Alert
Alert
01.20.15
After years of relative easing in its interpretation of the Resource Conservation and Recovery Act rules that govern industrial recycling, the Environmental Protection Agency is now taking a harder line. A recently issued regulation makes recycling almost as heavily regulated as other hazardous waste management activities under RCRA.
A long-term project by EPA to reform, reduce and relax the regulatory obstacles to the reclamation and recovery of valuable by-products generated by manufacturing and other industrial practices and operations appears to have come to an end. On December 10, 2014, the Administrator of EPA signed a final rule which again revises the agency’s regulatory definition of “solid waste,” which is the linchpin of EPA’s authority to regulate the management of hazardous waste. This action, albeit long-delayed, blunts or reverses the modest regulatory actions taken by EPA in October 2008 to encourage the legitimate recycling of “hazardous secondary materials” that would otherwise be subject to EPA’s very strict and complex RCRA Subtitle C hazardous waste rules. The agency states that it has revised the 2008 rules because it was concerned that the application of those rules would increase risk to human health and the environment from discarded hazardous secondary materials without additional safeguards. The many conditions that EPA placed on the new recycling exclusions in 2008 have been made more prescriptive, to the extent that the conditions attending a proposed recycling activity are similar in scope and complexity to the rules that apply to permitted RCRA treatment, storage and disposal facilities. This result also appears to conflict with the stated purpose of RCRA to “promote the protection of health and the environment and to conserve valuable material and energy resources.”
To place these changes in context, it may be helpful to briefly review the history of these rules.
I. Background
A. The Resource Conservation and Recovery Act (“RCRA”)
The Resource Conservation and Recovery Act of 1976, 42 U.S. §§ 6901 et seq. (“RCRA”), as amended by the 1984 Hazardous and Solid Waste Amendments, sets forth criteria for the management of solid waste and hazardous waste and establishes strict requirements applicable to generators and transporters of hazardous waste and rigid operating and permit requirements for those who treat, store, or dispose of hazardous waste. RCRA also provides a framework for the handling of recycled materials, the management of used oil, and the regulation of thousands of underground storage tanks containing petroleum products or other regulated materials. Most of the states have been delegated the authority to execute these programs, subject to EPA oversight.1
B. EPA’s First Regulatory Steps
RCRA’s enactment in 1976 was accompanied by Congressional findings to the effect that the haphazard disposal of hazardous waste could present a danger to human health and the environment and that the passage of the Clean Air Act in 1970 and the Clean Water Act in 1972 had, in fact, created even more waste that needed to be handled carefully. According to a contemporary report of the House Committee on Interstate and Foreign Commerce, an estimated 30-35 million tons of hazardous waste were deposited on the ground every year, and those practices were largely unregulated. With these findings in mind, EPA was directed to promulgate, within 18 months of RCRA’s enactment, rules which identified hazardous waste characteristics and listed particular hazardous wastes. This deadline was missed, and a citizen’s suit was filed to force EPA to promulgate these rules. In Illinois v. Costle, 12 ERC 1597 (D.D.C. 1979), a federal district court established new deadlines for EPA. The court noted that “the issues are extremely complex, and the scope of the regulations is extensive.”
On May 19, 1980, EPA promulgated the first major set of hazardous waste regulations, usually described as a “cradle to grave” management system.2 These rules addressed the definition, identification and classification of solid and hazardous waste, established standards to govern the generation and transportation of hazardous waste, and provided “interim status standards” for existing (and grandfathered) facilities that treated, stored or disposed of hazardous waste. New RCRA regulated facilities were subjected to much more rigorous permitting and operational standards. The rules became effective on November 18, 1980. Over the years, the program has become ever more complex, but the 1980 rules remain the heart of the RCRA system.
Download: Reversing Course, EPA Tightens Its RCRA Hazardous Waste Recycling Rules