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with §3004(m) of RCRA. This section provides EPA with significant latitude to promulgate treatment regulations which specify:

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.

RCRA §3004(m)(1). (Emphasis added.)

Another example of the broad latitude afforded EPA under HSWA is §3004(n). This section directs EPA to establish rules for the monitoring and control of air emissions from hazardous waste treatment, storage, and disposal facilities, including, but not limited to open tanks, surface impoundments, and landfills. Again, the statute provides no specific guidance on the stringency or methods of control. Such rules must simply impose such standards "as may be necessary to protect human health and the environment."

Even the corrective action provisions of HSWA provide ample room for flexibility and prioritization of sites by EPA. Section 3004(u) specifies that a state or EPA permit must require corrective action for releases of hazardous waste from solid waste management units at a permitted facility. Permits issued under §3005 are to contain schedules of compliance for corrective action and assurances of financial responsibility for completing such corrective action. The crucial terms "corrective action," "release" and "solid waste management unit" are not defined by the statute and no cleanup levels, criteria or performance standards are specified. Again, EPA is given wide discretion to devise requirements which are "protective of human health and the environment."

Finally, RCRA §3006 provides broad authority for EPA to authorize state hazardous waste programs. Under §3006(b), EPA is empowered to grant to any state, upon application, authorization to carry out its own hazardous waste program "in lieu" of the federal program. 160/ Denial of such authorization can be based upon only three types of findings by EPA:

(1)

that the state program is not "equivalent" to the federal
program,

(2)

that the state program is not "consistent" with the federal or
state programs applicable in other states, or

160/ EPA's state program authorization regulations are promulgated at 40 CFR parts 271

and 272.

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(3)

that such program does not provide "adequate enforcement" of compliance
with the requirements of [RCRA].

Clearly, EPA is not statutorily obligated to require the states to utilize the same regulatory strategies employed by the Agency in order to approve state authorization applications. So long as a state program is not "inconsistent" with the federal program or other state programs and so long as it provides for "adequate" compliance enforcement, Congress envisioned that states would also have wide discretion in implementing the hazardous waste program. 161/

4.2.2 Regulatory Limitations

As indicated in Section 4.2.1, EPA has a great deal of flexibility to implement Subtitle C of RCRA. Nevertheless, through the issuance of regulations and regulatory guidance over the past 13 years, the Agency has created a detailed and rather inflexible system of controls that discourages innovation and prioritization. Hazardous waste regulations now consume over 1,000 pages in the Code of Federal Regulations. Preamble language in the Federal Register generally consumes 4 to 6 times the number of pages as the corresponding regulations. 162/ Further, EPA's Office of Solid Waste, each EPA regional office, and numerous authorized states have issued innumerable guidance documents and interpretive memoranda which are typically not compiled in any organized or retrievable manner.

EPA clearly recognizes the complexity and problems associated with RCRA implementation. Consequently, EPA undertook a comprehensive review of the implementation of the hazardous waste program several years ago. In a July 1990 report, referred to as the RCRA Implementation Study (RIS), EPA concluded that RCRA is in dire need of reform. In particular, EPA concluded that the hazardous waste program lacks a clear philosophy or vision. 163/ Over the years, discrete work groups within EPA have developed regulations, often under tight statutory or court ordered deadlines. Frequently, these work groups failed to work together or adequately assess how each rule fit into the overall purposes and objectives of RCRA.

One of the fundamental problems with the current RCRA regulatory program is that it is an "all or nothing" and "one size fits all" program. Low risk and high risk activities and wastes are regulated in the same manner. Consequently, EPA tends to

161/ See 40 CFR § 271.4; the statute does not define or explain its use of the word "equivalent."

162/ The Nation's Hazardous Waste Program at a Crossroads: The RCRA Implementation Study (RIS), July 1990, page 37.

163/ Id., page 32.

interpret the definitions of solid and hazardous waste very broadly in order to bring as many materials as possible within the scope of RCRA. 164/ EPA fears that any move toward underinclusion could inadvertently exempt potentially hazardous materials and activities from RCRA regulation. However, the result is frequently overregulation in the sense that many low risk wastes and activities are subject to the full panoply of RCRA requirements.

As a follow up to the RIS, EPA issued the RCRA Reform Initiative (RRI), which identifies specific RCRA reforms, including tailored regulatory standards for low risk wastes, removing regulatory obstacles for remediation activities and corrective action and streamlined permitting procedures. EPA has not yet addressed or implemented many of the recommendations made in these studies. Section 4.3 of this report addresses potential reforms to RCRA, including those identified by EPA, to encourage innovation and flexibility and increase the effectiveness of the RCRA program. Section 5.0 addresses additional reforms related to multimedia approaches.

