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17 ELR 10349 | Environmental Law Reporter | copyright © 1987 | All rights reserved EPA's Definition of Solid Waste: Making Distinctions Between Shades of GrayBarry GarelickEditors' Summary: The Environmental Protection Agency's (EPA's) regulatory definition of "solid waste" in the Resource Conservation and Recovery Act (RCRA) has long been a source of controversy. Escape from the definition of "solid waste" and in most cases you have escaped from regulation under RCRA. To a large extent, in defining "solid waste" EPA is faced with often conflicting goals embedded in RCRA itself: RCRA regulates wastes, but "non-wastes" are frequently just as hazardous to humans and the environment. Congress' choice to regulate only wastes under RCRA was a calculated risk: trying to comprehensively regulate all hazardous materials would involve enormous compliance costs for industry and mammoth federal bureaucracy. At the same time, regulating only "wastes" creates strong incentives to label dangerous chemicals "non-wastes" whenever possible. In defining "solid waste," EPA must make the definition comprehensive enough to include all wastes, but not so comprehensive that non-wastes are inadvertently included also. In this Dialogue, the author summarizes the regulatory definition of "solid waste" and explores some of the ambiguities it presents. He observes that a set of questions arises from the attempt to set forth broad categories of wastes and activities, while in practicemany cases will not fit cleanly into any of these categories. Moreover, he focuses on the regulatory distinctions between by-products and co-products, as well as conflicting guidance found within the regulation itself and its accompanying explanatory document. Barry Garelick is a senior hazardous waste scientist with Systems Applications, Inc. in San Rafael, California, Views expressed in this Dialogue are those of the author and do not necessarily reflect those of Systems Applications, Inc. Regulations for managing hazardous waste are among the most complex and costly in place today. Underlying these regulations is the pivotal definition of solid waste.1 This definition serves as the starting point for determining whether a waste is subject to regulation under the Resource Conservation and Recovery Act (RCRA). Mentioning this definition to members of the regulated community—and even to some regulators—provokes a variety of reactions. Some people are angry and frustrated at what they see as unnecessarily complicated regulations, with some people concluding there is a "conspiracy" to prevent legitimate recycling activities. Other people admire the regulations for having tackled so complex an issue so thoroughly. Still others claim to have read and re-read the definition and the accompanying guidance document2 many times only to find that they are still confused and bewildered. Determining which waste materials are "solid wastes" and thus possibly subject to regulation presents a riddlelike question: "When is a waste not a waste?"3 This riddle highlights one of the chief problems with the definition: terminology. Understanding how the regulation works requires thinking in the regulation's specialized language, with confusing definitions. Thus, even though a production process results in some "solid wastes" as that term is used in common English, they may not be "solid wastes" be definition. One must learn to think in terms of "by-products," "co-products," "sludges," and "spent materials." Additional confusion arises because the language of the regulation has the same problems that any language has: although writers may strive for the ideal of a mathematically precise vocabulary and structure, there are almost always "gray areas" within the terms. This analysis focuses on portions of the definition that have caused confusion and the resulting problems in providing intelligent, uniform interpretation of the definition. ENVIRONMENTAL LAW REPORTER
General Provisions of the Definition The current definition of solid waste was a result of extensive revisions by the Environmental Protection Agency (EPA), published in final form on January 4, 1985.4 Prior to these revisions some "recycled" materials, regardless of the manner in which they were recycled, were not solid wastes.5 These exempted materials could be burned for energy recovery or placed on the ground as dust suppressants without being subject to regulation. Although the old regulations required that such recycling be "beneficial," they had no mechanisms for ensuring this. EPA observed that not all recycling operations were "beneficial" and that there was some degree of "sham" recycling taking place. As a means of providing these mechanisms, the definition was substantially revised. Under the new definition, in general, materials that are discarded or thrown away are wastes. The definition of "discarding" now includes some recycling. This can misleadingly suggest that whenever materials are recycled they are "thrown away" and are therefore solid wastes, and this has caused some confusion. The general principle that is used to distinguish recycling viewed as recycling from recycling viewed as "throwing away" is (1) the similarity of recycling activities to normal production operations or to normal uses of commercial chemical products,6 and (2) the statutory objective of RCRA to protect "human health and the environment."7 Implementing this principle, EPA's definition provides a matrix of materials and recycling activities by which one can determine whether a material is a "solid waste" and subject to regulation. In general, materials viewed by EPA as more "commodity like" than "waste like" are not defined as solid wastes when recycled in specific ways. Table 