January/February 1991
Recycling and other environmental issues will be among the highest priorities the U.S. Congress will face in the next two years. Here’s what’s likely to be addressed.
By Andrew McElwaine
Andrew McElwaine is director of congressional affairs for the Institute of Scrap Recycling Industries (Washington, D.C.).
When the 102nd Congress convenes this month, it will face a large unfinished agenda of environmental business. Although Congress considered a number of environmental proposals during 1989 and 1990, it was unable to complete action on most of these mattes primarily because the top item on the agenda--reauthorization of the Clean Air Act--took two full years to complete.
Now, with that issue resolved, Congress, the environmental community, and industry are set to tackle possibly the most difficult environmental issues of all: recycling, disposal, and waste.
Defining Recycling
“Recycling is probably the most important aspect of RCRA reauthorization,” Rep. Thomas A. Luken (D-Ohio) said a year ago during the first day of hearings on the Resource Conservation and Recovery Act (RCRA), the nation’s primary recycling and disposal statute, which was not reauthorized in 1990 and undoubtedly will be considered this year. Congress, however, has never provided a clear definition of recycling in any major legislation, instead deeming it to be the equivalent of waste management.
For many members of Congress--like much of the general public--recycling means little more than the separation and collection of household discards. For these people, recycling is an appealing, possibly cheap or free alternative to land disposal or incineration.
Thus, most federal recycling legislation introduced in 1991 and 1992 likely will set recycling goals and deadlines for states, with 40-percent recycling rates by 1996 favored by many legislators. How such bills would define recycling is questionable and the answer will have a great impact on the scrap industry.
If existing scrap recycling is included in the “mandatory recycling” rates, states will not have to go far to meet a 40-percent recycling rate. If scrap is excluded, however, states will not only have further to go, but they will also have an incentive to take scrap materials away from the existing recycling industry and run them through municipal collection and processing programs in order to count the materials against the mandated rate.
So far, only one congressman, Rep. Paul Henry (R-Mich.), has understood the implications involved and drafted legislation that, according to his aid, Bob Filka, attempts “to put the horse before the cart. Sometimes Congress doesn’t do that.”
HR 4747, which Henry introduced last year, would require the Environmental Protection Agency (EPA) to standardize the definition of recycling and the methods by which state, local, and federal agencies measure “waste.” During 1991, says a member of Henry’s staff, the congressman “will be pushing this bill hard.”
All this attention to municipal recycling has raised the hackles of industries that recycle their own byproducts and scrap, such as the paper, steel, and chemical industries. Because they typically reuse a large volume of materials in their own industrial processes, many seek to exclude closed-loop recycling from coverage under RCRA.
Their reasoning is simple. The definition of “waste” subject to RCRA regulation is so broad that inappropriate regulation is becoming standard. For example, 1990 bills by Luken and Sen. Max Baucus (D-Mont.) to reauthorize RCRA would have established permit program for all “solid waste management” activities and require industry and government to include source-reduction planning in their waste management activities. Arguing that such requirements have no bearing on materials reused within the manufacturing process that created them, industry groups are looking to get them out of RCRA.
Another Subtitle?
“If Congress wants to ensure that materials actually get recycled, then a product vs. waste distinction must be made within RCRA,” Herschel Cutler, executive director of the Institute of Scrap Recycling Industries (ISRI), testified before a House subcommittee last year. Noting that scrap is not waste, ReMA asked the subcommittee to establish a separate regime, within RCRA, for recycling. Currently, recycling is regulated under the same portion of RCRA--Subtitle D--as nonhazardous waste disposal.
Legislation introduced in the last session by Sen. John Warner (R-Va.) would make the distinction by establishing a recycling subtitle within RCRA. The bill, S 3255, would specifically exclude “materials in the recycling process” from the definition of solid waste and establish a specific regime within RCRA to manage recycling activities. Under the proposal, the EPA could exclude hazardous material and sham recycling from this subtitle, if it deemed it appropriate, returning those activities to the solid waste disposal provisions of RCRA. The Warner bill would require recyclers that handle household materials, bale paper, or otherwise cause little or no environmental impact to simply notify the EPA of their operations. Recyclers that could have a more significant impact on the environment would be required to meet a yet-to-be-set series of EPA standards to ensure safe operation. These standards would be implemented following a study of the recycling industry in question.
Although legislation of this type, which distinguishes recyclables from waste, stands a good chance of being introduced this year, it likely will be opposed by environmental organizations and some in the waste management industry--particularly those in hazardous waste management--that seek environmental controls on recycling. If recycling is regulated separately--and less stringently--than disposal, then those who are exclusively in the disposal or the treatment industry stand to lose a competitive edge. And, while many environmentalists profess support for recycling, many also privately agree with the assessment of one attorney in the environmental movement who told members of Congress that "safe disposal is a higher priority than recycling."
