Industrial Ecosystems: Developing Sustainable Industrial Structures

By Nicholas Gertler

Chapter 5. How the Resource Conservation and Recovery Act Impedes Resource Conservation and Recovery: Problems and Some Proposed Solutions

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RCRA is an environmental statute that governs the management and disposal of industrial waste. It was enacted in 1976 and amended in 1984 to address significant threats to human health and the environment caused by improper disposal of toxic waste. It is a complement to CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which created the Superfund. While CERCLA was intended to clean up hazardous waste sites, the 1984 RCRA were intended to prevent them. 

To someone imbued with the spirit of RCRA, an industrial byproduct is a menace to be contained, controlled. It is primarily a threat. On the other hand, to someone imbued with the spirit of industrial ecology, an industrial byproduct represents an untapped resource that should not be wasted. It is primarily an opportunity. Neither view is incorrect. Managed improperly, industrial byproducts pose a threat to human health and the environment, as experience shows. However, careful and well-thought-out re-routing of byproducts as feedstocks can achieve the same if not greater levels of environmental safety as regulated disposal while obtaining economic value from materials that previously had none. As a result, the need for waste disposal is reduced or eliminated, which brings a finite reduction in environmental risk, while the draw on virgin materials is reduced, also providing an environmental benefit. 

As a matter of historical development, RCRA came before industrial ecology. The primary goal of the statute, as implemented, is to prevent improper disposal. Recycling is not specifically addressed in the statute, and when it is addressed by EPA regulation, it is generally envisioned as involving three parties: the generator, the recycler, and the user of the recycled material. The requirements for the management of hazardous waste under RCRA are complex and expensive. Recycling activities are exempt from a substantial portion of these requirements, so that 'recycling' something is considerably less expensive than treating it, which is the other alternative under the statute. In this arrangement, the motive of the recycler is difficult for the regulator to determine: is it to avoid the cost of treatment, or is it to produce a valuable product or commodity? 

EPA has enacted complex regulations to avoid the possibility of "sham" recycling - a process that is claimed to be recycling but is primarily motivated by a desire to avoid treatment costs. This has been done through the definition of solid waste, the locus of inquiry that triggers regulation under RCRA. The result has been a very intricate, confusing, and inconsistent set of regulations. 

Unlike recycling as envisioned by RCRA, industrial symbiosis involves only two parties [ In actuality it may involve more, but there are only two types of parties to the relationship.] : the generator of the byproduct, and the user of the byproduct as feedstock. In this arrangement, there is little room for intrigue: while in the three-party situation the recycling process may be a sham, in the two-party situation the receiver of the byproduct uses it directly to substitute for a feedstock. There is therefore little to no doubt as to the motive of user; if the byproduct is used as a feedstock, then by definition the activity is not a sham [ One exception to this caveat is 'toxics along for the ride;' this issue is addressed below.] . 

The problem is that regulation under RCRA, in a justified effort to weed out sham recycling, impedes legitimate byproduct re-use as industrial symbiosis. The rest of this chapter introduces the RCRA framework for regulation, discusses implementation issues and RCRA barriers to industrial symbiosis, and offers some solutions. 

