Recyclable Materials and RCRA's Complicated, Conflicting, and Costly Definition of Solid Waste

Stephen Johnson

Editors' Summary: RCRA is often perceived as establishing a comprehensive regulatory scheme for managing hazardous waste from "cradle to grave." However, when a substance becomes a solid waste subject to RCRA's jurisdiction remains unclear. This Article examines how RCRA defines solid waste and EPA's attempts to clarify that definition. The Article focuses on how this lack of clarity has impacted RCRA's goal of encouraging recycling and recovery of resources from solid waste. The Article analyzes three D.C. Circuit decisions that considered RCRA's definition of solid waste and concludes by discussing an approach that Congress may take to clarify this definition when it reauthorizes RCRA.

The author was an Assistant Counsel in the Pennsylvania Department of Environmental Resources' Office of Chief Counsel from November 1988 to March 1991. The views expressed in this Article are the author's and do not necessarily reflect the views or policies of the Pennsylvania Department of Environmental Resources. This Article was prepared in partial fulfillment of the requirements for an LL.M. in Environmental Law at the National Law Center of George Washington University.

[21 ELR 10357]

Commenters often refer to the Resource Conservation and Recovery Act (RCRA)¹ as establishing a comprehensive regulatory scheme for managing hazardous waste from "cradle to grave."² RCRA establishes stringent requirements for the storage,³ transportation,⁴ and treatment⁵ of hazardous waste after the waste is "born." The Act also imposes strict limitations on the disposal of hazardous waste.⁶ The Act does not, however, clearly establish when a waste is "born" and thus subject to RCRA jurisdiction. The uncertainty regarding the extent of RCRA jurisdiction is caused primarily by RCRA's ambiguous definition of solid waste.⁷

The most controversial jurisdictional questions under RCRA concern recyclable materials. The ambiguity in the RCRA "solid waste" definition is amplified in the context of recyclable materials because RCRA was enacted to serve the conflicting purposes of establishing a comprehensive system for regulating solid waste management and encouraging recycling and recovery of resources from solid waste.⁸ Many materials that are indirectly or unintentionally produced by industrial, mining, or manufacturing processes can be reused or recycled in some manner. Given RCRA's twin goals of encouraging recycling and protecting human health and the environment from improper solid waste management, some commenters have questioned whether the U.S. Environmental Protection Agency (EPA) has the authority to classify any recyclable materials as solid waste under RCRA.⁹ Assuming, however, that EPA has the authority to classify some recyclable materials as solid waste, the more difficult question remains: when do such [21 ELR 10358] recyclable materials become solid waste? In short, when is a waste "born"?

This Article briefly explores the rationales for and against regulating recyclable materials as solid waste, explores EPA's regulatory interpretation of the statutory term "solid waste" as it relates to when recyclable materials become solid waste, and explores three recent federal court decisions addressing EPA's authority to regulate recyclable materials as solid waste. The final section of the Article briefly explores amending RCRA to define when a recyclable material becomes a solid waste. The ultimate answer, however, must come from Congress when RCRA is reauthorized.¹⁰

Why Regulate Recyclable Materials as Solid Waste?

Before exploring the statutory and regulatory definitions of solid waste in an attempt to determine when recyclable materials become solid waste under RCRA, it is helpful to consider why answering this question matters. Why does EPA care about regulating recyclable materials as solid waste? EPA has articulated two primary justifications for regulating recyclable materials as solid waste. First, the collection, storage, and transportation of recyclable materials usually pose the same potential for harm whether the materials will be legitimately recycled or will be processed, treated, or disposed of.¹¹ From a public health, safety, and environmental perspective, therefore, materials should not be regulated differently based solely on their intended end use.

Second, many types of waste recycling or reuse are nearly identical to methods of waste disposal or processing, and pose the same environmental and public health threats.¹² For instance, reusing a material by placing it directly on the land as a dust suppressant or fertilizer or by burning it for energy recovery often presents the same hazards as incinerating or disposing of it.¹³ Since one of RCRA's major goals is to establish a comprehensive system of solid waste management to protect human health and the environment,¹⁴ and since recycling and reusing recyclable materials may present the same hazards to human health and the environment as disposing of other types of solid waste, recyclable materials must be included within the RCRA definition of solid waste, and regulated as such, to achieve RCRA's public health and safety objectives.

However, there are disadvantages to regulating recyclable materials as solid waste. EPA acknowledges that methods for recycling and reusing materials vary greatly and that many of these methods present fewer hazards than disposing of the materials and therefore should be encouraged.¹⁵ The stigma of labeling these recycling methods as solid or hazardous waste management and the cost of performing them in accordance with RCRA could discourage their use.¹⁶ This seems to conflict with RCRA's secondary goal of encouraging recycling and resource recovery.¹⁷

EPA faces a conflict between encouraging recycling, on the one hand, and protecting human health and the environment, on the other, because both principles are objectives of RCRA.¹⁸ To resolve this conflict, EPA interpreted these goals in a way that seems sound. EPA has stated 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."¹⁹

Statutory Definition of Solid Waste

At the center of the controversy over whether and when recyclable materials become solid waste is the statutory definition of solid waste.²⁰ Under RCRA, "solid waste" is defined as "any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semi-solid, or contained gaseous materials resulting from industrial, mining and agricultural operations, and from community activities…."²¹ However, "discarded material" is not defined in RCRA. The question that EPA and the courts have thus attempted to resolve is whether and when a recyclable material becomes a discarded material and thus a solid waste under RCRA.²²

Regulatory Definition of Solid Waste

Over the past decade, EPA has initiated several rulemakings to establish a regulatory definition of solid waste that clarifies the statutory definition and interprets the meaning of the statutory term "discarded."²³

$= P10359 EPA first attempted to define the RCRA term "solid waste" in a 1980 rulemaking that established interim final regulations.²⁴ In that rulemaking, EPA established a broad definition of solid waste thatclassified most recyclable materials as solid waste.²⁵ However, three years later, EPA revisited this definition and proposed amendments that would exempt some recyclable materials from it.²⁶ Those amendments were finalized in 1985, when EPA promulgated the current regulatory definition of solid waste.²⁷

The 1985 regulatory redefinition of solid waste is very complex. Whether materials, including recyclable materials, are classified as solid waste depends on their type and their proposed use.²⁸ A material does not necessarily have to be discarded, in the sense of being thrown away or abandoned, to be a solid waste. EPA defined certain types of materials used in certain ways as solid waste based on the potential harm caused by their use.²⁹ EPA limited the types of recyclable materials that it could define as solid waste, however, by interpreting RCRA as precluding the Agency from regulating as solid waste management "certain types of recycling activities that are shown to be very similar to normal production operations or to normal uses of commercial products."³⁰

EPA's definition of solid waste applies only to hazardous wastes and hazardous waste management.³¹ For nonhazardous wastes, EPA has proposed using the statutory definition of solid waste as the regulatory definition.³²

Under the 1985 regulatory redefinition, any material that is discarded is a solid waste.³³ The regulations then define certain types of materials as being discarded and thus solid waste if they are used in certain ways.³⁴ Any material that is [21 ELR 10360] abandoned is found to be a discarded material.³⁵ Spent materials,³⁶ hazardous by-products,³⁷ hazardous sludges,³⁸ scrap metal, and certain hazardous commercial chemical products³⁹ that are recycled by being applied to or placed on the land in a manner that constitutes disposal, or used to produce products that are applied to or placed on the land in a manner that constitutes disposal, are found to be discarded materials.⁴⁰ The same five types of materials are also discarded if they are recycled by being burned to recover energy or by being used to produce a fuel or are ingredients of a fuel.⁴¹ Spent materials, hazardous by-products, hazardous sludges, and scrap metal are discarded if they are recycled by being accumulated speculatively, as defined by EPA.⁴² Spent materials and scrap metal that are recycled by being reclaimed⁴³ are discarded materials.⁴⁴ Sludges and by-products that are recycled by being reclaimed, however, are found to be discarded only if they are listed by EPA as hazardous wastes.⁴⁵ Finally, EPA can identify other materials as discarded materials if they are considered inherently waste-like.⁴⁶ Many recyclable materials are thus considered to be solid waste in EPA's regulations.

