Men Of Steel,
Regulations Of Kleenex:
How RCRA Has Recyclers Running Around In CERCLAs

My name is Alexander Volokh of the Reason Foundation, and I'm going to be talking to you about hazardous waste law. As you know, the two main pieces of hazardous waste legislation are RCRA and CERCLA. RCRA stands for the Resource Conservation and Recovery Act, and CERCLA stands for the Comprehensive Environmental Response, Compensation, and Liability Act, better known as Superfund. Many of you have to deal with RCRA and CERCLA on a regular basis, and you're probably well acquainted -- too well acquainted -- with the three main characteristics of hazardous waste law, which are that it is confusing, expensive, and often unfair. The meaning of the subtitle of my talk -- "How RCRA has recyclers running around in CERCLAs" -- is no mystery to you.

There are a number of useful things to know about hazardous waste and the laws that regulate it, but I'm not going to get to it all today. There are the techical, scientific, and engineering questions -- "What is it?", "Where does it come from?", "How dangerous is it?", "How can we best reduce the risks?" There are also the nuts-and-bolts regulatory questions -- "Do the regulations apply to your business?", "What sorts of new regulations can we expect this year?", and so on. I leave these questions to other speakers at this conference.

My talk will deal with the more abstract question of "Why?" Why does RCRA -- and all the rest of hazardous waste law -- have us running around in CERCLAs? And I would like to attack this question by comparing hazardous waste generators to Superman.

In 1969, the science fiction writer Larry Niven wrote a story called "Man of Steel, Woman of Kleenex." The story begins: "He's faster than a speeding bullet. He's more powerful than a locomotive. He's able to leap tall buildings at a single bound. Why can't he get a girl?" The story deals with one of the fundamental dilemmas of Superman's existence, which is that his relationship with Lois Lane can really never be anything more than platonic. The laws of physics require this to be so; through no fault of his own, Superman would crush any woman he came into close physical contact with. And even assuming that human genes and Superman's kryptonian genes were compatible, childbearing would be mostly out of the question, because of the health problems for the mother if the baby should try to use its X-ray vision before birth, or worse, his heat vision, or God forbid, try to kick.

Larry Niven is very precise and graphic in describing Superman's sex problems, and very imaginative in trying to find solutions to them, but the moral of the story is clear and is expressed in the title: "Man of Steel, Woman of Kleenex." Steel and Kleenex don't mix. Superman is condemned to live in a world that is incompatible with the very conditions necessary for his existence and the perpetuation of his species. He can survive, but let's not fool ourselves about how easy it is for him.

Superman's plight, I would contend, is the plight of the steel industry. The steel industry, like other generators of hazardous waste, lives in a regulatory world that is essentially unsuited to it. The steel industry is a necessary industry, but is also often rugged and dirty. Anyone in the industry knows that there's no such thing as "clean"; that there are only different degrees of "dirty"; that there is no clear relationship between "dirtiness" and actual human or environmental harm; and that how much "dirtiness" we should accept depends on the details of the industry and the benefits of the practice. Regulation ought to take this into account, but it often doesn't. Much of hazardous waste regulation assumes that an objective standard of "cleanliness" or "purity" exists; that we can reach it without too much trouble; that "waste," whatever that means, is an inherently bad thing. It was enacted by people with fragile, delicate sensibilities, scared of industrial practices and with little understanding of the hard tradeoffs we have to make to achieve the good life. In other words, both in their effectiveness and in the sensibility they embody, we have regulations of Kleenex.

Imagine, if you will, an alien life-form that lands on this planet and starts looking at American hazardous waste regulation. (Where he comes from isn't important, but let's assume he comes from Krypton.) The first thing he will notice is the main piece of hazardous waste legislation, which is, of course, RCRA.