A rose by any other name: The definition of solid waste 

In the United States, the Environmental Protection Agency regulates the management of waste, through a regime of more than 600 pages of complex regulations under the Resource Conservation and Recovery Act [ Marcia Willians and Jonathan Cannon, "Rethinking the Resource Conservation and Recovery Act for the 1990s" Environmental Law Reporter Vol. 21 2-91 p.1063-1075] . Whether or not a certain stream of byproducts qualifies as a waste under the statute has major implications for the entity generating and handling it [ Joshua Secunda "The Resource Conservation and Recovery Act: Its Effects on Industrial Recycling and Green Design and Some Modest Reforms" Paper in the class Industrial Ecology and Green Design at the Harvard Kennedy School of Government; April 17, 1995.] . There are three possibilities: a byproduct can avoid being labeled a solid waste, be a solid waste, or it can be a hazardous (solid) waste. EPA jurisdiction under RCRA is limited to the regulation of the management of wastes, so that meeting the regulatory definition of solid waste is both necessary and sufficient to trigger regulation under the statute. That which does not fall under that definition escapes regulation under RCRA. Subtitle C of RCRA governs the management of solid wastes that also meet the definition of hazardous waste. The overriding purpose of Subtitle C is to "protect human health and the environment" from pollution resulting form unsafe handling of hazardous waste products [ Randolph Hill "An Overview of RCRA: The 'Mind-Numbing' Provisions of the Most Complicated Environmental Statute" Environmental Law Reporter Vol. 21 5-91 p. 10255-10275.] . As a result, the regulations governing hazardous waste management impose onerous burdens and responsibilities on those who generate, handle, treat, and dispose of such materials (see below). The EPA under RCRA also regulates solid wastes which are not hazardous waste, but these requirements are much less stringent than those for hazardous waste. 

In the language of RCRA and its attendant regulations, the use of industrial byproducts as feedstock for other processes is referred to as recycling. Since such byproduct re-use is an essential aspect of an industrial ecology, the regulatory treatment of byproduct recycling under RCRA is of great relevance to the development of industrial ecosystems. Unfortunately, EPA has not promulgated standards for recycling, relying instead on a roundabout manner of differentiating it from waste treatment: 

Rather than foster recycling by setting standards to distinguish it from treatment, however, the EPA has attempted to advance recycling efforts through the definition of "solid waste." In this definition, the EPA focuses on describing the circumstances by which a secondary material that would otherwise be a solid and hazardous waste, avoids RCRA regulation if it is recycled in a variety of ways [ Philip Comella "Understanding a Sham: When Is Recycling, Treatment?" Environmental Affairs Vol. 20:415 1993. p.433. (footnotes omitted).] . 

The result is that one must look to the definition of solid waste in order to determine whether a byproduct to be used as a feedstock is regulated as RCRA solid waste, or, worse, as hazardous waste. If the material and activity in question escape the solid/hazardous waste label, then reuse may proceed largely free of RCRA regulation. If meeting the definition(s) triggers RCRA regulation, however, then a number of requirements are imposed upon the generator of the byproduct. Unfortunately, evaluating this question is far from an easy task: 

The regulations defining solid waste are the most complex environmental regulations ever written. The core of the definition revolves around whether the material is discarded. The EPA regulations that elaborate on this definition contain a series of special tests and exclusions. Some of the exclusions are required by statute; others are attempts by EPA to address problematic cases involving the reuse or reclamation of materials in industrial processes. In EPA's recent study of RCRA, the Agency found that the definition of solid waste is "difficult to understand and implement for EPA, the states, and industry. Permitting and enforcement are hampered by the complexity of those definitions." The Agency receives more than 1,000 calls each month on definitional issues [ Williams and Cannon, "Rethinking the Resource..." p. 10064 footnotes omitted.] . 

RCRA defines "solid waste" as "any garbage, refuse, sludge from a waste treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities [ RCRA §1004(27), 42 U.S.C. §6903(27)] ". EPA has encountered difficulty in establishing when a material is "discarded" and therefore a solid waste under RCRA's definition [ Hill, "Overview of RCRA: The 'Mind-Numbing...] . According to a revised definition promulgated by the Agency in 1985, "solid waste" is defined as any discarded material not otherwise excluded by regulation or by variance. Relevant regulations further state that "discarded material" is any material that is "abandoned," "recycled," or "inherently waste-like. [ ibid.] " 

The condition of being "inherently waste-like" is provocative, leading as it does to a circular definition. Solid waste is a discarded material, a discarded material is anything inherently waste-like, such that a solid waste is anything that is inherently waste-like [ Since the three criteria for defining something as a "discarded material" are connected by "or" and not "and," meeting any one of them results in the substance in question being "discarded."] . Perhaps more importantly, it is somewhat perplexing that recycled materials are defined as discarded, since to "discard" has the common meaning "to throw away. [ The American Heritage Dictionary Second College Edition] " The reason for all this intrigue is apparently that recycling status exempts a process from the bulk of RCRA regulation, making attaining such a status very attractive to those generating waste. EPA has thus endeavored to separate "sham recycling," which is essentially a show at recycling made by generators of hazardous waste in order to avoid the costs of mandated disposal, from "true recycling. [ Bret VanAckron U.S. EPA, Personal communication February 2, 1995.] " 

