Can anybody understand our hazardous waste law?

by Alexander Volokh
Santa Barbara News-Press, January 21, 1996

Hazardous waste law is confusing. The EPA calls its regulations "complicated" and "convoluted." Don Clay, onetime EPA solid waste official, has called hazardous waste law "a regulatory cuckoo land of definition." Federal judge Adrian Duplantier has said of the regulations governing hazardous waste recycling: "The people who wrote this ought to go to jail. They ought not to be indicted, that's not enough."

Actually, hazardous waste law is more than confusing. It's expensive -- the Resource Conservation and Recovery Act (RCRA), for instance, costs over $40 billion to comply with.

It's also unnecessarily conservative, regulating even negligible risks. In regulating these often tiny risks, RCRA ends up discouraging some beneficial activities. At the moment, RCRA and state hazardous waste laws actively discourage the safe recycling of hazardous waste -- from used lead acid batteries to used motor oil.

Fortunately, some improvements may be in store. Some recent enacted or proposed legislation -- on both the state and federal levels -- looks promising. But none of it really addresses the main problem behind hazardous waste law.

But first, the good news. There's SB 130, a California law introduced by Sen. Jim Costa (D-Fresno) and signed by Gov. Wilson on Oct. 4, 1995. The measure gives more hazardous waste exemptions for oil recycling, if the material is recombined with other stuff to make other refined petroleum products.

Next, there's AB 483, another California law, introduced by Assemblywoman Deirdre Alpert (D-Coronado) and signed by Gov. Wilson on Oct. 5. The law redefines recyclable materials to allow some hazardous waste treatments to qualify as recycling. It lets facilities store hazardous waste that falls under the "recyclable material exclusion" for up to one year after its generation.

This is a valuable step, since there's often a time lag between the time a waste is produced and the time one actually recycles it. Making the acceptable storage period too short would discourage people from recycling the material, since stored material would then be subject to stringent and costly hazardous waste regulation. AB 483 also revises requirements for recyclable materials that are used in construction materials.

Then there's the California Environmental Protection Agency (Cal/EPA), which is drafting proposed regulations to exclude certain recyclable materials from California hazardous waste law.

Actually, the proposed regulations are a good deal more confusing than that. Recyclable hazardous wastes, under certain circumstances, can be exempted from hazardous waste law, unless they're "used in a manner constituting disposal." But if they're non-RCRA wastes -- that is, if they're hazardous wastes under California law but not federal law -- then Cal/EPA can write specific regulations exempting them from the "use constituting disposal" prohibition. All these changes should mean less burden on potential recyclers. But hazardous waste recyclers in the state of California remain in a state of confusion.

On the national level, hazardous waste reform may get exciting. Sen. Robert Smith (R-N.H.) has introduced legislation that would broadly rewrite RCRA, decreasing federal involvement in state implementation of hazardous and solid waste regulations and cleanups.

As Smith says in RCRA Report, "I feel the provisions of this bill will greatly enhance recycling and reuse of hazardous materials and will begin to provide cohesiveness between the two largest hazardous waste laws -- Superfund and RCRA."

The bill removes federal RCRA hazardous waste requirements for any waste generated during cleanups or for recycling.

Other, more moderate bills have been proposed by Rep. Mike Oxley (R-Ohio) and Sen. Trent Lott (R-Miss.). They also remove remediation wastes from RCRA hazardous waste requirements.

Sound confusing? That's because it is. Almost no one understands hazardous waste law -- whether it's California law or federal law -- and so no one understands the new hazardous waste law as amended. In fact, that's part of the problem.

The actual problem is that hazardous waste law is flawed, for the following three reasons:

• Calling something hazardous doesn't make it so. The EPA and Cal/EPA regulate many substances without solid evidence that they threaten anyone. The health and environmental effects of "hazardous" wastes are poorly understood, and politics has shaped regulation at least as much as science.



• Calling something a waste doesn't make it bad. There's nothing about wastes that makes them more troublesome than "virgin" materials. Industry uses dangerous raw materials, and produces safe wastes, all the time. The only thing that's important about a substance is its chemical composition -- not its place in the industrial pecking order.



• A hazardous ingredient needn't produce an unsafe product. Recycled lead is managed as a hazardous waste, and yet we use recycled lead acid batteries routinely. Of course, the batteries come with some risk attached, and so does recycled motor oil. But so do regular lead acid batteries and virgin motor oil. There's no reason to expect products made from wastes, even those classified as "hazardous," to be more dangerous than the same products made from scratch.

For the moment, hazardous waste law is mired in these fallacies. All reforms are picking away at the edges, excluding here and exempting there. In the process, hazardous waste recycling is discouraged -- a problem inherent in the regulatory scheme. RCRA was billed as legislation controlling wastes "cradle-to-grave."

But this term suggests a false sense of completeness. Instead, we should say that RCRA follows products from death to grave. Before they're thrown out, products have to abide by every other environmental law. After they're thrown out, they still have to abide by the same laws, plus RCRA. The imbalance is obvious.

If products are more heavily regulated after they're discarded, why should it surprise us that people prefer to use virgin materials rather than recycle?

Conversely, if RCRA regulation depends not on actual environmental risks but on the "wastelike" nature of the product, why should it surprise us that RCRA "protects" us against so many insignificant risks? We need a system based solely on realistic risks of actual harms. Anything else protects neither human health nor the environment.

Alexander Volokh is an assistant policy analyst at the Reason Foundation, a public policy think tank based in Los Angeles. He is the author of "Recycling Hazardous Waste: How RCRA Has Recyclers Going Around in CERCLAs," a recent policy study from the Reason Foundation.