RCRA bills itself as a "cradle-to-grave" regulatory scheme, but from his otherworldly perspective, our alien sees that this is in fact a charade. The wastes, perhaps, are regulated from cradle to grave, but waste doesn't begin until you throw something out. Rather, he realizes, RCRA is a system that regulates materials from death to grave. Before they're thrown away -- from cradle to death -- they have to abide by all of the other environmental regulations, including the Clean Air Act, the Clean Water Act, and what have you. After they're thrown away and until they're finally disposed of -- from death to grave -- or until they're recycled -- which we should perhaps think of as from death to reincarnation -- they still have to abide by all of those regulations, but now including RCRA.

How does RCRA justify this state of affairs, where materials are more heavily regulated just because they're thrown out? Not on risk-related grounds. There are plenty of raw materials that are riskier than certain wastes, and plenty of wastes that are safer than certain raw materials. But the language and intent of RCRA prevent the EPA from simply drawing risk-based distinctions. RCRA is meant to regulate waste as such, and so its distinctions are based on whether the material is "inherently wastelike." What does "inherently wastelike" mean? Well, I don't know, and neither does our friend the alien, and more importantly, neither does the EPA. Take a look at the thousands of pages of regulations, the flowcharts, the years of litigation, the thousands of calls to the RCRA Hotline, and it becomes clear that no one can easily tell a "waste" from a "non-waste," and for good reason. One man's waste is another man's raw material. Whether or not something is a waste depends entirely on whether you can find something to do with it. "Waste" is a subjective concept, unlike physical composition or risk.

Our friend the alien looks at the workings of RCRA in the world. Now, you and I know that RCRA stands for "Resource Conservation and Recovery Act." But our friend isn't so sure, and he comes up with the following possibilities:

• Really Complicated Regulatory Apparatus, or Relinquishing Clarity & Retaining Ambiguity;
• Ridiculously Conservative Risk Assessment, or Remote Chances Regulated Anyway;
• Restrictive & Costly Requirements Abound;
• Rather Confusing Recycling Applicability;
• Result: Corporate Recycling Abates.

The moral we should learn from RCRA is threefold.

• 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.

After having looked at RCRA, the alien life-form would further inspect hazardous waste law and would find the Toxics Release Inventory, or TRI, which is part of a piece of legislation called EPCRA, the Emergency Planning and Community Right- to-Know Act. Let me tell you about a recent run-in of mine with the TRI; it happened in the context of a company called Charter Steel of Saukville, Wisconsin, and a list called the "Dirty Dozen."

Based on 1993 TRI data, Charter Steel discharged 2,645,088 pounds of toxic waste. In 1994, two environmental groups, Wisconsin Citizen Action and Citizens for a Better Environment, released a study called Poisons in Our Neighborhoods: Toxic Pollution in Wisconsin, which included Charter Steel among Wisconsin's "Dirty Dozen" -- the "facilities with the worst impact on Wisconsin's environment through combined air, water, and land releases along with discharges for sewage treatment."

Quite damning language, and enough to make anyone think ill of Charter Steel. But we can focus our piercing X-ray vision on the TRI, and we find that there is less to it than meets the eye. For those of you who aren't familiar with it, the TRI is billed as a right-to-know institution, because it requires certain companies to report their emissions of certain chemicals to a public database. If you use these chemicals above certain threshold amounts -- the EPA divides these uses into "manufacturing," "processing," and "other uses" -- then you have to report your releases of these chemicals.

A little explanatory note here -- the "releases" you have to report aren't the same as the "uses" that trigger TRI responsibility. The releases include "emissions," "transfers" from one place to another, and "production-related waste." So you can have company A that uses a lot but releases rather little, and so it has to report its releases in the TRI -- while company B might use less than the TRI threshold, but releases a lot more than company A. In essence, company B is more wasteful and maybe more harmful to human health or the environment, but the way the TRI is set up, only company A has to report. So that's misleading right from the start.