The resulting regulatory framework has been anything but clear, as explained by Randolph Hill, attorney with the Office of General Counsel of the U.S. Environmental Protection Agency: 

The only "recycled" materials that are regulated as solid wastes are those used in a manner that constitutes disposal, burned for energy recovery, reclaimed, or speculatively accumulated. Yet, not all types of waste materials are regulated when reclaimed or speculatively accumulated. By contrast, "inherently waste-like" materials also refers to recycled materials, but since these materials are either predominantly abandoned or contain hazardous constituents (particularly dioxins) not normally found in raw materials for which the wastes substitute, they are always regulated regardless of the type of recycling or the material involved. As a further source of confusion, EPA subjects certain recycled materials and recycling activities to limited requirements, rather than to the full subtitle C regulatory system; other recycled materials are subject to all subtitle C requirements [ Hill "An Overview...] . 

The determination of whether a solid waste is a hazardous waste is a little more straight-forward, but not much. Under EPA regulations, a waste is hazardous either because it exhibits a "characteristic" of a hazardous waste or because it has been specifically listed by the Agency as such [ ibid.] . "Characteristic" wastes are substances whose inherent properties satisfy one or more tests developed by EPA for evaluating their 'hazardousness' [ Note that 'virgin' materials with similar or identical properties as "characteristic" wastes are not regulated by RCRA, and even if they are regulated under another statute, those requirements are much less stringent than Subtitle C. Thus the "characteristic" label is misleading, because it refers not only to the "inherent properties" of the substance, but also to its history; "virgin" feedstocks with identical "inherent properties" are not regulated. This framework makes very little sense in the case where a byproduct eligible for RCRA regulation is to be reused as a feedstock, because the "inherent properties" are more or less identical, but the byproduct is subject to much more stringent regulation as well as to the stigma of the 'hazardous waste' label. This would be the case, for example, if the Kalundborg linkage of Statoil flue gas being piped to Gyproc were to be attempted in the United States (see below). ] . There are four such tests: ignitability, corrosivity, reactivity, and toxicity [ Hill, "An Overview...] . Further exposition on characteristic wastes is beyond the scope of this undertaking; suffice to say that it is the responsibility of the generator to test his or her byproducts for relevant characteristics. 

A solid waste is also a hazardous waste for purposes of regulation if EPA, by formal rulemaking, has placed it on one of four lists of designated hazardous wastes [ ibid.] . De-listing such a waste once it has been listed is possible as an across-the-board measure, but requires a formal rulemaking. This is a very elaborate process and ensures that a de-listing will virtually never happen [ VanAckron U.S. EPA, Personal communication ] . At any rate it is an inappropriate tool for obtaining regulatory approval for a byproduct reuse because it would remove the material in question from RCRA Subtitle C regulation in all cases, not just for the specific purpose of re-routing it as a feedstock. 

For the purposes of industrial symbiosis, the difference between characteristic and listed wastes is significant, by virtue of the "mixture and derived from" rule: 

The key difference between characteristic and listed wastes is the effect of the so-called mixture and derived-from rules. A waste that is not listed is hazardous only as long as it exhibits the characteristic. If a characteristic waste is mixed with another solid waste or treated in a way that the mixture or treatment residual is noncharacteristic, the waste may then be managed (i.e. transported, further treated, stored, or disposed of) as a nonhazardous solid waste. By contrast, EPA's basic rule for listed wastes is: once hazardous, always hazardous. In other words, a listed waste, once generated, retains its classification as a RCRA hazardous waste regardless of what is done to it, including mixing it with nonhazardous wastes or treating it...In addition, residuals derived from treatment of a listed hazardous waste remain listed hazardous wastes. Most importantly, the mixture and derived-from rules operate regardless of whether the mixing or treatment eliminates the properties...that originally caused EPA to list the waste [ Hill, "An Overview..." p. 10259. emphasis added, footnotes omitted.] . 

