of spent materials requires an examination of their uses. For example, solvents manufactured to clean circuit boards, once used, may no longer be pure enough to use again for this purpose. However, these solvents may still be pure enough to use for metal degreasing, and for that purpose, they are not spent materials.(136)
Sludges are solid, semi-solid, or liquid wastes generated at air pollution, waste water, or water supply treatment facilities.(137) The regulatory matrix divides sludges into two categories: those exhibiting characteristics of hazardous waste and expressly listed hazardous wastes.(138)
(3) Scrap Metal
Scrap metal includes bits and pieces of metal that may be combined by bolting or soldering and "when worn or superfluous can be recycled.(139) More generally, scrap consists of worn out metal products or metal pieces generated from machine operation that can be recycled.(140) Prior to the 1985 regulation, scrap metal was treated as either a spent material or a by-product. But because it was recycled in the same manner regardless of its origin, the EPA chose to define it in its own category.(141) Some metals and metal-bearing substances are excluded from this category because they differ in form from what industry normally considers scrap metal.(142) Examples include smelting and refining residues, metal-bearing liquid wastes, and liquid metal wastes.(143)
(4) Commercial Chemical Products
Certain commercial chemical products become hazardous wastes if they are recycled or used in a manner different from their normal use.(144) For example, pesticides applied to the ground are not a solid hazardous waste because that is their intended use.(145) However, if pesticides are burned for energy recovery or otherwise used for non-pesticide purposes, then they are regulated as a solid waste.(146)
(5) By-products and Co-products
By-products are materials produced incidentally during a production process.(147) They are not fit for use without additional processing.(148) Examples of by-products include still bottoms, reactor clean-out materials, slags, and drosses.(149) Like sludges, the regulations divide by-products into two categories: those merely exhibiting characteristics of hazardous waste and those listed as hazardous waste.(150) Co-products are materials incidentally derived from the production process that can be used by the general public without further processing.(151) Examples of co-products include lead produced during copper smelting and kerosene or asphalt produced during petroleum refining.(152) The distinction between by-products and co-products is important because most co-products are not wastes.(153) This subtle distinction provides fertile ground for abuse and has been criticized by several commentators because "the regulations may create incentives for manufacturers to classify certain materials as |co' rather than |by' products."(154)
b. Classifying Recycling Activities
Understanding the intricacies of the distinctions between secondary materials is only the first step in understanding the recycling scheme. It is also necessary to understand the four categories of recycling activities and how they relate to the five categories of secondary materials. The regulations provide that certain materials are solid wastes, and thus subject to regulation under RCRA subtitle C, if they are recycled in one of four ways: (1) used in a manner constituting disposal, (2) burned for energy recovery, (3) reclaimed, or (4) accumulated speculatively.(155)
(1) Uses Constituting Disposal
Materials are used in a manner constituting disposal, and thus not a solid waste, when they are "applied to or placed on the land in a manner that constitutes disposal,"(156) used to make products placed on the land, or are constituents of products placed on the land.(158) EPA chose to regulate expansively in this area, in part after receiving comments criticizing the mixture rule in their original proposal.(158) In response to critics' arguments that the proposed rule's mixing standard was too imprecise, did not adequately consider environmental consequences, and deviated from the congressional mandate to regulate application of hazardous wastes to the land, EPA modified the final rule to regulate the direct land application of hazardous wastes.(159) Presumably, this regulation will prevent incidents like the spraying of hazardous wastes as dust suppressants. The rule excludes pesticides because pesticide use is not waste recycling, but the intended use of a product.(160) However, the rule also regulates products containing wastes.(161) Therefore, if materials like fertilizers and asphalt contain hazardous waste ingredients and are applied to the land, they can be regulated under Subtitle C.(162)
Finally, the rule extends to some products derived from hazardous wastes.(163) If a product designed for land application contains a characteristic hazardous waste but the product itself does not exhibit any hazardous characteristics, then the product would not be subject to RCRA regulation.(164) However, if the product contains a listed waste, then the final product continues to be hazardous until it is delisted.(165)
(2) Burning Waste
The rules governing the burning of hazardous wastes may be the most complicated subset of the solid waste definition. When hazardous wastes are burned, they could be subject to the full spectrum of regulatory possibilities, from complete regulation under Subtitle C to no regulation at all.(166) The degree of regulation depends on two variables: the purpose for which the waste is burned and the type of device in which the burning occurs. Wastes may be burned for three purposes: destruction, energy recovery, or materials recovery.(167) Wastes may be burned in three devices: incinerators, boilers, and industrial furnaces.(168) It would certainly be easier to include or exclude all burning from the solid waste definition without regard to these variables. However, drawing such simple lines risks intrusion into the industrial production process, or alternatively, exclusion of dangerous materials from regulatory coverage.
EPA had three main reasons for including some but not all secondary materials in the burning regulations under the refined 1985 definition of solid waste.(169) First, EPA was concerned about the risks of environmental contamination associated with burning wastes for energy recovery.(170) Before 1985, the regulations governing incineration were more strict than those governing burning for energy recovery. Yet, EPA believed that the risks from the two types of burning were similar.(171) Second, EPA wanted to address a perceived loophole in the regulations which allowed wastes to be burned in boilers apparently for energy recovery, but where the real purpose was destruction.(172) This "sham recycling" continues to be the focus of much attention.(173) Third, since many hazardous wastes are burn in boilers by people unaware of the waste's hazards, EPA wanted to control this practice more tightly.(174) Thus, the 1985 definition established a scheme to regulate hazardous waste burning. The best way to understand the components of this scheme is to focus on each of the three purposes for burning hazardous wastes: burning for destruction, burning for energy or material recovery, and sham recycling. Within that context, three devices in which wastes may be burned will also be discussed.
The simplest component of this scheme is burning hazardous wastes for destruction. Any facility that burns hazardous waste for the purpose of destruction - whether it is an incinerator, boiler, or industrial furnace - is regulated under Subtitle C.(175) All incinerators burn for the purpose of destruction and any incineration of a secondary material means it is a solid waste under RCRA.(176) If a boiler or industrial furnace bums a secondary material to destroy it, the material is a solid waste under RCRA.(177) However, the equation becomes more complex when boilers and industrial furnaces burn wastes for either energy recovery or materials recovery.(178) In addition, since the regulations governing burning for destruction are more onerous, the purpose for which the waste is burned can have substantial regulatory, environmental and financial ramifications.
Burning for energy recovery involves the burning of secondary materials as a fuel, using the materials to produce a fuel, or if the material is contained in a fuel.(179) The regulations provide that all secondary materials burned for energy recovery are solid wastes,(180) exempting commercial chemical products that are themselves fuels.(181) While the regulations do not specify exactly what burning for energy recovery is, the rule's preamble provides some guidance: any material burned in a boiler is always burned for energy recovery (unless it is being burned for destruction) and material burned in an industrial furnace is burned for energy recovery when any energy is recovered, regardless of the incidental materials recovered.(182)
Industrial furnaces may be used as major components in the manufacturing process solely to recover materials.(183) EPA was sensitive to this use in the original rule and was hesitant to intrude into the normal production process.(184) However, EPA regulates industrial furnaces when they burn materials that are either not normally associated with the furnace, different from those regularly burned, or intended for purposes secondary to the furnace's normal function.(185) EPA also asserted RCRA jurisdiction for industrial furnaces used for energy recovery because this burning is not part of normal industrial operations and does not intrude into the traditional manufacturing process.(186) Finally, EPA regulations covered processes resulting in either material or energy recovery, such as when blast furnaces burn organic wastes to recover energy and carbon.(187) Any facility burning for mixed purposes must comply with the Subtitle C regulations for treatment facilities.(188) EPA chose this broad jurisdictional interpretation because it believed the original and amended versions of RCRA "express a strong mandate to take a broad view of what constitutes hazardous waste when hazardous secondary materials are burned for energy recovery.(189)
The central issue in "sham recycling" is whether an activity is "legitimate recycling, or rather just some form of treatment called |recycling' in an attempt to evade regulation."(190) The different regulatory treatment accorded various types of hazardous waste burning may encourage a person to characterize a particular process in a certain way to escape more burdensome regulatory and financial costs. Determining whether a particular recycling process is "legitimate" or "sham" involves considering a variety of factors, paying particular attention to the intent of the owner or operator.(191) However, trying to interpret intent from circumstantial evidence can be very difficult and rarely leads to clear cut answers. Thus, significant problems may be created and dangerous processes may go unregulated because the lines defining legitimate and sham recycling are not clear.(192) Nevertheless, EPA has developed a list of factors that may help make the determination. Even with these factors, "there may be no clear-cut answers but, taken as a whole, the answers to these questions should help draw the distinction between recycling and sham recycling or treatment."(193)
The questions EPA asks when deciding whether a recycling process is legitimate(194) are:
(1) Is the secondary material similar to an analogous raw material or product?(195) (2) What degree of processing is required to produce a finished product?(196) (3) What is the value of the secondary material?(197) (4) Is there a guaranteed market for the end product?(198) (5) Is the secondary material handled in a manner consistent with the raw material or product it replaces?(199) and (6) Are there any other relevant factors?"(200)
Along with burning for energy recovery, some secondary materials could be used to produce a fuel or could be contained in a fuel.(201) Though the regulations do not define "fuel", they do define "hazardous waste fuel" as "hazardous wastes that are burned for energy recovery in any boiler or industrial furnace that is not regulated under Subpart O of Part 264 or 265."(202) RCRA regulates these hazardous materials, which otherwise could escape regulatory control simply by being mixed or diluted.(203)
Reclamation of a material occurs if it is "processed to recover a usable product or if it is regenerated."(204) Processing extracts usable products from the secondary material, such as in secondary metal smelting.(205) In contrast, regeneration involves processing to remove contaminants so the material is usable for its original purpose.(206) An example is the treatment of spent solvents.
Reclamation does not cover the direct use of secondary materials as commercial substitutes or ingredients in the production process.(207) Secondary materials used in this manner are essentially products, not wastes.(208) EPA has clarified that reclaimed materials that will later be used are still wastes during the reclamation process, not products.(209) Thus, the rule covers secondary materials such as spent solvents and listed sludges.(210)
Speculative accumulation is the accumulation of wastes prior to recycling.(211) To avoid regulation as speculatively accumulated wastes, the material must have a feasible means of recycling, and seventy-five percent of the materials, by volume or weight, must have been recycled in a calendar year.(212) This exception works in conjunction with the facility-specific variance.(213) The accumulator of the material has the burden of proving that the materials meet the above requirements.(214) The provisions convert secondary materials, like sludges and by-products that are not already defined as hazardous wastes, into hazardous wastes if they are accumulated.(215) These provisions also apply to secondary materials that ordinarily are not wastes when recycled.(216) For example, materials used as ingredients or commercial product substitutes, though normally exempt from regulation because of how they are recycled,(217) would be regulated under Subtitle C if they are speculatively accumulated.(218)
The rule also regulates materials accumulated with a legitimate expectation of eventual recycling, but for which there is no known market at the time.(219) Despite objections, EPA chose to regulate these materials because conducting research into recycling possibilities is much different than being able to recycle a waste."(220)
This provision works in unison with the facility-specific variance.(221) Even if a person fails to recycle seventy-five percent of their wastes in a calendar year, they might obtain a variance if they show that a sufficient amount will be recycled in the following year.(222) In finalizing this part of the rule, EPA stressed that the length of time secondary materials accumulate prior to recycling is an important indicator of whether the materials are wastes,(223) reasoning that these materials can cause significant environmental harm.(224)
In summary, to establish whether a material is "discarded," thereby falling within the definition of solid waste, it is necessary to determine whether the material is abandoned, inherently waste-like, or recycled in a manner characteristic of waste. This complex framework is fundamental in deciding which recycling practices are subject to regulation and which are not.
E. Cases Interpreting the Definition of Solid Waste
The courts have interpreted the regulatory and statutory definitions of solid waste in four important cases. Examination of these cases demonstrates several practical applications of the definition of solid waste and illustrates the pitfalls and complexities which characterize the definition. Such an inquiry also exposes the weaknesses of the recycling framework and underscores the need for EPA, or Congress, to revisit RCRA and clarify EPA's jurisdiction with respect to recycling.
1. American Mining Congress v. EPA CAMC (AMC I)
EPA faced its first challenge to the 1985 regulatory definition of solid waste in American Mining Congress v. EPA (AMC I).(225) The petitioners, the American Mining Congress (AMC) and the American Petroleum Institute, claimed that EPA exceeded its regulatory authority in the 1985 rule by asserting RCRA Subtitle C jurisdiction over secondary materials that were not yet discarded but were still part of the ongoing industrial production process.(226)
Petitioners challenged the rule based on its application to their production operations, which involved mineral and petroleum processing, respectively.(227) In AMC's case, the production of primary metals involved continuous, incremental reprocessing of ore to extract the desired minerals.(228) Under the 1985 definition of solid waste, the reprocessed ore, the metals removed from it, and the metal-bearing dusts associated with production, which were recycled, all constituted solid waste.(229) In the American Petroleum Institute's case, petroleum refining involved distilling crude oil into several substances then mixing these substances and processing them further to produce traditional petroleum products like gasoline, fuel oil, and lubricating oil.(230) Under the 1985 rule each of the individual production processes, and secondary materials derived from them, would be subject to regulation under RCRA Subtitle C.(231)
The central issue in this case involved EPA's construction of the statutory phrase "other discarded material."(232) Since this case hinged on an agency's interpretation of a statute it administered, the court relied on the two part Chevron test; (1) the court must determine if the meaning of the statute is clear on its face, and (2) if the meaning is not clear, the court must determine if the agency's interpretation of the statute is reasonable.(233) The court foreshadowed its eventual decision when it observed that EPA's previous interpretations of the definition of solid waste were neither long-standing nor consistent.(234) Consequently, the court gave EPA "considerably less deference" than if the agency's previous interpretations had been consistent.(235) Ultimately, the court never proceeded past Chevron's first hurdle. It concentrated on the plain meaning of the statute's language and found it unambiguous, precluding the need to consider the reasonableness of EPA's interpretation.(236)
The court first focused on the term "discarded," whose dictionary meaning is "disposed of,' |thrown away' or |abandoned.'"(237) Using this definition, the court held that referring to secondary materials destined for immediate reuse as waste "strains, to say the very least, the everyday usage of the term [discarded]." The court also examined the term within the context of the legislation's purpose and again found that Congress' objectives and underlying motives for enacting RCRA argued against reading the term discarded,, in any sense other than its plain meaning.(239) The court also found that other sections of RCRA,(240) and circumstances surrounding the definition of solid waste,(241) "supported this narrow reading of the term |discarded.'"(242) Finally, though the court found "RCRA's statutory language unambiguous and [could] discern no exceptional circumstances warranting resort to its legislative history," the court still gave EPA the benefit of the doubt by examining the legislative history.(243) The court found, however, that the legislative history did not support EPA's reading of the statute.(244) Based on its analysis, the court concluded that "Congress clearly and unambiguously" meant to limit the term "discarded" to materials truly disposed and EPA had exceeded its mandate and authority in trying to regulate in-process secondary materials.(245) Consequently, the court found that RCRA did not authorize EPA to regulate secondary materials such as those at issue in the case.(246)
The dissent in AMC I and commentators quickly pointed out the flaws in the majority's opinion.(247) For example, the majority first laid out the Chevron rule: if a statute is ambiguous the agency's interpretation deserves deference.(248) Then, after a strained analysis to find that the term "discarded" is not ambiguous, the majority apparently contradicted its earlier reasoning by recognizing that the legislative history surrounding secondary materials recycling is "ambiguous at best."(249) Although ambiguous legislative history is not a substitute for an ambiguous statute, it is an important element in assessing the statute's clarity.