1 provides the general matrix that constitutes the heart of EPA's definition of solid waste. The vertical columns show four types of recycling activities incorporated in the definition: (1) use constituting disposal; (2) burning waste or waste fuels for energy recovery. (or using wastes to produce a fuel); (3) reclamation; and (4) speculative accumulation. The horizontal rows specify the type of material involved: spent materials, listed sludges, characteristic sludges, listed byproducts, characteristic byproducts, commercial chemical products, and scrap metal.8 Wastes recycled by direct use (i.e., without prior processing) are not solid wastes if reclamation of the material does not occur prior to use or as a condition of use. The definition specifies three situations in which such direct use of the waste excludes it from the solid waste definition: * The material is used as an ingredient in an industrial process to make a product (e.g., still bottoms from vinyl chloride monomer production combined with chlorine to make carbon tetrachloride); * The material is used as an effective substitute for commercial products (e.g., a solvent waste used as a degreaser); or * It is returned to the primary process from which it was generated, to be used as a substitute for raw material feed-stocks (e.g., baghouse dust from a primary smelter operation, returned to the smelter that the baghouse serves). In short, the massive restructuring of the definition of solid waste is embodied in a concise but closely interrelated network of exceptions, provisions, and conditions. Unfortunately, the conciseness of the definition is deceptive, and it remains plagued by shades of gray in the real world. Deceptive Conciseness and Shades of Gray The definition of solid waste is deceptive because it presents a scheme in which wastes and recycling activities fit neatly into distinct categories. In fact these categories are very often blurred. Major problem areas are described below. Solid Wastes Are Hazardous Wastes: When is a Subset not a Subset? For starters, the regulation alters the generally understood [17 ELR 10351] statutory structure established by RCRA. To people familiar with RCRA statutory language, hazardous wastes have always been defined in this statute as a subset of solid wastes. The regulatory definition of solid waste is much different than its definition in the statute, however. The regulation is written so that solid wastes and hazardous wastes are actually the same thing. The regulation states that solid wastes are only those materials that are hazardous under Subtitle C of RCRA.9 It states that items such as rubber tires and glass are not solid wastes, since they are not defined as hazardous. Thus one must first determine whether the material is hazardous. If it is hazardous, then it may be a solid waste. If the material qualifies as a solid waste under the definition, then it is automatically both a solid and hazardous waste. At the same time, the definition of "hazardous waste" requires that the material be a solid waste.10 Thus, a material is either both a hazardous waste and a solid waste, or it is neither. Compounding the problem is the general issue of what to call the material. Common English usage would dictate that the left over products of production are called "wastes." They are not "wastes" under the regulation, however, unless they are first deemed to be hazardous, and then deemed to be solid wastes. This causes confusion among generators who must ask themselves: "If my material were a waste, would it be a hazardous waste?"11 Waste Categories: Co-Product or Byproduct? As shown in Table 1, the definition of solid waste requires distinguishing among byproducts, sludges, and spent materials. Although these terms are defined, making distinctions between them is not always clear-cut. "By-product" is defined as "material that is not one of the primary products of a production process and is not solely or separately produced by the production process."12 The definition cites as examples slags or distillation bottoms. A coproduct, on the other hand, is not a solid waste; it is material produced for "the general public's use" and that is "ordinarily used in the form it is produced by the process." For many materials it is irrelevant whether they are byproducts or co-products, since in either event they are not solid wastes if they are used as ingredients or substitutes without prior reclamation. The distinction is critical, however, if the product is applied to the land or burned as a fuel for energy recovery. The question then is whether this is how the material is ordinarily used. For example, acetylene production can result in a lime slurry. The lime slurry could be used as a soil stabilizer. If chemical tests show that the lime slurry is equivalent to a commercial grade product used for the same purpose, the generator may argue that it is a co-product not a byproduct. A commercial chemical product whose purpose includes land application would not be a solid waste. There are several factors that contribute to the "grayness" of this byproduct/co-product distinction. First is the condition that the product be produced for the general public's use. Who is the general public? Does that mean that it must be able to be used by anyone, or merely that it can be used by someone other than the person who generates it? Second is the status of "co-products." Although it is clear that co-products are not byproducts, the regulation is not clear whether co-products are excluded from the definition of solid waste. It may seem intuitively obvious that a co-product is the same as a commercial chemical product, but there are some restrictions that EPA places on the interpretation of "commercial use." EPA stated in the