Pursuing Sustainable Solid Waste Management

Marian Chertow

[Editors' Note: In June 1992, at the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, the nations of the world formally endorsed the concept of sustainable development and agreed to a plan of action for achieving it. One of those nations was the United States. In August 2002, at the World Summit on Sustainable Development, these nations will gather in Johannesburg to review progress in the 10-year period since UNCED and to identify steps that need to be taken next. In anticipation of the Rio + 10 summit conference, Prof. John C. Dernbach is editing a book that assesses progress that the United States has made on sustainable development in the past 10 years and recommends next steps. The book, which is scheduled to be published by the Environmental Law Institute in June 2002, is comprised of chapters on various subjects by experts from around the country. This Article will appear as a chapter in that book. Further information on the book will be available at www.eli.org or by calling 1-800-433-5120 or 202-939-3844.]

Marian Chertow is Director of the Program on Solid Waste Policy at the Yale School of Forestry and Environmental Studies.

[32 ELR 10812]

This Article discusses the original goals of Agenda 21¹ related to achieving "environmentally sound" solid waste management and reviews U.S. activities and policies with regard to solid waste over the last decade. Of greatest interest to the public and the media has been municipal solid waste (MSW)—ordinary household, commercial and institutional garbage or trash. Overall, the record of the United States in achieving sustainable solid waste management, including steady state or decreasing levels of waste generation and disposal, is mixed. On one hand, recycling and composting rates have increased dramatically and the portion of the U.S. population with access to curbside recycling has doubled to over 140 million people, helping to decrease the percentage of MSW that is landfilled. On the other hand, percentages tell only part of the story and mask some unsustainable trends: recent increases in per capita generation and landfill dependence.

The need for consistent data and indicators for solid waste management is highlighted here. Although one might expect quantification in this area, vastly disparate estimates of waste generation are confounding and suggest considerable discrepancies and room for improvement. In the late 1980s, when a disposal crisis seemed imminent, there was tremendous enthusiasm for reduction in waste generation and disposal. Most of today's solid waste policy, including the solid waste management hierarchy, stems from that era. While the ideas are sound, programs and practices clearly need revitalization. The United States must be prepared to address its growing complacency with regard to easy, but unsustainable, waste management "solutions."

"Sustainable" Solid Waste Management

A key premise of Agenda 21, Chapter 21, "Environmentally Sound Management of Solid Wastes and Sewage-Related Issues," is that we must go beyond the basic goals of safe handling of waste "to address the root cause of the problem by attempting to change unsustainable patterns of production and consumption."² To assess whether these patterns have become more sustainable in the United States since the early 1990s, this Article examines a byproduct of production and consumption—MSW generation and disposal. It reviews recent policy in this area and quantification data regarding a period (1990-1999) for where several comparable datasets are available.

A modest definition of sustainability for solid waste modeled with future generations in mind includes steady state or decreasing levels of waste generation and disposal. To verify trends, a reliable measurement system is required. To determine if U.S. waste management is heading in a sustainable direction, three indicators amidst a plethora of possibilities are discussed:

. the first indicator explores whether generation per person has increased or decreased;

. the second indicator considers whether waste generation is likely to be decoupled from changes in gross domestic product (GDP), and

. at the most basic level, the third indicator asks whether, even if waste generation is rising, more or less waste is being landfilled owing to increased recycling, composting, and resource recovery generally.

Promising examples follow discussions of the indicators, drawing on key trends.

Defining Solid Waste

In order to measure waste, there must be a common understanding of waste definitions. In general, Agenda 21 takes a broad view of solid waste, defining it to include "all domestic refuse and nonhazardous wastes such as commercial and institutional wastes, street sweepings, and construction debris." It goes on to say that in some countries, the solid waste system also handles human wastes, incinerator ash, and sludge from septic tanks and sewerage treatment plants. The definition makes clear that waste with hazardous characteristics is excluded.

In the United States, both hazardous and nonhazardous wastes are regulated by the federal Resource Conservation [32 ELR 10813] and Recovery Act (RCRA).³ Hazardous waste is the subject of Subtitle C of RCRA, and nonhazardous waste is addressed in Subtitle D. RCRA, like Agenda 21, takes a broad view, defining solid waste 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, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agriculture operations, and from community activities.⁴

In contrast to hazardous waste management, where there are strict management regimes under the regulatory authority of the U.S. government, the federal government assumes little authority over Subtitle D wastes. Except for the construction, design, maintenance, and long-term care of MSW disposal facilities, which must follow federal standards,⁵ most of the regulatory authority is left to state and local government. Consequently, behavior and practices across the country are variable, differing from state to state and region to region.

In practice, MSW is often "co-managed" with additional streams mentioned above including sludge and other commercial wastes such as construction and demolition (C&D) debris. The waste elephant in the closet, however, is another category under RCRA Subtitle D known as nonhazardous industrial waste (NHIW), which dwarfs these other streams in size. Although quantities of NHIW have not been estimated at the national level since the mid-1980s, at that time the stream was thought to represent close to seven billion tons per yearof industrial process waste, with the largest sources reported as the pulp and paper and primary iron and steel industries.⁶ More than 90% of this waste is in liquid form.⁷ Disposal has typically been on the site of an industrial facility in various ponds, pits, lagoons, or piles.⁸ Following the "out of sight, out of mind" adage, in addition to little regulatory attention, this waste has garnered little public attention.⁹ The NHIW figure still excludes some four billion tons per year of waste from mining, oil and gas, and agriculture (Figure 1).

Figure 1

[SEE ILLUSTRATION IN ORIGINAL]

Source: REPORT TO CONGRESS, supra note 6.

