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Guided by its 2002 whitepaper, “Beyond RCRA: Waste and Materials Management in the Year 2020,” EPA began to consider how the RCRA program “could and should evolve to meet the challenges and opportunities of the new century.” Scoped to “explor[e] the future of waste and materials management,” the whitepaper identifies “[r]educe waste and increase the efficient and sustainable use of resources” as Goal #1 of three goals (loosely, Goal #2 is prevention; Goal #3, management/clean-up). It suggests that achieving Goal #1 could require “fundamental changes in the waste versus non-waste regulatory construct embedded in the current RCRA system so that materials now considered wastes would be seen, whenever possible, as commodities with potential uses.” The whitepaper further notes that “[r]educing distinctions between wastes and materials could dramatically improve recycling and reuse rates and, therefore, make great contributions towards conservation of resources.”

An apparent starting point for EPA’s RCRA rethink was its existing Municipal Solid Waste (MSW) Characterization Report. Since the mid-1990s, the biennial MSW report has provided state-based data and statistics on the amounts of MSW disposed of and recovered for recycling and also recyclables collected by local curbside recycling programs. (Unfortunately, EPA includes recyclables in MSW for historical reasons, but that is arguably inconsistent with RCRA to the extent that the recyclables are separately collected and never commingled with actual solid waste.) The MSW report also offers a national “recycling rate” using state-based data and statistics, with “recycling” understood to mean both MSW recovered for recycling and curbside recycling. This “recycling rate” does not include recycling activity conducted by private-sector recyclers (e.g., ReMA members) because states and localities do not have RCRA authority to compel private-sector recyclers, which operate outside the solid waste management infrastructure, to report their activity. In contrast, states can and variously do compel municipalities, local governments, landfills, and MSW combustors to report MSW disposal and recovery amounts. However, this “recycling rate” may account for materials later obtained by private-sector recyclers, leading to potential double-counting under other definitions of recycling rate.

As the MSW reports have indicated, the national “recycling rate” increased from 25% in 1995 to 35% in 2011. As expected, some states have been above average while others have been below average. Some states have been motivated, sometimes because of below-average statistics, to increase and set goals for their recycling rates, sometimes by statute. Such state efforts often get implemented at the local level. As a consequence, EPA has been helping localities to increase their “recycling rate” by, for instance, providing recommendations for improved collection of recyclables.

In recent years, using some aspects of the MSW report and its associated activities, as guided by the whitepaper, EPA rolled out its new program for waste/materials management, known as “Sustainable Materials Management” (SMM). As evidenced by the recently discontinued EPA webpages (e.g., see here and here) and the new SMM Program webpage, there seems to be convergence of the MSW report infrastructure and the SMM framework. At least currently, EPA’s SMM Program is emphasizing the measurement of recycling activity aggregated at the state level. In fact, after conducting a pilot in EPA Region 4 for sharing recycling and solid waste data several years ago, EPA funded the creation of a database system called Re-TRAC Connect™ that “is already [being] used by the various states, communities, NGO's, the private sector along with EPA's WasteWise and SMM Challenges.” A potential side effect from this convergence is the potential for more or continued confusion at the state and local levels about (RCRA) regulatory distinctions between the recycling of recovered MSW by (or on behalf of) the public sector on the one hand and the recycling of non-waste materials (e.g., recyclables and industrial scrap) by private-sector recyclers on the other.

Perhaps in connection with such potential regulatory confusion, a few states have recognized (and more undoubtedly will) that the easiest way to increase their “recycling rate” is simply to redefine the recycling rate to include recycling conducted by private-sector recyclers. Redefining the rate this way provides two important benefits to such states. First, it substantially increases the rate by increasing both the numerator and denominator of the fraction used to calculate the rate; for example, hypothetically, if the “recycling rate” were 15/100 = 15%, then a new rate that included 30 units of private-sector recycling (not necessarily covering all commodities, but including a small inefficiency) could be (15+30)/(100+31) = 34%. Second, states would not need additional resources for new recycling activities to achieve such a substantial increase in the rate. However, to be able to implement such a redefinition, states would have to exert some effort to obtain the regulatory authority to compel private-sector recyclers to report data. It is worth noting that some states (e.g., Florida) allow voluntary reporting by private-sector recyclers, which would boost the recycling rate as illustrated above. To the extent that private-sector recyclers benefit from the additional supply of recyclables collected by expanded municipal recycling, such redefinition of the rate would be bad for recyclers in three ways: regulatory conflation with waste management, compulsory reporting, and lower growth in the supply of recyclables.

A notable example of such rate redefinition is currently taking place in the State of Michigan. Perhaps spurred by the data in this EPA Region 5 report, the governor proposed earlier this year a Residential Recycling Plan that included, among other things, doubling the estimated current residential recycling rate of 15% to 30% within two years. In connection with this Plan, based on a recommendation from Michigan’s solid waste industry, legislation was proposed under Michigan’s Solid Waste Statutes to require reporting of recycling activity by entities that recycle, whether or not they are regulated as solid waste management facilities. The proposed legislation effectively would redefine the recycling rate beyond that contemplated in the Plan, much as described above. More disconcertingly, it would pull Michigan private-sector recyclers, which are not regulated as solid waste management facilities, under Michigan solid waste authority, at least for the reporting of recycling activity. Michigan’s Department of Environmental Quality has already engaged Re-TRAC Connect™ to provide a platform for reporting recycling activity under the proposed legislation. Because the proposed legislation represents for recyclers a slippery regulatory slope and also unwanted compulsory reporting of recycling activity, efforts have been on-going by the Michigan Chapter with assistance from ReMA National to prevent enactment of such legislation.

If Michigan provides any glimpse of the future, given EPA’s roll-out of its SMM Program and the Re-TRAC Connect™ infrastructure that facilitates such reporting schemes, ReMA members should be especially alert for any indications that their state or local government is trying either to redefine the recycling rate to include them or to compel recyclers to report their recycling activity under solid waste regulatory authority. Members should contact ReMA immediately so that ReMA staff can provide assistance to members in addressing these issues.