Rethinking recycling.

• Author: Gaba, Jeffrey M.

1. INTRODUCTION II. A RCRA PRIMER III. THE PROBLEM OF RECYCLING UNDER RCRA A. Statutory Jurisdiction over Recyclable Materials B. No Clear Economic Indicia of Waste C. No Clear Environmental Indicia of Wastes D. The Complexity of Industrial Recycling Activity E. Competing Objectives of RCRA IV. EPA's CURRENT TREATMENT OF RECYCLABLE MATERIALS A. The "Dual" Definitions B. EPA 's Subtitle C Regulatory Definition of Solid Waste C. EPA 's Regulation of Recyclable Materials and Recycling Activities V. EPA's 2008 RECLAMATION RULE A. Reclamation Exclusions 1. Reclamation "under the Control" of the Generator 2. Reclamation by Third-Party Reclaimers 3. Export Exclusion B. Legitimacy Criteria C. Nonwaste Determinations 1. Continuous Process Nonwaste Determination 2. Identical Product Nonwaste Determination VI. PROBLEMS WITH EPA's REGULATORY APPROACH A. Coherence B. Clarity C. Coverage VII. RETHINKING RECYCLING: A PROPOSED SCHEME A. The Jurisdictional Scope of RCRA 1. The Broad Scope of the Statutory Definition 2. The Narrower Scope of the Regulatory Definition B. A Revised Regulatory Definition of Solid Waste 1. Abandoned Materials 2. Recycling of By-products through Land Application or Burning 3. Recycling of By-products through Sham Recycling 4. Designated Solid Wastes C. Liability and Enforcement Policies D. Reporting Requirements VIII. CONCLUSION I. INTRODUCTION

   The Resource Conservation and Recovery Act (RCRA) (1) establishes the so-called "cradle to grave" program for the management of hazardous waste. (2) Under Subtitle C of RCRA, hazardous "solid waste," as defined by the United States Environmental Protection Agency (EPA), is subject to extensive controls on its storage, transportation, and disposal. (3) When Tony Soprano's waste management crew dumps hazardous stuff into a ditch in Jersey, they are likely violating the requirements of RCRA.

   Although abandoned materials may clearly be solid wastes, there has been continuing controversy over the proper classification and regulation of recyclable materials under RCRA. (4) Solid waste is defined under RCRA to include "discarded materials," (5) and recyclable materials that have a use in commerce are not, in any obvious sense, discarded. This has led to questions about the extent of EPA's authority to define recyclables as solid waste under RCRA. (6) Further, there are questions about the extent to which recyclable materials should be subject to RCRA control. (7) Proper recycling of materials is, in most cases, preferable to disposal; indeed, recycling is an activity that RCRA seeks to encourage. (8) On the other hand, recycling can be a sham exercise to avoid the cost of disposal and may involve activities that produce significant environmental harm. Regulation of recyclables under RCRA thus requires an assessment of the appropriate level of control that minimizes environmental risk without unduly burdening recycling activity.

   EPA has consistently asserted jurisdiction to regulate some class of recyclable materials under the hazardous waste provisions of RCRA Subtitle C. (9) It has done this, however, through a multipage monstrosity of a regulatory definition that establishes a complex and confusing scheme that includes, excludes, and exempts recyclable materials from regulatory requirements in an almost incomprehensible fashion. (10) EPA has, for many years, acknowledged problems in the way its regulations treat recycled materials under RCRA. (11)

   In 2008, EPA promulgated significant revisions to the definition of solid waste that substantially changes its treatment of certain types of recyclable materials. (12) This new rule, the culmination of years of assessment of EPA's treatment of recycling, has provided new and complex provisions that conditionally exclude many recycled materials from coverage under RCRA. The new provisions exclude "hazardous secondary materials" from classification as a solid waste if they are reclaimed "under the control" of the generator or, subject to significant conditions, they are reclaimed off-site by a third-party reclaimer. (13) They also exclude materials exported for reclamation outside the United States. (14)

   Although EPA's new attention to the problem of recycling under RCRA is welcome, EPA's new regulations deal with the problem in ways that perpetuate many of the existing flaws. Rather than reconsidering its basic approach, EPA has published new regulations that graft a complex set of provisions on the existing bloated and confusing set of regulations and policies that apply to recycled materials under RCRA.