The distance between industrialized and developing countries with respect to waste management practices is vast.¹⁰ While Agenda 21 estimated that over two billion people would be without access to basic sanitation by the end of the 20th century,¹¹ this is a largely settled issue in most of the industrialized world. While Agenda 21 predicted that over one-half of the urban population in developing countries would be without adequate solid waste disposal services by 2000, this problem has been extensively addressed in the United States, so much so that author Greg Easterbrook, in a comprehensive 800-page review of environmental problems, dismissed any discussion of MSW to a footnote, declaring that, "rather than an environmental problem, garbage is a political problem."¹²

Two Hierarchies

Both Agenda 21 and the U.S. Environmental Protection Agency's (EPA's) solid waste policy make use of the idea of a hierarchy for waste management. Agenda 21's waste objectives identify where action is needed as follows:

. minimizing wastes—stabilizing or decreasing the production of waste destined for final disposal. Significantly, Agenda 21 points out that "a preventive waste management approach focused on changes in lifestyles and in production and consumption [32 ELR 10814] patterns offers the best chance for reversing current trends"¹³;

. maximizing environmentally sound waste reuse and recycling—strengthening and increasing national reuse and recycling systems;

. promoting environmentally sound waste disposal and treatment—treating and safely disposing a progressively increasing proportion of generated wastes; and

. extending waste service coverage—providing basic sanitation and waste disposal services in a healthful and environmentally safe way to as much of the population as possible.¹⁴

In contrast, the goal of EPA's hierarchy, in the absence of significant federal regulatory authority, is to establish preferred approaches to managing municipal solid waste. According to a policy released in 1989,¹⁵ EPA is an advocate of "integrated waste management." This approach calls for systems to be designed so that four waste management options—source reduction, recycling, combustion, and landfills—are used "as a complement to one another to safely and efficiently manage [MSW]."¹⁶ The policy suggests that these systems be "custom designed" so that different practices are emphasized "consistent with the community's demographics and waste stream characteristics."¹⁷ Today, the integrated waste management hierarchy remains as MSW policy in the United States at the level of a heuristic—a rule of thumb—to be used in planning and goal setting, rather than a regulation. Updated in EPA's 2000 report, it supports:

(a) source reduction, including reuse of products and on-site, or backyard composting of yard trimmings;

(b) recycling, including off-site or community composting; and

(c) disposal, including waste combustion (preferably with energy recovery) and landfilling.¹⁸

Underlying the hierarchy are estimates of relative environmental impact and cost. Each successive tier of the hierarchy involves more materials use and loss and therefore more loss of economic value and, generally, more environmental impact than the previous level. The hierarchy presents not only an explicit solution—choose the approaches at the "top" of the hierarchy because they are more benign and less expensive—but also an implicit account of why generating large amounts of trash and then burying it in the ground is the least desirable approach to waste management.¹⁹

The integrated waste management hierarchy, in contrast to the implicit policy that preceded it which included heavy dependence on landfilling, has been the guiding policy through the 1990s. The 1989 declaration called for a 25% recycling goal for MSW by 1992. Almost every state adopted a similar policy based on the notion that some practices were environmentally preferable to others. Throughout the late 1980s and 1990s, most states set recycling goals, many established waste reduction targets, and numerous jurisdictions banned specific materials or products from land disposal. As reported to BioCycle magazine, 32 states ban the disposal of vehicle batteries, 30 the landfilling of whole tires, and 21 the dumping of yard trimmings.²⁰

To gain historical perspective, it is important to recall that in the late 1980s, the United States faced what it perceived to be a disposal crisis: thousands of landfills that could not comply with new environmental laws were being shut down, yet more and more waste was being generated.²¹ Elections were being won and lost on waste disposal issues, with solid waste often the second highest category of municipal expenditure after education. Following significant citizen mobilization around recycling and reasonably appropriate market response to create new capacity by the private sector, today, no such crisis exists.²² If the culminating symbol of the predicament of the late 1980s was the hapless "Mobro" garbage barge of 1987 wandering from port to port in search of a final resting place, an opposite symbol of the late 1990s was anti-recycling backlash as captured by the iconoclastic June 1996 cover story of the New York Times magazine, Recycling Is Garbage, in which recycling is attacked at its core as a "waste" of time.²³

Problems of Measurement

A system heading toward sustainability, at the simplest level, should plateau in absolute terms, or even generate less waste over time.²⁴ At a minimum, even if more waste is generated, larger percentages should go to recycling and composting so less is actually disposed. Progress toward this [32 ELR 10815] goal should be straightforward, given the attention that has been paid to environmental performance since the first Earth Day in 1970 and the establishment of EPA. Yet it is safe to say that currently available data do not permit such an assessment.

The first problem is lack of standardization about what is and should be counted. To begin to analyze this situation requires a prosaic, but clear, discussion of waste streams. According to EPA, in addition to the MSW stream considered above, many sources reporting on MSW include several other waste streams in their totals as follows:

C&D—lumber, concrete and asphalt, roofing, window glass, and other materials generated through construction and demolition activity.

Municipal sludges—semi-solid waste residuals from both water and wastewater treatment plants.

Municipal incinerator ash—the ash from solid waste combustion plants.

Industrial wastes—the billions of tons of nonhazardous production wastes from key industries such as pulp and paper, steel, and electricity generation discussed above.

Very small quantity generator (VSQG) hazardous wastes—solvents, lead-acid batteries and strong acids and alkalies and other hazardous wastes from small enterprises producing less than 100 kilograms per month which, because they are small quantities, can be disposed of in nonhazardous waste facilities.

So, ask a solid waste quantification question, and many possible answers are available.

The second problem, in addition to what gets counted, concerns how waste is counted. Methodologically, there are three prominent data sources that should be useful in analyzing sustainability trends at the national level. Each, however, approaches the counting problem quite differently:

EPA—The Agency has time series data on waste quantity and composition going back to 1960 using a methodology developed by a Kansas-based consulting firm, Franklin Associates. Rather than count actual waste generated, the data are based on what is likely to have been created and disposed given the quantity of goods and services produced in or imported to the United States. This "materials flow" approach uses a system of estimates to determine expected types and quantities of waste products in the MSW stream only. Because it is based on national production data, it does not differentiate by states or regions.