The regulations do, however, provide that certain recyclable materials are not solid waste if they are recycled in certain ways.⁴⁷ Specifically, the regulations provide that materials that are directly used or reused as ingredients to make a product,⁴⁸ materials that are used or reused as effective substitutes for commercial products,⁴⁹ and materials that are returned to the original process in which they were generated, without first being reclaimed,⁵⁰ are not solid waste.⁵¹ However, persons claiming this exemption from the solid waste definition have the burden of proving that they have satisfied the exemption's conditions.⁵² The regulations also establish a variance procedure whereby EPA can determine on a case-by-case basis that certain recyclable materials are not solid waste.⁵³

It is difficult to develop a general rule that describes when [21 ELR 10361] a recyclable material becomes a waste in EPA's opinion. It is clear, however, that the Agency has not interpreted "discarded," in the RCRA definition of solid waste, in its narrow sense to mean that a recyclable material must be thrown away, abandoned, or disposed of by a generator before it becomes a solid waste. For instance, under EPA's redefinition of solid waste, if a person generates a spent material in an industrial process and reclaims that material on the site where it was generated, that material is a solid waste until it is reclaimed, even though it has not been thrown away, abandoned, or disposed of by the material's generator. It seems, therefore, that EPA may be using the term "discarded" more broadly than it is used colloquially in order to cover materials that are left over from a particular process or activity if the materials may harm human health and the environment as a result of being improperly managed.

The D.C. Circuit and the Definition of Solid Waste

American Mining Congress v. EPA (1987)

EPA's redefinition of solid waste has been analyzed in three major cases that have been decided by the U.S. Court of Appeals for the District of Columbia Circuit in the past three years.⁵⁴ The decisions do not, however, clearly or consistently establish the boundaries of RCRA's definition of solid waste, nor do they fully answer the question of when a recyclable material becomes a solid waste under RCRA.

The first case, American Mining Congress v. EPA⁵⁵ (AMC), involved a challenge by representatives of the mining and oil refining industries to EPA's final rule redefining "solid waste."⁵⁶ Representatives of the two industries alleged that EPA's final rule defined some of the intermediate materials produced by those industries as being solid waste, even though the materials would be processed further by the industry as part of the original production process to extract the remaining products from them.⁵⁷ The petitioners asserted that EPA could not define such "in-process secondary materials" as solid waste under RCRA because the materials were never discarded by the industry.⁵⁸ The petitioners' claim, therefore, required the court to address directly the meaning of "discarded" in RCRA and the validity of EPA's redefinition of solid waste.

In reviewing EPA's interpretation of the term "discarded" as embodied in the Agency's regulatory definition of solid waste, the AMC court relied on the U.S. Supreme Court's decision in Chevron U.S.A., Inc. v. NRDC.⁵⁹ Under Chevron, a court reviewing an administrative agency's interpretation of a statute that it is charged to administer⁶⁰ must first consider whether Congress has spoken to the precise question before the court. To do this, the court must examine the language, structure, and legislative history of the statute.⁶¹ As the Court stated in Chevron, "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency must give effect to the unambiguously expressed intent of Congress."⁶² On the other hand, "[i]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute…. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency."⁶³

The question posed by the D.C. Circuit for consideration under the Chevron analysis was: "[D]id Congress clearly intend to limit EPA's regulatory jurisdiction to materials disposed of or abandoned, as opposed to materials reused within an ongoing production process?"⁶⁴ To answer this, the court analyzed the language, structure, and legislative history of RCRA.

Initially, the court noted that the "ordinary, plain-English meaning of the word 'discarded' is 'disposed of,' 'thrown away' or 'abandoned'"⁶⁵ and that "encompassing materials retained for immediate reuse within the scope of 'discarded material' strains … the everyday usage of that term."⁶⁶ However, the court stressed that "a complete analysis of the statutory term 'discarded' calls for more than resort to the ordinary, everyday meaning of the specific language…. For, the sense in which [a term] is used in a statute must be determined by reference to the purpose of the particular legislation."⁶⁷

The court characterized RCRA as "an effort to help States deal with the ever-increasing problem of solid waste disposal by encouraging the search for and use of alternatives to existing methods of disposal (including recycling) and protecting health and the environment by regulating hazardous wastes."⁶⁸ Having thus characterized the purposes of RCRA, the court asserted that "[t]o fulfill these purposes, it seems clear that EPA need not regulate 'spent' materials that are recycled and reused in an ongoing manufacturing or industrial process. These materials have not yet become part of the waste disposal problem; rather, they are destined for beneficial reuse or recycling in a continuous process by the generating industry itself."⁶⁹ The court then analyzed [21 ELR 10362] and rejected EPA's argument that several provisions of RCRA indicated congressional intent that recyclable materials should be regulated as solid waste under the statute.⁷⁰

Based on the language and structure of RCRA, the court found that Congress clearly intended to extend EPA's authority in regulating solid waste only to materials that are "truly discarded, disposed of, thrown away, or abandoned."⁷¹ Although the court indicated that an investigation of RCRA's legislative history was not required, since the statutory language and structure clearly expressed congressional intent regarding the issue before it,⁷² the court nevertheless analyzed RCRA's legislative history in its opinion. Based on several passages in the legislative history that referred to Congress' overriding concern with the improper disposal of solid waste, the court noted that the legislative history of RCRA bolstered its interpretation that "discarded" in RCRA meant "abandoned, thrown away, or disposed."⁷³

The court concluded that "in light of the language and structure of RCRA, the problems animating Congress to enact it, and the relevant portions of the legislative history, Congress clearly and unambiguously expressed its intent that 'solid waste' (and therefore EPA's regulatory authority) be limited to materials that are 'discarded' by virtue of being disposed of, abandoned, or thrown away."⁷⁴ Having found the statutory language to be clear and unambiguous, the court was not compelled to defer to EPA's interpretation [21 ELR 10363] of the statute and held that EPA acted in contravention of Congress' intent by regulating in-process secondary materials as solid waste.⁷⁵

The D.C. Circuit's use of such sweeping language in a case that addressed the narrow question of whether secondary materials reused by a generating industry in an ongoing industrial process are discarded, coupled with the court's subsequent narrowing of the AMC holding,⁷⁶ has needlessly compounded the confusion surrounding the meaning of "discarded" in the RCRA definition of solid waste. The AMC court seemed to hold that a recyclable material does not become a RCRA solid waste until it is discarded by being abandoned, thrown away, or disposed of by the generator.

If the language of AMC were taken literally, EPA's ability to regulate many recyclable materials that are not discarded in the colloquial sense could be greatly diminished. For instance, if a spent material, by-product, or sludge is reclaimed, or is stored, collected, or accumulated prior to reclamation, it is arguably not being thrown away, abandoned, or disposed of.⁷⁷ Similarly, if a secondary material is accumulated for the purpose of recycling or is used as a fuel, it is arguably not being discarded in the colloquial sense of the term.⁷⁸ However, EPA regulates all these types of recyclable materials as solid waste.

