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Philip Comella

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Ever since the EPA’s 1985 rulemaking on the Definition of Solid Waste, 50 Fed. Reg. 614 (1985), the question of how one distinguishes legitimate recycling from sham recycling has puzzled both regulators and recyclers. The question is vital because sham recycling is equivalent to illegal disposal and exposes the perpetrator to enforcement and significant penalties. In contrast, legitimate recycling is highly encouraged and satisfies the central purposes of the Resource Conservation and Recovery Act. So telling the two apart is important.

In 1989, Sylvia Lowrance, the then-Director of Solid Waste for EPA, signed a memorandum, entitled, “FOO6 Recycling,” that drew from earlier rulemakings and set forth a summary of the criteria for distinguishing between sham and legitimate recycling. Among these criteria was a comparison between the chemical composition of the purported recyclable material (or “secondary material”) and the analogous raw material or product. Included in her discussion was the question, “Are the toxic constituents actually necessary (or of sufficient use) to the product or are they just “along for the ride?” This “along for the ride” concept has since greatly influenced the question of sham vs. legitimate recycling because it raises the specter that the recycler is actually surreptitiously disposing of hazardous waste under the cover of beneficial recycling. But a lingering question for the last several decades has been how much toxics can actually be “along for the ride” and still be legitimate?

Fast forwarding to 2015, EPA addressed head-on the sham recycling question and set forth four criteria to tell a sham from the real thing. Importantly, the fourth criterion effectively replaced the old “along for the ride” criterion. See 40 C.F.R. 260.43(a)(4); 80 Fed. Reg. at 1725-28. This new criterion requires that the “product of the recycling process must be comparable to a legitimate product or intermediate,” and gives a recycler three options for satisfying it.

Where there is an “analogous” product, the recycled product is comparable if (a) it does not exhibit a hazardous characteristic not exhibited by the “legitimate” product; and (b) the two products have comparable levels of hazardous constituents. Where there is no “analogous” product, the two products are comparable if the product of the recycling process meets “widely recognized commodity standards and specifications[.]” Last, even if the product has high levels of hazardous constituents as compared to the raw material, the recycling can still be legitimate if recycler carries out certain health and environmental studies to show the toxic constituents are not harmful. 40 C.F.R. 260.43(a)(4)(iii).

But Factor 4 is no longer part of EPA’s regulations. In the just-published case of American Petroleum Institute v. EPA, (No. 09-1038), the D.C. Court of Appeals vacated Factor 4, finding that EPA failed to articulate a concrete standard for determining at what contaminant level a recyclable material was “significant in terms of health and environmental risks.” EPA’s “comparable to or lower than” standard, the court said, does not adequately determine when a recycling is a sham: levels can be high and still be part of a legitimate recycling process. Further, the court noted, this standard does not “reasonably focus on items that are part of the waste disposal problem.” It therefore vacated Factor 4 as it applies to all hazardous material recycling.

The court pinpointed the inherent flaw in the “toxics along for the ride” metaphor: at what concentration level does the presence of these toxics signal a sham? The court also criticized EPA for an over-reliance upon recycling horror stories, rather than actual instances of environmental harm. Unfortunately for EPA, it is back to the drawing board on this 30-year old conundrum of defining legitimate recycling. Meanwhile, those seeking to demonstrate the legitimacy of a recycling process (at least as a matter of federal law), will only need to satisfy the remaining three legitimacy criteria: (a)the secondary material must provide a useful contribution to product; (b) the recycling process must produce a valuable product; and (c) the generator and recycler must manage the secondary material as valuable product. In the end, this all might be a good thing, as it may open up opportunities to fulfill the underlying purposes of the Resource Conservation and Recovery Act, rather than become entangled in “labyrinthine maze” that is the definition of solid waste.

For more on this topic, read my article, “Understanding a Sham: When is Recycling, Treatment?,” published in the Boston College Environmental Affairs Law Review here.

Filling in a gap in its regulations, Kentucky proposes new regulations for technologically enhanced naturally occurring radioactive materials or TENORM. The regulations were in response to concerns about the management of radioactive materials from oil and gas production.  A public hearing is to be held on the proposed regulations on June 21, 2017.

The Regulations can be found here.

We will be following these regulations and providing updates here on Environmental Law Next as they progress.