BioCycle—Staff of the journal BioCycle conduct an annual survey of the states and the District of Columbia executed fairly consistently since 1989. The survey determines and updates current waste quantities and management practices. Although each jurisdiction's figures are presented as lump sums, the staff provides some footnotes to indicate when a state is reporting solely MSW or whether C&D wastes, sludge, or other streams have been included.²⁵

Solid Waste Industry—a private firm, Chartwell, Inc., calls each waste facility in the United States every month to determine waste quantities, types, and "tipping fees," i.e., the money charged for disposal of a ton of waste. In addition, the industry-based Environmental Research and Education Foundation (EREF) undertook an ambitious study in 1999-2000 to count not only waste generated and disposed, but also the size of the waste industry including revenues and jobs, and how the public and private players split out.²⁶ While BioCycle contacted public sector officials, EREF gathered data from publicly traded, privately held, and public sector organizations in the industry. The report relies on known datasets, statistical sampling and extrapolation methods. Thousands of surveys were conducted of both businesses to gather financial and employment data and facilities, based on Chartwell research, to capture operational data. For purposes of this study, solid waste was defined to include "any non-hazardous waste sent off-site for final disposal, incineration, recycling, or composting."²⁷ Thus, C&D waste, regulated medical waste, and numerous industrial wastes are included.

The results from these sources are confusing. It is clear from EPA and BioCycle data, shown in Figure 1, that diversion from disposal has greatly increased. The United States is recycling and composting almost twice as much waste in 1999 than in 1990 according to EPA, and nearly four times as much, according to BioCycle.²⁸ What is unclear is whether generation has increased so much that, despite the diversion trends, we still landfill more in absolute terms than we did earlier in the 1990s. As shown in Figure 1, EPA reports a decline not only in the percentage of waste landfilled (from 67% to 57%), but an absolute decrease (from 137 million tons to 132 million tons). BioCycle shows a decrease in landfilling from 77% to 60%, but an increase in total tons landfilled from 226 million tons in 1990 to 233 million tons in 1999.²⁹ For 2000, a total of 249 million tons was reported as landfilled.³⁰ EREF found 370 million tons landfilled in 1999.³¹

[32 ELR 10816]

More people create more waste and, for this reason, population growth must be considered in examining waste data. Simply looking at EPA's dataset, one would conclude that the amount of waste generated increased from 1990 to 1999 only slightly beyond the population increase during that period—a 12% increase in waste, while population increased 9.2%. This increases per capita generation from 4.5 pounds per day in 1990 to 4.62 pounds per day in 1999. But according to the BioCycle data, waste generation increased fully 39% between 1990 and 1999, well beyond the population increase.

Since the EREF dataset was collected for the first time in 1999-2000, a comparison is not available. The survey, however, found 544 million tons of waste generated. The study is quick to point out the difficulty of measuring waste quantities and states that "the actual value could vary as much as +/- 120 million tons (+/- 22%) within an 85[%] level of confidence."³² Because of the size of these numbers, there are large gaps; for example, where EPA shows 64 million tons recycled or composted, EREF shows 146 million tons managed in this way.

It is important to point out that, on its face, it is not alarming that EREF found so much waste. For example, the largest difference between EPA's 230 millions tons and EREF's 544 million tons is most likely explained by the inclusion in the EREF survey of C&D waste and NHIW.³³ Landfill numbers may have risen so high because more and more NHIW, traditionally disposed on the site of an industrial facility in a lagoon or waste pile, is now being collected, managed, and disposed of at secured offsite disposal facilities. If this is the explanation, it could represent a positive trend for the environment in that the material, once put aside onsite, is now receiving more careful management. On the other hand, the data are so disparate, with a swing of 120 million tons in either direction, that sustainability is nearly impossible to assess. This points to a clear need to improve measurement and monitoring and increased transparency in reporting.

Moving Toward Sustainable Waste Management

In the first section of this Article, three indicators of a move toward sustainable waste management were identified. These criteria were chosen to be straightforward as well as reflective of the objectives of Agenda 21 and the Rio Declaration.³⁴ Here, each is stated as a sustainability goal and is discussed in turn:

^*4^*Table 1. Comparing Data Sources

Category U.S. EPA 1990 U.S. EPA 1999 BioCycle 1990

Total Waste 205 million tons 230 million tons 294 million tons

Generated

Total Waste 33 million tons 64 million tons 34 million tons

Recycled

Total Waste 137 million tons 132 million tons 226 million tons

Landfilled

U.S. 250 million 273 million 250 million

Population

Per Capita ^** 4.5 pounds 4.6 pounds 6.4 pounds

Generation per day per day per day

^*3^*Table 1. Comparing Data Sources

Category BioCycle 1999 EREF 1999

Total Waste 383 million tons 544 million tons

Generated

Total Waste 126 million tons 146 million tons

Recycled

Total Waste 233 million tons 370 million tons

Landfilled

U.S. 273 million 273 million

Population

Per Capita ^** 7.7 pounds 10.9 pounds

Generation per day per day

^** Per capita generation is determined by dividing waste generated in a year by the population, which yields tons per person, then multiplying the result by 2000 pounds to determine pounds per year, and then dividing the result by 365 days to determine pounds per person per day.

Sources: U.S. EPA, CHARACTERIZATION OF MUNICIPAL SOLID WASTE IN THE UNITED STATES: 1992 UPDATE (1992) [(EPA/530-R-92-019)]; 2000 UPDATE, supra note 18; Goldstein & Madtes, supra note 28; Goldstein & Madtes, supra note 20; EREF, supra note 27.

Goal 1—decreasing per capita generation.

Goal 2—decoupling of waste generation from GDP such that rising GDP would not automatically include commensurately increasing waste generation rates.

[32 ELR 10817]

Goal 3—at a minimum, even if waste generation were to rise, decreasing waste disposal through increased recycling, composting, and resource recovery.

It is important to differentiate generation, which is the total material discarded, from disposal, which means the waste that is left over after recycling, composting, and other types of reusing and recovering collected discards. Since increasing generation correlates with increasing population, assessing per capita generation is a means of controlling for population changes.