In his dissent, Judge Mikva relied on the other provisions in RCRA, the statutory definition of solid waste, and the legislative history to support his argument that the statute is ambiguous.(250) Emphasizing the majority's inconsistent analysis, Judge Mikva said the majority "apparently [forgot] that EPA has only to demonstrate ambiguity to earn its reasonableness review."(251) He also pointed out that, contrary to the majority opinion, the legislative history indicates that recycled materials can be hazardous waste, and the legislative history does not apply only to materials already abandoned.(252) Judge Mikva argued that since the statute is ambiguous, the court should have proceeded to Chevron's second step: whether EPA's interpretation was reasonable.(253)
Commentators have also criticized the court for failing to properly define the issue by not analyzing the basis for EPA's decision.(254) Instead of trying to discern whether Congress intended RCRA to apply to materials that do not ordinarily fit within the meaning of "discard," the court should have focused on the reasonableness of EPA's interpretation.(255) Had the court done so, it could have better analyzed EPA's actions in relation to RCRA's goals and objectives. However, by engaging in this abstract analysis, most of the court's discussion [becomes] irrelevant, because EPA and the court already agreed that secondary materials not part of the ongoing production process are not wastes.(256) Thus, the court missed the real issue that would return to haunt it in subsequent cases: where does the "ongoing production process, begin and end?(257)
This criticism assumes that the court should have jumped to the second step in the Chevron analysis, which in turn means it would have had to find the statute ambiguous on this issue. However, the court's own reasoning in AMC I suggests the statute is ambiguous.(258) In addition, the court had no trouble readily admitting the statute's ambiguity on this exact point, only four years later.(259) Instead, the court employed an excessively rigid, overly formalistic approach to analyzing the statute and thus produced specious support for its conclusion that the meaning of "discarded" was clear and unambiguous. Had the court recognized that the term "discarded" was not clear, there still would have been room to uphold EPA's construction of the term. Since the holding and EPA's subsequent interpretation of it were so narrow anyway, the same court would not have had to strain in subsequent cases to repair the mistakes it made in AMC I. In the end, the court's analysis was "useless" and only restated the problem.(260)
AMC I threw EPA's hazardous waste regulatory program into a tailspin, because it placed aspects of RCRA's jurisdictional boundaries in limbo. Shortly after the decision, EPA proposed a revised definition of solid waste.(261) The introduction to the proposed amended definition signaled that EPA would read AMC I narrowly.
The court's decision does not affect the Agency's authority to regulate as hazardous wastes those secondary materials recycled in ways where the recycling itself is characterized by discarding as defined by the court. That is, manufacturing processes (or other types of recycling) involving an element of discard which do not involve secondary materials passing through a continuous, on going manufacturing process remain within the Agency's jurisdiction.(262)
In the proposed rule, EPA stated its intention to leave intact the regulations dealing with uses constituting disposal,(263) burning for energy recovery (with the exception of in-house petroleum recycling that uses secondary materials to produce fuels),(264) speculative accumulation,(265) and inherently waste-like materials.(266) EPA proposed to amend part of the reclamation regulations.(267) The proposal included a list of factors EPA would use to determine whether secondary materials that did not pass through an ongoing production process were solid waste.(268)
Following the proposal, but before any final action, representatives of the AMC claimed that EPA read the court,s decision far too narrowly. They asked the D.C. Circuit Court of Appeals to find EPA in contempt, but the court refused.(269)
American Petroleum Institute v. EPA (API)
In American Petroleum Institute v. EPA (API),(270) the Natural Resources Defense Council, Chemical Waste Management, Inc., and the Hazardous Waste Treatment Council challenged EPA's determination that it lacked authority to promulgate treatment standards for K061, a zinc-bearing listed hazardous waste.(271) EPA claimed it lacked authority to regulate the slag residues resulting from this treatment process because, although the residues are wastes after the initial process ends, they cease to be wastes when they reach a reclamation facility "because at that point [they are] no longer discarded material.'"(272) In reaching this decision, EPA relied heavily on AMC I, which essentially said EPA could not treat secondary materials as solid wastes if they "are recycled and reused in an ongoing manufacturing or industrial process."(273)
The D.C. Circuit disagreed with EPA's position, noting that "AMC [I] is by no means dispositive of EPA's authority to regulate K061 slag."(274) The court held that K061 is "indisputably discarded" before being sent to a reclamation facility and is not part of the ongoing production process.(275) Since it is part of the waste stream Congress intended RCRA to control, EPA misinterpreted the statute and AMC I.(276) The court remanded the case to EPA for additional rulemaking consistent with its opinion.(277) In reaching this decision the court also reaffirmed the immateriality of whether the reclamation process produced something of value.(278) The focus, instead, is on whether a material has been discarded.(279)
Both AMC I and API addressed the issue of whether a specific secondary material was discarded, and thus subject to RCRA Subtitle C, or still part of the ongoing production process, and therefore not subject to Subtitle C. In API, the court's opinion relied on the principal that K061 slag was "discarded" before being subject to further reclamation. K061 is a zinc-containing dust which emanates from the primary production of steel in electric furnaces.(280) Facilities reclaim the zinc in the dust by burning the dust in a furnace designed for secondary materials recovery, either on site or at a different facility.(281) Regardless of which process is used, the court did not focus on the critical issue: the gap between the dust's production and its reclamation. Instead, the court concluded that "K061 is indisputably |discarded' before being subject to metals reclamation."(282) Practically, there appears to be little difference between the mining process in AMC I, which the court found was outside RCRA's regulatory boundary,(283) and the dust reclamation process in API, which the court found was within RCRA's regulatory boundary.(284) In AMC I, the court explained the mining process:
In the mining industry, primary metals production involves the extraction of fractions of a percent of a metal from a complex mineralogical matrix . . . . Extractive metallurgy proceeds incrementally. . . . [M]aterials are reprocessed in order to remove as much of the pure metal as possible from the natural ore. . . . The mining facility typically recaptures, recycles, and reuses these dusts, frequently in production processes different from the one from which the dusts were originally emitted."(285)
Arguably, the mining process in AMC I is linear, with the final goal being metals extraction, while the procedure in API could be viewed as two separate processes: the steel manufacturing process and the zinc reclamation process. However, in its opinions, the court did not explain its reasoning by making this critical distinction and never clearly explained where the "ongoing" production process begins and ends. Thus, the court provided an unsatisfactory basis for its rulings in AMC I and API and sowed the seeds for future litigation on this issue.
It seems likely that the API court recognized the mistake in AMC I and used API, partly at EPA's expense, to rectify its error. In fact, although EPA may have been wrong semantically in API, its decision logically reflected the guidance the AMC I court provided. Though the API court blamed EPA for mistakenly concluding "that our case law left it no discretion to interpret the relevant statutory provisions,"(286) the fault actually rested with the AMC I court,s misguided, inconsistent opinion. The court's subsequent decision in American Mining Company v. EPA (II) reinforced this analysis.
3. American Mining Congress v. EPA (AMC II)
In American Mining Congress v. EPA (AMC II),(287) petitioners challenged EPA's decision to relist as hazardous six wastes generated during the primary metals smelting process.(288) Specifically, petitioners argued that the relisting was beyond EPA's statutory authority because three of the six materials were not discarded and thus not subject to RCRA regulation.(289)
The smelting operations that create these wastes produce large amounts of waste water which are stored in surface impoundments. The petitioners claimed that the sludge, which precipitates from the waste water, may be reclaimed in the future and therefore is not discarded.(290) EPA argued that the sludges were and thus subject to regulation.(291)
The petitioners relied on AMC I's proposition that EPA could not treat secondary materials that were part of the ongoing production process as solid waste.(292) The court responded by saying petitioners had read the holding in AMC I too broadly.(293) AMC I only applied to materials destined for "immediate reuse" in another part of the ongoing production process.(294) In fact, the court concluded that API had recently rejected the claim the petitioners were making in this case.(295) Therefore, the court held that EPA's interpretation of the term "discarded" was reasonable and consistent with RCRA's statutory purposes.(296) Consequently, EPA could regulate these secondary materials.(297)
AMC II represents a reaffirmation of API and the court's further rejection of its own decision in AMC I. The court again tried to distinguish this case from AMC I, as it did in API, by labeling the materials at issue as outside the ongoing production process and not destined for immediate reuse.(298) This opinion, like API, highlights the flawed logic and misunderstanding of RCRA that the court displayed in AMC I. For example, in AMC II the court reiterated that "AMC [I's] holding concerned only materials that are |destined for immediate reuse in another phase of the industry's ongoing production process.'"(299) Yet in AMC I, the court's description of the mining process and secondary materials it was excluding in that case suggests that these materials were not destined for "immediate reuse."(300)
4. Shell Oil Co. v. EPA
In Shell Oil Co. v. EPA,(301) the American Mining Congress (AMC) challenged EPA's definition of "treatment," which included "processes designed to recover valuable materials from the recycling of solid wastes."(302) The AMC argued that because the words "resource recovery" were not present in the statutory definition of "treatment," EPA could not regulate these secondary materials at times when usable resources were still being recovered from them.(303) EPA claimed that excluding these materials from RCRA's regulatory coverage "would create a paradoxical system"(304) because hazardous secondary materials would be removed from Subtitle C jurisdiction "based primarily on the intent of the person handling [them]."(305)
Employing the traditional Chevron analysis,(306) the court first found that Congress had not spoken directly to the issue of whether resource recovery (recycling) was intended to be exempt from EPA's regulation of RCRA Subtitle C hazardous waste.(307) Proceeding to the second step of the Chevron test, the court held that the structure of Subtitle C, combined with the broad power delegated to EPA under RCRA, made EPA's decision to regulate recycling reasonable.(308) In reaching this conclusion, the court relied on its earlier opinion in API, which held that hazardous secondary materials sent to a reclamation facility may be regulated under RCRA.(309)
Although this case broke no new ground with respect to the recycling issue, it is important for two reasons. It further affirms EPA's broad regulatory power under Subtitle C, and it again emphasizes that the defining line in Subtitle C for recycling emerges from an inquiry of whether the material has been "discarded" and whether it is "immediately reused."
Assimilating these four cases, if secondary recyclable materials are to be exempt from RCRA jurisdiction, they apparently must be reinserted directly into the ongoing industrial production process and not placed on the ground.(310) This simple test has the advantage of being "objectively and physically verifiable, does not rely on the intent or subjective judgments of value or comparability, and is consistent with the environmental goal of insuring that waste constituents are not placed on the ground or allowed to be released into the environment."(311)
However, even this test is not a panacea. While it provides an important framework, "and reveal[s] how an independent body would structure RCRA's jurisdictional lines in an objective manner consistent with its broader environmental goals in mind,"(312) even its proponents recognize that it does not define "how closed is closed and how big the loop may be."(313)
In AMC I, the court referred to direct reinsertion fourteen times as it tried to determine RCRA's jurisdiction.(314) However, the court never defined how direct the reinsertion must be. Does it have to be immediate and part of a closed loop? Must it be onsite? The court's failure to address this subtle, but critical, issue caused the subsequent confusion that resulted in the API and AMC II litigation.
Thus, when the API court criticized EPA for misinterpreting the statute and their AMC I decision,(315) the court was viewing the situation in hindsight. What led to EPA's confusion in API was the court's failure to define direct reinsertion in AMC I, not EPA's misunderstanding of the statute or the court's earlier decision.
Subsequent cases have now made clear that EPA can regulate these reclamation facilities, but the direct reinsertion, line is still unclear with respect to other processes. Therefore, while the courts have supplied a framework for analyzing this problem, the details are still absent. The courts can continue to provide these details on a case-by-case basis, or EPA can use its broad interpretive authority to provide greater clarification on what "direct reuse" really means.
Today, EPA reads these cases as affirming their regulatory authority in this area and as providing them with very broad discretion.(316) The question remains regarding how EPA will use this authority to address the problems which the complex definition of solid waste creates.
IV. Problems with the Hazardous
Waste Recycling Scheme
Does RCRA do what Congress intended it to do - protect human health and the environment, ensure that hazardous wastes are handled safely, and prevent the creation of future Superfund sites? Does the hazardous waste recycling scheme encourage safe, responsible recycling? Opinions concerning RCRA's success on these issues vary widely, from those who believe "EPA's approach to regulating recyclable materials is basically sound,"(317) to those who believe the system is rife with problems and requires a serious overhaul.(318) These varied opinions all recognize that problems do exist with the recycling scheme.
