Hazardous waste recycling under the Resource Conservation and Recovery Act: problems and potential solutions.

• Author: Needleman, Barry

1. Introduction

   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.

2. 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...