Goal 1—Decreasing Per Capita Generation

European data collection on MSW suffers from the same problems as in the United States, in that different countries use different methods of defining, collecting, and reporting information.³⁵ Still, according to Organization for Economic Cooperation and Development (OECD) figures for municipal waste generation in the late 1990s, the United States produces approximately 40% more waste per capita than countries such as the United Kingdom and Austria, and is by far the largest producer overall.³⁶ Since 1960, EPA, measuring the lowest tonnages of the sources discussed, indicates generation of MSW has increased from 2.68 to 4.62 pounds per person per day. Per decade, however, the rise for the period 1990 to 1999 was only 3%, much lower than in the other decades since 1960. Thus, EPA data suggest that generation per capita has finally started to slow. The BioCycle data, however, indicate a more troubling 20% increase for the 1990s, from 6.4 to 7.7 pounds per person per day of generation.

As an indicator, per capita waste generation ties most closely to the issue raised in Agenda 21 of whether levels of production and consumption are sustainable. More generation, in excess of the rate of population growth, generally means more "stuff." Given the measurable efforts of industry toward lightweighting, that is, using less material per good or package, and toward efficiency overall, it is even more significant that generation per person continues to rise in spite of these changes. EPA's estimate, as mentioned earlier, is based on the flow of goods and services into and out of the economy. Thus, it can be examined more closely to consider source reduction as well as per capita generation.

EPA reports that in 1999, although 230 million tons of MSW were generated, 50 million more tons of waste were not created due to waste prevention programs.³⁷ Had this material entered the waste stream, per capita generation would have been 5.6 pounds per person per day, another 21% higher than the record figure of 4.62 tons per capita per day already achieved in 1999. EPA's own figures show that per capita generation began to slow and even decline in the early 1990s (see Table 2). For the first time, EPA's 1994 report predicted a decline in per capita generation by the year 2000 to 4.3 pounds per capita per day, based largely on diversion of yard waste.³⁸ Waste per capita did decline between 1994 and 1996, and EPA even reported a decrease in total generation in 1996 of almost two million tons. But, following 1996, the predicted trend, perhaps owing to a strong economy, has not held. Rather, per capita generation has increased steadily since 1996.

^*4^*Table 2. Per Capita Generation and Source Reduction

Selected Year Pounds Per Capita Pounds Per Capita Tons Source Reduced and

Per Day Generated Per Day Discarded Not Counted in Per

(After Recycling Capita Figure

and Composting)

1990 4.51 3.77 Base year

1991 N/A N/A N/A

1992 4.49 3.62 N/A

1993 4.4 3.4 N/A

1994 4.51 3.44 8 million

1995 4.41 3.26 21 million

1996 4.33 3.15 N/A

1997 4.49 3.27 32 million

1998 4.52 3.27 40 million

1999 4.62 3.33 50 million

^*4^*Sources: 1994 UPDATE, supra note 38; 1997 UPDATE, supra note 33; 2000

^*4^*UPDATE, supra note 18.

[32 ELR 10818]

One state that has dealt with the per capita waste issue head on is Oregon. Oregon's Department of Environmental Quality has been tracking per capita generation since 1992. In Oregon, too, there has been a steady rise between 1992 and 1999: from 5.7 pounds per capita per day to 7.3 pounds per capita per day, a 28% increase.³⁹ Clearly, such a change in an environmentally progressive state with a high recovery rate from recycling and composting indicates the difficulty of reigning in generation per person.

Oregon, however, has taken decisive action. In 2001, the state legislature passed House Bill 2744, which actually sets goals in statute for reducing per capita waste generation. The object is to stabilize the rate by 2005 and to reduce total waste generation by 2009.⁴⁰ Although Oregon's 2000 waste generation figure continued to show a steady rise since 1992, for the first time there was a slight decrease in per capita generation. Whether this is a trend remains to be seen. Making the new law effective requires patience and hard work. Still, Oregon has at least made a quantifiable attempt to stave off more waste and to strive for more sustainable practices.

Goal 2—Decoupling of Waste Generation From GDP Such That Rising GDP Would Not Automatically Include Commensurately Increasing Waste Generation Rates

A very clear statistical relationship exists between waste generation and GDP per capita. Simply put, the stronger the economy, the more trash generated.⁴¹ Inquiring whether such a pattern can be broken raises the issue of dematerialization—the decline over time in the weight of materials used to meet an economic function. One clear trend has been the decline in weight of particular items such as individual beverage cans. Yet, the increase in the overall quantity of beverage cans is said to "bite back" against the advances in technology and overwhelm the fact that per unit materials use is down.⁴² In contrast to materials, gains in energy efficiency by the mid-1990s overcame much of the "biting back" such that even if the economy grew, energy demand did not grow at the same rate. The logical question is whether the same sort of decoupling of trends could be achieved in the relationship between waste and GDP, given that the American public would not look favorably on decreases in generation if it had to be accompanied by a declining economy.

One approach to this question is to turn to the industrial ecology literature. Industrial ecology is centrally concerned with the flow of materials and energy at different scales, through facilities, cities, regions, and globally.⁴³ Of interest to industrial ecologists is the question, reviewed by Iddo Wernick and others,⁴⁴ of whether the economy is materializing or dematerializing. In analyzing EPA's data since 1960, the researchers found some evidence that the amount of waste per unit of GDP has been decreasing slightly. With regard to industry, the authors found some evidence of substitution of lighter materials such as plastics for heavier ones such as steel. The drive to efficiency and high performance, however, can increase the complexity of materials use, which can create its own waste disposal problems.