Subtitle C's purpose is to ensure that hazardous wastes are safely managed from the point of generation to the point of disposal. RCRA is intended to prevent the creation of future Superfund sites.(319) Measuring RCRA's success by this yardstick suggests the scheme has been a dismal failure.
Of the 1,211 sites on CERCLA's(320) National Priority List (NPL),(321) 239 (twenty percent), were created by activities related to hazardous waste recycling, including unregulated recycling and unregulated disposal of recycling residues.(322) Activities at these NPL recycling sites included recycling solvents, metals, batteries, PCBs and used oil.(323) Other activities include drum, barrel and pail recycling, reuses for fill, road material, feedstocks, and other products. There has also been activity at mining sites(324) where fly ash, smelting and cement-kiln dust caused the problem.(325) Thirteen of the fifty worst NPL sites are the result of recycling related activities.(326) This problem is geographically widespread; forty-four states have at least one Superfund site caused by activities related to hazardous waste recycling.(327)
Arguably, some of these NPL sites may result from poor waste management practices as opposed to a fundamental flaw in the regulatory scheme. However, even if this supposition is correct, poor waste management likely accounts for only a small number of the recycling-related NPL sites because "[e]ven if the management requirements of Subtitle C were perfect . . . there are glaring weaknesses in the fundamental coverage of the program."(328) Many wastes do not receive regulatory coverage though factually, they are hazardous.(329) Wastes may contain high amounts of toxic constituents yet receive minimal control at both the federal and state level.(330) More importantly, there is no regulatory coverage for used oil recycling; solvent recycling@ metals and precious metals recycling; drum, barrel and pail recycling; or reuse of wastes as a product or feedstock.(331)
At times the regulatory scheme appears arbitrary. As EPA recently recognized, it is often difficult to justify including certain wastes or recycling practices based on their health and environmental effects while excluding others.(332) For example, RCRA does not apply to virgin (raw) materials yet it may apply to recyclable products that are virtually identical to these virgin materials.(333) Since both virgin and recycled materials can, and have, caused significant environmental problems, there is no rational environmental basis for distinguishing the two.(334) Industry has also complained that because recyclable and virgin materials are treated differently, "recycling facilities [are] unable to compete with virgin materials," thus removing part of the incentive to recycle.(335)
The hazardous waste recycling scheme's complexity is also a serious problem. The system causes significant confusion in the regulated community(336) and even among those responsible for its enforcement.(337) If industries have difficulty determining when RCRA applies to them, they will err frequently, resulting in poor environmental protection and increased business costs. The scheme's complexity also leads to uneven compliance, less voluntary compliance, and general impairment of EPA's ability to enforce RCRA.(338)
As a result of the scheme's complexity, EPA's regulatory authority is somewhat vague. RCRA provides EPA with authority to regulate "discarded" materials, but the statute, the regulations, and the cases have never clearly defined discarded materials.(339) The D.C. Circuit has made clear that EPA can regulate some forms of recycling because they involve some element of discard-ing.(340) The statute, however, does not expressly permit EPA to regulate all recycling. Since many legitimate recycling operations still cause significant environmental damage,(341) EPG's apparent inability to regulate all these operations reflects a defect in the scheme.
The few cases elaborating on the boundaries of the solid waste definition are only interim victories for EPA. Industry petitioners appear willing to continue relitigating subtle variations of the discard issue and EPA's power over recycling practices.(342) In the absence of a clear statutory direction, "it is clear that petitioner[s] will undoubtedly raise this question again whenever the Agency decides to test the limits of its recycling jurisdiction"(343) and "seize on any nuance to petition for review and paralyze the Agency's exercise of jurisdiction over recycling practices."(344)
The biggest problem with the system is that it produces bad results. A public misconception exists that "recycling" is per se a "good" thing. However, the number of Superfund sites created by recycling operations demonstrates that recycling is not always benign. In fact, "poor quality recycling is no better than high-quality disposal; indeed, it is generally worse."(345) Another misconception is that "sham" recycling - those facilities that dubiously employ RCRA exemptions by producing products nobody wants - is the real problem in this arena. While these operations are clearly objectionable, "legitimate" recycling also deserves attention. Many legitimate operations produce useful recycled products like solvents, batteries, and oil - yet they end up on the NPL.(346) Therefore, whether or not the recycled product is legitimate or has some value is irrelevant. The fact is that "the quality of the product and the |value' of it[s] reclamation is completely unrelated to the human health or environmental damage that can occur from unregulated practices."(347)
The number of recycling facilities on the NPL indicates that RCRA may not only be failing to achieve its purpose, but may actually be encouraging environmental damage. RCRA suffers from bad management, excessive complexity, and lax regulation and regulatory oversight. These problems cause the system to produce bad results.
B. The Roots of the Problem
Broadly speaking, the definition of solid waste is a primary problem because "discarded materials" are defined vaguely, recycling is not specifically addressed, and "EPA and the [courts] must implement operationally difficult statutory language."(348) Thus, the convoluted regulatory scheme contributes to the continual debate over the authority and desirability for the hazardous waste regulations.(349)
Specifically, RCRA's inadequacy stems from the dichotomy of products and wastes.(350) Conceptually, distinguishing the two is both logical and necessary to protect the environment without retarding economic growth. However, "categorizing waste reuse practices which qualify as manufacturing and production operations (i.e., closed loop processes) and those which should be subject to waste management controls is a separate question from determining what specific regulatory controls should be imposed."(351) One reason RCRA has not functioned optimally is because the statute and the regulations fail to adequately recognize that the hazards presented by secondary materials come from their composition and management, not from whether they are discarded or transformed into a product.(352) Thus, the fundamental problem begins with the failure to clearly distinguish wastes from products, and it is then compounded by the statute's failure to recognize the environmental implications of confusing the dichotomy of wastes and products with the management practices that will be employed to control them. If the foundation upon which Congress and EPA built the waste management scheme is flawed, the structure itself will be unsound.
1. The Loopholes and How They Cause Problems
One commentator has observed that RCRA's basic rules for defining a hazardous waste are relatively simple; it is the exceptions to the rule that create the scheme's complexity.(353) In turn, these loopholes form the basis for the waste/product dichotomy. Therefore, to understand the weaknesses of the recycling scheme, it is necessary to identify these loopholes and explain how they function.
The loopholes come in three basic forms: jurisdictional, managerial, and residual.(354) Jurisdictional loopholes remove both the secondary material and the management practice from RCRA's control. As discussed earlier, RCRA does not provide jurisdiction over operations that are part of the ongoing manufacturing process, because these materials are not wastes.(355) These exempted processes include the feedstock, product, and closed-loop exemptions,(356) as well as the facility-specific exemption applicable to over-accumulated materials,(357) and the indigenous waste exemption discussed in API.(358)
Under the managerial loophole, RCRA establishes jurisdiction over certain processes but then fails to regulate them effectively, essentially "exempting" them from the scheme.(359) Such processes or materials include burning for energy or materials recovery,(360) and applying "products" to the land.(361) In addition, the managerial loophole includes an exemption for traditional recycling facilities(362) and the "empty drum" exemption.(363)
The residual loophole removes the residue of certain RCRA treatment processes from regulation.(364) For example, residues from burning hazardous waste in industrial boilers, furnaces, and cement kilns are uncontrolled.(365) EPA chose to exclude these residues because they are part of wastestreams that have special "Bevill" waste status.(366) While the merits of these various loopholes are debatable, the problems they create detract from the benefits they may provide.
a. The Jurisdictional Loopholes
Problems result from the jurisdictional exclusions for a variety of reasons. For example, the feedstock, product, and closed-loop exclusions(367) are all self-implementing - the potentially regulated party decides whether the exclusion applies to their process.(368) The definition of solid waste is the threshold for admission to RCRA's regulatory system. Its application affects all hazardous waste management. Under the jurisdictional exclusions a potentially regulated party who could incur substantial financial costs if subject to RCRA decides whether its waste stream is regulated.(369) This "most significant determination that a [potentially regulated party] will ever make"(370) requires no public notification or governmental review and operates in a virtual vacuum of environmental constraints.(371) No program exists to monitor this self-certification process and EPA's meager guidance on how to make these determinations "amounts to little more than a patchwork of disjointed regulatory preambles, guidance letters, and interpretive memos."(372) The system permits potentially regulated parties to decide whether they are subject to extremely costly regulations or outside the regulatory net.
This system is disturbingly analogous to other federal regulatory systems that evolved in the 1980's.(373) During this period, the federal government took a disparaging view of regulatory intrusions into the market place, relaxing both regulation and enforcement. During the savings and loan crisis the government contentedly let the regulated parties regulate themselves. Then, as the debacle surfaced and unfolded, the government professed shock and surprise that people could not be trusted to place society's well-being ahead of their own greed. Eventually, the architects of these deregulatory policies recognized that they were largely responsible for causing that disaster.(374)
It now appears that the fox is guarding the chicken coop again under RCRA. An absence of regulatory oversight in this arena may not lead to the same public financial burdens as the S & L bailout, but improper handling of hazardous wastes can cause environmental and health problems that may not have a price tag. History teaches that an absence of regulatory oversight can have significant deleterious effects, and some effects are already apparent in this case.
Though the general purpose of RCRA is to prevent environmental contamination, the self-certification process creates situations where EPA does not become involved at recycling facilities until after releases have occurred.(375) RCRA, therefore, is not serving its preventive function.(376) Instead, the statute encourages reaction rather than prevention. For example, a holding tank in Long Beach, California that contained 1.5 million gallons of an oil/water mixture began leaking.(377) Although the state issued an imminent hazard order, EPA delayed initiating a cleanup and denied federal funding because the leaking material had "the potential to be recycled" and therefore was not a RCRA "waste."(378) In Sioux Falls, South Dakota, EPA caused a lengthy delay in an enforcement case against a precious metals reclamation facility where wastes had poisoned two drinking water wells because the agency had trouble determining whether the material at issue was a RCRA waste.(379) Generally, there are no preventive standards for precious metal reclaimers because the materials they deal with have "inherent value," according to EPA, and their proper management is "assured."(380)
Other problems exist with respect to the "closed-loop" exclusion and facility specific exclusion for "over-accumulated" materials. In a closed-loop, even though the material at issue must be directly reinjected into the production process, the loop is not really closed. The tanks containing these secondary materials may be open and do not have to satisfy RCRA tank or air emission requirements.(381) The facility-specific exclusion for "over-accumulated" material is not subject to self-certification. Although a regional administrator must approve this exclusion, little guidance exists to aid in making this decision and a public hearing is not required.(382)
b. The Managerial Loopholes
The essential problem with the managerial exclusions is that they result in treating identical products and processes differently, thus ignoring environmental effects. For example, some pesticides that are intended to be applied directly to the land cannot be disposed of in hazardous waste landfills unless they first undergo pretreatment.(383) A material could be labeled a "product" and placed directly on the ground, yet that same "product" would require extensive pretreatment to be placed in a hazardous waste landfill - an area specifically designed and set aside to receive such materials.(384) In addition, RCRA regulates the storage and transport of materials being sent to recycling facilities, but the facilities themselves are generally exempt from regulation.(385)
c. The Residual Loopholes
Finally, EPA recently gave the residue exclusion new life,(386) thereby trumping RCRA's land ban and, in effect, permitting the indiscriminate disposal of factual hazardous wastes because they are conceptually excluded from the regulatory scheme.(387) Again, EPA is ignoring the environmental implications that will result from this nonsensical dichotomy despite the fact that twenty-five NPL sites were contaminated by such indiscriminate disposal.(368)
2. Other Causes of the Problems
The regulatory scheme makes a meticulous effort to divide the universe of secondary materials into products and wastes. However, even if the two were perfectly divided, the problem would not be solved. Because the regulations devote most of their attention to the waste/product dichotomy, other crucial areas are ignored. For example, though "sham" recycling facilities attract much attention, "legitimate" recyclers cause significant environmental damage.(389) Consequently, the regulatory structure tries to encourage "good" recycling without taking into account the fact that "good" recycling often causes the problem.(390)
This problem is fueled, in part, by a number of misconceptions. For example, proponents of a liberal hazardous waste recycling scheme argue that a greater regulatory burden on recyclers will result in a decrease in recycling, because regulations increase costs.(391) Consequently, they argue that any regulation that discourages recycling is undesirable.(392) This logic rests mainly on the assumption that all recycling is benign, a proposition that has been criticized(393) and remains questionable considering the number of Superfund sites caused by recycling.(394) Without adequate regulation there is no way to control any recycling, regardless of whether it is good or bad.(395) Experience has also demonstrated that recycling operations can flourish in conjunction with regulatory controls. For example, used oil recycling in California is increasing despite strict state regulation.(396) The same is true for solvent recyclers.(397) Arguing that regulation universally impedes recycling is not only incorrect but also misleading because it diverts attention from properly focusing on the specificity of controls employed after determining that a material shall be regulated.
Lengthy litigation has resulted from Congress' failure to clearly define EPA's authority in the recycling arena.(398) The term "discard" and its application to recycling is unclear. As a result, the legal basis for EPA's jurisdiction in this area rests on potentially shifting ground. Rather than bow to intrusive regulatory schemes - especially ones whose boundaries are uncertain - it appears to be in industry's best interests to continually litigate the issue of EPA's authority in the recycling area.
Finally, as uncertainty about RCRA's scope continues to cause problems, so does an apparent conflict between its objectives.(399) RCRA's name suggests an intent to conserve and reuse resources, and one of RCRA's purposes is to reduce "the generation of hazardous waste and the land disposal of hazardous waste by encouraging process substitution, materials recovery, properly conducted recycling and reuse, and treatment."(400) RCRA also seeks "to promote the protection of health and the environment."(401) EPA has stated that encouraging recycling is secondary to protecting human health and the environment.(402) Superficially, these objectives may seem consistent if one believes that recycling can occur without causing environmental or health damage. In fact, many legitimate recycling operations do produce useful products without harming human health or the environment. Evidence therefore exists to prove that the two objectives can function in harmony. However, this idyllic union of statutory objectives does not always work in practice, as evidenced by the 239 Superfund sites caused by recycling activities.(403) Therefore, these objectives do not conflict in theory, but do conflict in practice. Even if a large number of "good" recyclers exist for each recycling facility that becomes a Superfund site, is that a price worth paying? If society decides that the enormous environmental, health, and financial costs associated with each Superfund site present a worthy trade off for all the "good" recycling, is there any reason why we cannot do better?
