RECYCLING OF

HAZARDOUS WASTE:

RCRA’S UNSUNG SUCCESS STORY

PREPARED BY:

RICHARD C. FORTUNA

PRESIDENT

STRATEGIC ENVIRONMENTAL ANALYSIS, L.C.

PREPARED FOR:

THE SIERRA CLUB, EARTH JUSTICE

NATURAL RESOURCES DEFENSE COUNCIL

November 20, 2010
November 20, 2010

Mr. Patrick Gallagher

Director of Environmental Law

Sierra Club

85 Second Street, 5 Floor th

San Francisco, CA 94105

Re: “Recycling of Hazardous Waste”

Dear Mr. Gallagher:

Pursuant to your request, I am submitting my Report on the current status, trends, and

history of hazardous waste recycling under the Resource Conservation and Recovery

Act (RCRA). 

Appendix A summarizes my 30+ years of involvement with the RCRA Program and

related environmental statutes. Appendix B provides a detailed accounting of the false

claims of “stigma” that have been made over 30+ years of RCRA rulemakings. 

I appreciate the opportunity to be of assistance to you, the Sierra Club, Earth Justice,

the NRDC and the communities which have been affected or threatened by this glaring

gap in RCRA’s regulatory regime.

Sincerely,

 /S/ Richard C. Fortuna

Richard C. Fortuna

President

SEA, LC

8828 Harness Trail 

Potomac, MD 20854

301-299-6013
TABLE OF CONTENTS

I. RECYCLING OF HAZARDOUS WASTE IS ALIVE AND WELL 

UNDER RCRA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. BENEFICIAL REUSE AND RECYCLING HAS INCREASED DRAMATICALLY

AS REGULATORY STANDARDS HAVE INCREASED UNDER RCRA AND 

OTHER FEDERAL STATUTES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

III. USE AND/OR RECYCLING OF RCRA HAZARDOUS WASTES IS

FLOURISHING IN THE CONSUMER/RESIDENTIAL SECTORS AS WELL. . 14

IV. CALIFORNIA’S USED OIL RECYCLING PROGRAM, WHICH LISTS USED OIL

AS A HAZARDOUS WASTE, HAS A HIGHER BENEFICIAL REUSE RATE

THAN THE FEDERAL PROGRAM WHICH, WITH LIMITED EXCEPTIONS,

DOES NOT LIST USED OIL AS HAZARDOUS. . . . . . . . . . . . . . . . . . . . . . . . 18

V. INDUSTRIES’ ARGUMENTS THAT RCRA REGULATION WILL REDUCE

BENEFICIAL REUSE AND RECYCLING ARE UNFOUNDED AND

UNORIGINAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

APPENDICES

A. QUALIFICATIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1

B. “STIGMA” CLAIMS v. MARKETPLACE REALITY – 1979 TO PRESENT.. . B-1

i
I. RECYCLING OF HAZARDOUS WASTE IS ALIVE AND WELL 

UNDER RCRA

A. Introduction

Since RCRA’s adoption and implementation in the late 1970’s, RCRA regulation has

1

enhanced recycling and beneficial reuse and assured environmental protection in the

process. As discussed in greater detail below, this is in part because under RCRA,

environmentally protective recycling is preferred to the land disposal of a waste

material.

Despite the clear evidence of RCRA’s success at driving increases in reuse and

recycling, industries have often resisted RCRA regulation by arguing, for example, that

RCRA regulation would reduce recycling because it is supposedly too burdensome, or 2

because labeling a material as “hazardous” would stigmatize the material and reduce

people’s willingness to reuse it; so called “stigma” arguments. According to these

assertions, the only way to encourage recycling is to exempt it from hazardous waste

regulation. 

In this regard, industry’s current opposition to EPA’s proposal to regulate Coal

Combustion Residue (“CCR”) under RCRA Subtitle C repeats the same arguments that

industry has asserted over the past thirty-plus years of RCRA’s implementation,

However, the history of RCRA regulation demonstrates the fallacy of these assertions. 

RCRA regulation of a substance does not decrease recycling and beneficial reuse of

the substance -- whether because of the alleged burden of such regulation, or because

of a supposed stigma from labeling a product as hazardous – to the contrary, RCRA

regulation has just the opposite effect on recycling rates.

As discussed in this Report, the beneficial reuse and recycling of materials under RCRA

has been a tremendous success. This Report is divided into 6 sections, each

The statute governing the daily management of “hazardous waste” in the U.S. is known as the

1

Resource Conservation and Recovery Act (RCRA; pronounced Rec-Ra). RCRA or P.L. 94-580 was

enacted in 1976 and amended the Solid W aste Disposal Act (SWDA) P.L. 89-272, enacted in 1965.