Beyond industry, the study found "no significant signs of net dematerialization at the level of the consumer or saturation of individual materials wants."⁴⁵ While there are many specific dematerializing trends (for example, regarding individual end products) as well as increasing use of secondary materials, there are also many materializing trends. This list seems quite familiar; for example, the trend to larger homes with more objects in them even with decreasing household size. Imagine what a compounded 14% per year increase in new product introductions in supermarkets adds to generation—in addition to bewildering the consumer with new versions of Coca-Cola, additional variations of cold capsules, more and more breakfast cereals. It is not surprising that GDP and consumption are linked, given the psychic satisfaction often associated with Americans regarding the type and quantity of their "material" possessions.⁴⁶

An interesting example of decoupling waste from other considerations has occurred with regard to yard trimmings. The absolute tonnage generated declined in the 1990s, even in the face of a strong economy, owing to regulation and corresponding behavioral change. Increases that would have come from population growth appear to be offset by successful source reduction such as through backyard composting and the use of mulching mowers to allow grass trimmings to stay in place, never entering the waste collection system.⁴⁷

Another regulatory-driven example that seems to have resulted in decoupling waste from wealth is the German Packaging Ordinance. Enacted in 1991, it is an extensive and somewhat controversial regulatory regime overseeing the final disposal of packaging after sale and use by consumers. Although the system has been criticized as being very expensive, one reported result is a 66% decline in the weight of packaging waste disposed.⁴⁸ These examples show that decoupling is possible in specific instances and should be explored in greater depth to see what aspects are generalizable.

[32 ELR 10819]

Goal 3—At a Minimum, Even if Waste Generation Were to Rise, Decreasing Waste Disposal Through Increased Recycling, Composting, and Resource Recovery

Thirty-five states reported an increase in MSW generation in 2000.⁴⁹ Some environmentalists feel that generation, alone, is a strong indicator of the problem of unsustainable production and consumption, as identified in Agenda 21. Others, however, would argue that generation is less relevant than what we actually do with the discarded materials. If, for example, we closed every loop and got all materials back into production, this would be in the general direction of sustainability.⁵⁰ In the language of waste management, something discarded does not become waste if it is reused, recovered, recycled, or composted. Agenda 21, also, uses this logic in repeatedly calling for decreases in "wastes destined for final disposal."⁵¹ Therefore, a key indicator of whether sustainable practices have been implemented is the amount of material disposed (rather than generated) which brings attention to the pervasive practice of landfilling.⁵²

There have been many changes in landfill and related practices since 1990. Data presented earlier showed that while generation continues to increase, the percentage of waste going to landfills has decreased, largely because of the great success of recycling and composting programs. The absolute number of tons disposed in landfills, however, as reflected in Table 1, suggests a small decline in landfill disposal from 1990 to 1999, according to EPA, and a small increase according to BioCycle. All sources agree that there has been a dramatic decline in the number of landfills in use, even if tonnages have stayed fairly level. In 1990, there were reported to be 6,326 landfills, while in 1999 there were only 2,216.⁵³

In general, many smaller landfills have closed because of compliance problems, reaching of authorized disposal capacity, reluctance on the part of owners to invest in upgrades necessary for Subtitle D compliance, or because they were economically less viable than larger facilities with more attractive economies of scale.⁵⁴ Thus, the remaining landfills tend to be large, privately controlled, and in more remote locations.⁵⁵ Given the significant increase in the number of transfer stations for aggregating waste and preparing it for long-distance shipping, it is clear that waste is traveling increased distances to get to licensed sites. In addition to putting many trucks on the road, this situation tends to reinforce the perception of "out of sight, out of mind" since once the waste is removed, there is less local interest in its fate.

EPA figures show that waste landfilling peaked in 1986-1987. From 1990 to 1996, waste sent to landfills generally declined. But, as EPA reports, "more recently, tons of waste landfilled have been growing again."⁵⁶ Landfilled tonnages increased each year from 1996 to 1999, burying the cautiously optimistic view that habits and patterns of generation might be reversing during a decade in which recycling and waste minimization were emphasized. A state that fits the pattern is California. From 1990 to 1996, landfilled waste decreased, but then rose more than 10% between 1996 and 2000.⁵⁷ In addition, some 33 states indicated in the BioCycle 2000 survey that more landfill capacity is being permitted.

Minnesota, like Oregon, is a recognized leader in waste management practices. Yet it, too, has recently reported increasing waste generation and landfill dependence. From 1992-2000, the growth in total waste volumes averaged 4.1% per year, with per capita increases totaling 2.9% per year. Thus, the rise is significantly higher than population growth and does not appear to be solely linked to economic prosperity since, even in down years, the growth tends to be about 2%.⁵⁸ Landfilling, which had declined, began a steady rise after 1993, as did out-of-state disposal, especially at landfills in Iowa.⁵⁹ Preliminary research indicates that three factors seem to effect this growth: increases in the economy, changes in lifestyle (more pre-packaged items), and growth of the amount of waste generated by the business sector.⁶⁰

When exploring what can be done, one obvious answer is more recycling and composting, which have been increasing every year. BioCycle reports that some 140 million people, constituting over one-half of the population, are now being served by curbside recycling programs.⁶¹ Composting of food and yard waste has tripled between 1990 and 1999.⁶² There is growing interest in both the public and private sectors in what the Europeans call "product policy," which focuses attention on the end of a specific product's life (for example, motor vehicles and batteries). The most basic means of increasing recycling and composting is through economics: the higher the cost of disposal, the more incentive there is for diversion. Therefore, government intervention to internalize environmental costs of landfilling, including the greenhouse gas impacts of landfill methane, is an important part of the puzzle.

[32 ELR 10820]

Some have asked whether changes in landfill technology might be beneficial. For example, good compaction at landfills not only leaves room for more waste, but also reduces vectors. One area that developed in the 1990s is the notion that rather than entombing waste, landfills can serve as bioreactors. This requires recirculating the liquid leachate that collects in a landfill, which can accelerate the decomposition of organic wastes and allow the landfill to achieve environmental stability more quickly.⁶³ Similarly, landfill mining is a method of digging up buried materials so that they can be sifted through for recoverable materials. Life-cycle analysis has shown that methane recovery is key to improving the overall environmental picture of landfills.⁶⁴ Yet these approaches come after the fact of production and consumption, generation and discard, so they do not treat the underlying waste issues.