EPA did not read AMC so broadly when it proposed changes to the regulatory definition of solid waste in response to the court's decision.⁷⁹ Instead, EPA interpreted AMC as merely limiting its authority to regulate, as solid waste, secondary materials reused within an industry's ongoing production process, or secondary materials reclaimed in ways that closely resemble reuse in an ongoing production process.⁸⁰

As a result, the Agency proposed only minor changes to the regulations that define "solid waste." Specifically, it proposed to add two narrow exemptions from the solid waste definition for certain materials that are reused within the petroleum refining process,⁸¹ and an exemption for secondary materials that are reclaimed and reused in the original process in which they are generated.⁸² EPA also proposed to define, in the regulation, the criteria that it would consider when determining which reclaimed sludges or by-products are solid waste.⁸³

EPA maintained that the AMC opinion did not require modification of any other provision of the existing solid waste definition because "none of [the] activities consist of on-going manufacturing involving continuing extraction of material values."⁸⁴ The other activities, EPA asserted, "clearly involve elements of discard as defined by the court."⁸⁵

American Petroleum Institute v. EPA (1990)

Three years after deciding AMC, the D.C. Circuit revisited the RCRA solid waste definition in American Petroleum Institute v. EPA⁸⁶ (API). The portion of API that is significant for purposes of interpreting the definition of solid waste under RCRA involved a challenge by the Natural Resources Defense Council, Chemical Waste Management, Inc., and the Hazardous Waste Treatment Council (collectively referred to as "NRDC") to certain regulations promulgated by EPA for treatment of hazardous waste.⁸⁷

When RCRA was amended in 1984, a provision was added to the statute that prohibits the disposal of hazardous waste on the land unless the EPA Administrator determines "to a reasonable degree of certainty, that there will be no migration of hazardous constituents [from the waste] … for as long as the waste remains hazardous"⁸⁸ or unless the [21 ELR 10364] waste is treated to meet standards established by EPA prior to land disposal.⁸⁹ The statute then requires EPA to establish such treatment standards.⁹⁰

EPA promulgated the regulations that were challenged in API as the first phase of regulations to establish the treatment standards required by the 1984 amendments to RCRA.⁹¹ As part of the rulemaking, EPA established standards for the treatment of electric arc furnace dust (K061), a zinc-bearing hazardous waste that is created in the primary production of steel in electric furnaces.⁹² One of the treatment technologies established for K061 in the rule was high temperature metals reclamation, a treatment technology that generates a residual slag (K061 slag).⁹³ NRDC argued that K061 slag is a hazardous waste and that EPA was required to establish treatment standards for it as part of the challenged rulemaking.⁹⁴ NRDC's argument was based on an EPA regulation that defines any material that is derived from the treatment of hazardous wastes to be a hazardous waste.⁹⁵

EPA, however, argued that it was not required to establish treatment standards for the K061 slag because the slag is not a hazardous waste.⁹⁶ EPA and NRDC agreed that K061 is a solid waste, and can be listed by EPA as a hazardous waste, when it is originally removed from the furnace in which it was produced.⁹⁷ However, EPA contended that K061 ceases to be a solid waste, and cannot, therefore, be a hazardous waste,⁹⁸ when it reaches the high temperature metals reclamation facilities prescribed in the challenged rulemaking as the treatment technology for K061.⁹⁹ Thus, EPA asserted, the reclamation of K061 cannot be treatment of a hazardous waste, and the K061 slag cannot be material derived from the treatment of a hazardous waste.¹⁰⁰

The core of EPA's argument in API was that K061 is no longer a discarded material and thus is not a solid waste when it reaches a high temperature metals reclamation facility.¹⁰¹ EPA based its argument almost entirely on its reading of AMC.¹⁰² However, as the court in API pointed out, the AMC decision involved a question significantly different from the question the Agency faced in API.¹⁰³ Whereas in AMC the D.C. Circuit addressed the question of when a material is discarded and becomes a solid waste, in API the court addressed the very different question of whether a material that has been discarded and has become a solid waste may become, in a sense, "undiscarded" and may cease to be a solid waste.

Applying the Chevron analysis, the API court held that it is ambiguous, at best, whether K061 is discarded when it is received at a high temperature metals reclamation facility.¹⁰⁴ However, since EPA had misinterpreted the court's holding in AMC to preclude the Agency from regulating K061 as a solid waste when received at a high temperature metals reclamation facility, the API court refused to defer to EPA's resolution of the question¹⁰⁵ and remanded the case to the Agency for further rulemaking.¹⁰⁶

In doing so, the API court analyzed and explained the holding of AMC to guide the Agency in interpreting its authority under RCRA on remand. As the API court indicated, the issue in AMC was whether "EPA could, under RCRA, treat as 'solid waste' 'materials that are recycled and reused in an ongoing manufacturing or industrial process.'"¹⁰⁷ The API court described AMC as holding that EPA could not regulate as solid waste materials that are destined for beneficial reuse or recycling by the generating industry itself as part of a continuous process because the materials are never disposed of, abandoned, or thrown away.¹⁰⁸

The API court then distinguished the materials at issue in AMC from K061, the material at issue in API.¹⁰⁹ K061, the API court stressed, is "indisputably 'discarded' before being subject to metals reclamation" and "has become part of the waste disposal problem."¹¹⁰ Therefore, the API court pointed out, nothing in AMC requires EPA to cease treating K061 as solid waste once it reaches a metals reclamation facility.¹¹¹ In fact, the API court strongly suggested that it [21 ELR 10365] would be impermissible for EPA, on remand, to continue to assert that K061 ceases to be a solid waste when it reaches a metals reclamation facility.¹¹²

The API decision seems to indicate that the D.C. Circuit disagrees with EPA's interpretation that under RCRA a discarded material can become "undiscarded" and cease to be a solid waste when it is recycled or reused in certain ways. It also seems to indicate that the D.C. Circuit believes that some recyclable materials can be solid waste. It is not clear, though, whether the API decision affects the AMC analysis of when a recyclable material first becomes a solid waste. The API decision clarified that in AMC the court only held that materials that are reused or recycled by the generating industry itself as part of a continuous process are not discarded and that AMC did not hold that materials that are reused or recycled in other types of processes are not discarded. However, the API court did not alter the AMC court's definition of a discarded material under RCRA. In fact, the API court reiterated the AMC court's formulation when it held that K061 was indisputably discarded by being disposed of, abandoned, or thrown away.¹¹³

American Mining Congress v. EPA (1990)

The API decision was not, however, the D.C. Circuit's final pronouncement on the application of the RCRA term "discarded" to recyclable materials. Shortly after the D.C. Circuit issued its opinion in API, the court handed down another opinion addressing the question in American Mining Congress v. EPA¹¹⁴ (AMC II). AMC II involved a challenge to an EPA rule that relisted as hazardous waste six wastes from metals smelting operations.¹¹⁵ The petitioners in AMC II argued that three of the six wastes were not solid waste under RCRA, and thus could not be hazardous waste,¹¹⁶ because the wastes were not discarded.¹¹⁷

The three "wastes" at issue in AMC II were types of sludges produced in the collection, treatment, and storage of wastewater generated in primary metal smelting operations.¹¹⁸ As characterized by the AMC II court, the petitioners' basic claim was that "sludges from wastewater that are stored in surface impoundments and that may at some time in the future be reclaimed are not 'discarded.'"¹¹⁹

As in AMC and API, the D.C. Circuit began its analysis by applying the principles of Chevron. In doing so, the court found that "discarded" as used in RCRA was "marked by the kind of ambiguity demanding resolution by [EPA's] delegated lawmaking powers."¹²⁰ The court then reviewed EPA's rationale for treating the materials in question as discarded and determined that the Agency's interpretation of "discarded" as applied to those materials was "reasonable and consistent with the statutory purpose."¹²¹ EPA had determined the materials to be discarded because it had found that they were "capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed … by leaching into the ground."¹²²