Another explanatory note -- the "releases" are only reported by volume. If you release 1,000 pounds of xylene and 3,000 pounds of lead, that's what goes into the public database, and then groups like Wisconsin Citizen Action tell the world that you release 4,000 pounds of toxic waste. Is this true? Well, yes and no. Yesterday, I had a quarter-pounder with cheese plus a twelve-ounce Coke, and I guess that makes one pound of "food," but this information isn't very useful. So it is with TRI reports. Some substances are more hazardous than others. Some are handled safely; others are handled recklessly. All "toxic waste" isn't the same, but the TRI, which just reports pounds, pretends that everything is equally harmful. So what does it tell us that Charter Steel of Saukville, Wisconsin, discharged 2,645,088 pounds of toxic waste? Absolutely nothing.

There was something else about Charter Steel that didn't make it onto the TRI report. Charter Steel generated pickle liquor, which it gave to sewage treatment plants (including the Milwaukee Metropolitan Sewerage District) to remove phosphates from their sewage water. The Sewerage District normally pays for sewage-treatment chemicals, but Charter Steel's free pickle liquor saved the district $300,000 per year. Charter Steel provided 6 percent of the sewer districts' waste pickle liquor. This is quite different than dangerously dumping one's chemicals; I would even argue that calling this a "toxic release" is highly misleading. But TRI reports don't make this distinction.

This indiscriminate reporting of emissions discourages all beneficial uses of hazardous waste, including recycling, since it creates bad publicity for anyone who "releases" listed materials. In fact, the TRI suffers from many of the same problems as RCRA -- in brief, that it's unrelated to risk. It pretends that certain chemicals are bad in and of themselves and have no desirable side- effects and that pounds are a good measure of harm. It pretends to further the public's right-to-know; if there's one thing we can say in favor of the TRI, it's that it doesn't regulate anyone. But the EPA's philosophy is that "what gets measured gets done." The TRI was set up under the assumption that people would read it and put pressure on folks that looked like polluting companies. So when the information people are required to report is by its nature misleading, what's the benefit?

And the situation may soon get worse, as the EPA expands the list of chemicals from 364 to 650, increases the list of industries that file TRI reports (to include waste management and recycling facilities, among others), and broadens the list of reportable activities from just "releases" to actual use. Of course, once you start looking at internal use and not releases to the environment, you've broken all links to environmental harm. And the chemicals on the TRI list are some of the most commonly used chemicals in industry. The top 100 chemicals on the list, by volume, account for over 80,000 commercial products. It's one thing to reduce emissions, but to eliminate the materials one uses is to eliminate one's product.

In short, the TRI is coming closer and closer to meaninglessness.

And finally, our man from Krypton takes a look at Superfund. At this point, he knows full well what to look for. Many of the substances listed as "hazardous" under Superfund, by law, come straight out of what's considered "hazardous waste" under RCRA. So all of the problems of RCRA are reproduced in Superfund. Once hazardous substances are identified at a Superfund site, the law requires that they be cleaned up, using a "go after the last molecule" philosophy that has nothing to do with actual risk and can't possibly do anyone any good. And under the Superfund joint and several liability system, anyone who has disposed of any hazardous substances at the site may be liable for the entire cleanup.

The problems with Superfund, as evil luck would have it, are far broader than just the problems with RCRA. There are other ways than being a RCRA "hazardous waste" to qualify for Superfund liability. Metals like chromium, nickel, zinc, and copper are not RCRA hazardous wastes. But they're regulated under the Clean Water Act because you don't want them discharged in dissolved form into water, so Superfund sucks them in that way. That way, Superfund can actually consider stainless steel a hazardous waste, because it's 18 percent chromium and 12 percent nickel -- even though they're in a harmless form that most of us would eat our dinner off of. If a steel recycler delivers stainless steel to a place that then becomes a Superfund site, he can be stuck with the bill. Maybe that would be fine if the stainless steel were actually hazardous, and not just called "hazardous." But it's not. If you take the steel, dissolve it in acid, and throw it in a trout stream, the trout would, indeed, die of poisoning -- but steel recyclers do not typically do this with steel that they're interested in recycling.