Since the beginning of the fracking boom, the potential impact of fracking operations upon groundwater has been a hotly contested area.   The most recent addition to the public debate is a new EPA report, entitled “Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States”. The report sets forth the results of EPA’s latest investigation on this subject, which relied on independent research as well as published materials.

The agency concludes that fracking can affect drinking water resources under some circumstances, with impacts ranging in severity from temporary changes in water quality to contamination so severe that it renders water from private wells undrinkable. But the report also concluded that there are too many gaps and uncertainties in the available data to determine the frequency with which Americans’ drinking water is impacted by fracking operations.  Similarly, EPA could not fully characterize the severity of the impacts of fracking on drinking water nationwide.

Unsurprisingly, the report found that among the factors and activities that make impacts likely to be more severe or frequent are (1) withdrawals of water for fracking in areas of declining groundwater resources; (2) spills of hydraulic fracturing fluids; (3) wells with inadequate mechanical integrity; (4) injection of fracking fluids directly into groundwater; (5) discharge of inadequately treated fracking fluid wastewater; and (6) disposal of fracking fluid wastewater in unlined pits.

This relatively inconclusive report is receiving criticism from fracking supporters for failing to more forcefully endorse the safety of the practice.  They are highlighting the statement included in the draft version of the report, but removed from the final one, that EPA “did not find evidence that [fracking related activities] have led to widespread, systematic impacts on drinking water resources in the United States.”

The report puts a spotlight on an interesting choice facing the Trump administration, which has been clear about its desire to promote domestic oil and gas production. At Environmental Law Next, we will be watching to see whether incoming EPA Administrator Scott Pruitt pursues further studies with the aim of providing fracking with the government’s imprimatur of safety, or if he decides to just keep his agency away from the debate.

Mr. Trump made cutting regulations a central promise of his campaign. At one point he suggested 70% of federal regulations could be eliminated.  Although his staff quickly walked that number back, there is little doubt that at least a few EPA regulations will be among those the administration will target.

An agenda that involves a thoughtful attempt to revise and simplify the environmental title of the Code of Federal Regulations would be a welcome development and might receive broad support.  Observers from most of the political spectrum will concede there are at least some incidents of over-regulation and counterproductive micro-management for which the EPA is responsible.  According to the Heritage Foundation, the annual cost of EPA regulations enacted during the Obama Administration constitute nearly half of all new annual federal regulatory costs imposed during that period.  Examples of over regulation abound in all spheres of environmental law, where it now takes specialists to understand each subdivision of the regulations.  For those who want examples, see the “verified recycler” exemption at 40 C.F.R. 261.4(a)(24), any portion of the land disposal restrictions at 40 C.F.R. Part 268, or the newly issued New Source Performance Standards and Emission Guidelines for Municipal Solid Waste landfills.

It is too early to know whether Mr. Trump will strike the right balance.  His campaign was short on the relevant details.  There were a few areas, however, where he got specific. Some of President Obama’s signature environmental regulations are likely to be completely abandoned.  One way or another, the Clean Power Plan is dead.  At the moment the statutory challenge to it is awaiting adjudication by the full panel of the U.S. Court of Appeals for the D.C. Circuit.  But if his harsh criticism of the rule in the past left any doubt, Mr. Trump recently announced he would appoint an unabashed climate skeptic to lead his EPA transition team.

Similarly, it is likely only a question of how, rather than whether, the United States will reverse course on the Paris Agreement on climate change.  Among Mr. Trump’s options are to formally exit the deal through the process it provides, but that would mean America would still be bound by it until 2020.  He may choose instead to simply ignore the agreement by failing to implement the Clean Power Plan or any other policy that would cause the country to meet its voluntary goals; there is no punishment mechanism in the agreement for those that fall short.

The Clean Water Rule, which was supposed to resolve the issue of jurisdictional limits of the Clean Water Act, will also not survive, at least in its current form.  Before the election it was already being challenged by opponents, on whose behalf 88 Republican members of Congress filed an amicus brief arguing that the agency was expanding its jurisdiction beyond what was intended by the statute and encroaching on the States’ authorities.  And Mr. Trump has excoriated the rule on the campaign trail and said he would eliminate it.  He will now be able to do that.  Look for Mr. Trump to instruct the Justice Department to stop defending the rule in court.

