EPA Proposes Long-Awaited Revision to The Definition of 'Solid Waste'

By James Morriss1

Abstract

The U. S. Environmental Protection Agency ("EPA") published its proposed changes to the definition of "solid waste" on October 28, 2003.2 While the proposal is intended to encourage recycling and resource conservation and will do so to a limited extent, significant constraints will remain if the proposal is adopted. Specifically, EPA has not recognized the potential for reuse of secondary materials within industries other than those in which the material is generated. This opportunity for "by-product" synergy between different industries is significant. This article reviews the scope of the proposed changes, their limitations, and the various options which EPA continues to consider. The primary objective of the article is to encourage stakeholders to comment on the proposed rules and options and urge EPA to adopt a broader more flexible approach to the reclamation and recycling of hazardous secondary materials. Notwithstanding the encouragement of federal court decisions, this rulemaking has taken years to emerge and may well be the last opportunity to effect meaningful change in the agency's approach to these issues for the foreseeable future. This is the time to redirect the Resource Conservation and Recovery Act in a manner consistent with its name.

Background

On October 28, 2003, the U.S. Environmental Protection Agency ("EPA") proposed the long-awaited revisions to the definition of "Solid Waste." The stated intent of the rule is to revise and clarify the definition of "Solid Waste" under the Resource Conservation and Recovery Act as it relates to certain types of hazardous secondary materials that are not considered to be discarded and thus are not considered waste subject to regulation. EPA characterizes the proposal as "deregulatory," thereby suggesting that it imposes no new restrictions on the management of hazardous waste but rather relaxes existing restrictions. Many in regulated industry would say this rulemaking is long overdue and does not go nearly far enough in light of prior court decisions. The proposal will leave constraints that will continue to thwart bona fide resource recovery efforts, yet EPA characterizes the proposal as being consistent with the agency's "long-standing policy of encouraging the recovery and reuse of valuable resources"3

EPA states that the new rule is consistent with the primary goals of the Resource Conservation and Recovery Act reflected in the Act's name. Ironically, only now does the Act hold the promise of living up to the name it has had since 1976. EPA has a published vision of how the RCRA program should evolve over the longer term.4 This vision, commonly referred to as the RCRA Vision 2020, predicts a system that promotes sustainability and more efficient use of resources. The changes in the rules proposed on October 28 are but a small step toward that vision. The agency also cites its recent Re source Conservation Challenge, which is designed to encourage and provide new incentives for increased reuse and recycling of materials, including hazardous wastes and hazardous secondary materials5; but in weighing the agency's stated intentions against the actual scope of the proposal, one must question why so many challenges still confront resource conservation.

From the beginning of rulemaking under RCRA, EPA has been persistent in its efforts to regulate not only the disposal, but also the recycling of a large portion of the universe of hazardous secondary materials. EPA proposes to deregulate only a small subset of those hazardous secondary materials - those generated and reclaimed within the same industry. The proposed rule would not relax the regulation of materials generated and then reclaimed and recycled in a different industry. Further, the proposed rule does not affect the current restriction on materials EPA considers to be "inherently waste- like" materials. EPA defines such wastes to include those used in a manner constituting disposal, waste burned for energy recovery, and materials classified as inherently waste- like under the rules.6 The agency does solicit comments, not only on the proposed rule but also on a number of alternatives.

The scope of EPA's regulation of recycling was first called into question by the decision of the D.C. Circuit in American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987) ("AMC I"). AMC I held that EPA exceeded its authority in seeking to bring materials that are not discarded or otherwise disposed of within the definition of waste. The court held that Congress used the term "discarded" in its ordinary sense, to mean "disposed of," "abandoned," or "thrown away." Thus, the court concluded that the term "discarded materials" could not include materials that were destined for beneficial use or recycling by the generating industry in a continuous process. The court observed that such materials are not yet part of the waste disposal problem.7 In the intervening years, other court decisions have clouded the picture of what is "discarded." For example, the court in American Petroleum Institute v. EPA held that emission control dust from steelmaking operations listed as hazardous waste "KO61" is a solid waste even when it is destined for a metals reclamation facility. This result was influenced by the fact that metals reclamation was the designated treatment method required by EPA's land disposal restrictions.8 EPA also points to the Fourth Circuit decision regarding steel slag, in which the court concluded that slag stored on the ground untouched for six months could be a solid waste.9 Ironically, the intended use of the slag was road base material.

Finally, in 2000, the D.C. Circuit restated its position regarding the meaning of the term "discarded." In Association of Battery Recyclers v. EPA ("ABR"), the D.C. Circuit reminded the agency that it had already addressed the issue of when a material is "discarded" in AMC I. The court reiterated that the Congressional intent on this issue was clear - "solid waste" is limited to materials that are "discarded" by virtue of being disposed of, abandoned, or thrown away." The court noted that materials reused within an ongoing industrial process are neither disposed of nor abandoned.10

The Scope of...