V. Proposed Solutions
The system as it functions now is overly complex, difficult to understand, hard to enforce, and it often produces poor results. The current definition of solid waste serves "[n]either the interests of clarity nor environmental protection."(404) Solutions must address these considerations if they are to be successful. The system's direction must be redefined, first by assessing the conceptual framework within which RCRA operates, and second by implementing specific solutions to identified problems. Seventeen years of experience with RCRA has demonstrated what does not work and, by implication, what might work.
Several observers have suggested criteria that an ideal recycling system might contain.(405) Such a system would equally regulate the gamut of waste management activities while recognizing that different wastes present different risks. Requirements would be easy to understand, thus encouraging compliance and facilitating effective enforcement. There would be proper incentives and encouragement to use better approaches to pollution prevention and waste management.(404) Even if a system-wide overhaul incorporating all of these elements does not occur, select improvements would go a long way toward securing better protection of human health and the environment.
Any specific solutions to the hazardous waste recycling scheme problems must be consistent with the broad notion that RCRA, as it exists now, has done a poor job of controlling economic externalities.(407) The present system encourages practices like sham recycling because it is less expensive to dispose of wastes incorrectly than it is to employ proper waste treatment and disposal practices.(408) Thus, generators have the "incentive to create a recycling operation whose value comes not from the product produced by recycling, but from the ability to avoid the costs of proper disposal."(409) While recyclable materials may have value, that value must be considered in relation to the costs society is being asked to bear as a byproduct of the recycling operation.(410) If the "recycler" produces a product with marginal market value, it may still derive a profit. However, the recycling facility may still be polluting the environment. The recycler does not bear the costs of the pollution it dumps into the environmental commons; society does. If these external costs were internalized, the pollution costs would be considered part of the recycler's production costs. If the recycler could absorb the pollution costs associated with production and still derive a profit, then economically and environmentally it might make sense to continue production. However, the product should not be considered profitable only from the recycler's perspective if society must bear part of its production costs through increased pollution.
One way to address this problem would be for the regulatory scheme to define solid waste more broadly, thus capturing a wider range of waste management activities within the regulatory net and controlling the costs they would otherwise impose on society.(411) Employing market mechanisms within the regulatory scheme would make sense because Congress tied RCRA's jurisdiction to whether a secondary material is a waste, which is largely an economic determination.(412) The present narrow definition occasionally recognizes the importance of environmental concerns,(413) but it is also schizophrenic in its treatment of virtually identical hazardous secondary materials.(414) "Thus, EPA's definition of waste focuses on those materials and processes whose production is not subject to market forces and whose use generates externalities that the hazardous waste disposal system is designed to avoid."(415) Broadening the solid waste definition is one conceptual way to address the general externalities problem.
While it is crucial for proposed solutions to account for economic externalities, the course that each of these solutions ultimately follows may be significantly different. The specific proposals fall into a broad range of categories.
A. A Separate Subtitle?
One possible solution to the recycling problem is to create a separate subtitle to deal exclusively with recycling. While this proposal has some support,(416) it also has a wide range of critics, including Congress, who chose not to create a separate waste recycling subtitle in their recent attempts to amend RCRA.(417)
Advocates of a separate subtitle argue that it must focus on "the recycling facility itself: the recycling process used, and the air, water, and waste emissions generated by the process."(418) Presumably, a separate subtitle would be broader than the present scheme and, like the broad definition of solid waste discussed above(419), would capture all recycling related activities in a single regulatory structure.
The new subtitle likely would have a separate regulatory program that "would have to distinguish appropriately among a broad range of recycling processes and secondary materials, both hazardous and non-hazardous."(420) Within the regulatory structure, two simpler permit systems could be established: permits-by-rule for simple operations and site-specific permits for more complex processes. Both permit systems would incorporate elements of financial assurances, record keeping and reporting, and closure requirements.(421)
Recycling facilities would also need appropriate air and water permits, as required now. If their recycling processes generated hazardous wastes that are treated or disposed of on site, they would have to obtain a Subtitle C permit.(422)
While a separate subtitle has some attractive qualities, it is not a panacea. For example, a separate subtitle would still not address RCRA's core problem: how and when to draw the line between products and wastes.(423) A separate subtitle would only provide for regulations after that crucial determination has been made. Critics also point out that even if all the recycling activities which fell under the separate subtitle were identified, there still would be no objective method of assessing which subtitle to apply - recycling or waste management - because the "intended" form of waste management would be the mechanism that separates the two subtitles and intent is a subjective determination.(424)
Critics unfavorably compare a separate subtitle to the current Bevill exclusion for special wastes.(425) Bevill wastes are wastes generated by the burning of fossil fuels, ore processing, and dust from cement kilns.(426) Critics claim the Bevill exclusion is a de facto separate subtitle that has grown out of control as more excluded wastes come under its purview. Even in the Bevill case, where the exclusion began with a discrete list of excluded substances, "the abuses over the years have expanded to the point of undermining critical areas of RCRA jurisdiction. One can only imagine what ... abuses could be visited on a separate subtitle based on definitions of activities as diverse and different as recycling."(427)
A separate subtitle is also inappropriate because it would only create a different set of management standards for identical materials based on whether they are recycled or discarded. "Regardless of their ultimate destination, those materials present the same hazard while stored or transported."(428) Thus, a separate subtitle would continue to treat identical substances differently and ignore their ultimate environmental fate.(429) Critics also argue that a separate subtitle would be redundant because Subtitle C requirements would still apply to recycling facilities.(430) Essentially, they claim that a separate subtitle would provide virtually no advantages and only perpetuate old problems while creating new ones.(431)
Therefore, establishing a separate subtitle for recycling may not be a good solution. RCRA's problems stem mainly from its failure, on both the regulatory and statutory level, to distinguish clearly between products and waste.(432) From this essential shortcoming, many other problems flow. If a separate subtitle merely creates a new jurisdictional framework without focusing on the waste/product dichotomy, it does nothing to address the core problem. Instead, addressing the waste/product dichotomy in the context of the current regulatory structure would go a long way toward solving many of RCRA's problems without going through the laborious process of separating recycling jurisdiction from the present regulatory scheme.
Alternatively, if a broad, separate subtitle could encompass more recycling activities, thereby helping to internalize externalities,(433) it would be a welcome measure. However, a separate subtitle is not necessary if the intent is to broaden the current regulatory net. That change could be accomplished far more easily within the present regulatory framework. Given that a separate regulatory program under a new subtitle "would have to distinguish appropriately among a broad range of recycling processes and secondary materials,"(434) as its advocates recognize, what advantage then does it offer over the present scheme?
A separate subtitle would rely inherently on the subjective intent of the generator and perpetuate the "self-certification" problem. This new system would not improve the present system of jurisdictional exemptions for product, feedstock and closed-loop recycling criticized above.(435) The essential problem of letting a regulated party make its own jurisdictional determination, in the absence of true accountability, would remain.
Finally, a separate subtitle would require a significant investment of EPA resources at a time when EPA already has too many new issues to address,(436) despite budgetary constraints.(437) EPA has also been slow in the past to issue new RCRA regulations.(438) Thus, developing a regulatory scheme to implement a new subtitle would presumably take a long time. Considering these limitations, creating a separate subtitle does not make sense.
In sum, a separate subtitle would be impractical, redundant, and most importantly, would fail to address the root causes of the problems with RCRA It makes little sense to start from scratch when a system already exists which, though flawed, is up and running. It makes more sense to target specific problems with RCRA and design specific solutions in the context of the regulatory framework already in existence.
B. Revising the Jurisdictional Exclusions
Although the jurisdictional exclusions(439) for feedstock, product and closed-loop recycling only encompass part of RCRA's hazardous waste recycling scheme, restructuring these exclusions could help solve many of RCRA's problems. Additionally, reformulating these parts of RCRA could encompass other RCRA exclusions and exemptions (the managerial and facility-specific exclusions), thereby addressing most of the important components of the recycling scheme.
Revising the jurisdictional exclusions has an important advantage over creating a separate subtitle: it would leave the current regulatory framework intact and focus only on those areas that require revision. This approach assumes that the jurisdictional exemptions are workable concepts which must only be slightly reformed to improve their ability to protect human health and the environment while encouraging recycling.(440) For example, chemical intermediates used as feedstocks, kerosene used as a product, or the reinjection of a solvent into a closed system are all beneficial uses of recyclable materials.(441) Applying the process-specific exclusions to these materials makes sense because they can all be used productively. However, it would not make sense to allow those chemical intermediates to be stored in an open tank or an unlined lagoon as they travel through the recycling process. Yet, because the recycling exclusions are so broad, this currently happens.(442) Revising the jurisdictional exclusions to control such practices could continue to exempt these important recycling practices from excessive regulation while ensuring that, where necessary, adequate controls are in place.
Revising the jurisdictional exclusions could provide other benefits as well. For example, revisions could ensure that feedstocks and products are reused directly without first going through unregulated processing that has the potential to cause significant environmental harm.(443) Revisions could also ensure that hazardous constituents which are part of the secondary material, but not being used in the recycling process, are controlled and not simply allowed to "hitchhike" along through the regulatory exclusion.(444)
Revising the jurisdictional exclusions could best be accomplished by dividing them into two groups: products and feedstocks, and closed-loop recycling. Each group would then be revised by focusing on the following subcategories: the notification and certification provisions, the definitional criteria of the specific exclusion, the managerial conditions relating to the exclusion, and enforcement considerations.(445)
1. Revising the Product/Feedstock Exclusion
One primary problem with the jurisdictional exclusions is that they permit self-certification without regulatory oversight.(446) The first step in revising this exclusion would be to create certification and notification provisions. Advocates of this scheme would have the recycler notify the appropriate authority that it is claiming the exclusion and certify that it meets the definitional criteria to qualify for the exemption.(447) This proposal may improve on the current system by making EPA or the state aware of the facilities claiming this exemption and forcing those facilities to comply with the definitional criteria. While this process still involves some element of self-certification, it provides for notice and at least theoretical oversight - two things the present system fails to provide. It would also subject recyclers to RCRA's false statement provision,(448) and the federal false statement provision,(449) if they lie about their status. Perhaps most importantly, it could subject the facilities to increased private enforcement through RCRA's citizen suit provision because more information would be readily available and quantifiable.(450) All of these factors make the proposed notification and certification scheme vastly superior to the self-certification process now in place.
For this scheme to function, it would require definitional criteria, or clear standards that a recycler could apply to know whether the material qualifies for the exclusion. Advocates of this scheme point to the California experience as a model.(451) Under that system, the secondary material must be reused directly as a product or feedstock without any significant processing.(452) California only permits minimal treatment prior to reuse including collection, gravity separation and sorting.(453) Any filtering, or pH or viscosity adjustment, qualifies as waste treatment or reclamation and disqualifies the secondary material from the direct reuse exclusion.(454) This structure has the obvious advantage of clearly defining when the exclusion applies. The California scheme apparently accounts for the wide variety of recycling processes in existence, and it provides for new processes or for those that do not fit neatly into the regulatory structure.
Another important component of this definitional structure would be its ability to distinguish between extraneous hazardous constituents (the "hitchhikers") and those constituents for which the material is being recycled.(455) This criteria would permit the presence of low levels of extraneous constituents but prevent larger amounts, over a specific level, from being present in the recyclable secondary material. Thus, the extraneous constituents could not use the recycling exclusion as a shield, but would have to be accounted for and managed correctly.(456) This proposal's important advantage is that it would prevent partial reuse of secondary materials when more dangerous constituents are ignored. These other constituents may have the potential to cause significant environmental harm or may even be the primary reason the secondary material is considered hazardous.(457)
Advocates of this revision would also include an "economic value" test as one of the components of the definitional structure.(458) The focus would be on ensuring that the ultimate product made from the secondary material could be sold at a profit. "The economic transaction patterns must reflect that of a product producer, not a waste treater."(459) While this criteria would not catch all sham recyclers because the transactions would be difficult to monitor,(460) it would disqualify operators that are paid to take secondary materials which they "recycle" but do not sell, or sell at a loss.(461)
Within this scheme, some of the managerial components of hazardous waste recycling could be modified. For example, during the recycling process, secondary materials could not be placed on the land (as in unlined lagoons or open tanks) prior to being reinserted back into the production process.(462) The secondary material would have to be stored in tanks that meet the Subtitle C requirements and a time limit would be placed on over-accumulating wastes to insure that materials are being directly reused.(463) Finally, advocates of this scheme would ban most burning for energy and materials recovery because they claim it is the functional equivalent of incineration.(464) All of these managerial provisions not only make environmental sense, but they translate many complicated and problem-causing areas of RCRA into simpler, better components of a hazardous waste recycling scheme.
Several changes would also be necessary to help improve enforcement, such as placing the burden of proof on the person claiming the exemption. Additional enforcement modifications would require the recycler to cease all activity if it fails to provide notification and certification by a specific date. Citizen petitions, apart from citizen suits, would be permitted to force EPA to evaluate exemption claims.(465) Finally, a recycler that fails to submit timely notice and certification, or that does so incorrectly, would lose exempt status and be required to terminate its operations until it complied with the criteria.(466)
In sum, these modifications have many advantages. They address the most significant problems in the hazardous waste recycling scheme: the waste/product dichotomy, self-certification, sham recycling, and improper handling of secondary materials as they travel through the recycling process. Since these provisions could be implemented through amendments to the regulatory structure they would not require a separate subtitle or even congressional action. In addition, these changes could be implemented in phases and thus avoid tying up vast amounts of EPA resources for extended periods of time. While the burden would still ultimately remain on EPA to revise the regulations, historically a slow process,(467) EPA is still more qualified than Congress to make these complex decisions. Congress should be willing to defer to EPA in this complex arena and allow the agency to deal with the minutiae and accompanying political heat.