Superman takes a look at the federal case of United States v. Pesses, where this nightmare scenario actually happened -- but by now, he's too disgusted and turns away in shame. Not even Superman can stomach Superfund.

So how did we get here? Hidden in this question is actually a cluster of questions. Why is the regulatory world that the steel industry lives in so irrational and unfair? Why does the environmental establishment value recycling of non-hazardous waste at the same time that it discourages the recycling of hazardous waste? Why do we have a regulatory structure that makes all materials comply with every environmental law except RCRA before they're thrown out, and every environmental law plus RCRA after they're thrown out? Given that this is the case, why are people even surprised that hazardous waste recycling isn't doing as well as we'd like? Why does RCRA base its distinctions not on human or environmental risk, but on the "wastelike" nature of the product? Why are the reporting requirements of the TRI unrelated to actual environmental harm? Why are those who have to pay the most, under Superfund, in general unrelated to those who are responsible for the most contamination?

These are the $6.4?104 questions, and they have two possible answers.

One possible answer is that the environmental community, which is responsible for developing these regulations, is opposed to industry and technology. That deep down, the environmental community still clings to romantic notions of preindustrial innocence, sees the Industrial Revolution as a blot on the face of the earth, and wouldn't half mind a world without steel, or at least without the people who make it. For these people, confusing, expensive, and counterproductive regulations are not counterproductive; they achieve exactly their intended result, which is to make modern industry difficult. You are not paranoid; they are really out to get you. As Henry Kissinger put it, "The paranoid, too, have enemies."

I actually doubt this, though in my darker moments, I am not so sure that I should. But there is a second answer, one which is simpler and more plausible, which doesn't rely on the presence of a conscious, malevolent Lex Luthor out to red-tape us to death.

That answer is, first, that our regulations have been written by competing and incompatible interest groups, and must of necessity be confusing. And, second, that the different authors of hazardous waste law share certain assumptions about industry and the environment. As I've outlined before, we have regulations that embody an assumption that "clean" is possible, not overly expensive, easy to understand, and easy to centrally regulate. Regulations that assume that "clean" is absolutely necessary because anything less than pristine is unacceptable.

In other words, regulations of Kleenex. And you can't use Kleenex to clean steel. Apply soft, fluffy, white tissue paper, and slags, sludges, and pickle liquors do not go away. There are those who will tell you that all hazardous waste law needs is tinkering around the edges to accomodate some recycling exemptions, but I beg to differ. The solution, I believe, is a change of mindset. Contrary to what current regulations assume, we don't actually want slags, sludges, and pickle liquors to go away. They're byproducts of useful and necessary industrial processes, and the only rational way to deal with them is to talk about their risks realistically, regardless of whether or not they're "wastes." The corollary to this is that there are responsible and irresponsible ways of dealing with hazardous waste, and approaches like Superfund's, which makes people pay for cleanup regardless of whether any harm has been caused, don't recognize this. People should only have to pay to clean something up if they are responsible for the contamination and if the contamination is causing some nontrivial amount of harm.

In essence, I'm not telling you anything new. You're men of steel, and you've had to deal with regulations of Kleenex for a long time. In the end, it all comes down to a moral principle. With hazardous waste, like with everything else, we need to be concerned about people violating other people's rights -- in this case, exposing them to non-negligible harm or unreasonable risks without their consent. The law should regulate those activities -- in other words, be risk-based -- and make responsible parties pay if they violate the law -- in other words, restore the notion of fault. In a sense, our plight is simpler than Superman's. He has to deal with a woman of Kleenex -- a problem created by physics, chemistry, and biology. Our regulations of Kleenex were created by politicians, and given the right change of mindset, can be changed by politicians.

Of course, how to change the mindset is another question entirely, and one which will have to wait for another talk. But anything else is just going to keep us running in CERCLAs.

Alexander Volokh is the author of "Recycling Hazardous Waste: How RCRA Has Recyclers Running Around in CERCLAs," a policy study available from the Reason Foundation, 310-391-2245.