This policy raises a number of concerns. Note first that one of the triggers for listing a waste as hazardous is that the waste exhibits one of the four characteristics [ ibid.] . Thus, any characteristic waste can be a listed waste, and therefore subject to the mixture and derived from rule. It would seem that the intent of this approach to regulation is to prevent "solution through dilution." That goal would explain the 'mixture' part of the rule. The 'derived from' part of the rule may also serve some desirable purpose, but has the chilling consequence of placing a major roadblock in the way of the use of residues of pollution-control technologies as feedstocks. Recall that in Kalundborg, the desulfurization plant of Statoil refinery yields liquid sulfur, which is sold to a sulfuric acid producer. Under the RCRA regulatory scheme, this practice would invoke the mixture and derived from rule and quite likely result in the liquid sulfur being classified as a hazardous waste [ Joshua Secunda and Lisa Papetti, EPA New England; Personal communication April 6, 1995.] . This would surely discourage such a sale, with the result that the sulfuric acid from Statoil would have to be disposed of by some sort of hazardous waste treatment, storage, and disposal facility, producing no economic value and imposing a finite risk to human health and the environment, while the sulfuric acid producer would have to obtain its sulfur from some other source, assuredly with some adverse environmental impact. It is possible in this type of situation to obtain from EPA a variance from the definition of solid waste if the interested party can prove that the material in question is commodity-like and has economic value [ ibid.] . Such a variance would allow the sale of the byproduct as a feedstock; however the administrative process required can be long and arduous [ Hill, "An Overview..."] . Liquid sulfur exhibits the characteristic of corrosivity, so that even as a direct byproduct it would be considered a hazardous waste. The Kalundborg example, however, demonstrates the viability of its safe reuse. 

The resolution of the definition issue is very important for the generator of a byproduct stream. If the material is classified as hazardous waste, then the generator must follow a very rigorous set of regulations which prescribe its management. RCRA requires cradle-to-grave tracking of hazardous waste once it leaves the generator's site, using a manifest system that creates a paper trail of the waste which follows it to its final resting place and beyond [ Comella, "Understanding a sham..."] . CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act, assigns joint and several liability for hazardous waste contamination at a site to any and all generators who have contributed hazardous waste to that site. The specter of future liability creates a powerful incentive for generators of hazardous waste to ensure that their byproducts are disposed of safely [ Mel Vyvial, Chevron, Personal communication; John Stansbury, Fermenta ASC Corporation, Personal Communication.] . It also creates a disincentive to send hazardous waste to be recycled off-site, as chance of future liability cannot be ruled out; liability is maintained by the generator [ According to Robert Frosch, "General Motors is sometimes reluctant or refuses to transfer regulated waste to brokers, waste exchanges, or potential users because it cannot get rid of the legal responsibility for the material and is not sure it can trust the downstream users." Source: "Industrial ecology: A philosophical introduction" Proc. Nat. Acad. Sci. USA Vol. 89, P. 800-3, February 1992.] . 

If, however, a byproduct stream can evade the hazardous waste label, then its recycling is virtually unregulated under RCRA. What one does with a byproduct is either recycling or treatment. Treatment processes are required to have a pre-construction and an operating permit, which under RCRA require three to twelve years to obtain, while a recycling process requires neither [ Comella, "Understanding a sham..."] . There is therefore a significant financial incentive for generators of waste to avoid RCRA Subtitle C regulation by gaining "recycler" status. This has given rise to "sham recycling," an undertaking which endeavors to make something out of a waste stream (to "recycle" it) with the principal motivation of avoiding disposal costs [ Secunda and Papetti, Personal communication.] . Park benches made from glassified toxic waste are a prime example [ Van Ackron, Personal Communication.] . It has been EPA policy to root out sham recycling, and RCRA regulations are accordingly artifacts of deep suspicions about the true purpose behind claimed recycling activities [ Secunda and Papetti, Personal communication.] . It is stated EPA policy, however, to encourage recycling hazardous waste which yields a product that itself has economic value [ Van Ackron, Personal Communication.] . 