2. Revising the Closed-Loop Exclusion
Revisions of the third jurisdictional exclusion, for closed-loop recycling, would follow the same framework for the suggested revisions to the feedstock and product exemptions.(468) The certification provision would require closed-loop recyclers to certify that they are in compliance with the definitional criteria. The certification would be kept on-site, thus facilitating inspections and enforcement.(469) A "designated felon" provision, which requires a responsible official to certify that the facility is in compliance with the appropriate standards, could also be included to strengthen this scheme.(470) However, notification of the appropriate authorities would not be required because the vast number of affected facilities - potentially 100,000 - would make this impractical.(471)
This proposal has the advantage of requiring certification, thus subjecting closed-loop recyclers to RCRA's false statement(472) provision and, apparently, documenting their activities to make enforcement easier. The absence of any notification provisions appears to be practical considering the large number of closed-loop recyclers. However, without making information publicly available, it would be difficult to enforce this provision through citizen suits. Though the proposal still relies heavily on self-certification, it does provide for increased regulatory oversight and simplified enforcement. Thus, it is a significant improvement over the current regulatory structure.
The design criteria would require closed-loop recycling systems to be entirely enclosed to prevent any releases of secondary materials to the environment. All secondary materials would have to be completely returned to the manufacturing process. Transportation of the secondary materials off-site, other than by enclosed pipelines, would be prohibited.(473)
This system is "design" based, in contrast to the feedstock and product exclusions, which are "constituent" based.(474) Therefore, as long as the process remains enclosed and ensures environmental integrity, "the types of constituents involved do not matter.(475) Reclamation within the closed loop would be permitted so long as all reclaimed constituents are returned to the loop. If any residue remains after reclamation, it would retain hazardous waste status and be appropriately managed.(476)
These revisions would prevent releases of hazardous secondary materials to the environment. As long as the system remains completely enclosed, secondary materials will return to the manufacturing process and be consumed. Since the manufacturing process is designed to create a marketable product, and reinsertion of hazardous secondary materials into the process would necessarily be a component of this system, the process seems to ensure that the hazardous secondary materials would either be consumed or made safe as a component of the final product.
Apparent shortcomings in this system - such as permitting the secondary material to be ostensibly burned (recycled) for energy recovery - would be addressed by modifying the managerial conditions, much like in the proposed revisions to the product and feedstock exemptions. Thus, there would be a prohibition on burning secondary materials in a closed-loop for energy and materials recovery.(477) The nature of a closed-loop system would preclude placing secondary materials directly on the land. All RCRA tank and container standards would be in force and there would be a time limit on how long secondary materials could be speculatively accumulated before being reinserted into the manufacturing process. The enforcement revisions, and their derivative advantages, would be the same as those discussed for the product and feedstock exclusions.(478) Generally, the proposed modifications to the closed-loop exemption share many of the advantages that modification of the product and feedstock exclusions would create.(479)
C. Other Proposals
On April 28, 1993, EPA sponsored a conference on "Rethinking the Definition of Solid Waste." EPA emphasized that the ideas discussed at the conference were not new policy statements. Instead, they were intended to be a springboard for debate.(480) Several proposals for changing how hazardous waste recycling is regulated came from the conference, including: creating uniform national standards; allowing for state generated requirements; and correcting generic problems in the RCRA program (apart from the definition of solid waste).(481)
Uniform national standards could create unique requirements for different categories of recyclable materials or recycling processes. For example, national standards might be created for all closed-loop recycling or burning for energy recovery. Categories might also be defined by industry, by specific waste, or by risk level.(482) The proposal has several advantages: it would permit tailoring of individual requirements to specific criteria (risk, for example); it would reduce subjective interpretations of the recycling rules; and it would "level [the] playing field."(483) However, creating these standards would require a significant investment of EPA resources. Such standards would also place a greater burden on the states by requiring retraining of state personnel and increasing the number of regulated processes.(484)
EPA also suggested permitting the states to develop appropriate requirements for hazardous waste recyclers within their jurisdictions. This proposal has several advantages: it would [m]aximize risk-based decision-making, [m]aximize flexibility for [the] states, [and] reduce [the] time for government approval of recycling projects.(485) However, this proposal would also result in a patchwork of state plans with little national consistency and "[c]ould increase [the] competitive disadvantages between recyclers."(486)
A third alternative would be to focus on other aspects of RCRA, apart from the definition of solid waste, which might still have a positive impact on hazardous waste recycling. Examples include paying more attention to permitting, with an increased focus on corrective action and financial assurances, or increasing assistance to the states in interpreting and implementing RCRA.(487) While these indirect solutions have advantages, like reducing a recycler's need to avoid the regulatory system,(488) they also have many deficiencies, including their conspicuous failure to address the waste/product dichotomy.
Other possibilities discussed at the conference included focusing on which materials EPA regulates. For example, EPA could try controlling recycling more stringently by exercising jurisdiction over certain uncontrolled materials and recycling practices that it believes it has authority to control. For example, EPA could call any secondary material a solid waste and then define secondary materials as anything not a virgin material, product, or part of [an] ongoing manufacturing process (intermediaries)."(489) EPA would then exercise jurisdiction over all secondary materials.(490) While this proposal does not address the waste/product dichotomy and increases the likelihood of more legal challenges,(491) it has several advantages: it is simpler than the present scheme; EPA believes the jurisdictional boundaries for this scheme are already established;(492) it will help "level [the] playing field within [the] recycling universe"; and "EPA can probably address problems sooner than Congress."(493)
EPA has also considered asking Congress to expand and clarify EPA's jurisdiction.(494) For example, if Congress defined secondary materials as anything not a virgin material, or gave EPA broader discretion to protect human health and the environment,(495) EPA could create new recycling regulations with less risk of legal challenge.(496) Congressional action has other advantages: it "provides the best opportunity to address risks from products and secondary materials identically" and it could simplify implementation and enforcement of the program.(497) Disadvantages include an uncertain outcome created by opening the process to Congress and requiring EPA to promulgate new regulations to implement any statutory changes.(498)
Most of the solutions discussed to this point address major portions of the recycling program. However, other more minor options exist that could focus on some of RCRA's recycling problems without requiring a massive investment of time and resources.
A "value test" could distinguish wastes from products based on whether the end-material could be sold at a profit. This test is appealing as a way of distinguishing "legitimate" from "sham" recycling. However, it would be most useful as a component of a revised recycling scheme, rather than the centerpiece, because it has numerous problems.(499) For example, a product's value may fluctuate - marginal products may be valuable one day and not the next. Also, the product itself might not be valuable, and the real value may lie in the cost of avoiding proper disposal or treatment. Product value, standing alone, does not account for the environmental costs and externalities(500) associated with producing the product.(501) For these reasons, the "value test," on its own, would not be a useful addition to RCRA's recycling scheme. However, it could serve an important function as a component of a revised recycling scheme.(502)
Another proposal suggests relaxing regulation of reclamation because "[m]uch of the complexity of the regulations stems from EPA's decision to regulate reclamation activities.(503) Under this proposal EPA could regulate reclaimed materials as waste, but only require notification and manifesting procedures.(504) Thus, economically viable reclamation could flourish, yet facilities would still be under some measure of government control and public scrutiny.(505)
This scheme has the potential to simplify the solid waste definition,(506) but it also places a great deal of reliance on other environmental laws, like CERCLA,(507) TSCA,(508) and EPCRTKA,(509) to do RCRA's job.(510) While a simplified solid waste definition is desirable to aid compliance and enforcement, spreading regulatory responsibility over a number of statutes will only make compliance more complicated. These statutes already work in conjunction with RCRA. However, their role in hazardous waste management is secondary and should remain so to avoid additional complexity in an already confused regulatory arena.
Sham recycling is an area that begs for attention and is ripe for regulatory action with a modicum of effort. Even though it only represents one of the many problems with the recycling scheme, it could be addressed easily if EPA formalized its criteria for identifying sham recyclers,(511) which might even include incorporating the value test.(512) Much of the work in this area is already done(513) and EPA could produce significant results if it consolidated and formalized the scattered guidelines already in existence.
Finally, recent attempts to amend RCRA contemplated changing the definition of solid waste to include "recycled" materials followed by a comprehensive definition of the term "recycling."(514) The intent was to define RCRA's jurisdictional boundaries more clearly.(515) This approach would require congressional action and force Congress to deal with some of RCRA's complex nuances. However, it is worth the effort because if successful, it would go a long way toward clearly defining RCRA's jurisdictional boundaries with respect to recycling.
RCRA began with a wise, simple notion: our society is producing too much waste and we need to formulate a strategy to address this problem. Part of that strategy recognized the insidious nature of hazardous waste and created a separate program to deal with these materials. The hazardous waste program sought to regulate these wastes from "cradle to grave,"(516) ensuring that human health and the environment would be protected against poor management and disposal practices. Recycling was an especially important component of that scheme because it recognized the environmental and economic benefits of reusing these secondary materials.
Since this noble beginning, RCRA's hazardous waste recycling scheme has gone awry. A large part of the problem can be traced to failure by EPA and Congress to draw a clear line between products and wastes. Since RCRA's inception, EPA has tried to straddle the waste/product dichotomy for fear of intruding too deeply into the sacred production process. The result has been a confusing, complex scheme that hampers both enforcement and compliance, and fails to accomplish RCRA's primary goal of protecting human health and the environment. Without the political courage to draw a clear line between wastes and products, the problems will continue and the victims will be those who are least able to protect themselves: the diffuse public and the silent environment.
The waste/product dichotomy is not the only aspect of the recycling scheme that merits attention. Other problems include RCRA's failure to address all the wastes and waste management practices that should be regulated, its failure to treat identical virgin and raw materials similarly, and its general complexity, which results in continued litigation and uncertainty about EPA's jurisdictional reach.
The solutions to these problems are not simple. Hazardous wastes and recycling practices come in many different shapes and colors. It is unrealistic to think that this complex regulatory scheme developed spontaneously and without any rhyme or reason. The complex nature of the beast helped spawn the complicated methods now used to control it. While there are no simple solutions to these problems, solutions do exist. The growing number of Superfund sites that are related to hazardous waste recycling indicate that the time to begin wrestling with these complex problems has already passed.
Of course, RCRA is not without its successes. However, at the risk of sounding overly pessimistic, focusing on RCRA's failures is more important than focusing on its successes because of the unique capacity hazardous waste has to cause substantial health and environmental damage, often without warning. In this arena, many successes will not offset a few failures, and there are more than a few failures.
It is also important to recognize that the problems with the hazardous waste recycling program are not entirely attributable to RCRA. Larger social factors that may not be the principle source of RCRA's ills certainly exacerbate RCRA's failings. Two important facets of the larger problem are population growth and our society's schizophrenic desire to shun hazardous wastes while using the products that produce them.
The enormous volumes of solid waste produced each year in the United States helped scare Congress into passing RCRA.(517) That waste was, and continues to be, generated by an ever expanding population. Historically, population increase has helped nullify any advancement made by environmental regulation.(518) Improving how RCRA functions is certainly a necessity. However, until our society is willing to recognize and accept that expanding population is the root of all environmental problems, any environmental regulation will only serve as the proverbial finger in the dike.
Acronyms like NIMBY (Not In My Back Yard), NOPE (Not On Planet Earth) and BANANA (Build Absolutely Nothing Anywhere Near Anything) are all becoming increasing prevalent in the environmental literature. These acronyms express a wide range of attitudes concerning the construction of things like hazardous waste incinerators or nuclear waste depositories. However, they all share a common denominator: to some extent, people are unwilling to have these facilities constructed, though they are perfectly willing to continue using the products that create the waste. Part of solving the hazardous waste recycling problem will be recognizing and dealing with this schizophrenic attitude.
At least one way to help alleviate the problem would be to start focusing more on source reduction,(519) because "[t]he ultimate battle will be won by the facilities that actually produce the waste in the first place."(520) EPA has recognized that source reduction is a critical component in the waste management problem. EPA hopes to create economic incentives to "unleash entrepreneurial ingenuity in developing waste minimization and recycling techniques."(521) EPA also plans to incorporate waste minimization efforts into their enforcement actions and settlements.(522) All of these developments would be welcome additions to the environmental regulatory arena and would serve as useful examples of how society can change its own behavior to help solve the waste problem.