The circumstances Mr. Trump faces with respect to the Clean Water Rule, however, highlight the flaw of his over-simplistic attacks on the quantity of EPA regulations.  Many regulations do not actually impose costs and burdens themselves.  To the contrary, they give clarity and predictability to otherwise ambiguous statutes.  The Clean Water Rule was intended to establish when Clean Water Act permits are required.  Without it, costly and time consuming case-by-case evaluations will be necessary.  If Mr. Trump is truly concerned with cutting bureaucratic red tape he will act swiftly to replace, rather than eliminate, the Clean Water Rule.

Mr. Trump has talked less about President Obama’s GHG emissions standards for light-duty vehicles, which were designed to double the fuel efficiency of new cars and trucks between 2011 and 2025.  A mid-term review of these regulations was already scheduled, and the auto industry sees an opportunity.  This week, the Alliance of Automobile Manufacturers wrote to President-elect Trump asking him to reduce the targets.

There are probably not any monumental changes coming to the regulations that govern the waste and recycling industry.  Several likely policies could provide an indirect boon to business, however.  Corporate tax cuts, a one-time allowance for repatriation of foreign domiciled profits, or a big infrastructure bill would each likely result in higher volumes of waste for disposal.  Gas to energy businesses may not fare as well as focus shifts back to fossil fuels though.

As we learn more about Mr. Trump’s energy and environmental plans, we will keep you updated here.

Donald Trump is set to assume the presidency on January 20, 2017.  At Environmental Law Next we are taking a look at what that will mean for American environmental law.  We will be providing our own perspective as well as directing our readers to the insights of others that are keeping an eye on what appears likely to be a distinctly new era in the field.

Mr. Trump indicated that he would diverge drastically from his predecessor’s approach to environmental protection.  On the stump he promised time and again that he would significantly roll back environmental regulations, and even eliminate the EPA altogether.

It is unlikely Mr. Trump will be able to dump the EPA outright, even if he actually wants to.  It would take an act of Congress and might be too much to stomach even for some Republicans.  And unless the “nuclear option” is invoked in the Senate, the Democrats there will retain the ability to filibuster even a united Republican effort.  Similarly, regulations on the books cannot just be erased with the stroke of a pen.  But by substantially reducing enforcement activities and re-writing some key regulations, Mr. Trump could go a long way towards neutralizing the agency for the duration of his presidency.

What would a retreat of the federal government from this space mean for the environment?  Certainly it would suffer, and probably not insignificantly.  But a crippled EPA would not lead to a wholesale abandonment of environmental standards.  Rather, meaningful environmental regulation would be transferred to the states – at least those states with progressive environmental agendas – and result in a patchwork of substantive standards and enforcement procedures.  The authority is already there.  Most states have been delegated the power to administer some of the major federal environmental regulatory regimes, such as Clean Air Act and Clean Water Act permitting, in addition to their own environmental protection laws.  There are also citizen suit provisions in many statutes that allow environmental groups and others to compel compliance through the courts.

Regulatory gaps might also revive, to some extent, the role of tort law in controlling the degree to which industrial pollution is permitted to harm individuals.  But the effectiveness of tort remedies for protecting common environmental resources – surface and ground waters, clean air and toxic-free land – is rather limited.  Tort claims, which require proof of causation tied to specific damages, are ill-suited to combating complex, multiple-source environmental degradation.  Acid rain, dangerous levels ground level ozone, and the pollution of major water bodies, for example, are typically caused by the collective emissions from hundreds or thousands of facilities; none of them on their own might be problematic or actionable in tort.

Even with the proper authority to intervene, courts lack the expertise to fashion efficient and effective environmental remedies.  Most states rely on the EPA to determine proper technical requirements and health-based standards.  Questions such as what is the acceptable level of lead in drinking water? How much particulate matter in the air is too much? And what are the proper procedures for cleaning up an oil spill? demand resources and experience to answer well.  These questions are also inextricable from policy decisions more properly made by a political branch of government.

Moreover, tort law is generally reactive.  There is often no cause of action until it is too late and the damage is done.  No court order can revive an endangered species after it becomes extinct.

Mr. Trump claims he will bring a business friendly efficiency to environmental protection while also “ensuring clean air and clean, safe drinking water for all Americans.”  Accomplishing both will require that EPA maintain its leading role.