Implementing RCRA 

RCRA implementation has been criticized for a lack of clarity, consistency, and coherence. It has become an environmental statute that people who deal with it love to hate. One significant reason for this disgruntlement is that, despite the name, EPA regulations under Resource Conservation and Recovery Act are intended to prevent unsafe handling of hazardous waste, not to encourage recycling. In theory at least, EPA likes the idea of recycling, [ Camella "Understanding a Sham..."] but has long perceived that lenience toward recyclers allows sham recycling to occur. Bad recycling has been seen as worse than good treatment and disposal, so that regulations and their implementation have leaned toward channeling potentially harmful materials into the Subtitle C system. At the same time, the lack of regulation of recyclers has allowed those operations that manage to qualify for such designation to be largely unregulated, with some significant resulting abuses [ ibid.] . RCRA is philosophically a mirco-management, command-and-control sort of law, [ Robert Frosch, Director, Project on Public Policy for Industrial Ecology, Harvard Kennedy School of Government, Personal communication.] with the result that the task of separating the legitimate from sham recycling has been hard-wired into regulations. At the same time, Congress wrote much of the regulations for manageing hazardous wasate under the 1984 Hazardous and Solid Waste Amendments directly into the statue because it did not trust the EPA under Gorsuch and Reagan [Secunda and Papetti, Personal communication.] . What was left up to Agency discretion was implementing the definition of solid waste, which explains why so much contraversy has been focused there. 

RCRA has been implemented in what has been poignantly described as "an administrative haze [ Robert Frosch, Personal communication.] ". In the words of Joshua Secunda, Assistant Regional Counsel, EPA New England, "it is not clear to the regulators or the regulated: a)who or what materials are regulated, and when; b) whether EPA has a consistent philosophy for regulating wastes and recycling, and; c) why regulatory recycling exemptions for hazardous waste can't all appear in one RCRA regulatory section [ Secunda "The Resource Conservation..." p. 3.] ." 

In essence, the implementation of RCRA is shrouded in great mystery. According to Robert Frosch, Director of the Project on Public Policy for Industrial Ecology, "it is not clear to anyone what it all means - businesses cannot get a clear answer to specific questions [ Frosch, Personal communication.] ." RCRA gives EPA considerable latitude to define what is solid waste and what should be managed as hazardous waste, which has allowed the Agency to shape the RCRA program through the regulatory process [ Williams and Cannon, "Rethinking the Resource..." ] . This freedom has had the undesirable consequences of making the overall purpose of RCRA difficult to identify [ Frosch, Personal communication.] , and of focusing intense pressure on EPA from competing interests on the basic definitional elements of the statute [ Williams and Cannon, "Rethinking the Resource..." ] . These factors, along with the inherent difficulty in establishing regulatory heuristics by which to separate "sham" from legitimate recycling have resulted in an "extremely (if not unworkably) complex management system, the internal logic of which can lead to irrational results [ ibid. p. 10065.] ." 

To add to the confusion, EPA RCRA regulations are enforced by the states, not surprisingly with great variation among them [Frosch, Personal communication] . Each EPA regional headquarters has oversight over state implementation within its region, and can challenge in court permits granted to generators [ Secunda "The Resource Conservation..."] . States are therefore forced to gaze into a kaleidoscope of nebulous requirements: 

States are united in their perception that guidance from EPA on how to interpret hazardous waste regulations is confused and inconsistent. States are thus reluctant to approve permits for (or exempt) recyclers; they believe that EPA will inevitably "second guess" their determinations. Further, EPA's inconsistency in interpreting (as illustrated by the innumerable memo "wars" between the ten regions and headquarters) its own regulations makes states unable or unwilling to definitively advise the regulated community on what procedures would avoid an enforcement action for treatment of hazardous waste or "speculative accumulation" of wastes otherwise exempt as "recyclable. [ ibid. p. 3.] " 