One effective approach that has been shown both to reduce waste generated and to increase the incentives to recycle goes by the name "pay-as-you-throw." In these sorts of programs, the more waste discarded, the more money is owed by the generating customer. That is, if one resident generates more waste than another, it is still her right to do so, but she must pay an increased price. In these schemes there is no comparable charge for recycling or composting. Pay-as-you-throw programs began in the mid-1980s. A 1999 survey shows that there are now over 5,000 communities, in all but 3 states, with operational programs.⁶⁵

Statistical analysis from more than 1,000 communities shows that pay-as-you-throw programs reduce residential disposal by 17%. About 5-6% of the total comes from an increase in recycling, another 4-5% from increased yard waste programs, and about 6% apparently from source reduotion.⁶⁶ These encouraging results show that not only does pay-as-you-throw provide appropriate economic signals to increase recovery, but that buying decisions of customers could also be affected by the presence of these programs.

Recommendations and Conclusions

This Article has reviewed solid waste management in the United States during the 1990s to assess whether, even without an explicit connection to Agenda 21, practices are tending toward sustainable results. An overall synthesis of the three national data sources, applied to the sustainable waste management goals described above, suggests that (1) while the rate of increase has slowed, generation per capita continues to increase nationally; (2) increases in the economy still imply increases in waste; and (3) actual tons landfilled, especially when the 2000 BioCycle data is added to the analysis, also seems to be increasing.

Data Sourcing

One obvious observation emerging from this review is that good data is essential for measuring and moving toward sustainability. BioCycle and Chartwell offer empirically collected data sources, while EPA's is derived. EPA's methodology is useful as a starting point for tracking specific products and materials with respect to generation and recovery, but it does not grapple as effectively as the others with disposal. It would be beneficial for EPA to make the current dataset more transparent for interestedpublic, private, and nongovernmental organization user groups and to add another dataset that would help to monitor disposal more accurately. Given the enormity of non-MSW streams such as industrial waste and construction and demolition waste, more attention must be paid to monitoring and policy setting in these areas even if they are outside the arena of public attention.

Per Capita Generation

It is very clear that waste is generated, defined, and managed differently from state to state. Given dramatic variations in climate (affecting moisture content and landfill conditions) and business mix (affecting types and levels of waste output), this is not surprising and does not necessarily need "correcting" by the federal government. Even within the same state, waste characteristics change according to whether the setting is rural, suburban, or urban. Oregon's idea of legislation to influence per capita generation should be investigated by other states, subject to many local variations. Given the disparity in datasets between the states and the federal government, the United States could look toward goal setting with regard to per capita waste generation, but does not currently have a way of effectively monitoring a national law without adding some type of empirically collected data.

Decoupling Waste Generation From Wealth

Decoupling increases in the economy from increases in waste seems the most daunting of all of the goals. Although many key environmental problems, such as water pollution, decrease with increased wealth and development on a country-by-country basis, waste generation is one of the ones, like carbon dioxide emissions, that does not. In this case, looking at the waste stream as a whole does not shed light on what might be decoupled, such as yard waste in the United States and packaging waste in Germany. In this instance, EPA's disaggregated, material-by-material approach helps to provide background for targeting specific opportunities for reduction. National efforts underway which concentrate on developing new management regimes for specific large waste constituents such as carpets and electronics, under the rubric of "product stewardship," offer a means to address the issue of decoupling and should be supported.

Decreasing Waste Disposal

While aggregated data does not shed light on which specific materials in the waste stream can be reduced, it can be very useful in addressing the bottom line question of whether more or less waste is disposed. As reflected in the BioCycle data, there is little consistency with regard to the categories of waste that are landfilled. Some states report only their MSW, while others include some types of NHIW, C&D waste, agricultural waste, and so forth. It is easy to sympathize [32 ELR 10821] with a public waste manager whose overriding concern is to have enough disposal capacity no matter the exact category of waste rather than present a politician with an embarrassing landfill (or fiscal) shortfall. For sustainability reporting, too, it is more important to know the overall trend regarding disposal than to try to differentiate whether what one state calls MSW is counted as C&D waste by another jurisdiction.

There are two ways to address the problem. The first would be to have all states adopt common definitions and uniform practices so that every state counts waste streams in the same way. This sort of scheme, however, could result in much grant writing and paperwork but little actual change. In reality, the very same waste can often be categorized in several different ways, depending on when and where it is generated.

The other approach would be to adopt a more inclusive means of counting Subtitle D waste at all disposal sites, since most landfills accept not only MSW, but other categories of waste as well. We will not know whether waste disposal is increasing or decreasing, or whether wastes are simply being shifted, for example, from on-site waste piles to off-site landfills, until a more comprehensive means of counting waste is embraced. The most inclusive existing system is that of the private company, Chartwell, which contacts every disposal facility each month and receives a report on all types of Subtitle D wastes received. Beginning with this data, and a current study of NHIW being conducted by EPA, a new system could evolve that would come much closer to enabling a determination of when and if the United States is on the path to sustainable waste practices.

1. U.N. Conference on Environment and Development (UNCED), Agenda 21, U.N. Doc. A/CONF,151.26 (1992).

2. Id. ch. 21, available at http://www.un.org/esa/sustdev/agenda21chapter21.htm (last visited Mar. 20, 2002). With respect to the Rio Declaration passed by the U.N. General Assembly following the 1992 summit meeting, three principles seem most applicable to the waste issue: Principle 4 (integrated decisionmaking), Principle 8 (reducing and eliminating unsustainable patterns of production and consumption), and Principle 10 (public information for public participation). Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151.5/Rev. 1, 31 I.L.M. 874 (1992).

3. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11011.

4. The definition goes on to exclude "solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under [§] 1342 of title 33, or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923 (42 U.S.C. §§ 2011 et seq.))." Id. § 6903(27), ELR STAT. RCRA § 1004(27).