RCRA incorporated Subtitle C, the Hazardous W aste Program. The Hazardous and Solid Waste

Amendments (HSW A) of 1984, P.L. 98-616, effectively rewrote Subtitle C of the SW DA. Of all these

acronyms, it is “RCRA” that is most frequently used to refer to the SW DA and its collective amendments.

RCRA is the nation’s basic authority governing the daily management and ongoing releases

from waste management units. CERCLA OR “Superfund” is the nation’s cleanup and emergency

response authority for releases of hazardous substances. The preventive standards of RCRA are

intended to avert the creation of future problem sites requiring cleanup under CERCLA.

According to the “regulatory burden” argument, the increased burden of RCRA compliance will

2

increase the costs of the recycled products produced from a waste material and in turn disadvantage or

“stigmatize” them in the marketplace.

1
examining a separate aspect of RCRA’s recycling history and trends and their

applicability to the CCR rulemaking. Section I examines several general trends in

hazardous waste recycling under RCRA. Section II uses specific illustrative examples

to demonstrate that reuse and recycling of materials has increased under RCRA

regulation. Section III examines the accelerating trends in the recycling of consumerbased hazardous waste. Section IV examines how California’s Used Oil Program has

a higher rate of recycling than the Federal Program. Section V examines the historical

claims of “stigma” associated with recycling-related rulemakings under RCRA from

1979-present and compares these claims with marketplace reality.

B. Overview of Data

Actual data on RCRA generation and waste management provides empirical evidence

demonstrating that hazardous waste recycling under RCRA is in fact a great success. 

More specifically, RCRA requires that every two years waste generators and managers

submit data regarding their waste generation and management in what is called the

RCRA Biennial Report Survey (BRS). This survey examines on a biennial basis the

3

full spectrum of waste generation and management, including recycling practices, and

attempts to quantify the volumes of wastes managed and generated by facility type,

location, and volume. The Biennial Report assigns hazardous waste recycling practices

to one of 5 subcategories. See Table 1.

TABLE 1: Reclamation and Recovery Management Codes

Code Recycling Activity

H010 Metals recovery including retorting, smelting, chemical, etc.

H020 Solvent recovery (distillation, extraction, etc.)

H039 Other recovery or reclamation for reuse including acid

regeneration, organics recover, etc.

H050 Energy recovery at this site – used as a fuel (includes onsite

fuel blending before energy recovery)

H061 Fuel blending prior to energy recovery at another site (waste

generated either onsite or received from offsite)

In examining the Biennial Report data for 2007, the last year for which complete

tabulated data exists, one sees a wide range of waste being reclaimed in substantial

volumes under the hazardous waste regulations. For example, as shown in Table 2

below, which summarizes some of the most commonly generated wastestreams and

40 CFR Parts 262.41, 264.75, and 270.30(l)(9)

3

2
the volume of those wastes reclaimed during 2007, over a million tons of ignitable,

corrosive, and/or leachable metal-bearing wastes were recycled in 2007.

TABLE 2: Volume of Various RCRA Hazardous Waste Recycled in 2007

Waste Code Waste Description Recycled (Tons)

D001 - D009

characteristic waste

ignitable, corrosive and/or

leachable metal-bearing wastes

1,461,006

D002 - Corrosives lead acid batteries 1,299,823

D009 - Mercury fluorescent lamps 813,935

F001 - F005 listed waste chlorinated solvents 311,521

F006 - F009 listed waste metal bearing wastes 37,857

Source: 2007 RCRA Biennial Report Survey (BRS) Database. FOIA Request HQ-FOI-01815-10. October

12, 2010. 2007 is the most current year for which data has been tabulated and published.

Indeed, for some commonly generated hazardous waste the recycling rate is 67% or

greater as shown in Table 3. 

TABLE 3: Recycling Rates for Various Large Volume RCRA Hazardous Wastes

Waste

Code

Waste Type Volume

Recycled

(tons)*

Volume

Generated

(tons)**

Recycling

Rate

K048-52 Petroleum Refining Sludge 23,878 34,777 69%+

K061 Electric Arc Furnace Dust 610,000*** 923,546 67%

K171-172 Petroleum Refining Catalysts 49,336 61,127 81%

D002 Lead Acid Batteries 1,300,000 1,400,000 93%++

* FOIA Request HQ-FOI-01815-10

** Supplemental data provided by RCRA BRS Staff, October 21, 2010.

*** EPA, Office of Resource Conservation and Recovery, “Assessing the Management of Lead in

Scrap Metal and Electric Arc Furnace Dust; Final Report,” EPA 530-R-09-004, April, 2009, p. 18.

+ This is an underestimate as many refineries dispose/recycle their K048-52 wastes in their coking

systems or use it to quench the coking cycle.