This uncertainty is passed along to industry, which is leary of entering a regulatory tangle for which it cannot get explanations [ Frosch, Personal communication.] . The lack of regulatory consensus creates legal risks for a company that engages in recycling operations, [ Secunda "The Resource Conservation..."] due to uncertainty about whether EPA will view its efforts as "sham" or legitimate recycling [ Van Ackron, Personal communication.] , and possibly to regulatory volatility over time. The prospect of permitting as a Treatment, Storage, and Disposal Facility is enough to drive companies away [ Secunda and Papetti, Personal communication.] In sum, the several levels of uncertainty with regard to what passes as legitimate recycling that is exempt from stringent RCRA regulations creates a significant disincentive to recycling efforts. 

This litany of criticism is in large measure an artifact of the era from which the statute orginates. At the time of passage of RCRA's Hazardous and Solid Waste Amendments in 1984, in the wake of Love Canal, the issue of concern was a much more acute need to ensure safe handling and disposal of hazardous waste. With some exceptions, that goal has been achieved. The reuse of industrial byproducts as feedstocks has only received attention outside a small group of industrial ecologists within the last few years. Viewed through an industrial ecology lens, RCRA regulations leave much to be desired in the way of promoting byproduct reuse. The task now is to examine the barriers and find ways to eliminate them, without compromising RCRA's charge of protecting human health and the environment from improper management of hazardous waste. 

RCRA Barriers to Industrial Symbiosis 

In addition to the general implementation problems discussed above, RCRA poses a number of regulatory barriers to industrial symbiosis. These include: 

The 90 day rule Under RCRA regulations, a generator of hazardous waste may store that material in RCRA-approved containers for up to 90 days on-site without having to obtain a permit as a Treatment, Storage, and Disposal Facility (TSD) [ Camella "Understanding a Sham..."] . To store for longer, a TSD permit is required. Given the cost, complexity, time, and stigma required to obtain such a permit, it is a foregone conclusion that no firm will seek licensing as a TSD facility solely for the purpose of participating in a symbiotic byproduct-to-feedstock linkage. The ninety day rule has been pointed out as a great impediment to recycling because in many cases it does not allow the accumulation of byproducts in sufficient quantity to make transportation to the site of reuse economically viable [ Secunda, "The Resource Conservation..."; Frosch, Personal communication.] . This limitation is a problem in cases where byproducts are to be moved off-site in discrete batches. In Kalundborg, such examples are the movement of sulfur from Statoil to Kemira, and the movement of scrubber ash gypsum from Asnæs Power Plant to the wallboard maker Gyproc. 

The storage limitation has been overcome by some small generators of similar byproducts by coordinating and jointly financing their transport to recycling/reuse facilities [ Audrey Webber, Harvard Kennedy School of Government, Personal Communication.] . In the model of industrial symbiosis developed in this thesis, the number of participants is likely to be small, so that this approach is not appropriate. In general, the ninety day rule is a significant hindrance to recycling, but mostly for small quantity generators. 

Permitting requirements for storage prior to recycling While the generator of a hazardous waste may store on-site for up to ninety days, any storage by the facility which is to recycle or reuse that waste requires a RCRA permit. The regulatory scheme is such that the recycling process does not require a permit, but storage of byproducts deemed 'hazardous waste' does [ Camella "Understanding a Sham..."] . As a result, 

what a legitimate recycling facility gains by avoiding RCRA permitting for the recycling process, it partially loses by being required to obtain such a permit for the storage of hazardous waste. The lack of on-site storage forces a facility either to transfer directly hazardous waste from a truck to the recycling process, or to not recycle...Without a storage permit, any temporary holding of hazardous waste prior to recycling is illegal [ ibid, p. 450.] . 