5. See 40 C.F.R. pt. 258; John H. Turner, Off to a Good Start: The RCRA Subtitle D Program for Municipal Solid Waste Landfills, 15 TEMP. ENVTL. L. & TECH. J. 1 (1996).

6. See U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA), REPORT TO CONGRESS: SOLID WASTE DISPOSAL IN THE UNITED STATES vols. 1 & 2 (1988) (EPA/530-SW-88-011) [hereinafter REPORT TO CONGRESS]; U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, MANAGING INDUSTRIAL SOLID WASTES FROM MANUFACTURING, MINING, OIL AND GAS PRODUCTION, AND UTILITY COAL COMBUSTION — BACKGROUND PAPER (1992) (OTA-BP-82); U.S. GENERAL ACCOUNTING OFFICE (GAO), SOLID WASTE: STATE AND FEDERAL EFFORTS TO MANAGE NONHAZARDOUS WASTE (1995) (GAO/RCED-95-3); U.S. GAO, NONHAZARDOUS WASTE: ENVIRONMENTAL SAFEGUARDS FOR INDUSTRIAL FACILITIES NEED TO BE DEVELOPED (1990). For a critical review of more recent federal efforts to address NHIW management and disposal through nonbinding guidance, see Jonathan J. Greenberg, The U.S. EPA Draft Guide for Industrial Waste Management—Too Little, Too Late?, 29 ELR 10764 (Dec. 1999) (discussing OFFICE OF SOLID WASTE, U.S. EPA, DRAFT GUIDE FOR INDUSTRIAL WASTE MANAGEMENT (1999))[.

7. See John C. Dernbach, The Other Ninety-Six Percent, ENVTL. F., Jan./Feb. 1993, at 10.

8. EPA estimated that 97% of NHIW was disposed in surface impoundments (pits, ponds, lagoons) designed to hold accumulations of liquid waste and the rest is disposed in landfills or waste piles or is applied to the land. REPORT TO CONGRESS, supra note 6.

9. There are some exceptions. In particular, the state of Pennsylvania, early on, defined a category called "residual waste" which consists of NHIW streams. See John C. Dernbach, Industrial Waste: Saving the Worst for Last?, 20 ELR 10283 (July 1990).

10. In general, solid waste management practices relate to collection, source separation, storage, transportation, transfer, processing, treatment, and disposal.

11. Agenda 21, supra note 1, P21.38.

12. GREG EASTERBROOK, A MOMENT ON THE EARTH 706 n.1 (1995).

13. Agenda 21, supra note 1, P21.38.

14. Id.

15. OFFICE OF SOLID WASTE, U.S. EPA, THE SOLID WASTE DILEMMA: AN AGENDA FOR ACTION (1989) (EPA/530-SW-89-019) [hereinafter SOLID WASTE DILEMMA].

16. Id. at 16.

17. Id.

18. U.S. EPA, CHARACTERIZATION OF MUNICIPAL SOLID WASTE IN THE UNITED STATES: 2000 UPDATE 12 (2000) [hereinafter 2000 UPDATE].

19. Marian Chertow & Reid Lifset, Sorting Out Solid Waste (unpublished manuscript, 1992). Although ubiquitous in U.S. policy, there is not one universal statement of the hierarchy. For example, EPA, in SOLID WASTE DILEMMA, supra note 15, places incineration and landfilling on the same tier. Often, landfilling is listed as below waste combustion. New York State makes even finer distinctions than those described above; it separates incineration without energy recovery as lower on the hierarchy than waste-to-energy combustion. Minnesota ranks resource recovery through incineration or composting above all landfill options and landfill with methane recovery above other MSW landfilling.

20. Nora Goldstein & Celeste Madtes, The State of Garbage in America, BIOCYCLE, Dec. 2001, at 51.

21. See, e.g., Turner, supra note 5, at 2; Bruce J. Parker & John H. Turner, Overcoming Obstacles to the Siting of Solid Waste Management Facilities, 21 N.M. L. REV. 91 (1990).

22. Marian Chertow, Waste, Industrial Ecology, and Sustainability, SOCIAL RESEARCH, Spring 1998.

23. John Tierney, Recycling Is Garbage, N.Y. TIMES, June 30, 1996 (Magazine).

24. An idealized means of defining sustainability for solid waste would be to ask at what level of solid waste generation would acceptable levels of damage occur or even to inquire at what level, on a life-cycle basis, is the impact from solid waste sustainable. Critics have often argued that the United States is land rich and that, accordingly, solid waste can be isolated in a few areas at little expense to environmental health. This view is, however, at odds with the concerns expressed in Agenda 21 that go well beyond the question of disposal impacts to root causes and patterns of production and consumption. I have chosen a middle ground that asks for steady state or declining generation over time or, even more conservatively, and if generation rises, which seeks to achieve a level of composting and recycling that keeps the final disposal number from increasing.

25. In 2000, for example, in addition to including MSW in their reported totals, 29 states included at least some C&D waste, 24 at least some industrial waste, 30 at least some appliances and white goods, 26 at least some tires, and 14 states at least some agricultural waste. Goldstein & Madtes, supra note 20, at 44. This helps explain some of the large disparity in reporting data.

26. To conduct the study, EREF retained R.W. Beck, Inc., a well-known consulting engineering firm, as well as Chartwell Information Publishers to execute an independent survey. The survey was conducted from October 1999 to April 2000.

27. EREF, SIZE OF THE UNITED STATES SOLID WASTE INDUSTRY 1, app. A (2001) [hereinafter EREF].

28. See generally 2000 UPDATE, supra note 18; Nora Goldstein & Celeste Madtes, The State of Garbage in America: Part II, BIOCYCLE, Nov. 2000, at 42.

29. Goldstein & Madtes, supra note 28, at 40-42.

30. Goldstein & Madtes, supra note 20, at 43.

31. EREF, supra note 27, at 20.

32. Id. at 20.

33. A 1998 study by EPA estimated that 136 million tons of C&D waste was generated in 1996. U.S. EPA, CHARACTERIZATION OF MUNICIPAL SOLID WASTE IN THE UNITED STATES: 1997 UPDATE (1998) [hereinafter 1997 UPDATE]. If that amount is added to 230 million tons of MSW, 366 million tons of waste are accounted for, which is still far off the 544 million tons counted in the EREF study. In addition to sewage, ash, and other streams excluded from EPA data, NHIW is likely to fill out much of the balance.

