By: Tara K. Quaglione, Esq.
The Resource Conservation and Recovery Act (“RCRA”), a landmark law in environmental protection, turns 40 years old this fall. As the principal federal law governing disposal of solid and hazardous waste, RCRA has been instrumental in shaping numerous environmental practices and principles over the past few decades.
RCRA regulations notoriously provide many recycling reliefs for generators, but RCRA’s definition of solid waste (“DSW”) has contributed to a grey area, with respect to recycling, for years. In 2015, the Environmental Protection Agency (“EPA”) expanded its guidelines for what constitutes legitimate recycling, versus recent “sham recycling.” First, the recycling “must involve a hazardous secondary material that provides a useful contribution to the recycling process.” 40 C.F.R. § 260.43. The resulting product or intermediate must also be valuable. The generator and the recycler must treat the hazardous material as valuable while it is under their control and the recycled product must be comparable to a “legitimate product.” Id.
In contrast, the EPA outlined several examples of “sham” recycling, typically in situations where the recycled secondary material is ineffective, or only marginally effective for the claimed use. “Sham” recycling can also include unnecessarily excessive amounts, or using material in a manner that is inconsistent with its use as a commercial product substitute or as a raw material. Id. Typical examples of “sham” recycling include producing a recycled product with higher concentrations of hazardous constituents than would normally be found in a product, or using recycled materials in excess of the amount necessary. For instance, using heavy metal sludge in concrete when the sludge does not substantially contribute to the concrete’s properties, or using chlorine in excess in a process that requires chlorine are both considered “sham” recycling.
Recently, several advocacy groups filed petitions for review in the D.C. Circuit over the agency’s new definition of solid waste under RCRA. Environmental groups, such as the Sierra Club and Earthjustice, argued that the EPA’s new rule on “sham recycling” doesn’t adequately prevent companies from discarding hazardous material. Industry groups, such as the American Petroleum Institute (“API”), challenged the fact that the EPA had RCRA jurisdiction over materials that are processed into valuable secondary products. In its brief, the API stated that “RCRA authorized [the] EPA to regulate only ‘solid waste,’ which the statute defines as ‘discarded’ materials,” and that the RCRA regulations do not “require [the] EPA to issue conditions or limitations that allegedly would prevent materials from being discarded at some future point.”
The final briefings in this case will conclude soon and the D.C. Circuit’s judicial review of these rules should prove transformative. This consolidated action is currently before the D.C. Court of Appeals, American Petroleum Institute v. EPA, case number 09-1038.