To the extent that byproducts replace feedstocks in a symbiotic linkage, this requirement is tantamount to a prohibition against maintaining any inventory without a RCRA permit. The problem here is that permitting under RCRA is very time, money, and resource-intensive, as well as carrying with it the stigma associated with hazardous waste. In this regard, RCRA constitutes a major barrier to industrial symbiosis involving byproducts that fall under the definition of hazardous waste. Overly stringent permitting requirements decisively detract from the attractiveness of byproduct reuse, a result that is in contradiction with the overall goals of RCRA and of environmental laws in general. The use of an industrial byproduct as a feedstock eliminates the need for disposal and also reduces the need for virgin materials of the same kind. The regulatory conception of hazardous waste is inappropriate for this situation; a hazardous waste is hazardous strictly because it is to be disposed of. The virgin feedstock that these byproducts replace are just as hazardous as the byproducts themselves - they are the same thing; [ The one exception to this claim is 'toxics along for the ride,' whose presence either renders the byproduct unusable as a feedstock, thereby eliminating the problem, or can be tested for with thresholds which can be used to disallow the exchange if exceeded.] otherwise they would not and could not be used as feedstocks. 

While concern over the management of potentially hazardous materials is legitimate, byproducts should not be subjected to substantially more stringent standards than the feedstocks they directly replace. If EPA is to make possible the use as feedstocks of byproducts that fall under the hazardous waste definition, then the permitting process for storage as inventory must be made palatable for legitimate recycling/reuse operations. A model for expedited permitting procedures is already in place [ Commella "Undertanding...."] and should be applied. 

Restrictions on shipping waste off-site A generator may store a hazardous waste on-site for up to ninety days. After storage on-site, the generator must prepare the waste for shipment by first packaging it according to Department of Transportation guidelines, properly labeling the containers, obtaining an EPA identification number, completing a hazardous waste manifest, and handing off the package to a licensed transporter of hazardous waste [ ibid.] . This system is highly effective for ensuring that hazardous waste is disposed of in accordance with regulations, but is inappropriate to facilitate or allow the reuse of such byproducts as feedstocks. To use the Kalundborg example, piping Statoil flue gas to Asnæs and Gyproc would be illegal under this system, at least at first glance. Consultation with EPA could result in the granting of a variance to allow such a transfer [ Statoil flue gas is an ethane/methane mixture which replaces the burning of 'virgin' fuels at the other facilities - clearly an environmental gain. ] , but, in general, flare gas is construed as hazardous waste. 

Mixture and derived from rule This rule establishes that once a substance is tagged as a listed waste, any substance derived from treating it is also a hazardous waste. This stipulation makes difficult or impossible the use of residues of pollution control technologies as feedstocks. In Kalundborg, the sulfur from Statoil and the gypsum from scrubber sludge both fall into this category. The mixture and derived-from rule threatens to eliminate a portion of the industrial waste-stream from potential re-use. 

Liability The fact that liability stays forever with the generator herds generators toward disposal rather than reuse. The ability to transfer liability would solve this problem, but would likely require a statutory change in CERCLA. A possible solution to this problem lies with the definition of solid waste, in the intuitively attractive idea of not labeling as waste materials that are to be used as feedstocks. 

Uncertainy / Lack of regulatory flexibility This set of problems is addressed in the above section. Suffice to add that the prospect of TSD permitting pushes companies away from recycling/reuse [ Secunda and Papetti, Personal communication.] . 

Proposed solutions 

Although the above presents a grim picture, all is not lost. RCRA as written allows EPA the flexibility to remove most if not all barriers to byproduct reuse cited here. Suggestions for how to go about that follow, but first an observation: RCRA Subtitle C regulations only apply to hazardous wastes, not all solid waste. A sizable portion of the industrial waste stream is available for reuse, sans RCRA regulation [ U.S. industry is said to generate 300 million tons of hazardous waste and 600 million tons of nonhazardous waste per year. Source: Kumar Patel, "Industrial Ecology" Proc. Nat. Acad. Sci. USA Vol. 89. p. 798-9. February 1992.] . That is good, but all of it should be available. 

