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. …