Many observers of today's hazardous waste recycling program are justifiably concerned. Protection of human health and the environment appears to have yielded to a scheme that encourages recycling, regardless of the deleterious effects. Shifting the balance back may not be easy. It will require strong political will and recognition of RCRA's problems as symptomatic of larger, more insidious problems. However, the price of inaction will no doubt be great and will leave the voiceless future generations to bear the burden of our myopia. (1.) Resource Conservation and Recovery Act, Pub. L. No. 94-580, 90 Stat. 2795 (1976) (codified in the Solid Waste Disposal Act as amended at 42 U.S.C. [sub-sections] 6901-6991 (1988)). (2.) 42 U.S.C. [sections] 6902(a)(4) (1988). (3.) Id. [sections] 6902(a)(b). (4.) Id. [sections] 6903(27). (5.) Hazardous Waste Management System: Identification & Listing of Hazardous Waste, 45 Fed. Reg. 33,084, 33,119 (May 19, 1980) (final rule) (codified at 40 C.F.R. Part 261 [hereinafter 1980 Final Listing]. Hazardous Waste Management System: General; Identification and Listing of Hazardous Waste; Standards Applicable to Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities; Interim Status Standard for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities; and Standards for Management of Specific Wastes and Management for Specific Types of Facilities, 48 Fed. Reg. 14,472 (April 4, 1983) (proposed rule) (to be codified at 40 C.F.R. Parts 260, 261, 264, 265, 266) [hereinafter 1983 Proposed lasting]. Hazardous Waste Management System; Definition of Solid Waste, 50 Fed. Reg. 614 (Jan. 4, 1985 (final rule) (codified at 40 C.F.R. Parts 260, 261, 264, 265, 266 (1993)) [hereinafter 1985 Definition of Solid Waste]. Identification and Listing of Hazardous Waste; Amendments to the Definition of Solid Waste, 53 Fed. Reg. 519 (Jan. 8, 1988) (proposed rule) (to be codified at 40 C.F.R. Part 261) [hereinafter 1988 Proposed Definition of Solid Waste]. (6.) Wastes are considered hazardous in two circumstances. EPA could list a waste as hazardous pursuant to notice and comment rulemaking (listed wastes"). 40 C.F.R. [sub-sections] 261.30-.33 (1993). Wastes are also hazardous if they display one of four characteristics listed in the regulations ("characteristic wastes"). 40 C.F.R. [sections] 261.20. The four characteristics are ignitability, corrosivity, reactivity, and toxicity. 40 C.F.R. [sub-sections] 261.21-24 (1993). (7.) Pub. L. No. 89-272, Title II, 79 Stat. 992, 997-1001 (1965) (originally codified as 39 U.S.C. [sub-sections] 3251-3259, now found at 42 U.S.C. [sub-sections] 6901-6992k (1988 & Supp. IV 1992)). (8.) Office of Solid Waste and Emergency Response, U.S. EPA, Pub. No. EPA/530-SW-90-069, The Nation's Hazardous Waste Management Program at a Crossroads: The RCRA Implementation Study 5 (1990) [hereinafter Implementation Study]. (9.) Resource Recovery Act of 1970 [sections] 101(5), Pub. L. No. 91-512, 84 Stat. 1227-28 (1970). (10.) Robert V. Percival, Environmental Regulation: Law, Science, and Policy 214 (1992). (11.) An estimated 3 to 4 billion tons of solid waste were reportedly being generated annually, and the amount was growing at an estimated 8 percent per year." Id. at 214 (citing H.R. Rep No. 1491, 94th Cong., 2d Sess. 2 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6240). (12.) The |overriding concern' of Congress in enacting RCRA, as expressed in the House committee report accompanying the legislation was the |effect on the population and the environment of the disposal of discarded hazardous waste.'" Percival, supra note 10, at 215. (13.) At present the federal government is spending billions of dollars to remove pollutants from the air and water, only to dispose of such pollutants on the land in an environmentally unsound manner.... This legislation will eliminate this problem...." Id. (citing H.R. REP. No. 1491, at 4, reprinted in 1976 U.S.C.C.A.N. 6239, 6242.) (14.) 42 U.S.C. [sub-sections] 7401-7661q (1988 & Supp. IV 1992). (15.) 33 U.S.C. [sub-sections] 1251-1387 (1988 & Supp. IV 1992). (16.) Percival, Supra note 10, at 216 (citing Roger C. Dower, Hazardous Wastes, in Public Policies for Environment Protection 154 (R. Portney ed., 1990)). (17.) H.R. Rep. No. 1491, at 4, reprinted in 1976 U.S.C.C.A.N. at 6242. (18.) Pub. L. No. 94-580, 90 Stat. 2795 (1976). (19.) Percival, supra note 10, at 215. (20.) Implementation Study, supra note 8, at 5. (21.) H.R. Rep. No. 1491, at 5, reprinted in 1976 U.S.C.C.A.N. at 6242. (22.) 42 U.S.C. [sub-sections] 6941-6949a (1988). (23.) Id. [sub-sections] 6921-6939b. (24.) Id. [sub-sections] 6921-6925. (25.) See H.R. Rep. No. 1491, at 2, reprinted in 1976 U.S.C.C.A.N. at 6240. ("[A]n increase in reclamation and reuse practices is a major objective of the Resource Conservation and Recovery Act."). (26.) See Percival, supra note 10, at 217. (27.) Marcia E. Williams & Jonathan Z. Cannon, Rethinking the Resource Conservation and Recovery Act for the 1990s, 21 Envtl. L. Rep. (Envtl. L. Inst.) 10,063 (Feb. 1991). (28.) See Percival, supra note 10, at 217. (29.) See Williams & Cannon, supra note 27, at 10,064. EPA receives over 1000 calls per month concerning these definitional issues. Id. (30.) See notes 201-324 and accompanying text. (31.) See Williams & Cannon, supra note 27, at 10,064. (32.) 1980 Final Listing, supra note 5, W Fed. Reg. 33,084 codified at 40 C.F.R. Part 261 (1993)). (33.) See Percival, supra note 10, at 217. (34.) Id. (35.) 1980 Final Listing, supra note 5, 45 Fed. Reg. at 33,091, 33,090. (36.) Id. "The Agency's rationale for the beneficial use exemption in the original RCRA regulations ... was based on the belief that the intrinsic value of many wastes would ensure recycling in an environmentally sound manner." Richard C. Fortuna & David J. Lennett, Hazardous Waste Regulation: The New Era 63 (1987). (37.) Solid Waste Disposal Act, 42 U.S.C. $S 6973 (1988). Even imminent hazards were not subject to regulatory control prior to the harmful action, but only gave rise to enforcement proceedings after the fact. Fortuna & Lennett, supra note 36, at B. (38.) See Fortuna & Lennett, supra note 36, at 62-63. For example, the beneficial use exemption led to hazardous wastes being sprayed on roads as a dust suppressant, irrespective of the environmental damage these activities caused. "In effect, benefit to the generator outweighed harm to the environment." Id. (39.) Id. at 63. However, a storage facility might have to give interim status notification. Id. (40.) Id. (41.) See id. at 64. (42.) Id. (citing Statement of Enforcement Policy Issued Jan. 18, 1993, 48 Fed. Reg. 11,157 (Mar. 16, 1983)). (43.) Id. (44.) Id. (45.) Id. at 64 (citing 1983 Proposed Listing, supra note 5, B Fed. Reg. at 14,475. Today's regulatory scheme still reflects the schizophrenic nature of its 1980 predecessor. (46.) Fortuna & Lennett, supra note 36, at 64. (47.) Pub. L. No. 98-616, 98 Stat. 3221 (1984). (48.) 42 U.S.C. [sections] 6924(q) (1988). (49.) Id. [sections] 6924(l). (50.) Id. [sections] 6924(d)(2). (51.) Id. [sections] 6924(j). (52.) See Implementation Study, supra note 8, at 7. (53.) Id. (54.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. 614. (55.) See Fortuna & Lennett, Supra note 36, at 65. (56.) Jeffrey M. Gaba, Solid Waste and Recycled Materials Under RCRA: Separating Chaff from Wheat, 16 Ecology L.Q. 623 (1989). (57.) American Mining Congress v. EPA, 824 F.2d 1177, 1189 (D.C. Cir. 1987). (58.) See Recent Developments, Federal Regulation of Solid Waste Reduction and Recycling, 29 Harv. J. on Legis. 251 (1992). (59.) Id. at 253-54. (60.) See Williams & Cannon, supra note 27, at 10,063. (61.) Id. at 10,064. (62.) Id. at 10,069. (63.) Id. (64.) Id. see also Fortuna & Lennett, supra note 36, at 63. (65.) Id. Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 658 apps. A, B. (66.) See infra notes 322-28 and accompanying text. (67.) See Fortuna & Lennett, supra note 36, at 63 (citing Respondent Brief at 9, American Mining Congress v. EPA, 824, F.2d 1177 (D.C. Cir.) (Nos. 85-1206, 1206, 85-1208, 85-1211, 85-1212) (1985). (68.) See EPA, Rethinking the Definition of Solid Waste, at 8-9 (Apr. 28, 1993) [hereinafter Rethinking]. (69.) Id. (70.) RCRA's Recycling Loopholes; Legislative Proposals For Redress, 1992: Before the Subcomm. on Transportation and Hazardous Materials of the House Comm. on Energy and Commerce, 102d Cong., 2d Sess. 4-5 (1992) (Testimony of Richard C. Fortuna, Executive Director of the Hazardous Waste Treatment Council) [hereinafter HWTC Testimony]. (71.) 42 U.S.C. [sections] 6903(5) (1988). (72.) Subtitle C of RCRA is codified in the SWDA at 42 U.S.C. [sub-sections] 6921-6939(b) (1988). (73.) A waste is hazardous if it is listed at 40 C.F.R. [sub-sections] 261.30-.33 (1993). A waste is also considered hazardous if it displays one of four characteristics: (1) ignitibality; (2) corrosivity; (3) reactivity; or (4) toxicity. 40 C.F.R. [sub-sections] 261.21-.24 (1993). (74.) See 42 U.S.C. [sub-sections] 6921-6939b (1988). (75.) 1980 Final Listing, supra note 5, 45 Fed. Reg. at 33,119. (76.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. 614. (77.) 42 U.S.C. [sections] 6903(27) (1988) (emphasis added). (78.) Id. (79.) Id. (80.) Id. See also infra notes 81-82 and accompanying text. (81.) 42 U.S.C. [sections] 6903(27) (1988). (82.) 1980 Final Listing, supra note 5, 45 Fed. Reg. at 33,119. (83.) 1983 Proposed Listing, supra note 5, 48 Fed. Reg. at 14,473. (84.) For example, the Agency regulated materials being held for recycling. See infra notes 187-99 and accompanying text. (85.) American Mining Congress v. EPA, 824 F.2d 1179, 1180 (D.C. Cir. 1987). (86.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 614 (codified at 40 C.F.R. [sub-sections] 261.4, 262.20(e), 260.31 (1993)). (87.) 40 C.F.R. [sections] 261.4 (1993). (88.) Id. [sections] 262.20(e). (89.) Id. [sections] 260.31. (90.) Id. [sections] 261.4(a). (91.) Id. [sections] 261.4(b). (92.) See Fortuna & Lennett, supra note 36, at 73-74. (93.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 619. (94.) Id.; 40 C.F.R. [sections] 261.2(e)(1)(i) (1993). (95.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 619; 40 C.F.R. [sections] 261.2(e)(1)(ii) (1993). (96.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 620; 40 C.F.R. [sections] 261.2(e)(1)(iii) (1993). Under this exemption the material must be a substitute for a raw material used in the original process and the process must use raw materials as principal elements. Id. (97.) 40 C.F.R. [sections] 261.2(e)(1)(i), 261.2(e)(1)(iii) (1993). (98.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 618; 40 C.F.R. [sections] 261.1(c)(4) (1993). Examples include recovering lead from used batteries and reprocessing used solvents. Id. (99.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 619. (100.) 40 C.F.R. [sections] 261.2(e)(2) (1993). (101.) Id. [sections] 261.2(e)(1). (102.) Id. [sections] 261.2(e)(1)(i). (103.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 619. (104.) 40 C.F.R. [sections] 261.2(e)(1)(ii) (1993). (105.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 619-20. (106.) See Fortuna A. Lennett, supra note 36, at 75; 1985 Definition of Solid Waste,supra note 5, 50 Fed. Reg. at 638. (107.) 40 C.F.R. [sections] 261.2(e)(1)(iii) (1993). (108.) Id. (109.) See Fortuna & Lennett, supra note 36, at 75. (110.) Id. at 76. (111.) 40 C.F.R. [sections] 260.31 (1993). (112.) 40 C.F.R. [sections] 260.31(a) (1993). In deciding whether to grant the variance, the regional administrator should consider: how and when the material will be recycled; the likelihood that the recycling will occur, the reason that the material has been accumulated without at least seventy-five percent being recycled; the amount of material accumulated and expected to be generated; and any other relevant factors. Id. (113.) 40 C.F.R. [sections] 260.31(b) (1993). EPA initially proposed this as a separate exclusion but decided that it was too broad and included it as a variance instead. 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 620 (codified at 40 C.F.R. Parts 260, 261, 264, 265, 266 (1993)). (114.) 40 C.F.R. [sections] 260.31(c) (1993). (115.) Solid Waste Disposal Act, 42 U.S.C. [sections] 6903(27) (1988). (116.) 40 C.F.R. [sections] 261.2(a)(2) (1993). (117.) Id. (118.) See supra notes 107-10 and accompanying text. (119.) See infra notes 157-65 and accompanying text. (120.) See infra notes 211-24 and accompanying text. (121.) 40 C.F.R. [sections] 261.1(b)(1) (1993). (122.) See Gaba, supra note 56, at 634 n.63. (123.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 627. (124.) 40 C.F.R. [sections] 261.2(b) (1993). For example, abandonment does not include materials (such as non-hazardous scrap, paper, textiles, or rubber) that are not otherwise hazardous and that are recycled. Id. (125.) See infra notes 129-203 and accompanying text. (126.) "Materials that are recycled in lieu of disposal are not covered by this provision-even though recycling constitutes treatment. Rather, they are covered by the provisions in the definition saying when recycled materials are wastes." 40 C.F.R. [sections] 261.2(b)(3) (1993). (127.) 40 C.F.R. [sections] 261.2(d) (1993). (128.) Id. [sections] 261.2(d)(3). (129.) See infra notes 93-110 and accompanying text. (130.) 40 C.F.R. [sections] 261.2 provides a matrix that helps clarify how EPA applies these regulations. (131.) See Gaba, supra note 56, at 634 (citing 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 618). (132.) The five types of secondary materials are: (1) spent materials; (2) scrap metal; (3) sludges; (4) by-products and co-products; and (5) commercial chemical products. 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 624. (133.) The four activities are: (1) uses constituting disposal; (2) certain types of burning; (3) reclamation; and (4) speculative accumulation. 40 C.F.R. [sections] 261.2(c)(1)-(4) (1993). These activities are explained in greater depth in the text that follows. They may be referenced in the matrix that appears at 40 C.F.R. [sections] 261.2. (134.) 40 C.F.R. [sections] 261.2 (1993). (135.) Id. [sections] 261.1(c)(1). (136.