Recycling Hazardous Waste

How RCRA has Recyclers Running Around in CERCLAS

Executive Summary

Each year, about 100,000 to 1 million tons of hazardous waste are recycled in the United States. Another 13 million tons are dumped into hazardous waste landfills. The amount recycled is only about 0.8 percent to 7.7 percent of the amount dumped.

The two main federal laws regulating hazardous waste—the Resource Conservation and Recovery Act (RCRA) and Superfund—may be reauthorized in the 104th Congress. This makes hazardous waste a hot topic in the environmental world. Recycling is also high on many people's environmental checklists. But the two issues—hazardous waste and recycling—are rarely thought of together.

Still less frequently is hazardous waste recycling thought of favorably. Hazardous waste recycling's bad reputation stems from a number of environmental misconceptions. When thinking about hazardous waste recycling, one must keep in mind that:

  • Calling something hazardous doesn't make it so.
  • Calling something a waste doesn't make it bad.
  • A hazardous ingredient needn't produce an unsafe product.

We don't want too much recycling of hazardous waste—not if it wastes more resources than it saves. But we don't want to artificially discourage it either by needlessly making recycling more expensive than landfilling. Yet the federal government is doing exactly that—even while it's trying to encourage recycling in general, it's discouraging the recycling of hazardous waste.

  • Hazardous waste law is confusing. The terms “solid waste” and “hazardous waste” are difficult to understand. This is a big problem when a regulatory scheme hinges on the definitions, and it has led to uncertainty and litigation.
  • The EPA's risk assessment is unnecessarily conservative. The impact of improper disposal is small compared to other risks that the public willingly accepts. The risks posed by hazardous waste are also lower than most of the risks currently addressed by environmental regulation.
  • RCRA's requirements are expensive. The total cost of complying with RCRA is estimated at over $40 billion.
  • Recycling is treated differently than the manufacture of the same products out of virgin materials. RCRA often considers that substances intended for recycling are in fact “discarded.” Many perfectly acceptable and reusable (and regulated) raw materials become RCRA hazardous wastes the moment they are “discarded,” whatever that means, which virtually guarantees that few people will recycle them.

In short, hazardous waste law is expensive, irrational, and confusing. The only way to get around these requirements for certain products is by case-by-case exemptions. Lead acid batteries are exempted from hazardous waste law until they reach the recycler, so battery recycling is high despite the industry's costly regulation. RCRA regulation has discouraged the recycling of spent aluminum potliner, which is only now slowly starting up again. And state hazardous waste provisions in California and some New England states have discouraged the recycling of used motor oil.

Other aspects of hazardous waste law also do their part to discourage recycling. The Toxics Release Inventory (TRI), for instance, requires that companies report how much of certain “toxic chemicals” they use. There have been proposals to expand the list of industries subject to the TRI to include scrap metal recyclers and waste management facilities. This sounds like a good idea, but in fact it would discourage the recycling of copper, zinc, and other metals. These metals are hazardous in certain forms (for instance, when they're dissolved and discharged into water), but not when they're recycled; making scrap metal recyclers subject to the TRI would give people the impression that scrap recyclers are heavy polluters because of the amounts of metals they accept. Also, waste management facilities only receive wastes from elsewhere, and making them subject to the TRI would impose costly bookkeeping burdens on them without adding to health or safety.

And then there's Superfund, which provides for the cleanup of hazardous sites. If a hazardous substance is found at a Superfund site, whoever arranged for the treatment or disposal of the substance at that site can potentially be made to pay for the cleanup of the entire site. The problem here is that selling metal to a scrap metal recycler can be considered “arranging for disposal” if that recycler eventually goes bankrupt and his property becomes a Superfund site—and so everyone who ever sold anything to the scrap metal recycler can be stuck with huge cleanup costs for “contamination” they weren't even responsible for. This discourages the recycling of scrap metal and other products, like nickel-cadmium batteries, containing substances that are considered hazardous.

Superfund should be amended so that recycling isn't considered “treatment or disposal.” RCRA should be overhauled so that it is based solely on realistic risks of actual harms. Whether or not something is a waste is irrelevant to the risk it poses. At the very least, RCRA should be amended to exclude recyclable materials.

Alexander Volokh is Associate Professor of Law

This Study's Materials





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