Requiring Consumption
Some members of Congress are more concerned with what they perceive as the failure of the marketplace to support recycling. Rep. Esteban E. Torres (D-Calif.), Sen. John Heinz (R-Pa.), and Sen. Timothy E. Wirth (D-Colo.) introduced last year a series of bills to improve consumption of what they believe are the most market-sensitive recyclable commodities: oil, tires, paper, and lead-acid batteries. Similar bills likely will be introduced during the 102nd congressional session.
Their measures would require the EPA to set a minimum recycled-content level for each of these materials and gradually increase the minimum level each year thereafter. Manufacturers of these items--oil refiners, rubber manufacturers, paper mills, and battery manufacturers--could meet the legislative requirement in one of two ways: They could consume the minimum amount of recycled inputs required by the bills, or purchase "credits" from manufacturers that had exceeded the minimum at a price agreed upon by the buyer and seller.
Concerned about mandatory recycled content, industry has taken pains to show that federal intervention is unnecessary--that recycling is expanding on its own. The Capitol is awash in information detailing the improvements made in the recyclability of different products. Furthermore, various companies and industries are vying with each other to be considered the "world's largest recycler" of a given product or article.
Banning "Waste" Exports
Disposal, safe or otherwise, is becoming a luxury. Since 1980, more than 10,000 waste disposal sites have closed, either because they could not meet environmental standards or they were filled to capacity. Because of a disposal capacity shortage, some states are exporting as much as 50 percent of their solid waste and 95 percent of their hazardous waste to treatment and disposal facilities in other states. Still more wastes are exported to other nations. The result could prove to be a brawl between those states and nations that have facilities to handle waste disposal and those that don't.
Recyclers are caught in the middle. Because the laws that govern recycling don't distinguish between recovery and disposal--or recyclables from wastes--recycling may feel as much of an impact as waste management. For instance, last May, Sen. Dan Coats (R-Ind.) offered a legislative proposal to give states the power to ban “solid waste" from crossing their borders. In his original draft, Coats did not distinguish between "solid waste" and "hazardous waste" and did not exempt recycling from his legislation. The result could have been chaos. For one thing, industries in states without such capacity could have been forced to shut down under the plan. Similarly, aluminum clips moving between Cleveland and St. Louis for remelting could have been stopped at the Missouri border and sent back as "solid waste."
While a later version of Coats's proposal exempted both recycling and hazardous waste treatment, it did not exempt the residuals of recycling. Mixed materials destined for a regional materials recovery facility could be banned in interstate commerce, as could recycling residues such as those from a shredder. Measures like this probably will find their way into this year's session.
Meanwhile, similar proposals are being developed on an international basis, with no exemption for recycling whatsoever. The Basel Convention on the Transboundary Shipment of Hazardous and Other Wastes allows nations to close their doors to “wastes" of any variety, even if they are being shipped for recycling.
Canada and the European Commission have proposed strict controls on the export and import of "wastes," a move that could bring international nonferrous scrap trade to a halt. The United States is expected to pass waste export legislation during the 1991 session as well. At the close of 1990, Luken had introduced--but no action took place on--HR 3736, the Waste Export Control Act of 1989, which would have banned the export of solid waste to nations that do not meet or exceed U.S. standards for treatment and disposal. The bill exempted scrap paper, glass, plastic, and metal, provided that the materials were to be recycled and would not be considered hazardous in the United States. However, at least one environmental group, Greenpeace, is demanding a total ban on "waste" exports--even including paper--and Congress may be willing to go along. In that case, unless the definition of solid waste is changed, no scrap could be exported at all.
Regulating Hazardous Materials
Possibly the most contentious fight regarding RCRA will be over which commodities should be regulated as hazardous. The burning of hazardous waste for energy recovery is not particularly new, but some have sought to label this activity "recycling" to avoid hazardous waste regulation. The benefits of this strategy are significant. Hazardous waste incinerators must typically post financial responsibility bonds, install groundwater monitoring equipment, obtain operating permits that can be challenged by the public, be subject to corrective action by the EPA, and take on closure and post-closure liability. A recycler, on the other hand, presently does not face these same costly controls. As a result, an effort is under way in legislative circles to equate recycling with waste treatment to ensure that hazardous waste recycling meets at least some, if not all, of the standards applicable to hazardous waste disposal.