The petitioners in AMC II argued that the AMC decision foreclosed EPA from regulating sludges generated by a wastewater treatment plant if the sludges were to be reused or recycled. However, the AMC II court disagreed.¹²³ It held that AMC involved only materials that were destined for immediate reuse in another part of the generating industry's process and had not yet become "part of the waste disposal problem."¹²⁴ The sludges in AMC II, the court opined, are "managed in land disposal units that are part of wastewater treatment systems, which have therefore become 'part of the waste disposal problem' and which are not part of ongoing industrial processes."¹²⁵ The court added that in API it had rejected the petitioners' claim that potential reuse of a material precludes EPA from classifying the material as discarded.¹²⁶

Despite the court's attempt to reconcile its holdings in AMC and AMC II, it seems that the AMC II decision has modified the AMC analysis of when a recyclable material becomes a solid waste under RCRA. In AMC II, the court acknowledged that under AMC a material must be abandoned, thrown away, or disposed of to be "discarded" within the RCRA meaning of the term.¹²⁷ However, the AMC II court found that the recyclable materials at issue in AMC II had arguably not been abandoned, thrown away, or disposed of, but had been discarded nevertheless because they had become "part of the waste disposal problem" and EPA had determined that the improper management of the materials might harm human health and the environment.¹²⁸

[21 ELR 10366]

Conclusion

As a result of the evolution in the D.C. Circuit's reasoning, it is difficult to frame a general rule concerning when a recyclable material is discarded under RCRA and thus becomes a solid waste. In AMC, the court found the term "discarded" to be clear and unambiguous and held that a material must be thrown away, abandoned, or disposed of to be discarded. Although never formally retreating from that position, the court has found the term "discarded" to be increasingly ambiguous in subsequent cases and has even held, in AMC II, that recyclable materials that arguably have not been abandoned, thrown away, or disposed of by the generator may be considered discarded under RCRA.¹²⁹

In API and AMC II, the court began to focus on whether a material had "become part of the waste disposal problem" in order to determine whether it had been discarded. The court moved the furthest in this direction in AMC II when it affirmed EPA's determination that certain recyclable materials were discarded because improper management of them could threaten human health and the environment.¹³⁰ While this construction of "discarded" seems to be consistent with RCRA's goal of protecting human health and the environment from solid waste mismanagement, it does not provide clear guidance as to when materials are discarded under RCRA.

Furthermore, as the D.C. Circuit has found the term "discarded" to be increasingly ambiguous, the court has increasingly deferred to EPA's interpretation of the term. In AMC, the court found EPA's interpretation of the term to be inconsistent and confused. However, three years later, the court deferred to the Agency's expertise in interpreting that same term. All in all, the D.C. Circuit's opinions in AMC, API, and AMC II leave largely unanswered the question of when a recyclable material is discarded and becomes a solid waste under RCRA.

For instance, if an industry generates a spent material and reclaims it onsite for reuse, the material has arguably not been abandoned, thrown away, or discarded prior to reclamation and thus has not been discarded under AMC. However, if the material is stored in a pile prior to reclamation, has it become "part of the waste disposal problem" and thus been discarded under AMC II? Does a recyclable material become a solid waste when it has been abandoned, thrown away, or disposed of by the generator; when it has been removed from the process that generated it; or some time in between (e.g. when it is collected, stored, or treated prior to reuse)?

In the 14 years since RCRA was enacted, the only unambiguous aspect of the terms "discarded" and "solid waste" as used in RCRA is that they are ambiguous. EPA has attempted to interpret them. The D.C. Circuit has attempted to interpret them. Members of the academic¹³¹ and regulatory communities have attempted to interpret them. But it is now time for Congress to reinterpret them. RCRA is due for reauthorization. The legislation reauthorizing it should not only clarify that EPA has the authority to regulate recyclable materials as solid waste, but should address the more significant jurisdictional question of when a recyclable material becomes a solid waste.

One approach that has been considered by legislators drafting the RCRA reauthorization legislation is to define "solid waste" to include not only "discarded material," defined in the proposal to include "material that is recycled or from which energy is recovered," but also to include any "secondary material," defined as a "material … that has served its original purpose or that is generated ancillary to a primary manufacturing, industrial or other production process; and … contains beneficially recoverable constituents."¹³² This approach would more clearly delineate when a recyclable material becomes a solid waste.¹³³

While it is not vital that Congress adopt this approach, it is vital that in reauthorization legislation Congress amend RCRA to clarify when recyclable materials become solid waste. EPA and the courts have repeatedly endeavored to resolve the dilemma without legislative guidance, but it is now time for Congress to make the hard policy decisions.

1. RCRA §§ 1002-6992, 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 004-050.

2. See, e.g., D. STEVER, LAW OF CHEMICAL REGULATION AND HAZARDOUS WASTE § 5.01 (rev. ed. 1990).

3. RCRA § 3004-05, 42 U.S.C. §§ 6924-25, ELR STAT. RCRA 012-016.

4. RCRA § 3003, 42 U.S.C. § 6923, ELR STAT. RCRA 012.

5. RCRA§ 3004-05, 42 U.S.C. §§ 6924-25, ELR STAT. RCRA 016.

6. Id.

7. RCRA § 1004(27), 42 U.S.C. § 6903(27), ELR STAT. RCRA 004.

8. On the one hand, the objectives of the Act include:

prohibiting future open dumping on the land and requiring the conversion of open dumps to facilities which do not pose a danger to the environment or to health; … regulating the treatment, storage, transportation and disposal of hazardous waste which have adverse effects on health and the environment; … [and] providing for the promulgation of guidelines for solid waste collection, transport, separation, recovery and disposal practices and systems.

RCRA § 1003, 42 U.S.C. § 6902, ELR STAT. RCRA 004. At the same time, though, the objectives of the Act also include "promoting the demonstration, construction and application of resource recovery and resource conservation systems … and … establishing a cooperative effort among the Federal, State and local governments and private enterprise in order to recover valuable materials and energy from solid waste." Id.

9. J. STENSVAAG, HAZARDOUS WASTE LAW AND PRACTICE, § 2.4 (rev. ed. 1989).

10. At least 11 bills were introduced to amend or reauthorize RCRA in the first three weeks of the first session of the 102d Congress. 21 ELR 10150.

11. 48 Fed. Reg. 14472, 14474 (Apr. 4, 1983). As EPA explained in the preamble to interim final regulations interpreting "solid waste," "the propensity of a hazardous material to explode, catch fire, or leak during storage or transport is the same whether the material will be disposed of or recycled." 45 Fed. Reg. 33065, 33090-91 (May 19, 1980). As the Agency added in a later rulemaking, "Unless the wastes are extremely valuable (as in legitimate precious metals reclamation), there is no incentive to avoid leaks and spills." 50 Fed. Reg. 614, 617 (Jan. 4, 1985).

12. 48 Fed. Reg. at 14473-74 (Apr. 4, 1983).

13. Id.

14. RCRA § 1003, 42 U.S.C. § 6902(a), ELR STAT. RCRA 004.

15. 48 Fed. Reg. at 14473 (Apr. 4, 1983).

16. J. STENSVAAG, supra note 9, § 2.3, at 2-8.

17. RCRA § 1003(a), 42 U.S.C. § 6902(a), ELR STAT. RCRA 004.

18. RCRA provides: "The objectives of [the Act] are to promote the protection of health and the environment and to conserve valuable material and energy resources…." RCRA § 1003(a), 42 U.S.C. § 6902(a), ELR STAT. RCRA 004.

19. 50 Fed. Reg. at 618 (May 19, 1985).

20. RCRA § 1004(27), 42 U.S.C. § 6903(27), ELR STAT. RCRA 004.

21. Id. (emphasis added). The term does not, however, "include solid or dissolved materials in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under Section 1392 of title 33, or source, special nuclear, or byproduct material as defined in the Atomic Energy Act of 1954, as amended (68 Stat. 923)." Id.