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 624. This second illustration is similar to the second process-specific exclusion; using or reusing a secondary material as an effective substitute for a commercial product. (137.) 40 C.F.R. [sub-section] 260.10, 261.1(c)(2) (1993). (138.) Id. [sections] 261.2(c) (139.) Id. [sections] 261.1(c)(6). (140.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 624. (141.) Id. (142.) Id. at 624-25. (143.) Id. at 624. (144.) 40 C.F.R. $S 261.33 (1993); 1985 Definition of Solid Waste, supra. a note 5, 50 Fed. Reg. at 618. (145.) "The following materials or items are hazardous waste if and when they are . . . applied to the land in lieu of their original intended use . . ." 40 C.F.R. [sections] 261.33 (1993). (146.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 618. (147.) 40 C.F.R.[sections] 261,1(c)(3) (1993) (148.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 625. (149.) Id. (150.) 40 C.F.R. [sections] 261.2(c) (1993). (151.) Id. [sections] 261.1(c) (1993) (152.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 625. (153.) Id. Examples of co-products that are wastes include hazardous co-products that are burned for energy recovery or placed on the land. Id. at 625, n.12. (154.) See Fortuna & Lennett, supra note 36, at 84 n.57 (citing J.T. Smith & R.W. Fratz, EPA Revises Solid Waste Definition and Rules, Legal Times June 15, 1985). (155.) 40 C.F.R [sections] 261.2(c) (1992). (156.) Id. [sections] 261.2(c)(1)(A). (157.) Id. [sections] 261.2(c)(1)(b). (158.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 627-28. (159.) Id. at 628. (160.) Id. (161.) Id. (162.) Id. (163.) Id. (164.) Id. (165.) Id. (166.) By definition, incinerators burn wastes to destroy them. Therefore, all wastes burned in incinerators are burned for destruction and are fully regulated under subtitle C. John-Mark Stensvaag, Hazardous Waste Law and Practice [sections] 3, at 88 (1992). By contrast, wastes burned in industrial furnaces solely for materials recovery could escape Subtitle C regulation. Id. [sections] 3, at 88-89. (167.) See id. at 88 tbl.3.l. (168.) Detailed definitions of incinerators, boilers and industrial furnaces appear at 40 C.F.R. [sections] 260.10 (1993). (169.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. 614. (170.) Id. (171.) See Stensvaag, supra note 166, [sections] 3, at 83-84 (citing 1983 Proposed Listing, supra note 5, 48 Fed. Reg. at 14,482 n.12, (burning wastes as fuels is functionally identical to incinerating them")). "In most cases, such burning is environmentally identical to burning the same materials in an incinerator and could pose a parallel or greater risk of environmental dispersal of hazardous waste constituents and products of incomplete combustion." 1983 Proposed Listing, supra note 5, 48 Fed. Reg. at 14,481,82. (172.) See Stensvaag, supra note 166, [sections] 3, at 84 (citing 1983 Proposed Listing, supra note 5, 48 Fed. Reg. at 14,481-82): More importantly, even if materials burned were wastes under the 1980 regulatory definition, they were not regulated during recycling . . . It was this lack of regulation of the actual burning that created the loop-hole lamented by the EPA: [B]y allowing burning to go uncontrolled, the Agency,s existing regulations create a loophole in the RCRA regulatory structure, as more and more wastes that can be burned are channeled to boilers or heat-recovery units to avoid disposal or incineration costs." Stensvaag, supra note 166, [sections] 3, at 84. (173.) See supra notes 189-200 and accompanying text. (174.) 1983 Proposed Listing, supra note 5, 48 Fed. Reg. at 14,485. (175.) See Stensvaag, supra note 166, [sections] at 88. The regulations are found at 40 C.F.R. Parts 264, 265 Subpart O (1993). This process is considered to be incineration whether or not energy or materials also are recovered." 1983 Proposed Listing, supra note 5, 48 Fed. Reg. at 14,485. (176.) See Stensvaag, supra note 166, [sections] 3 at 88, at 4 ("Status 2"). 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 630. (177.) Id. See also supra note 175. (178.) If the wastes are burned for energy recovery or to produce a fuel, then they are covered under 40 C.F.R. Part 266 subpart H (1993). (179.) 40 C.F.R. [sections] 261.2(e)(ii) (1993). (180.) Id. (181.) Id. (182.) See Stensvaag, supra note 166, [sections] 3, at @87 (citing 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 630). (183.) Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 630. (184.) Id. (185.) Id. (186.) Id. (187.) Id. (188.) 40 C.F.R. [sub-section] 261.6(a)(ii), 266.20-.112 (1993). (189.) Id. at 631. EPA also provided several examples of how this provision would work. Id. (190.) Memorandum from Sylvia K. Lowrance, Director, Office of Solid Waste, to Hazardous Waste Management Division Directors (Apr. 26, 1989) [hereinafter EPA Memo] (on file with author). (191.) Id. (192.) See infra note 189, and accompanying text. (193.) EPA Memo, supra note 190, attachment 1. (194.) Id. attachment 1-2 (195.) Id. To answer this question, EPA provides the following list of relevant factors: * Does it contain Appendix VIII constituents not found in the analogous raw material or product (or at higher levels)? * Does it exhibit hazardous characteristics that the analogous raw material or product would not? * Does it contain levels of recoverable material similar to the analogous raw material or product? * Is much more of the secondary material used as compared with the analogous raw material or product it replaces? Is only a nominal amount of it used? * Is the secondary [sic] material as effective as the raw material or product it replaces? Id. attachments 1-2. (196.) Id. Additional questions here include the following: * Can the secondary material be fed directly into the process (i.e., direct use) or is reclamation (or pretreatment) required? * How much value does final reclamation add? Id. (197.) Additional questions here are the following: * Is it listed in industry newsletters, trade journals, etc.? * Does the secondary material have economic value comparable to the raw material that normally enters the process? Id. (198.) EPA Memo, supra note 190, Attachment 1. Additional questions here include the following: * Is there a contract in place to purchase the "product" ostensibly produced from the hazardous secondary materials? * If the type of recycling is reclamation, is the product used by the reclaimer? The generator? Is there a batch tolling agreement? (Note that since reclaimers are normally TSDFs, assuming they store before reclaiming. reclamation facilities present fewer possibilities of systematic abuse). * Is the reclaimed product a recognized commodity? Are there industry-recognized quality specifications for the product? Id. (199.) Id. Additional questions here include the following: * Is the secondary material stored on the land? * Is the secondary material stored in a similar manner as the analogous raw material (i.e., to prevent loss)? * Are adequate records regarding the recycling transactions kept? * Do the companies involved have a history of mismanagement of hazardous wastes?
200. Id. Additional questions here include the following: * What are the economics of the recycling process? Does most of the revenue come from charging generators for managing their wastes or from the sale of the product? * Are the toxic constituents actually necessary (or of sufficient use) to the product or are they just |along for the ride.'
(201.) 40 C.F.R. [sections] 261.2(c)(2)(i)(B) (1993). (202.) 40 C.F.R. [sections] 266.100(a) (1993). For a detailed discussion of these complex rules see Stensvaag, supra note 166, [sections] 3, at 89-92. (203.) See Stensvaag, supra note 166, [sections] 3, at 89. (204.) 40 C.F.R. [sections] 261.1(c)(4) (1993). (205.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 637. (206.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 633. (207.) Id. at 633. (208.) See the process-specific exclusions, supra notes 102-10 and accompanying text; see also 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 633. (209.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 633. (210.) Id. (211.) 40 C.F.R. [sections] 261.1(c)(8) (1993). (212.) Id. (213.) See infra notes 111-14 and accompanying text. (214.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 634. (215.) Id. at 635. (216.) Id. (217.) See intra notes 102-06 and accompanying text. (218.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 635. (219.) Id. (220.) Id. (221.) See infra notes 111-14 and the accompanying text. (222.) 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 635. (223.) Id. (224.) Id. (225.) American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987) [hereinafter AMC I]. (226.) Id. at 1180. (227.) Id. (228.) Id. at 1181. (229.) Id. (230.) Id. (231.) Id. (232.) 42 U.S.C. [sections] 6903(27) (1988). (233.) AMC I, supra note 225, 824 F.2d at 1182 (citing Chevron U.S.A. v. National Resources Defense Council, 467 U.S. 837, 842-44 (1984)). (234.) Id. (235.) Id. (quoting I.N.S. v. Cardoza-fonseca, 480 U.S. 421 (1987)) (quoting Watt v. Alaska, 451 U.S. 259, 273 (1981)). (236.) Id. at 1183-90. (237.) Id. at 1184 (citing Webster's Third New International Dictionary (1981)). (238.) Id. at 1184. (239.) Id. at 1185. (240.) Id. at 1187-89. (241.) Id. at 1189-90. (242.) Id. (243.) Id. at 1190-91. (244.) Id. at 1192. (245.) Id. at 1993. (246.) Id. However, the court did recognize that certain forms of recycling, specifically those that contain some element of discarding, remain within EPA's jurisdiction. For example, EPA could regulate certain aspects of used oil recycling. Id. at 1193 n.14. (247.) Id. at 1194-95 (Mikva, J., dissenting); Gaba, supra note 56, at 651-654. (248.) AMC I, supra note 225, 824 F.2d 1182. (249.) Id. at 1191. (250.) Id. at 1193-97. (Mikva, J., dissenting). (251.) Id. at 1195. (252.) Id.; H.R. Rep. No. 198, 98th Cong., 2d Sess. (1984), reprinted in 1984 U.S.C.C.A.N. 5605. (253.) AMC I, supra note 225, 824 F.2d at 1194. (254.) See Gaba, supra note 56, at 651-53. (255.) Id. at 653. (256.) Id. at 652-53. (257.) Id. at 652. (258.) AMC I, supra note 225, 824 F.2d at 1190-91. (259.) Although Subtitle C is silent on the question of resource recovery from hazardous waste, its structure and its broad grant of authority to the EPA to manage the problem of hazardous waste make it unclear, at the very least, whether Congress intended to exempt resource recovery from what is otherwise a comprehensive mandate to regulate hazardous wastes. Therefore, we cannot say that Congress has spoken to the precise issue before us. Shell Oil Co. v. EPA, 950 F.2d 741, 755 (D.C. Cir. 1991). (260.) See Gaba, supra note 56, at 654. (261.) 1988 Proposed Definition of Solid Waste, supra note 5, 53 Fed. Reg. 519. (262.) Id. at 520. (263.) Id. at 521-22. (264.) Id. at 522. (265.) Id. at 523. (266.) Id. at 519. (267.) Id. at 526-28. (268.) The factors are: (1) [W]hether the material is typically discarded on an industry-wide basis, (2) whether the material replaces a raw material when it is recycled and the degree to which its composition is similar to that of the raw material, (3) the relation of the recovery practice to the principal activity of the facility, (4) whether the material is handled prior to reclamation in a secure manner that minimizes loss and prevents releases to the environment, and (5) other factors, such as the length of time the material is accumulated. Percival, supra note 10, at 237 (citing 53 Fed. Reg. 35,415 (Sept. 13, 1988)). (269.) See id. at 237. (270.) American Petroleum Institute v. EPA, 906 F.2d 729 (D.C. Cir. 1990)) [hereinafter API]. (271.) Id. at 732, 734. (272.) Id. at 740. (273.) Id. at 741 (citing AMC I, supra note 225, 824 F.2d at 1186). (274.) Id. (275.) Id. (276.) Id. (277.) Id. at 729, 742. (278.) Id. at 741 n.16. (279.) Id. (280.) Id. at 734. (281.) Id. (282.) Id. at 741. (283.) AMC I, supra note 225, 824 F.2d at 1193. (284.) API, supra note 270, 906 F.2d at 742. (285.) AMC I, supra note 225, 824 F.2d at 1181 (emphasis added). (286.) API, supra note 270, 906 F.2d at 741. (287.) American Mining Congress v. EPA, 907 F.2d 1179 (D.C. Cir. 1990) [hereinafter AMC II]. (288.) Id. at 1181-82. (289.) Id. at 1184. (290.) Id. at 1186. (291.) Id. at 1185-86. (292.) Id. at 1186. (293.) Id. (294.) Id. (295.) Id. (296.) Id. at 1187. (297.) Id. (298.) Id. at 1186. (299.) Id. (300.) Id. See also supra note 285 and the accompanying text. (301) Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). (302) Id. at 745. (303) Id. at 753. (304) Id. at 755. (305) Id. (citing 1980 Final listing, supra note 5, 45 Fed. Reg. at 33.091.) (306) Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-44 (1984). (307) Shell Oil Co., supra note 301, 950 F.2d at 755. (308) Id. at 756. (309) Id. (relying on API, supra note 270, 906 F.2d at 742). (310) See HWTC Testimony, supra note 70, at 15. (311) Id. This test is also consistent with source reduction, waste minimization goals, and would encourage firms to hire engineers to reconfigure facilities, rather than lawyers to argue over jurisdiction., Id. (312) Id. at 13. (313) Id. at 15. (314) AMC I, supra note 225, 824 F.2d 1177. (315) API, supra note 270, 906 F.2d at 741-42. (316) See Rethinking, supra note 68, at 23. (317) See Gaba, supra note 56, at 656. (318) See generally Hazardous Waste Treatment Council, Sham and Uncontrolled Recycling: A Strategy to Stop Environmental Degradation and Implement Waste Minimization, prepared for the Senate Environment and Public Works Staff, 102nd Cong., 1st Sess. (Oct. 11, 1991) [hereinafter HWTC Strategy]; Hazardous Waste Provisions, 1991: Hearings on S. 976. "The Resource Conservation and Recovery Act Amendments of 1991" and S. 976, "The Hazardous Waste Recycling Act of 1991" Before the Senate Subcomm. on Environmental Protection of the Senate Comm. on Environment and Public Works, 102nd Cong., 1st Sess. (1991) (testimony of Karen Florini, Senior Attorney, Environmental Defense Fund) [hereinafter Florini Testimony]; Williams & Cannon, supra note 27 Rethinking, supra note 68. (319) See SWDA, 42 U.S.C. [section] 6902(a)(3) (1988): (320) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [subsection] 