34. With respect to the Rio Declaration passed by the U.N. General Assembly following the Rio meeting, three principles seem most applicable to the waste issue: Principle 4 (integrated decisionmaking), Principle 8 (reducing and eliminating unsustainable patterns of production and consumption), and Principle 10 (public information for public participation). See Rio Declaration, supra note 2.

35. CHRISTIAN FISCHER & MATTHEW CROWE, HOUSEHOLD AND MUNICIPAL WASTE: COMPARABILITY OF DATA IN EEA MEMBER COUNTRIES (European Environmental Agency 2000).

36. OECD, ENVIRONMENTAL INDICATORS 2001: TOWARDS SUSTAINABLE DEVELOPMENT (2001).

37. Source reduction and waste prevention are used interchangeably in EPA's 2000 report to include "design, manufacture, purchase, or use of materials, such as products and packaging, to reduce their amount or toxicity before they enter the MSW management system." 2000 UPDATE, supra note 18, at 12.

38. U.S. EPA, CHARACTERIZATION OF MUNICIPAL SOLID WASTE IN THE UNITED STATES: 1994 UPDATE (1994) (EPA/530-S-94-042) [hereinafter 1994 UPDATE].

39. Per capita figures control for population growth. Actual generation numbers in Oregon went from 3.2 million tons in 1992 to 4.4 million tons in 1999 for a total growth rate of 42%. OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, 2000 MATERIAL RECOVERY SURVEY REPORT (2001).

40. Personal Communication with C. Taylor, Manager, Solid Waste Policy and Program Development, Oregon Department of Environmental Quality (Nov./Dec. 2001).

41. According to EPA, for the period 1960 to 1993, a correlation co-efficient of .99 was found between per capita MSW generation and per capita GDP. 1994 UPDATE, supra note 38, at 14.

42. TECHNOLOGICAL TRAJECTORIES AND THE HUMAN ENVIRONMENT (J. Ausubel & H.D. Langford eds., 1997) [hereinafter TECHNOLOGICAL TRAJECTORIES]; see also EDWARD TENNER, WHY THINGS BITE BACK: TECHNOLOGY AND THE REVENGE OF UNINTENDED CONSEQUENCES (1996).

43. THOMAS E. GRAEDEL & BRADEN R. ALLENBY, INDUSTRIAL ECOLOGY (1995).

44. Iddo Wernick et al., Materialization and Dematerialization: Measures and Trends, in TECHNOLOGICAL TRAJECTORIES, supra note 42, at 41.

45. Id. at 154.

46. See, e.g., CONSUMING DESIRES (Roger Rosenblatt ed., 1999).

47. 2000 UPDATE, supra note 18, at 47.

48. ENVIRONMENT POLICY COMMITTEE, GROUP ON POLLUTION PREVENTION AND CONTROL, EXTENDED PRODUCER RESPONSIBILITY, OECD, CASE STUDY OF THE GERMAN PACKAGING ORDINANCE: PHASE TWO (1998).

49. Goldstein & Madtes, supra note 20.

50. Environmental/architectural legend William McDonough has taken the perspective that because, under proper conditions, we can design products and buildings for recovery and reuse, we can therefore "celebrate consumption" as long as we are closing the material loops. William McDonough, Address to Pennsylvania Department of Environmental Protection Seminar (1997). For more information on these design conditions, see William McDonough & Michael Braumgart, The NEXT Industrial Revolution, ATLANTIC MONTHLY, Oct. 1998, at 82.

51. Agenda 21, supra note 1.

52. It would also be possible to consider the combination of landfills and combustion as disposal activities. I have decided to focus on landfills, however, since almost all combustion is now in so-called waste-to-energy or energy recovery facilities where waste is burned to create steam and electricity. Some states treat this as disposal, whereas others consider it a form of "recovery." The total waste managed in these plants held fairly steady, around 30-35 million tons per year, during the 1990s. Arguably, the residues and ash from these plants should be considered in disposal figures, although they are not. 2000 UPDATE, supra note 18, at 105.

53. Goldstein & Madtes, supra note 28.

54. See, e.g., Turner, supra note 5, at 5 n.20.

55. Private control, while not elaborated here, is another source of concern for public officials who find themselves to be price takers rather than price makers in an increasingly concentrated industry.

56. 2000 UPDATE, supra note 18, at 107.

57. California Integrated Waste Management Board, Landfill Tonnages, at http://www.ciwmb.ca.gov/Landfills/tonnage/ (last visited Mar. 5, 2002).

58. Personal Communication with S. Enzler, Director, Minnesota Office of Environmental Assurance (Oct. 2001).

59. Personal Communication with Thomas Miller, Minnesota Office of Environmental Assurance (Jan. 2002); Paul Smith, Minnesota Office of Environmental Assurance, Minnesota MSW Landfilled in Adjacent States, 1994-1999, presentation to Minnesota Office of Environmental Assurance (2001).

60. Id.

61. Goldstein & Madtes, supra note 20.

62. 2000 UPDATE, supra note 18.

63. John Acquino, 2001: A Waste Odyssey, WASTE AGE, June 2001, at 45.

64. ECOBALANCE, LIFE-CYCLE INVENTORY CASE STUDIES OF MUNICIPAL SOLID WASTE MANAGEMENT (EREF 2000).

65. LISA SKUMATZ, SKUMATZ ECONOMIC RESEARCH ASSOCIATES, INC., FACTOIDS ON VARIABLE RATES (PAYT/VR) AND WEIGHT-BASED RATES IN SOLID WASTE (2000).

66. Lisa Skumatz & John Green, Variable Rates Offer Constant Progress, RESOURCE RECYCLING, June 2001, at 10.