preamble to the January 4, 1985, definition that with respect to fertilizers, the term "commercial use" refers to the use of the substance by persons other than the generator. If the generator uses the material as fertilizer himself, this is not considered "commercial" use. Whether this same criterion is to be applied universally to all products and to the term "general use" is not clear. Disposal on Land and Burning for Energy Recovery: A Question of Ultimate Disposition The practice of recycling materials by placing them on the land or by burning them for energy recovery is also an issue. Materials recycled by placing on the land (e.g., used as fertilizers or ingredients in them), or by burning for energy recovery (e.g., use as a fuel) are defined as solid wastes. As mentioned in the discussion on "co-products" above, exceptions to this are granted for materials that are "commercial chemical products" for which land application or energy recovery are their intended use. What about materials sent to be reclaimed? What is the status of the material that is recovered by the reclaimers? According to EPA's regulations, materials recovered from reclamation activities are not regulated as wastes unless they are placed on the land or burned for energy recovery.13 Thus the person reclaiming the material could actually be generating a solid and hazardous waste, depending on the ultimate disposition of the recovered material. For example, a generator may examine the matrix presented in Table 1 and decide that his material is not a solid waste because he is going to reclaim an unlisted sludge. According to the definition, unlisted sludges that are reclaimed are not solid wastes. According to discussion in the EPA guidance manual,14 however, the generator must consider the ultimate disposition of the recovered material. If the recovered material is placed on the land or burned as a fuel, EPA views the ultimate disposition to be the guiding factor. Thus, the generator who concludes his material is not a solid waste because it is an unlisted sludge being reclaimed would be mistaken, according to EPA. It is an unlisted sludge being placed on the land or burned for energy recovery. Compounding the problem is that the recovered material may not even be a waste if it has lost its hazardous characteristics. [17 ELR 10352] The generator is nevertheless subject to regulation because the reclaimed product is placed on the land or burned.15 Additional gray areas include distinctions between "reclamation" and "use/reuse" (i.e., materials used directly), status of materials returned to the processes that generated them, and speculative accumulation. Although there may be arguments concerning the "correct" interpretation of the definition, there is a general consensus among those familiar with it that it is confusing, and requires a thorough knowledge of the materials and the chemistry involved in addition to the basic understanding of the regulation itself. It is also highly likely that anyone who has worked with the definition has felt that there must be a better way to accomplish what it is supposed to do. What the definition is supposed to do is to make distinctions between materials that are commodity-like and materials that are waste-like, so that theymay be regulated accordingly. As the examples in this analysis illustrate, such distinctions are sometimes subjective and cannot always be determined in a precise, mathematical fashion. It is ironic that the exceptions, conditions, and provisions that cause such confusion have been formulated, in part, to create exclusions for materials that may be commodity-like in order to avoid "over-regulating." Despite this effort, the definition creates new ambiguities making it difficult to determine whether or not materials are solid wastes. The ultimate irony, however, is that the definition still leaves open the possibility for "sham" recycling to occur. Specifically, generators may claim that their materials are not solid wastes because they are used directly as ingredients or substitutes without prior reclamation. The definition places the burden of proof on the generators but does not contain a mechanism for ensuring legitimacy of generators' claims, unlike the manifest system that requires signatures and tracking from "cradle-to-grave" for wastes that are regulated under RCRA. Although it may seem counterproductive to argue for additional regulation, there is some merit in requiring endusers and reclaimers to be included in the RCRA regulatory system. In California, for example, hazardous materials destined for recyeling are still required to be manifested, and permits are required for end-users and recycling facilities. The requirements are less stringent for end-users and recycling facilities than for others, thus reducing disincentives to recycle that may occur. Discussions with the regulated community in California indicate that EPA's definition of solid waste has made little difference there because of California's requirements that were already in place.16 Although additional regulation would meet resistance and would introduce more bureaucracy, it would reduce the need for the definition to serve as such a fine net in covering every contingency and would be easier to understand. Until such revisions are undertaken, other changes could be made to make the definition less gray. More cross-referencing would help: for example, if EPA intends to assert that reclaimed materials are solid wastes because the material recovered from the waste is placed on the land or burned, then this needs to be made more explicit in the matrix (Table 1) and in the wording of the definition. Incorporating references in the regulation itself to the guidance document or to the preamble would also be helpful. The interpretative guidance that appears in the preamble and the guidance document is not actually part of the regulation, although it is often relied upon by regulatory agencies in making determinations. If such guidance is consistent with the regulation, there is no reason why it could not be incorporated by reference into the regulations, thus eliminating some of the "grayness" of certain terms. If such guidance is not consistent with the regulation, it ought to be amended or withdrawn. 