9601-9675 (1988 & Supp. IV 1992). (321) 40 C.F.R. Part 300, App. B (1993). (322) See HWTC Testimony, supra note 70, attachment C. To a limited extent, these numbers would be more significant if these sites were created after RCRA's passage, since RCRA would then be failing to control such facilities adequately. However, this logic would only apply to recycling facilities that RCRA covers. For example, sixty-three used oil recycling facilities are on the NPL, yet used oil recycling is not covered by RCRA. Id. at Attachments C and D. Therefore, even in the post-RCRA era, significant problems exist with certain aspects of hazardous waste recycling that the statute should address, but does not. (323) Sixty-three NPL sites were created at used oil recycling and blending facilities. Only 200 of these facilities are in operation today. HWTC Strategy, supra note 318, at A-16. (324) 42 U.S.C. [section] 6921(b)(3)(B) (1988). (325) See HWTC Testimony, supra note 70, attachment C; HWTC Strategy, supra note 318, at A-12. (326) See HWTC Testimony, supra note 70, at 1. (327) Id. attachment B. (328) See Florini Testimony, supra note 318, at 3. (329) Id. (330) See Williams k Cannon, supra note 27, at 10,067. (331) See HWTC Testimony, supra note 70, attachment D. (332) Rethinking, supra note 68, at 14 (citing Implementation Study, supra note 8). (333) See Gaba, supra note 56, at 631; Rethinking, supra note 68, at 9. (334) See Gaba, supra note 56, at 631. (335) Rethinking, supra note 68, at 15. While industry representatives have made this complaint, they have not provided any examples of specific situations where this problem has occurred. (336) Industry has complained to EPA that the [d]efinitions of solid and hazardous waste [are] too difficult to interpret., Consequently, businesses may hesitate to invest in recycling and "[c]onsumer costs [are being] raised, natural resources wasted, [and the] creation of new jobs/technology [is being] stifled." Id. (337) See HWTC Strategy, supra note 318, at 8. (338) See Williams i Cannon, supra note 27, at 10063. (339) 42 U.S.C. [section] 6903(27) (1988). (340) See generally Shell Oil Co., supra note 301, 950 F.2d 741. (341) See supra notes 320-31 and the accompanying text. (342) See HWTC Testimony, supra note 70, at 18. (343) Id. (344) Id. (345) See Florini Testimony, supra note 318, at 2. (346) See supra notes 320-31 and accompanying text. (347) See HWTC Strategy, supra note 318, at 24. For example, a recycling facility in Illinois that recovered silver from film chips reportedly killed one of its workers by accidentally exposing him to the cyanide used in the recycling process. That same facility also indiscriminately disposed of the cyanide-laced chips throughout the state. Id. (348) See Rethinking, supra note 68, at 8. (349) Id. (350) See generally Gaba, supra note 56, at 630-32. (351) See HWTC Testimony, supra note 70, at 19. (352) See Florini Testimony, supra note 318, at 5; Rethinking, supra note 68, at 9. (353) See HWTC Strategy, supra note 318, at 16 (citing Loopholes in the Identification and Listing of Hazardous Wastes,in The Hazardous Waste Consultant, May/June, 1989, at 4-1). (354) See HWTC Strategy, supra note 318, at 16. (355) See infra notes 94-111 and accompanying text. (356) Id. (357) Id. (358) API, supra note 225, 906 F.2d at 737-39. (359) Id. See also HWTC Strategy, supra note 318, at 19. (360) See supra notes 179-88 and the accompanying text. (361) See HWTC Strategy, supra note 318, at 19. (362) 40 C.F.R. [section] 261.6(c)(1) (1993). (363) 40 C.F.R. [section] 261.7 (1993). (364) Id. (365) Burning of Hazardous Waste in Boilers and Industrial Furnaces Rule, 56 Fed. Reg. 7134 (1991) (codified at 40 C.F.R. Parts 260, 261, 264, 265, 266, 270, 271 (1993)) [hereinafter Boilers and Industrial Furnaces Rule]. (366) Id. See HWTC Strategy, supra note 318, at 20. (367) See supra notes 93-110 and accompanying text. (368) See HWTC Strategy, supra note 318, at 18. (369) Id. (370) Id. (371) Id. at 7. (372) Id. at 18. (373) See generally Haynes Johnson, Sleepwalking through History: America In The Reagan Years 433-35 (1991) (discussing how poor regulatory oversight virtually caused the savings and loan crisis). (374) Id. at 434. The 1990 Economic Report of the President, the final White House report issued by the Reagan Administration, said of the savings and loan crisis: "The irony is that Federal Government Policies have led to this debacle." Id. (375.) See HWTC Strategy, supra note 318, at 7. (376.) Id. (377.) Id. at 15. (378.) Id. (379.) Id. at 15-16. (380.) Id. (381.) Id. at 17. (382.) Id.; 40 C.F.R. [sections] 260.100 (1993). (383.) See Williams & Cannon, supra note 27, at 10,069. (384.) See HWTC Strategy, supra note 318, at 19; 40 C.F.R. [sections] 266.20(b) (1993). (385.) See HWTC Strategy, supra note 318, at 19; 40 C.F.R. [sections] 261.6(c)(1) (1993). (386.) Boilers & Industrial Furnaces Rule, supra note 365, 56 Fed. Reg. 7134. (387.) Id. (388.) See HWTC Strategy, supra note 318, at 20. (389.) See HWTC Testimony, supra note 70, at 11; see also supra notes 320-331 and accompanying text. (390.) See HWTC Testimony, supra note 70, at 11. (391.) Id. at 19. (392.) Id. (393.) See generally supra notes 31947 and accompanying text. (394. See 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 658 Appendix A, B, for a list of recycling operations that are now Superfund sites. This list included 83 sites in 1985; it now includes 239 sites. Id. See also HWTC Testimony, supra note 70, at Attachment C. (395.) See HWTC Testimony, supra note 70, at 20. (396.) Id. (397.) Id. (398.) See infra part IV.A. (399.) See Gaba, supra note 56, at 632; Rethinking, supra note 68, at 9. (400.) 42 U.S.C. [sections] 6902(a)(6) (1988). (401.) Id. [sections] 6902(a). (402.) "[T]he paramount and overriding statutory objective of RCRA is protection of human health and the environment. The statutory policy of encouraging recycling is secondary and must give way if it is in conflict with the principle objective." 1985 Definition of Solid Waste, supra note 5, 50 Fed. Reg. at 618. (403.) See HWTC Testimony, supra note 70, attachment C. See also supra note 322. (404.) See HWTC Strategy, supra note 318, at 1. (405.) See Williams & Cannon, supra note 27, at 10,067. (406.) Id. (407.) The seminal explanation of economic externalities as they relate to environmental degradation appeared in Garrett Hardin, The Tragedy of the Commons, 162 Science 1243 (1968). For a further discussion of how economic externalities affect the environment see generally Thomas J. Schoenbaum & Ronald H, Rosenberg, Environmental Policy Law 14-20 (2d ed. 1991). (408.) See Williams & Cannon, supra note 27, at 10,074. (409.) See Gaba, supra note 56, at 654. This analysis is not limited to recycling. For example, cigarette smoking causes a wide variety of health problems. Yet cigarette producers do not pay the health-care costs caused by the use of their product; society does. Ideally, a pack of cigarettes should cost enough to pay for the illnesses that the smoker is likely to develop later in life (the Clinton Administration "sin tax" would address this problem, to a limited extent). The smoker and the manufacturers would bear the burden associated with the use of their products. Once these costs were internalized, the manufacturer would then reap the true profits for their product and society would not be required to pay the hidden costs. (410.) Id. at 658-59. (411.) Id. at 660. (412.) Id. at 660 n.234. (413.) Id. at 660. "EPA's regulations implicitly recopize the importance of environmental values by classifying materials that are recycled in a manner constituting hazardous waste disposal, storage or treatment as wastes." Id. (414.) See supra notes 383-85 and accompanying text. (415.) See Gaba, supra note 56, at 660. (416.) See Williams & Cannon, supra note 27, at 10,074. (417.) See Florini Testimony, supra note 318, at 5-6. (418.) Williams & Cannon, supra note 27, at 10,074. While the authors acknowledge that recycling facilities under the new subtitle "would be subject to the same air and water permits applicable to manufacturing facilities," they do not explain how their proposed scheme would differ from the present scheme in this context, since in both cases air and water emissions are already regulated. Id. (419.) See supra notes 411-13 and accompanying text. (420.) Williams & Cannon, supra note 27, at 10,074. (421.) Id. (422.) Id.; SWDA, 42 U.S.C. [sections] 6925(a). Again, although Williams & Cannon specify that these facilities would require Subtitle C permits, they do not explain how this scheme is different from the scheme already in place. See supra note 418. (423.) HWTC Testimony, supra note 70, at 21. (424.) Id. (425.) Id. (426.) Id. at 11. (427.) Id. at 21. (428.) Florini Testimony, supra note 318, at 5-6. (429.) See supra notes 332-35 and accompanying text. (430.) HWTC Testimony, supra note 70, at 20-22. (431.) Id. (432.) See generally supra part IV.B. (433.) See supra notes 407-10 and accompanying text. (434.) Williams & Cannon, supra note 27, at 10,074. (435.) See supra notes 353-88 and accompanying text. (436.) See Florini Testimony, supra note 318, at 5. "Several critical new issues have been added to the Agency's plate in the past 15 years - including global climate change, ozone depletion, Superfund, medical waste, acid rain, and so on - while few if any of the older issues have gone away." Id. (437.) See Robert Pear, Clinton Outlines Spending Package of $1.52 Trillion, N.Y. Times, Apr. 9, 1993, at A1, A16. (438.) See Florini Testimony, supra note 318, at 5. (439.) See supra notes 370-81 and accompanying text. (440.) See HWTC Strategy, supra note 318, at 29. (441.) Id. (442.) Id. (443.) Id. at 30. (444.) See HWTC Strategy, supra note 318, at 31. (445.) Id. at 29-35. (446.) See supra notes 367-74 and accompanying text. (447.) See HWTC Strategy, supra note 318, at 30. A similar scheme already exists in the new Clean Air Act (CAA). The CAA was amended so as to require major emissions sources to certify their compliance. 42 U.S.C. [sections] 7414(a)(3) (Supp. IV 1992). EPA can then use its subpoena power to confirm compliance. 42 U.S.C. [sections] 7607(a) (Supp. IV 1992). (448.) 42 U.S.C. [sections] 6928(d)(3) (1988). (449.) Fraud and False Statements Act, 18 U.S.C. [sections] 1001 (1988). (450.) 42 U.S.C. [sections] 6972 (1988). (451.) See HWTC Strategy, supra note 318, at 30. (452.) See generally 22 Cal. Code Regs. [sections] 66,260 (1984). (453.) Id. (454.) See HWTC Strategy, supra note 318, at 30. (455.) Id. at 31. See also note 444 and accompanying text. (456.) See HWTC Strategy, supra note 318, at 31. (449.) Fraud and False Statements Act, 18 U.S.C. [sections] 1001 (1988). (450.) 42 U.S.C. [sections] 6972 (1988). (451.) See HWTC Strategy, supra note 318, at 30. (452.) See generally 22 Cal. Code Regs. [sections] 66,260 (1984). (453.) Id. (454.) See HWTC Strategy, supra note 318, at 30. (455.) Id. at 31. See also note 444 and accompanying text. (456.) See HWTC Strategy, supra note 318, at 31. (457.) Id. For example, in Shell Oil, K061 electric arc furnace dust would have been exempt from RCRA regulation because the zinc recovered from the dust qualified for the product exemption. Though this rule was challenged and defeated for other reasons, the important point is that the recycling exclusion ignored the other components of the dust - lead, cadmium and chromium - which could cause the most environmental damage. The proposed revision would rectify this oversight. Shell Oil Co. v. EPA, 950 F.2d 741, 749 (D.C. Cir. 1991) (458.) See infra supra notes 500-03 and accompanying text. (459.) See HWTC Strategy, supra note 318, at 31. (460.) Id. (461.) Id. at 32. (462.) Id. (463.) Id. (464.) See id. Advocates of this scheme appear concerned that burning for energy and materials recovery is not regulated as tightly as incineration, though the two are often functionally equivalent. (465.) Id. at 33. (466.) Id. (467.) See Florini Testimony, supra note 318, at 5. (468.) See generally HWTC Strategy, supra note 318, at 29-35. (469.) Id. at 34. (470.) The Clean Air Act Amendments of 1990 included such a provision. 42 U.S.C. [sections] 7661b(c) (Supp. IV 1992). (471.) See HWTC Strategy, supra note 318, at 34. (472.) 42 U.S.C. [sections] 6928(d)(3) (1988). (473.) Id. (474.) Id. (475.) Id. (476.) Id. at 35. (477.) See HWTC Strategy, supra note 318, at 35. See also supra note 464. (478.) See supra notes 465-66 and accompanying text. (479.) See supra note 444 and accompanying text. (480.) EPA, Rethinking the Definition of Solid Waste, Note to Participants in Public Forum, (April 28, 1993) (on file with author). (481.) See Rethinking, supra note 68, at 19.1 (482.) Id. at 20 & attachment 2. (483.) Id. at 20. (484.) Id. (485.) Id. at 21. (486.) Id. (487.) Id. at 22. (488.) Id. (489.) Id. at 24. (490.) Id. (491.) Id. (492.) Id. (493.) Id. (494.) Id. at 25. (495.) Id. (496.) Id. (497.) Id. (498.) Id. (499.) See HWTC Testimony, supra note 70, at 22. (500.) See supra notes 407-11 and accompanying text. (501.) See HWTC Testimony, supra note 70, at 22. (502.) See supra notes 458-62 and accompanying text. (503.) Gaba, supra note 56, at 661. (504.) Id. at 497. (505.) Id. at 664. (506.) Id. (507.) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [subsections] 9601-9675 (1988 & Supp. IV 1992)). (508.) Toxic Substances Control Act, 15 U.S.C. [subsections] 2601-2671 (1988 & Supp. V 1993). (509.) Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. [subsections] 11001-11050 (1988 & Supp. IV 1992). (510.) See Gaba, supra note 56, at 664. (511.) Id. at 663. (512.) See supra notes 497-502 and accompanying text. (513.) See Gaba, supra note 56, at 663. (514.) See Florini Testimony, supra note 318, at 9. (515.) Id. (516.) H.R. Rep. No. 1491, at 5, reprinted in 1976 U.S.C.C.A.N. at 6242. (517.) See supra notes 11-12 and accompanying text. (518.) See generally Arnold W. Reitze, Jr., Environmental Policy: It Is Time For A New Beginning, 14 Colum. J. Envtl. L. 111 (1989). (519.) See generally Florini Testimony, supra note 318, at 1; Implementation Study, supra note 8, at 3. (520.) Implementation Study, supra note 8, at 3. (521.) Id. (522.) Id.…