“DISCARDED” or “NOT DISCARDED”: That Is the Question (or “Asked and (finally) Answered!”)

Posted on July 31, 2019 by Karen Crawford

On July 2, 2019, the D.C. Circuit Court of Appeals denied a petition brought by an environmental group for review of EPA’s Transfer-Based Exclusion for secondary hazardous materials in California Communities Against Toxics v. EPA (D.C. Cir. July 2, 2019) (No. 18-1163).  The court found that “EPA did not act contrary to RCRA in adopting the Transfer-Based Exclusion because hazardous secondary materials are not necessarily ‘discarded’ each time they are transferred from a generator to a reclaimer along with payment”, and that “EPA has provided a reasoned explanation for applying different standards to materials that are not yet part of the waste disposal problem RCRA addresses where they meet conditions EPA concluded were adequate for safe transfer and legitimate recycling.”  This is exclusion is set forth a 40 C.F.R. § 261.4(a)(24).

Background

In 2008 EPA promulgated the Transfer-Based Exclusion, along with the Generator-Controlled Exclusion, to encourage and expand the safe, beneficial recycling of hazardous secondary materials when carried out in accordance with specified “legitimacy factors”.  After challenges to the rule by both environmental and industry groups, EPA replaced the original Transfer-Based Exclusion with a new rule known as the Verified Recycler exclusion.  This new rule was also challenged and was vacated in 2017 when the appellate court reinstated the original rule with requirements added in 2015 to cover emergency preparedness and containment.  American Petroleum Institute v. EPA, 862 F. 3rd 50 (D.C. Cir. 2017).  On rehearing, the court expanded the exclusion to cover spent refinery catalysts.  American Petroleum Institute v. EPA, 883 F 3rd 918 (D.C. Cir. 2018).  Later the same year, without further notice and comment, EPA published the Transfer-Based Exclusion as modified by the D.C. Circuit throughout the 10 years of challenges as a final rule entitled Response to Vacatur of Certain Provisions of the Definition of Solid Waste Rule, 83 Fed. Reg. 24,664 (May 30, 2018), resulting in another challenge and the July decision of the D.C. Circuit Court of Appeals.

RCRA Authority

While Petitioners did not contend that the act of transferring the waste or of reclamation constitute “discard,” they did contend that a generator’s payment to a reclaimer to accept such material necessarily indicated the material has negative value to the generator, and thus the transfer constitutes a means of getting rid of, or “discarding”, the material.  RCRA does not define “discarded material” or address payment, but the court found precedent in its own prior decisions which foreclosed petitioners’ contention that payment is determinative of “discard”.

In particular, the court concluded that Congress had not directly resolved whether “discarded material” must include hazardous secondary materials that a generator paid a reclaimer to accept.  It then moved to the question of whether EPA’s interpretation is “based on a permissible construction of the statue,” (i.e., whether or not it is the only permissible interpretation) and found support for EPA’s decision to equate legitimate recycling with lack of “discard”.  The court noted that EPA had considered the payment to reclaimers issue and studied the market forces, and had determined there were various reasons for payments to recyclers, including lack of competition in recycling markets, cost savings compared to compliance with Subtitle C requirements, and the need for capital costs to develop and implement the necessary recycling infrastructure and market.  The court concluded that instead of ignoring the relevance of the payment issue, EPA had addressed it in the Legitimacy Factors analysis but declined to make it dispositive, a permissible interpretation of “discard” that was not contrary to RCRA.

Reasoned Basis

The court also concluded that EPA’s Transfer-Based Exclusion was not arbitrary and capricious as the conditions imposed under the exclusion ensure that the hazardous secondary materials do not end up in a landfill or incinerator but remain in a continuous stream or flow of production within industry processes, and they cover potential risks by requiring third-party reclaimers to handle them properly and safely and to not discard them.  Those provisions address excessive accumulation, requiring reclamation of at least 75% of hazardous secondary materials that a reclaimer obtains over a calendar year.  In addition, residuals must be managed in compliance with applicable regulations, including Subtitle C, when “discarded.”  Because there is no statutory requirement that these conditions be identical to Subtitle C requirements, the court determined that EPA’s response was not arbitrary and capricious.

The court also reviewed EPA’s explanation for its changed position as to whether the Transfer-Based Exclusion’s restrictions and conditions were adequate.  The court noted that recycling management and controls had improved over time due to enforcement and to generator audits of reclaimer performance and financial viability. As a result, EPA’s restrictions and conditions were found to be sufficient to ensure safe recycling activities.

Conclusion

The impact of this decision on the regulated community will depend on whether the Transfer-Based Exclusion, as modified by EPA in 2015, was incorporated into the state’s hazardous waste regulations, as well as the authorization status of the state; however, those states that delayed adoption of the rule, awaiting the final outcome of this long legal battle, now have clearer direction. 