22. A plain reading of the statutory definition would seem to indicate that certain recyclable materials (e.g., garbage; refuse; or sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility) are solid waste regardless of whether they are discarded. An analysis of whether such materials are discarded should be superfluous in determining whether the materials are solid waste under the statutory definition. However, EPA has modified the statutory definition by regulation, see 40 C.F.R. § 261.2 (1989), to indicate that sludges are solid waste only if they are discarded. The D.C. Circuit Court of Appeals has apparently deferred to EPA's decision to narrow the statutory definition of solid waste with respect to sludges. See American Petroleum Inst. v. EPA, 906 F.2d 729, 20 ELR 21091 (D.C. Cir. 1990).

23. See 53 Fed. Reg. 519 (Jan. 8, 1988) (proposed to be codified at 40 C.F.R. pt. 261); 50 Fed. Reg. at 614 (Jan. 4, 1985) (codified in scattered sections of 40 C.F.R. pts. 260-61, and 264-66); 48 Fed. Reg. at 14472 (Apr. 4, 1983) (proposed to be codified in scattered sections of 40 C.F.R.) (finalized in 50 Fed. Reg. at 614 (Jan. 4, 1985)); 45 Fed. Reg. at 33065 (May 19, 1980) (previously codified at 40 C.F.R. pt. 261) (superseded by 50 Fed. Reg. at 614).

24. 45 Fed. Reg. at 33065 (May 19, 1980) (previously codified at 40 C.F.R. pt. 261).

25. EPA achieved this result by defining "solid waste" to include certain spent materials and by-products as long as those materials were ever disposed of by anyone, regardless of whether the generator in a particular case disposed of the materials or recycled or reused them. The definition of solid waste was objective, not requiring an examination of a generator's intent. Specifically, EPA defined "solid waste" to include "any garbage, refuse, sludge or other waste material." 40 C.F.R. § 261.1(a) (1984). "Other waste material" was then defined as "any solid, liquid, semi-solid or contained gaseous material, resulting from industrial, commercial, mining or agricultural operations which: (1) is discarded or is being accumulated, stored or treated (physically, chemically or biologically) prior to being discarded; or (2) has served its original intended use and sometimes is discarded; or (3) is a manufacturing or mining byproduct and sometimes is discarded." 40 C.F.R. § 261.2(b) (1984). Finally, the regulations established that a material was "discarded" if it was "abandoned (and not used, reused, reclaimed or recycled) by being: (1) disposed of; or (2) burned or incinerated, except where the material is being burned as a fuel for the purpose of recovering usable energy; or (3) physically, chemically or biologically treated (other than burned or incinerated) in lieu of or prior to being disposed of." 40 C.F.R. § 261.2(c) (1984). While the regulatory definition of "discarded" seems to exempt "use, reuse, reclamation or recycling," the exemption is illusory because the term" other waste material" is defined to include spent materials and by-products that are sometimes discarded. Thus, unless a spent material or by-product is always reused, reclaimed, or recycled and never disposed of, burned, etc., it is an "other waste material" and thus a "solid waste" under the 1980 interim final rule, regardless of how it is used by the generator in question.

26. 48 Fed. Reg. at 14472 (Apr. 4, 1983). In the preamble to the 1983 proposal, EPA stressed that the Agency was "remov[ing] materials being reused as ingredients in a production process and product-like sludges and byproducts from the solid waste category." Id. at 14475.

27. 50 Fed. Reg. at 614 (Jan. 4, 1985); see also 40 C.F.R. § 261.2 (1989).

28. 50 Fed. Reg. at 617 (Jan. 4, 1985).

29. EPA's classification of certain types of materials used in certain ways as solid waste was influenced by the Agency's determination that the RCRA's policy of encouraging recycling is secondary to its permanent and overriding objective of protecting human health and the environment. 50 Fed. Reg. at 618 (Jan. 4, 1985).

30. Id.

31. EPA's regulations provide that "[t]he definition of solid waste contained in this part applies only to wastes that are also hazardous for the purposes of the regulations implementing Subtitle C of RCRA. For example, it does not apply to materials (such as non-hazardous scrap, paper, textiles, or rubber) that are not otherwise hazardous wastes and that are recycled." 40 C.F.R. § 261.1(b)(1) (1989).

There is one more twist to the 1985 regulatory definition of solid waste. In certain situations, materials that would not otherwise be solid waste under the 1985 regulatory definition of solid waste can be solid waste and hazardous waste for purposes of Subtitle C of RCRA. A section added as part of the 1985 rulemaking, 40 C.F.R. § 261.1(b)(2), provides:

This part identifies only some of the materials which are solid waste and hazardous waste under Sections 3007, 3013 and 7003 of RCRA. A material which is not defined as a solid waste in this part, or is not a hazardous waste identified or listed in this part, is still a solid waste and a hazardous waste for purposes of these sections if:

(i) in the case of Sections 3007 and 3013, EPA has reason to believe that the material may be a solid waste within the meaning of Section 1004(27) of RCRA and a hazardous waste within the meaning of Section 1004(5) of RCRA; or

(ii) in the case of Section 7003, the statutory elements are established.

40 C.F.R. § 261.1(b)(2) (1989).

Section 3007 of RCRA authorizes EPA to obtain information on solid waste generated, stored, treated, transported, or disposed of by a person and to inspect places where such waste is generated, stored, treated, transported, or disposed. RCRA § 3007, 42 U.S.C. § 6927, ELR STAT. RCRA 020. Section 3013 of RCRA provides for monitoring, testing, and analyses of solid wastes. RCRA § 3013, 42 U.S.C. § 6934, ELR STAT. RCRA 023. Finally, § 7003 of RCRA provides that "upon receipt of evidence that the handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment, the Administrator may bring suit on behalf of the United States … to immediately restrain any person contributing to such handling, storage, treatment, transportation or disposal to stop such handling, storage, treatment, transportation or disposal or to take such other action as may be necessary." RCRA § 7003, 42 U.S.C. § 6973, ELR STAT. RCRA 035.

32. EPA used the RCRA definition of solid waste as the regulatory definition of solid waste in a proposed rule establishing standards and criteria for municipal solid waste landfills (MSWLFs). See 53 Fed. Reg. 33314 (Aug. 30, 1989) (to be codified at 40 C.F.R. pt. 258). EPA's use of the statutory definition of solid waste as the regulatory definition of solid waste in the MSWLF rule provides very little guidance regarding the meaning of the statutory term "discarded" or the reach of the statutory definition of solid waste when applied to nonhazardous waste. However, to the extent that the 1985 definition of solid waste is narrower than the statutory definition of solid waste, it logically follows that EPA is applying a broader definition of solid waste to nonhazardous wastes than to hazardous wastes.

33. 40 C.F.R. § 261.2(a)(1)(1989). As mentioned previously, supra note 21, with regard to garbage; refuse; and sludges from waste treatment plants, water supply treatment plants, or air pollution control facilities, the regulatory definition of solid waste seems to be narrower than the statutory definition. Whereas the statutory definition seems to specify that such materials are always solid waste, RCRA § 1004(27), 42 U.S.C. § 6903(27), ELR STAT. RCRA 005, the regulatory definition defines those materials as solid waste only if they are discarded as described in the regulation. 40 C.F.R. § 261.2(a)(1) (1989).

34. 40 C.F.R. § 261.2(a)(2) (1989).

35. 40 C.F.R. § 261.2(a)(2)(i) (1989). A material is abandoned if it is "disposed of; … [b]urned or incinerated; or … [a]ccumulated, stored or treated (but not recycled) before or in lieu of being abandoned by being disposed of, burned or incinerated." 40 C.F.R. § 261.2(b) (1989).