One of the most significant areas for potential reform under RCRA relates to the scope of waste deemed "hazardous" by EPA's rules. Section 261.2 of EPA's regulations defines a solid waste as "discarded material," that is not otherwise excluded by regulation or variance. The regulations further define a "discarded material" as any material which is: (i) abandoned, (ii) recycled, or (iii) inherently waste-like. 165/ Thus, EPA's definition of solid waste specifically includes materials which are recycled in certain ways.

In general, recycled materials are regulated by RCRA if the recycling activity resembles waste management rather than production. For example, a material which is used in a manner constituting disposal (applied to the land), burned for energy recovery or stored without a feasible recycling option are considered solid wastes. On the other hand, materials are not solid (or hazardous) wastes when they are recycled by being:

1.

used as an ingredient in an industrial process to make a product (provided the material is not being reclaimed);

2.

used as an effective substitute for a commercial chemical product; or

164/

For example, EPA interprets the AMC decision, discussed in Section 4.3.1, narrowly such that very few recycled materials are exempt from RCRA. See 53 FR 519, January 8, 1988.

165/ 40 CFR § 261.2(a)(2).

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3.

returned to the original process from which it was generated without first being reclaimed.

40 CFR § 261.2(e).

EPA interpretations have severely limited the number of recycled materials which are excluded from the definition of solid waste (and, therefore, from RCRA), particularly following two key court decisions. In American Mining Congress v. EPA, 166/ petitioners American Mining Congress and American Petroleum Institute challenged the regulatory solid waste definition, insofar as it extended to certain secondary materials which were being recycled by being returned to the production process. The wastes of concern to the refining industry in this case were by-products and sludges from the refining process. These materials are frequently reinserted into the refining process for the further recovery of their hydrocarbon components. 167/ The American Petroleum Institute objected to the inclusion of these recyclable by-products and sludges in the regulatory waste definition.

The key definition at issue was RCRA § 1004(27) which defined the term "solid waste" in part as: "any garbage, refuse, sludge from a waste treatment plant, or air pollution control facility and other discarded material." EPA sought to regulate in-process secondary material as coming within the definition of "other discarded material. "168/ Under this line of reasoning, if the material could be solid waste, then EPA would have authority to regulate the material as hazardous waste. The API countered that Congress never intended the term "discard" to include in-process secondary materials such as the refinery recycle streams at issue. 169/

The D.C. Circuit only found it necessary to consider the first step of the Chevron 170 analysis in its review of the implementation of the agency's definition of solid waste. The court found that the ordinary, plain-English meaning of the word "discarded" includes "disposed of," "thrown away" or abandoned, and that seeking to include in-process

170/ See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) ("First, the reviewing court is to consider whether Congress 'has directly spoken to the precise question at issue."")

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materials strained the everyday usage. 171 The court also referred to legislative history indicating that RCRA was intended to address the "waste disposal problem." The court concluded that spent materials that are recycled and reused in an on-going industrial or manufacturing process have not yet become part of the waste disposal problem.172/ The Court held: "In sum, our analysis of the statute reveals clear Congressional intent to extend EPA's authority only to materials that are truly discarded, disposed of, thrown away, or abandoned. "173/ The D.C. Circuit therefore concluded that EPA did not have the authority to regulate the recycled by-products and sludges under RCRA.

EPA responded to the AMC I decision with a narrow interpretation of the court's holding. EPA justified the current regulatory scheme by concluding that the definition of solid waste adequately distinguishes between "waste-like" and "process-like" recycling activities.174/ Therefore, EPA proposed only a narrow revision to the recycling rules applicable to in-process petroleum refinery recycle streams and a similar rule for the primary smelting industry. 175/

Since that time, EPA has acknowledged that current regulations "don't strike the best balance between protecting human health and the environment and encouraging recycling."176 EPA has been justifiably concerned about sham recycling and, therefore, tends to cast a broad regulatory net over recycling activities. However, the current regulatory structure frequently results in the overregulation of many low risk and legitimate recycling activities. 177/

171/ American Mining Congress, 824 F.2d at 1184. In a related case regarding recycling, American Mining Congress v. USEPA [AMC II], the court concluded that the placement of wastewaters in unlined impoundments constituted "discard" because the activity resembled the management of waste, despite the potential for reuse of the material. Consequently, how a material is managed prior to recycling may often determine whether it is effectively discarded or being stored prior to legitimate recycling. American Mining Congress v. USEPA [AMCIП], 907 F2d 1179 (D.C. 1990).

172/ Id. at 1186, 1187.

173 Id. at 1190.

174/ Id. at 520-21.

175 Id. at 521. EPA has not yet finalized these proposed rules.

176/ RCRA Implementation Study Update: The Definition of Solid Waste, July 1992, page 4.

177 Id., page 5.