This thoughtful and practical opinion seems to provide EPA with a tutorial on promulgating a defensible regulation, and perhaps even a final answer on a long debated rule!  This author would like to see EPA use the opinion as a template to try again with other important, but now vacated rules.  How about a new comparable fuels rule?

From Graduation to Earth Day

Posted on May 31, 2018 by Charles F. Becker

“Ben, I just want to say one word to you. Just one word.”

                        “Yes, sir.”

“Are you listening?”

                        “Yes, I am.”

“Plastics.”

                        [Pause] “Exactly how do you mean?”

“There’s a great future in plastics. Think about it. Will you think about it?”

                        “Yes, I will.”

“Enough said. That’s a deal.”

The Graduate - 1967

Mr. McGuire’s sage advice to young Ben Braddock advanced an era of plastics that continues to this day. Once considered to be a miracle product, it is not possible to avoid it in everyday life—it is everywhere, in one form or another. Yet, as we now know, plastic presents certain environmental problems – it won’t go away and there is a lot of it:

The focus of Earth Day 2018 (April 22nd) was on plastic — educating everyone on the environmental impact of plastic disposal.  Education is always worthwhile, but it isn’t as though we don’t know the dangers.  Moreover, this is a world-wide problem, with China being the major contributor and the U.S. a distant 12th.  So what is the solution?

One possibility is to use less plastic.  That could be by governmental mandate, business choice or societal shaming.  But if history is a teacher, “just say no” will not work. Plastic production has increased steadily at a compound average growth rate of 8.4% per year since 1950.  As of 2017, we have created 6.3 billion metric tons of plastic waste; by 2050, that figure is expected to be 26 billion.  

Perhaps we could use a biodegradable form of plastic—something that will break down in the environment. Regrettably, business hasn’t shown much interest.  Capacity for such production is less than 0.2 percent of petrochemical-based plastic.

Recycling is perhaps the most commonly suggested solution. But with decades promoting the recycling of plastics, it is still the case that at least 85% of all plastics are not recycled.  Further, a recent study on recycling plastic into clothing indicates we may actually be making the situation worse by causing the shedding of micro-fibers of plastic that get to waterways.

So is all lost? Scientific ingenuity—and some luck—tells us no.

Like the discovery of penicillin, x-rays, and plastic itself, it may be that the solution has been stumbled upon by accident. In 2016, a Japanese team identified a plastic-eating bacteria as a possible natural solution to plastic pollution. In 2018, while trying to reproduce the results, a team from the University of Portsmouth accidentally created a more potent form of the released enzyme.  The enzyme breaks down the plastic to its original building blocks. It may even be possible to spray it on huge floating plastic ocean islands to break up the material. 

Is this the silver bullet we need?  It appears promising, but research is ongoing.  We can only hope it turns out to be the solution because the alternatives seem to be the equivalent of stopping a freight train with a pillow.

As a postscript, I should give time to another view – let nature take its course.  George Carlin figured it out when he said:

The planet will be here for a long, long, LONG time after we’re gone, and it will heal itself, it will cleanse itself, ’cause that’s what it does. It’s a self-correcting system. The air and the water will recover, the earth will be renewed. And if it’s true that plastic is not degradable, well, the planet will simply incorporate plastic into a new paradigm: the earth plus plastic. The earth doesn’t share our prejudice toward plastic. Plastic came out of the earth. The earth probably sees plastic as just another one of its children. Could be the only reason the earth allowed us to be spawned from it in the first place. It wanted plastic for itself. Didn’t know how to make it. Needed us. Could be the answer to our age-old egocentric philosophical question, “Why are we here?” 

Plastic… a**hole.

I’m rooting for the enzyme.

Slashing EPA’s Budget Will Hinder Efforts to Improve Environmental Regulations

Posted on April 5, 2017 by Mark R. Sussman

          Since the election of President Trump and appointment of EPA Administrator Pruitt, more than a few articles and blogs have been written about the new administration’s plans to dismantle EPA, including the proposal to cut EPA’s budget by almost one third.   Even if one agrees that EPA needs to be “down-sized,” the massive cuts proposed by the Trump Administration are counter-productive.   If EPA fires thousands of environmental professionals, who will be left to repeal or revise unnecessary or unduly burdensome regulations?  Unlike Executive Orders, regulations cannot be rescinded or revised with the stroke of a pen.

          The hazardous waste regulations adopted to implement RCRA provide a case in point.  The Obama EPA adopted the final Hazardous Waste Generator Improvements Rule (discussed by a recent blog by Donald Stever) at the end of last year, acknowledging that the RCRA regulations are in many cases ambiguous, contain inconsistencies, and lack flexibility.  EPA took a year to address more than 200 comments before it finalized the rule.  Other aspects of the RCRA regulations also need to be modernized to encourage, rather than discourage, the reuse of materials derived from waste.