36. A spent material is "any material that has been used and as a result of contamination can no longer serve the purpose for which it was produced without processing." 40 C.F.R. § 261.1(c)(1) (1989).

37. A by-product is "a material that is not one of the primary products of a production process and is not solely or separately produced by the production process." 40 C.F.R. § 261.1(c)(3) (1989). Hazardous by-products are by-products that exhibit a characteristic of hazardous waste or are listed by EPA as hazardous waste. 40 C.F.R. § 261.2 (Table 1) (1989).

38. Hazardous sludges are sludges that exhibit a characteristic of hazardous waste or are listed by EPA as hazardous waste. 40 C.F.R. § 261.2 (Table 1) (1989).

39. Id.

40. 40 C.F.R. § 261.2(c)(1) (1989). Such materials are also deemed to be discarded materials if they are being accumulated, stored, or treated before being recycled in the manner described in the text. Id. When the materials are used to produce products that are applied to or placed on the land in a manner that constitutes disposal, the products are also deemed to be discarded materials. 40 C.F.R. § 261.2(c)(1)(B) (1989). Examples of recycling activities involving placement of a material on the land in a manner that constitutes disposal include the use of the material as a fertilizer, in asphalt, or in building foundation materials. 50 Fed. Reg. 614, 628 (Jan. 4, 1985).

41. 40 C.F.R. § 261.2(c)(2) (1989). Such materials are also discarded materials if they are accumulated, stored, or treated before being used in such a manner. Id. The fuel produced from, or containing, such materials is also a discarded material. Id.

42. 40 C.F.R. § 261.2(c)(4) (1989). A material is "accumulated speculatively" if it is accumulated before recycling and the person accumulating it can show that the material is potentially recyclable, that the material has a feasible means of recycling, and that during the calendar year, the amount of material that is recycled or transferred to a different site for recycling equals at least 75 percent by weight or volume of the amount of that material accumulated at the beginning of the period. 40 C.F.R. § 261.1(c)(8) (1989).

43. Under EPA's regulations,"[a] material is reclaimed if it is processed to recover a usuable product, or if it is regenerated. Examples are recovery of lead values from spent batteries and regeneration of spent solvents." 40 C.F.R. § 261.1(c)(4) (1989).

44. 40 C.F.R. § 261.2(c)(3) (1989). Spent materials and scrap metal that are accumulated, stored, or treated before being reclaimed are also "discarded" materials. Id.

45. EPA felt that it lacked authority under RCRA to regulate reclamation of certain sludges and by-products when the reclamation activity was very similar to normal production processes. 50 Fed. Reg. 614, 619 (1985). Since the Agency could not "devise a self-implementing narrative standard that convincingly distinguishe[d] between product-like and waste-like sludges and byproducts being reclaimed," the Agency limited the types of sludges and by-products that would be "discarded" materials under the rule to those sludges and byproducts that EPA listed as hazardous wastes. Id. As with other types of recycling activities, if such listed by-products or sludges are accumulated, stored, or treated prior to reclamation, they are also discarded materials. 40 C.F.R. § 261.2(c)(3) (1989).

46. 40 C.F.R. § 261.2(d) (1989). The regulations establish criteria that EPA must use when listing a material as an inherently waste-like material. Id.

47. 40 C.F.R. § 261.2(e) (1989).

48. 40 C.F.R. § 261.2(e)(1)(i) (1989). Two examples of activities that EPA described as fitting within this exemption are the use of fly ash in cement and the use of distillation bottoms from the manufacture of carbon tetrachloride as feedstock in producing tetrachloroethylene. 50 Fed. Reg. at 619 (Jan. 4, 1985). The exemption does not apply if the material is being reclaimed. 40 C.F.R. § 261.2(e)(1)(i) (1989).

49. 40 C.F.R. § 261.2(e)(1)(ii) (1989). As examples of activities subject to this exemption, EPA cited the use of sludges as water conditioners and the use of hydrochloric acid from chemical manufacturing in steel pickling. 50 Fed. Reg. at 619 (Jan. 4, 1985).

50. 40 C.F.R. § 261.2(e)(1)(iii) (1989). The exemption only applies, however, if the material is returned as a substitute for raw material feedstock, and the process to which it is returned uses raw materials as principal feedstocks. Id.

51. In the preamble to the 1985 rulemaking, EPA indicated that it was exempting these activities from regulation as solid waste management because "they are like ordinary production operations or ordinary usage of commercial products" and EPA felt that it lacked statutory authority to regulate such activities. 50 Fed. Reg. at 619 (Jan. 4, 1985). However, the exemptions do not apply to materials used or reused as ingredients or commercial product substitutes or returned to the orginial process if the materials are applied to or placed on the land in a manner constituting disposal, burned for energy recovery, used to produce a fuel or contained in a fuel, accumulated speculatively, or listed by EPA as inherently waste-like. 40 C.F.R. § 261.2(e)(2) (1989). Thus, even though a material may be reused as an ingredient to make a product, it will be a solid waste if the product is applied to or placed on the land. Id.

52. 40 C.F.R. § 261.2(f) (1989). In the preamble to the rulemaking, EPA identified several factors it felt distinguished legitimate recycling activities that fit within the exemptions from sham recycling activities designed to avoid regulatory control. 50 Fed. Reg. at 638 (Jan. 4, 1989).

53. 40 C.F.R. § 260.30 (1989). EPA is authorized to grant variances from the solid waste definition for materials that are accumulated speculatively without sufficient amounts being recycled,materials that are reclaimed and then reused within the original primary production process in which they were generated, and materials that have been reclaimed but must be reclaimed further before the materials are completely recovered. Id.

54. See American Mining Congress v. EPA, 907 F.2d 1179, 20 ELR 21415 (D.C. Cir. 1990); American Petroleum Inst. v. EPA, 906 F.2d 729, 20 ELR 21091 (D.C. Cir. 1990); American Mining Congress v. EPA, 824 F.2d 1177, 17 ELR 21064 (D.C. Cir. 1987).

55. 824 F.2d 1177, 17 ELR 21064 (D.C. Cir. 1987).

56. Id. at 1178, 17 ELR at 21064.

57. Id. at 1180, 17 ELR at 21065. In each industry, commercial products are extracted from the complex chemical or physical matrices in which they naturally occur through a series of intermediate processing steps. For example, in the petroleum refining industry, crude oil is separated into various hydrocarbon streams through an initial process. Id. at 1181, 17 ELR at 21066. Each stream may then be processed further to recover other hydrocarbon streams or may be combined with other hydrocarbon streams to produce various petroleum products. Id. Metals and minerals are extracted from natural ores through a series of intermediate processes in the mining industry in a manner that is conceptually similar to how petroleum products are extracted from crude oil in the petroleum refining industry. Id.

58. Id. at 1180, 17 ELR at 21065.

59. 467 U.S. 837, 14 ELR 20507 (1984).

60. 824 F.2d at 1182, 17 ELR at 21066.

61. Id. A court should only look to the legislative history of the statute if the language and structure of the statute do not expose the legislative intent. Id.

62. Id. (quoting Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43, 14 ELR 20507, 20508 (1984)).

63. Id. (quoting Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843-44, 14 ELR 20507, 20509 (1984)).

64. 824 F.2d at 1182, 17 ELR at 21066.