The hazardous waste treatment industry has allies in those environmental groups that oppose the disposal of potentially toxic Materials on the land. During 1989, they persuaded Luken to include a concentration-based definition of hazardous waste in his RCRA reauthorization proposal, HR 3735. This definition would have deemed "hazardous” any material containing more than 0.1 percent lead, mercury, cadmium, beryllium, chromium, nickel, or other heavy metal or toxic material. Stainless steel scrap, with far more than 0.1 percent chromium and nickel content, would thus be considered a hazardous waste. The lead content of scrap copper, brass, bronze, and other alloys would likewise have deemed them "hazardous.”
The legislation would have required recyclers of "hazardous" materials to obtain permits and meet the same requirements as hazardous waste treatment facilities. At the time, ReMA successfully argued that the mere presence of heavy metals in scrap materials does not mean that those elements will enter the environment and that the purpose of recycling the metals is to return them to commerce, thus preventing pollution. Although Luken subsequently dropped the proposed hazardous waste definition from his legislation, proponents of the concentration-based definition of hazardous waste likely will be back before Congress in 1991 and 1992.
Examining Superfund and TSCA
The many difficult issues posed by RCRA reauthorization will present Congress with a full plate and some very tough choices regarding two key environmental statutes--Superfund and the Toxic Substances Control Act (TSCA). The Superfund program will expire in the mid-1990s. Without a congressional reauthorization, the EPA will be unable to administer most of the program--bringing cleanup and enforcement to a halt. Many members of Congress and their staffs feel that no effort will be made to extend the substance of Superfund for at least two years, leaving such thorny issues as third-party liability, enforcement, and satisfactory levels of cleanup for another time.
Meanwhile, Sen. Harry Reid (D-Nev.) has promised a complete review of TSCA, the act that governs the use of toxic materials in manufactured articles. Reid, who chairs the Senate Subcommittee on Toxic Substances, attempted to pass sweeping lead legislation--banning the manufacture, processing, or distribution of 13 products with lead content--at the end of the 101st Congress, but failed. In the near future he is likely to take on cadmium, lead, beryllium, mercury, and other heavy metals. TSCA allows the EPA to ban the use of certain materials if they pose a threat of injury to the general public. Congress has traditionally given the EPA flexibility to decide which products should be controlled under the act and has seldom dictated controls for specific products. The Reid bill would change all of that, going directly after products with lead content.
The impact on scrap recycling could be significant. If products containing small amounts of heavy metals, such as scrap alloys and nonferrous scrap, were banned from interstate commerce, then the scrap industry would not be able to handle them. Similarly, if scrap consumers could not make products containing more than a de minimus amount of lead, then they probably could not consume scrap with any lead content.
Who Are the Key Players?
Within the U.S. Senate there probably will be few changes m the key environmental lineup. Sens. Baucus, John Chafee (R-R.I.), Quentin Burdick (D-N.D.), George Mitchell (D-Maine), and Dave Durenberger (R-Minn.) will likely control Senate action on RCRA. Sens. Joe Lieberman (D-Conn.), Warner, Steve Symms (R-Idaho), and Reid also will play important roles; all of these officials were instrumental in the reauthorization of the Clean Air Act.
It is in the House that the key players will change. Luken is retiring, as is the ranking Republican on Luken's subcommittee, Rep. Bob Whittaker (R-Kan.). Luken will almost certainly be replaced by Rep. Al Swift (D-Wash.), but Whittaker's replacement could be almost anyone--but most likely either Rep. Tom Bliley (R-Va.), Rep. Don Ritter (R-Pa.), or Rep. Jack Fields (R-Texas). The decision will not be made until early spring 1991. Rep. John D. Dingell (D-Mich.) will, as usual, be one of the dominant figures in the debate as well.
Given the uncertainty in the House, it is entirely possible that the Senate will move first on RCRA reauthorization. And with the environmentalist outlook of most members of the Senate committee that will oversee the process, that could spell trouble for the scrap industry on hazardous waste issues and could threaten the notion of a separate subtitle for recycling.
The RCRA legislation that Congress eventually agrees on likely will be the most thorough proposal to regulate recycling ever passed. Given the inability of Congress to move complex legislation m short periods of time, the debate on RCRA probably will spill over into the 1992 presidential election, likely making the bill the most significant environmental measure of the election season. The end result could be a more partisan and more political document than some might wish. It could also bring forces into play far beyond the interests of the scrap industry--with possibly serious negative consequences.
All told, those interested in recycling issues will have their hands full in 1991 and 1992. The stakes will be extremely high.
The survival of entire recycling enterprises will be at stake. The willingness of individual operators to actively participate in the process may spell success or doom. •
Recycling and other environmental issues will be among the highest priorities the U.S. Congress will face in the next two years. Here’s what’s likely to be addressed.