          Just one example involves the recycling of mercury-containing lamps, which have been regulated as Universal Waste since 1995.  Although fluorescent lamp manufacturers have reduced the amount of mercury in their lighting over time, such lamps are regulated as Universal Waste because many lamps exhibit the toxicity characteristic for mercury; and thus, would be classified as D009 hazardous waste.  While the Universal Waste Rules simplify the management of mercury containing lamps, the hazardous waste regulations and longstanding EPA interpretations of these rules impede the reuse of materials recovered through the recycling of universal waste lamps. 

          Two of the primary materials produced through lamp recycling are calcium phosphate powder and crushed glass.  Calcium phosphate powder removed from fluorescent lamps contains mercury at levels below the hazardous waste threshold, and the amount of mercury in such powder is typically further reduced by a retorting process.  Significantly, the phosphate powder also contains several rare earth elements, including Europium, Terbium and Yttrium, which are considered strategic materials by the United States Government, because of the need for such elements in many military and high-tech commercial products, such as cell phones, computer hard drives and other electronic equipment, and precision-guided munitions. 

          China controls about 95% of the production of rare earth elements.   Therefore, recycling calcium phosphate powder to produce rare earths provides a sustainable, domestic source of rare earths needed in the U.S. economy.  Unfortunately, as a waste derived material, regulators have limited the ability of businesses to stockpile calcium phosphate powder for future recycling, and much of this material is currently being disposed of in landfills, rather than being reserved for the recovery of rare earths.   

          Similarly, the crushed glass produced by lamp recycling has characteristics that make it a useful substitute for sand and other materials used in construction operations, such as for road sub-base and pipe bedding materials.  EPA’s view, however, is that since Universal Waste lamps would be considered D009 hazardous waste, glass produced as part of the recycling process is in the same hazardous waste treatability group as the initial universal waste lamps, and therefore, is subject to the Land Disposal Restrictions (LDR) for D009 –non-wastewaters. Thus, the glass must be tested to demonstrate compliance with the LDR standard of 0.025 mg/l for mercury using the TCLP test (designed to assess leachate in a landfill environment), before the glass can be used on land as a substitute for other products.  While the glass from lamp recycling typically complies with the LDR standard, the additional regulatory process discourages the reuse of this glass as a substitute for raw natural resources.

          If President Trump were truly interested in alleviating “unnecessary regulatory burdens placed on the American people”, EPA needs the resources to review specific regulations and identify those regulatory changes that will accomplish the President’s goals.  Slashing EPA’s budget, before identifying and promulgating the regulatory changes, will likely result in missed opportunities for improving environmental regulations.  Instead, massive reductions in staff and efforts to rescind many regulations without careful consideration will lead to mistakes and litigation, which is in no one’s interest.  Businesses need certainty, and the approach outlined by President Trump’s Executive Orders will instead result in more confusion and uncertainty.

Landfills Stink – So Let’s Have More

Posted on May 27, 2016 by Charles F. Becker

In 1991, Iowa passed a law prohibiting the delivery of yard waste to landfills.  It was during a time when there was a general panic that landfills were filling up too fast.  Twenty-two states have passed similar laws.  They all saw it as a win-win: compost could be created and sold by the city and the landfills would last longer.  A couple short decades later, several states have had second thoughts.  In 2015, Iowa passed a law that allows certain landfills to start accepting delivery of yard waste.  The reasoning is instructive. 

Landfills contain a staggering amount of potential energy.  The tires, paper products and plastic wastes, when burned for energy recovery, could light up a town.  But the cost of getting the BTUs out of the waste doesn’t make economic sense – yet.  There are exciting, new processes on the horizon that will have us mining that garbage for the energy sink it actually is, but that is still a ways off.  One form of energy recovery that is economically viable, however, is methane recovery.  As the garbage breaks down, it gives off methane gas that can be captured and burned.  Many landfills across the country do this type of recovery and find it simple and profitable.

To effectively produce methane, however, garbage must degrade.  The recycling push of the 80s and 90s took away the really good degradables from the waste stream – boxes, newspapers and yard waste were targeted as prime recyclables.  The effect was that the best fuel for garbage degradation (and thus methane creation) was banned.  Sure, it went towards the worthy goals of paper recycling and creation of high quality compost, but at what cost?

Iowa decided to look into that question.  They considered the cost of producing compost from yard waste and compared it to the cost of recovering additional methane that would be made possible by returning the green gold of yard waste to the landfill degradation process.  As it turns out, recycling loses. 