65. Id. at 1184, 17 ELR at 21067.

66. Id.

67. Id. at 1185, 17 ELR at 21068.

68. Id. at 1185-86, 17 ELR at 21068.

69. Id. at 1186, 17 ELR at 21068. This language becomes significant in American Petroleum Institute v. EPA, 906 F.2d 729, 20 ELR 21415 (D.C. Cir. 1990) and American Mining Congress v. United States Environmental Protection Agency, 907 F.2d 1179 (D.C. Cir. 1990), two subsequent D.C. Circuit opinions that narrow the breadth of the AMC holding and seem to suggest that EPA may regulate a recyclable material as "solid waste" under RCRA once the material has become "part of the waste disposal problem," regardless of whether it has been actually abandoned, thrown away, or discarded. See infra notes 85-127 and accompanying text.

70. In particular, EPA cited several statutory provisions that referred to the reuse of solid waste, the recovery of materials or energy from solid waste, and the recovery of hazardous waste to indicate that Congress must have intended that some recyclable materials could be defined as solid waste. 824 F.2d at 1187 n.14, 17 ELR at 21069 n.14. See RCRA § 1002(d)(2), 42 U.S.C. § 6901(d)(2), ELR STAT. RCRA 004 (referring to solid waste as a potential source of energy); RCRA § 1004(7), 42 U.S.C. § 6903(7), ELR STAT. RCRA 005 (defining hazardous waste management to include recovery of hazardous waste); RCRA § 1004(24), 42 U.S.C. § 6903(24), ELR STAT. RCRA 005 (defining resource recovery facility as any facility at which solid waste is processed). The court dismissed EPA's logic as circular. 824 F.2d at 1187, 17 ELR at 21069.

While the statutory provisions cited by EPA indicate that the term "discarded material" in RCRA must encompass some recyclable materials, the majority correctly rejected EPA's argument because the general statutory provisions cited by the Agency do not elucidate when a recyclable material is discarded and, thus, becomes a solid waste. The provisions cited by EPA do not show that the term "discarded material" in RCRA encompasses all recyclable materials or even that the term encompasses the materials at issue in the case. Therefore, the general statutory provisions cited by EPA do not advance its argument that the term "discarded material" in RCRA includes the materials at issue in AMC.

EPA also cited two other specific provisions of RCRA, 42 U.S.C.A. § 6924(r)(2) (Supp. 1990) and 42 U.S.C.A. § 6924(q)(1) (Supp. 1990) as implicitly authorizing EPA to regulate recycled secondary materials as solid waste. 824 F.2d at 1187-1188. The court rejected EPA's arguments with regard to both of those provisions. Id.

71. The AMC court relied, in part, on the statutory construction canon of ejusdem generis to support its interpretation of "discarded material" as limited to materials that are abandoned, thrown away, or disposed of. 824 F.2d at 1189, 17 ELR at 21071. Under that canon, "[w]here general words follow the enumeration of particular classes of things, the general words are most naturally construed as applying only to things of the same general class as those enumerated." Id. Since the term "other discarded material" in the RCRA definition of solid waste follows the terms "garbage, refuse and sludge from a waste treatment plant, water supply treatment plant or air pollution control facility," the AMC court concluded that Congress must have intended to use the term "discarded" in its ordinary everyday sense. 824 F.2d at 1190, 17 ELR at 21071.

72. 824 F.2d at 1190-91, 17 ELR at 21071. As the AMC court stated (quoting the U.S. Supreme Court in Burlington N.R.R. v. Oklahoma Tax Comm., 481 U.S. 454 (1987)):

Legislative history can be a legitimate guide to a statutory purpose obscured by ambiguity, but "[i]n the absence of a 'clearly expressed legislative intention to the contrary,' the language of the statute itself 'must ordinarily be regarded as conclusive."

824 F.2d at 1990, 17 ELR at 21071.

73. In the words of the court, "Not only is the language of the legislative history fully consistent with the use of the term 'discarded' in the sense of 'disposed of,' but it strains the language to read it otherwise." 824 F.2d at 1192, 17 ELR at 21072. In support of its assertion, the AMC court quoted the following language of the House Committee on Energy and Commerce, in the committee's report upon the passage of RCRA, relating to the meaning of "discarded materials" and "solid waste" in RCRA: "Waste itself is a misleading word in the context of the Committee's activity. Much industrial and agricultural waste is reclaimed or put to new use and is therefore not a part of the discarded materials problem the Committee addresses." H.R. REP. NO. 1491, 94th Cong., 2d Sess. 2, reprinted in 1976 U.S. CODE CONG. & ADMIN. NEWS 6240. The court also cited several references to statements in the legislative history describing the major concern of RCRA to be the disposal of waste. 824 F.2d at 1192, 17 ELR at 21072.

In finding that the legislative history of RCRA supported the court's narrow reading of the RCRA term "discarded," the AMC court rejected EPA's arguments that RCRA's legislative history clearly indicated that Congress intended to regulate recyclable materials as solid waste and that the RCRA term "discarded" should be interpreted broadly.

EPA first argued that by describing several incidents of damage involving recycling facilities as justification for establishing a hazardous waste management system in 1976, Congress indicated its intention that recyclable materials should be regulated as solid waste under RCRA. Id. at 1191, 17 ELR at 21071. In response, the AMC court distinguished the materials at issue in AMC from those involved in the incidents of damage cited by Congress, stating that the incidents of damage described by Congress did not involve commercial, in-process reuse or recycling activities, but rather involved waste disposal activities. Id. EPA then asserted that certain language in the 1984 legislative history of RCRA amendments ratified EPA's interpretation of "discarded materials" as including recyclable materials. Id. The Report of the House Committee on Energy and Commerce stated:

This proposed section of the bill amends [proposed § 6921] of RCRA to require the Administrator to issue regulations regarding use, reuse, recycling, and reclamation of hazardous wastes. This provision is intended to reaffirm the Agency's existing authority to regulate as [sic] hazardous waste to the extent it may be necessary to protect human health and the environment. The Committee affirms that RCRA already provides regulatory authority over these activities … and in this provision is amending to clarify that materials being used, reused, recycled, or reclaimed can indeed be solid and hazardous wastes and that these various recycling activities may constitute hazardous waste treatment, storage or disposal.

H.R. REP. No. 198, 98th Cong. 2d Sess. 46, reprinted in 1984 U.S. CODE CONG. & ADMIN. NEWS 5605.

The AMC court found the language cited by EPA to be inconclusive because it was circular. 824 F.2d at 1191, 17 ELR at 21072. Specifically, the court acknowledged that while the language indicated that certain recyclable materials may be solid and hazardous waste, it does not resolve the question of when a recyclable material becomes a solid waste or whether the materials at issue in AMC were solid waste. Id.

74. 824 F.2d at 1193, 17 ELR at 21073 (emphasis added).

75. Id.

76. See infra notes 85-127 and accompanying text.

77. The AMC court's narrow reading of the statutory term "discarded" could, however, be undercut by an expansive reading of the term "disposal," as it is defined in RCRA. Under RCRA, the term "disposal" means "the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment." RCRA § 1004(3), 42 U.S.C. § 6903(3), ELR STAT. RCRA 005. As the dissent in AMC pointed out, RCRA's definition of disposal is a functional definition that encompasses more than the everyday meaning of disposal, which is discarding or throwing away. 824 F.2d at 1196, 17 ELR at 21074. "Waste is disposed under [the RCRA definition of disposal] if it is put into contact with land or water in such a way as to pose the risks that motivated Congress to pass RCRA." Id. Accumulation of a material prior to reclamation could arguably constitute disposal of the material under the statutory definition. However, it is unclear whether such an activity would constitute storage, rather than disposal under RCRA. "Storage," as defined in RCRA, "when used in connection with hazardous waste, means the containment of hazardous waste in such a manner as not to constitute disposal of such hazardous waste." RCRA § 1004(33), 42 U.S.C. § 6903(33), ELR STAT. RCRA 005. Such a definition is unhelpful in determining where storage ends and disposal begins.