The extreme vagueness of the definition of solid waste, the locus of inquiry that triggers RCRA regulation, is a major part of the problem. It can and should also be a major part of the solution. EPA is not statutorily wedded to any particular policy toward the reuse of industrial byproducts as feedstocks. Therefore, EPA can remove barriers as a matter of regulation, or even as a matter of policy. 

First and foremost, EPA headquarters needs to issue a statement of policy indicating support for the legitimate reuse of industrial byproducts as feedstocks. Such a statement can and should be tied in with the Environmental Technology Initiative's Eco-Industrial Park Project, one of whose products is to be a set of policy recommendations. EPA should back away from the micro-management of waste handling that has characterized the RCRA program and instead issue guidelines for what should be considered legitimate recycling. EPA regions and the states should then be allowed discretion in allowing, on a case-by-case basis, recycling/reuse activities. This approach can take two forms. 

The definition of solid waste can be used as a regulatory vehicle for exempting processes that involve legitimate reuse of byproducts as feedstocks from the 'solid waste' label. What is required is a stipulation that materials that are to be used as feedstocks to replace virgin materials do not fall under the aegis of solid waste. This is, after all, intuitive. Standards can be set for comparing the byproduct with the virgin material it is to replace. The presence of 'toxics along for the ride' in significant amounts should disallow this exemption. At the same time, however, the treatment of byproducts to render them fit for reuse should not inexorably tag them with the 'hazardous waste' label. This stipulation refers to the 'derived from' part of the 'mixture and derived from' rule. That rule should be modified so that a substance that comes out of a waste treatment operation should not be construed as a hazardous waste, if, aside from its history, it qualifies for an exemption as a feedstock. 

The potential problem with this approach is that something that is not a 'solid waste' escapes RCRA regulation, with the result that there may be no safeguards against improper management. A solution is to treat bypoducts slated for reuse as virgin feedstocks, subjecting them to Department of Transportation guidelines (and/or EPA guidelines under TSCA and other applicable laws) for shipping and storage. Another solution, which should be implemented regardless, is to streamline and simplify the permitting process for storage of hazardous waste prior to reuse as a feedstock and apply simplified management standards. 

EPA is currently reassessing the definition of solid waste, and the definition's effect on byproduct reuse should weigh heavily in that reassessment. The other manner in which EPA can remove barriers to byproduct reuse and thereby to industrial symbiosis is to affirm the authority of states and regions to grant variances from the definition of solid waste and from various regulatory requirements. Less stringent, though still meaningful, requirements should be available as substitutes to ensure safety. The definition of solid waste and the accompanying maze of regulations are intended to hard-wire the process of differentiating between legitimate and sham recycling. Such intrigue should not be necessary in the case of industrial symbiosis. 

It should not take a panel of experts to establish whether the material exchanges in an industrial ecosystem comprise legitimate recycling. As the Kalundborg case study illustrates, such linkages are very clear and unequivocal. If a byproduct is used to replace a virgin feedstock, then that activity should be encouraged, not hindered, given that the material is handled in a manner that is no less safe than the handling of the virgin feedstock. The only other stipulation that is needed is to ensure that the byproduct does not contain 'toxics along for the ride' in significant quantities. 

EPA headquarters should therefore make it a policy to allow states and regions to grant necessary variances on a case-by-case basis to allow industrial symbiosis. Common sense on the part of regulators should be all that is needed to establish what constitutes byproduct reuse as feedstock. This approach would not require a change in regulations, and therefore could be implemented very quickly and easily. 

State and local EPA should therefore be prepared to enter a dialogue with industry to jointly explore opportunities for byproduct reuse. EPA headquarters should establish a coherent approach to the regulation of recycling, while allowing states and regions to make regulatory decisions without the threat of being second-guessed. Such an approach would to a long way to disentangling regulation under RCRA and putting it on a course that is consistent with its broader goals and with those of other environmental laws. 

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