            The analysis turned on a number of factors:

·         The cost of buying, maintaining and fueling the trucks, machinery and facility needed for composting would be eliminated resulting in a yearly savings of $2 million;

·         Methane recovery would increase from the equivalent of powering 11,000 homes to powering 18,000 homes;

·         According to a study commissioned by the city of Des Moines, annual greenhouse gas emission would be reduced by 11% and the landfilling option would provide more than three times the greenhouse gas benefit presented by composting. 

Sierra Club is on record as opposing the trend (Georgia, Arkansas, Florida and Nebraska also now allow landfilling of yard waste) because it will result in landfills reaching capacity sooner.  In the case of one Iowa landfill, its estimated life would be reduced from 2054 to 2052.  Also, Sierra Club argues that more uncaptured greenhouse gases will be produced, but this seems to ignore the net savings from the other GHG reductions identified in the study.

I don’t have any idea whether returning yard waste to landfills is a net positive for the environment.  As counterintuitive as it seems, it appears to hold promise.  And if it does, where else might full cost accounting be used to guide environmental legislation?  At least some states are asking the question - and I suspect more will follow.

Product Stewardship – Coming to a state or locality near you

Posted on October 15, 2014 by Kenneth Gray

Product Stewardship.  It sounds friendlier than “Product Responsibility” or “Extended Producer Responsibility,” but it means the same thing:  arranging for collection and recycling or disposal of unused or waste products.  Mandatory in the European Union and the subject of aggressive national programs in Germany and a growing number of countries worldwide,  the U.S. has continued its state-by-state approach promoting recycling – but for a growing number of products and in more and more jurisdictions.

We may have initially started with glass, paper, and metal in the 1970’s, but the range of products and materials covered is now broad:  from batteries, tires, beverage containers, electronics, and tires, to carpets, mattresses, and paint.  Pharmaceuticals may be in the offing.  A new final rule from the U.S. Drug Enforcement Administration would allow voluntary drug collection options for retail pharmacies, drug distributors, and hospitals/clinics with an on-site pharmacy.  

Of course, there is a “trade association” – the Product Stewardship Institute -- whose members are state and local governments and businesses and NGOs.  According to PSI, two states -- California (my birth state) and Maine (my adopted state) -- lead the country with seven or more different types of programs for products.   (To see how your state compares, see http://productstewardship.site-ym.com/?State_EPR_Laws_Map.)

 Legislatively, some of these programs were developed on a product-by-product basis, but both California and Maine have adopted over-arching framework product stewardship laws or regulations allowing the addition of more products.  And some municipalities aren’t being shy – the Ninth Circuit just upheld a 2012 ordinance from Alameda County, California requiring manufacturers to pay for collection and disposal of consumers’ unused medications. 

Some of these programs are after-market recycling operations.  Others are closer to product “take-back” requirements.  The common features of these schemes are a deadline for a program submission (e.g., from a trade association and retailers), fees and potential cost-sharing, management regulations and limited government oversight, and proper recycling or disposal options.  “Reverse distribution” options have been favored by some retailers, who benefit from the additional foot-traffic of potential shoppers – if they can stand the paperwork and regulatory burdens.

If you believe the literature, everyone is a winner:  municipalities have less waste to manage thereby reducing their disposal costs; recycling and reclamation occur reducing energy and greenhouse gasses; wastes are properly managed; and coveted “green” jobs are created.   Obviously, some costs are transferred to businesses in the short term (though as consumers or taxpayers, we all ultimately pay). 

More than a few manufacturers and industries are on board.  Some trade associations -- like the American Coatings Association -- have created non-profit organizations to promote and operate state programs.  ACA has set up PaintCare Inc., a non-profit operating paint collection programs in seven states, with more to come.

In advising the Republic of Kazakhstan on possible product stewardship plans, our firm had occasion to consider “best in world” programs.  By contrast to the U.S., the European Union has incorporated Extended Producer Responsibility into the E.U.’s Waste Framework Directive, 2008/98/EC.    At this point, Germany is probably leading the E.U. through its Closed Substance Cycle Law (KrWG),  intending to promote the “circular economy” by requiring products stewardship to be addressed during the design phase.  The goal?  Development, manufacture and marketing of products that are reusable, recyclable, durable and technically suitable for environmentally safe disposal.  While the U.S. plays out these issues on a jurisdiction-by-jurisdiction and product-by-product basis, Germany is trying a very ambitious comprehensive, national approach.   The German effort has run into the complicated realities of sharing collection costs among and between manufacturers and German state and local waste management programs.  The country faces additional challenges of collecting and recycling automobiles and all packaging materials, two of the more interesting programs being implemented.

Don’t expect a national law in the U.S. anytime soon, but watch this Product Stewardship trend – it is one of the more interesting developments in environmentalism – and look around.  What products will be next in your state?  Or in your county?  And yes, Kazakhstan is weighing adoption of an Extended Producer Responsibility law this fall.