1. 40 C.F.R. § 261.2 (1986). 2. Industrial Economics, Inc., Guidance Manual on the RCRA Regulation of Recycled Hazardous Wastes (1986) (prepared for U.S. Environmental Protection Agency, Office of Solid Waste (NTIS No. PB86-208584/AS)). 3. Cf. Garelick, When is a Waste Not a Waste?, ENVTL, F., Sept. 1985, at 26. 4. 50 Fed. Reg. 661 (1985). 5. The previous regulations exempted the following when recycled: commercial chemical products and "unlisted" (characteristle) hazardous wastes (except sludges). Listed hazardous wastes are those that appear on the EPA list of such waste streams, categorized by the process and industry that generates it; the list appears at 40 C.F.R. §§ 261.31, 261.32. "Unlisted" hazardous wastes, or "characteristic wastes," are wastes that are not on this list but bear one or more of the following characteristics defined in the regulations; ignitable, corrosive, reactive, or EP-toxie. 6. 50 Fed. Reg. at 617 (1985). 7. 50 Fed. Reg. at 618 (1985) ("… the Agency is guided by the principle that the paramount and overriding statutory objective of RCRA is protection of human health and the environment. The statutory policy of encouraging recycling is secondary and must give way if it is in conflict with the principal objective."). 8. On the difference between "listed" and "characteristic" materials, see supra note 5. 9. 40 C.F.R. § 261.1(b)(1) states that the definition of solid waste applies to wastes that are also defined as hazardous. 10. 40 C.F.R. § 261.3(a) (1986). 11. EPA attempts to solve this problem in the preamble to the January 4, 1985, definition, by adopting the term "secondary materials" (50 Fed. Reg. 616 n. 4). The term refers to materials that "potentially can be a solid and hazardous waste when recycled." EPA's guidance document also uses this term. The regulation itself, however, does not use or define this term. 12. 40 C.F.R. § 261.1(b)(3). 13. 40 C.F.R. § 261.3(c)(2)(i) (1986). There is a limited exception if the material is from an unlisted waste and no longer has any hazardous characteristics, or if it is a "commercial chemical product" for which placement on land or burning for energy is the ordinary manner of use. 40 C.F.R. § 261.3(d) (1986) and 50 Fed. Reg. 634 (1985). 14. See note 2, supra. 15. The amblguity is even more pronounced when one examines the wording that subjects the recovered materials to regulations. Specifically, the regulation states that "materials thatare reclaimed from solid wastes and that are used beneficially are not solid wastes and hence are not hazardous under this provision unless the reclaimed material is burned for energy recovery or used in a manner constituting disposal." The key phrase here is "materials that are reclaimed from solid wastes." Conceptually, if materials are recovered from something other than solid wastes, these recovered materials should also not be regulated as wastes under RCRA. By definition, unlisted sludges and by products that are reclaimed are not solid wastes. Thus, anything recovered from such materials is not reclaimed from "solid wastes" and, one could argue, should not be regulated. EPA may not take this view, however, as evldenced by the examples in the guidance document. (See n.1. Examples: Use Constituting Disposal, Sludge 1, and Sludge 2). Yet EPA itself uses this very argument in allowing an exclusion for intermediate products of partial reclamation. Specifically, recovered material that needs "just a little" more reclaiming to complete recovery is a solid waste unless EPA grants a variance. Moreover, EPA states in the guldance document that "the requirement that the recovery process be complete before a product of reclamation is no longer considered a waste does not apply to the reclamation of characteristic by products or sludges; the intermediate products of reclamation of these materials are not solid wastes since the sludges and by-products themselves are not solid wastes." See supra note 1, at p. 1-22 n. 11. The guidance document does not mention, however, what the status would be of partially recovered materials after they are "further reclaimed" and placed on the land or burned for energy recovery. The omission may be an oversight. Taking the quote at face value, however, the intermediate products of reclamation would not be solid wastes, regardless of the ultimate disposition of the fully recovered materials; a situation quite different than the situation in which materials fully recovered are placed on the land or burned for energy. In that situation, as stated previously, the material prior to reclamation is a solid waste even if the recovered material does not possess any characteristics of hazardousness, or if the recovered material is a commercial chemical product ordinarily produced for such uses. If land application or burning for energy recovery takes procedence in making the classification of a material a solid waste, it is certainly not stated in the regulations. EPA may argue that it is implicit in the regulations, but that may be a matter of opinion and subject to debate. 16. U.S. EPA. Waste Minimization Issues and Options, Volume I (1986). Office of Solid Waste and Emergency Response (EPA/530-SW-86-041). 17 ELR 10349 | Environmental Law Reporter | copyright © 1987 | All rights reserved |