78. Again, such materials could arguably be considered disposed under an expansive reading of that term in RCRA.

79. 53 Fed. Reg. 519 (Jan. 8, 1988) (to be codified at 40 C.F.R. pt. 261).

80. Id. at 520.

81. Id. at 529 (to be codified at 40 C.F.R. §§ 261.4(a)(9)-(10)).

82. Id. at 529 (to be codified at 40 C.F.R. § 261.4(a)(8)). The exemption applies provided that

(i) only tank storage is involved, and the entire process through completion of reclamation is closed by being entirely connected with pipes or other comparable enclosed means of conveyance;

(ii) [r]eclamation does not also involve controlled flame combustion for energy recovery (such as could occur in boilers or industrial furnaces) or incineration (by burning in an incinerator);

(iii) [t]he secondary materials are never accumulated in such tanks for over twelve months without being reclaimed; and

(iv) [t]he reclaimed material is not used to produce a fuel, or used to produce products that are used in a manner constituting disposal.

Id. The regulation does not, unfortunately, define "secondary materials."

83. 53 Fed. Reg. at 529 (Jan. 8, 1988) (to be codified at 40 C.F.R. § 261.2(c)(3)). As the proposed regulation states, "[t]he ultimate object in applying [the criteria] is to determine whether the sludges or byproducts are being utilized in an ongoing, continuous manufacturing process." Id.

84. 53 Fed. Reg. at 521 (Jan. 8, 1988).

85. Id. In the preamble to the proposed amendments, EPA stressed that the AMC court did not equate discarding with final disposition in a RCRA disposal unit. 53 Fed. Reg. at 523. EPA read the court's definition of "discarded" expansively by focusing on the court's characterization of "discarded" to mean disposed, and by interpreting the RCRA term "disposal" as broadly as is authorized by the statutory definition. Id.

86. 906 F.2d 729, 20 ELR 21091 (D.C. Cir. 1990).

87. Id. at 732, 20 ELR at 21093.

88. RCRA § 3004(d), (e), (g), (m), 42 U.S.C. § 6924(d), (e), (g), (m), ELR STAT. RCRA 013.

89. RCRA 3004(m), 42 U.S.C. § 6924(m), ELR STAT. RCRA 014.

90. Section 3004(m)(1) of RCRA requires the Administrator to "promulgate regulations specifying those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized." 42 U.S.C. § 6924(m)(1), ELR STAT. RCRA 014.

91. 53 Fed. Reg. 31138 (Aug. 17, 1988).

92. 906 F.2d at 734, 20 ELR at 21095.

93. Id.

94. Id. at 732, 20 ELR 21092.

95. 40 C.F.R. § 261.3(c)(2) (1989) provides that materials derived from treatment of a listed hazardous waste are hazardous waste.

96. 906 F.2d at 739, 20 ELR at 21096.

97. The definition of solid waste in RCRA includes "any garbage, refuse, sludge from … an air pollution control facility and other discarded material." RCRA § 1004(27), 42 U.S.C. § 6903(27), ELR STAT. RCRA 005. As the API court noted, K061 is sludge from an air pollution control facility and is, therefore, a solid waste. 906 F.2d at 740 n. 14, 20 ELR at 21096 n. 14.

98. Hazardous waste is defined, under RCRA, as being a subset of solid waste. RCRA § 1004(5), 42 U.S.C. § 6903(5), ELR STAT. RCRA 005. If a material is not a solid waste, it cannot be a hazardous waste.

99. 906 F.2d at 740, 20 ELR at 21096. EPA's contention that K061 ceases to be a solid waste when received at a high temperature metals reclamation facility was based on its belief that the furnaces used in high temperature metals reclamation are "'normally essential components of the industrial process, and when they are actually burning secondary materials for material recovery, they can be involved in the very act of production, an activity beyond the agency's RCRA authority.' 53 Fed. Reg. 11753 (1988)." Id. at 734, 20 ELR at 21093.

100. Id.

101. However, K061 is still a sludge from an air pollution control facility when it is received at a metals reclamation facility. Under the statutory definition of solid waste in RCRA, that would seem to be a sufficient basis on which to find that K061 is still a solid waste when received at the facility. See RCRA § 1004(27), 42 U.S.C. § 6903(27), ELR STAT. RCRA 005. However, as noted earlier, sludges are defined to be solid waste in EPA's regulations only if they are discarded. Supra note 22.

102. 906 F.2d at 741, 20 ELR at 21097.

103. Id.

104. Id. at 740, 20 ELR at 21096.

105. As the API court explained, "[A]n agency's conclusion that a particular course is compelled by a statute that is actually ambiguous does not display the caliber of reasoned decisionmaking necessary to warrant. [sic] Chevron step two deference." Id.

106. Id. at 742, 20 ELR at 21098.

107. Id. at 741, 20 ELR at 21097.

108. Id.

109. Id.

110. Id.

111. Id. The court held that "[a]n equally plausible reading of the statute … is that K061 remains 'discarded' throughout the 'waste treatment' process dictated by the agency." 906 F.2d at 740, 20 ELR at 21097. The API court could have avoided any consideration of the RCRA term "discarded" by finding that K061 remains a solid waste under the statutory definition of "solid waste" when it reaches the metals reclamation facility because it is still a sludge from an air pollution control facility at that time. See supra note 22.

112. 906 F.2d at 741, 20 ELR at 21097. The court asserted that

it appears unlikely that EPA can simply readopt the conclusion that its authority to regulate K061 ends at the door of the reclamation facility. To reach such a conclusion, EPA would have to reconcile this position with the RCRA's acknowledged objective to "establish a cradle-to-grave' regulatory structure" for the safe handling of hazardous wastes.

Id. The court added, "After reconsidering these matters with AMC in correct focus, it appears likely that EPA will recognize that it must comply with its statutory mandate to prescribe treatment standards for the disposal of K061 slag." Id. at 742, 20 ELR at 21097.

113. Id. at 741, 20 ELR at 21097.

114. 907 F.2d 1179, 20 ELR 21415 (D.C. Cir. 1990).

115. Id. at 1182, 20 ELR at 21416.

116. See supra note 98.

117. 907 F.2d at 1185, 20 ELR at 21416.

118. Id. at 1185-86, 20 ELR at 21416-17.

119. Id. at 1186, 20 ELR at 21417.

120. Id.

121. Id. at 1187, 20 ELR at 21418.

122. Id.

123. Id. at 1186, 20 ELR at 21417.

124. Id.

125. Id. (emphasis in original).

126. Id.

127. Id.

128. AMC, API, and AMC II can be reconciled if one interprets "disposed of" in AMC in its broadest RCRA sense to include collection, storage, and treatment of a material by the generator of the material prior to final disposition in a RCRA disposal unit and if the material is emitted into the environment and the improper management of the material may harm human health or the environment. EPA seems to have so interpreted the term in its 1988 rulemaking. See supra note 85.

129. 907 F.2d at 1187, 20 ELR at 21418.

130. Id.

131. See, e.g., STENSVAAG, supra note 9. See also, Garelick, EPA's Definition of Solid Waste: Making Distinctions Between Shades of Gray, 17 ELR 10349 (Sept. 1987), and Gaba, The Mixture and Derived-From Rules Under RCRA, 21 ELR 10033 (Jan. 1991).

132. Discussion Draft, Amendment in the Nature of a Substitute for H.R. 3735 § 103(a) (May 9, 1990) (available from the U.S. House of Representatives Committee on Energy and Commerce). Admittedly, the ambiguous term "original purpose" in the proposed definition may create new interpretive problems.

133. Such a broad definition of solid waste would probably have to be coupled with a relaxation of the RCRA storage, treatment, and transportation requirements for certain "recyclable" materials, so as not to discourage recycling.