   This is unfortunate since EPA's existing approach to regulation of recyclable materials fails on many levels. First, it is incoherent. EPA has never developed a consistent rationale for classifying materials as solid wastes, and it has conflated the issues of what materials may be classified as solid wastes under RCRA with the issue of what recyclable materials should be regulated as hazardous wastes under Subtitle C. Second, EPA has developed a regulatory approach that is, quite simply, poorly drafted and confusing. This confusion creates problems in implementing the program and assuring public acceptance. Finally, EPA's approach may unnecessarily include materials involved in legitimate recycling within the coverage of Subtitle C.

   This Article suggests a different approach to determining the scope of regulation of recyclable materials under Subtitle C. A key element is to resolve the conceptual confusion by establishing broad statutory authority to define virtually all recyclable materials as solid wastes but fashioning a narrower regulatory definition based on an explicit balancing of RCRA's competing objectives. The narrower regulatory definition would include recycling activities that are equivalent to disposal, such as burning or land application, and all "sham" recycling activities. All other legitimate recycling would be excluded from regulation under the Subtitle C regulatory program. This approach would be supported by a series of mechanisms to provide both certainty and enforceability through a focus on sham recycling. The Article also suggests reliance on available reporting and liability provisions of RCRA and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) (15) that do not require classification of recyclable materials as hazardous waste under Subtitle C. Taken together, this approach would provide a simpler and more coherent approach to the regulation of recyclable materials that encourages proper recycling of wastes without compromising the environmental objectives of RCRA.

   This Article begins in Parts II and III with a brief introduction to RCRA and a discussion of the problems confronting the regulation of recyclable materials under RCRA. Parts IV and V contain a description of EPA's current approach to regulating recyclable materials, including a description of EPA's 2008 regulatory exclusions for certain recycled materials. Part VI discusses fundamental problems with EPA's regulatory program approach. Part VII contains a modest proposal for an alternative regulatory approach.

2. A RCRA PRIMER

   It may be useful to describe some of the basic elements of the statute for the RCRA novice. Subtitle C of RCRA establishes a "cradle to grave" regulatory program that applies to materials defined as hazardous solid wastes under EPA regulations. (16) We will consider EPA's regulatory definition of solid waste in detail below, but for now it is enough to know that EPA defines solid waste to include abandoned material (such as stuff that is obviously thrown away) and many types of recyclable materials. (17) In most cases, EPA does not classify the products produced from recyclable wastes as wastes. (18)

   A solid waste is a hazardous waste if it is either designated on EPA lists of hazardous wastes, so-called "listed wastes," or it exhibits any of four hazard characteristics, so-called "characteristic wastes." (19) To determine if a waste is a listed waste, one need only check the EPA regulations; to determine if a waste is a characteristic waste, it is necessary to make a case-by-case determination that may involve laboratory testing to determine if a waste exhibits a hazard characteristic. (20) Mixtures of hazardous and nonhazardous wastes and wastes derived from the treatment of hazardous wastes may also be classified as hazardous under EPA's mixture and derived-from rules. (21)

   Materials classified as hazardous wastes under the regulations are subject to a series of complex and costly regulatory requirements on the generator, transporter, and disposer of the waste. There are several key elements of this regulatory program, including:

   * a requirement that the initial generator determine if a material is a hazardous waste, (22)

   * limitations on the duration and method of on-site storage of the hazardous waste by the generator, (23)

   * substantial restrictions on the disposal of hazardous wastes in landfills, (24)

   * use of a federally mandated hazardous waste "manifest" when wastes are transported, (25) and

   * a requirement that hazardous wastes be disposed of only at a facility, known in the trade as a "treatment, storage, or disposal facility" or "TSDF," that has a federally mandated RCRA permit. (26)

   The basic structure of the Subtitle C program is designed to ensure that hazardous waste, tracked and managed from its point of generation, actually ends up in a permitted disposal facility.

   In addition to the Subtitle C regulatory program, RCRA also has a number of other elements that apply to nonhazardous wastes. Subtitle D, for example, addresses disposal of nonhazardous wastes. (27) Its most important component establishes requirements for the construction and operation of municipal solid waste landfills. (28) RCRA also has provisions that allow the government and private parties to seek injunctive relief if generators, transporters, or disposers of "solid or...