Subtitle C of the Resource Conservation and Recovery Act (RCRA) establishes the so-called “cradle to grave” regulatory program over hazardous “solid wastes.” Although not obviously wastes, the United States Environmental Protection Agency (EPA) has consistently asserted jurisdiction to regulate some class of recyclable materials under Subtitle C. It has done this through a regulatory definition of “solid waste” that establishes a complex and confusing scheme that includes, excludes, and exempts recyclable materials from regulatory requirements in an almost incomprehensible fashion. In 2008, EPA added to this complexity by promulgating a new set of conditional exclusions that exempts certain reclaimed materials from classification as solid wastes.
This Article examines EPA’s current regulatory treatment of recyclable materials, including the 2008 reclamation exclusions. It suggests that the current approach fails on three levels. First, it is incoherent. EPA has not developed a consistent rationale for classifying materials as solid wastes. Second, EPA has developed a regulatory approach that is poorly drafted and confusing. 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 regulating recyclable materials under Subtitle C. A key element is to resolve the conceptual confusion by asserting broad statutory authority over virtually all recyclable materials as solid wastes but fashioning a narrower regulatory definition based on an explicit balancing of RCRA’s competing objectives. This approach is supported by existing case law.
The Article suggests that the narrower regulatory definition 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 to a focus on sham recycling. The Article also suggests use of available reporting and liability provisions of RCRA and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to promote proper recycling. 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.
Jeffrey M. Gaba, Rethinking Recycling, 38 Envtl. L. 1053 (2008)