++ “W aste Recycling,” Solid W aste Association of North America (SW ANA), Silver Spring, MD, 2008;

Presentation of Dr. Reinhart. Data was from a 2003 Survey.

3
Lastly, another measure of the frequent and routine nature of hazardous waste

recycling under RCRA is revealed by examining all 563 waste codes listed or identified

under RCRA and determining which of those codes were not recycled at all. The BRS

data reveals that only 4 of the 563 waste codes for which data was reported in 2007

had no recycling whatsoever. These codes were largely dioxin-containing wastes

and/or vinyl chloride production wastes. In short, 99.3% of all RCRA waste codes

underwent some level of recycling during the 2007 reporting period, as reflected in

Table 4 below. 

TABLE 4: Percentage of RCRA Waste Codes for Which Some

Level of Recycling Was Reported in the 2007 Biennial Report

Number of RCRA

Waste Codes*

Number Reporting

No Recycling**

% RCRA Wastes

Codes Reporting

Some Recycling

563 4+ -99.3%***

* 2007 RCRA Biennial Report Survey, pp. D1 - D17.

** Supplemental data provided by RCRA BRS Staff, October 22, 2010.

*** 559÷563 = 99.3%. Some obscure “P” and “U” list wastes may not have been generated during

the BRS reporting period.

+ Except for RCRA waste codes F020, F023, K174, K178; every “D”, “F” and “K” code wastes were

recycled in 2007, frequently by multiple methods.

4
II. BENEFICIAL REUSE AND RECYCLING HAS INCREASED DRAMATICALLY

AS REGULATORY STANDARDS HAVE INCREASED UNDER RCRA AND 

OTHER FEDERAL STATUTES

A. Background – RCRA’s Land Disposal Restriction (LDR) Program

This section provides a more in depth analysis of trends in hazardous waste recycling

using three different hazardous wastestreams: i.e., K061 Electric Arc Furnace Dust,

D009 mercury containing fluorescent lamps, and D009 mercury-containing automotive

switches. This analysis reveals a trend which is typical of many wastestreams that

have been recycled under RCRA; namely, that the rate of recycling increases as the

standards under RCRA became more stringent. 

The passage of the initial RCRA-based program regulations in 1980 prompted a

minimal level of recycling to be undertaken for many wastestreams. However, it was 4

not until RCRA’s Land Disposal Restriction (LDR) program was implemented in 1986-

1990 that the recycling of many RCRA wastestreams began to accelerate. The Land

5

Disposal Restrictions (or LDR Program) is a two part program that: 1) prohibited all land

disposal unless wastes were first treated to reduce toxicity to the greatest extent

achievable by Best Demonstrated Available Treatment (BDAT), and 2) required that the

residues of such treatment be placed only into units meeting state-of-the-art liner and

containment standards. The LDR program has its genesis in the 1984 Hazardous and

Solid Waste Amendments (HSWA) which established a phased, multi-year program

that required best treatment followed by best containment. As discussed in greater

detail below, by requiring that waste material be pre-treated and disposed of in an

environmentally appropriate manner, RCRA and its LDR program allowed resource

recovery and recycling to flourish by making it cost-competitive with the alternativedisposal of the material.

The institution of the LDR program in the 1984 HSWA truly put an end to the land

disposal of untreated wastes, and by doing so provided a level playing field on which

treatment and recycling technologies could compete. Prior to the institution of the LDR

program, very few treatment or recycling technologies could financially compete with an

unregulated, unlined hole in the ground. This section examines the beneficial impact of

RCRA’s increasing stringency on the rate and volumes of hazardous waste being

recycled.

45 FR 33066 (May 19, 1980). The RCRA “Base Program” Regulations; Final Rule.

4

5 www.epa.gov/wastes/hazard/tsd/ldr/index.htm. RCRA 3004(b) - (p), especially 3004(m), (o).

5
B. The Electric Arc Furnace Dust Recycling Market: A RCRA Success

Story Of Increased Regulation And Resulting Increases In Recycling

1. Management Trends for EAF Dust: 1983-1993. Vastly More

Recycling After RCRA LDRs

In 1995 I was retained by EPA to make a presentation before their Common Sense

Initiative (CSI) Subcommittee on Iron and Steel Industry Wastes. Much of the data for 6

this study was derived from the available Biennial Report data at the time.

As reflected in Table 5, "K061 Management Trends from 1983-1993," in 1983, when

there were no requirements under RCRA to immobilize or recycle the toxic constituents

contained in K061 Electric Arc Furnace dust prior to land placement, less than 10% of

the electric arc furnace dust waste stream was recycled. The vast majority was simply

land disposed. By 1993, ten years later, over 70% of this waste stream was being

reclaimed, either on-site or off-site; virtually a complete reversal in ten years time. The

massive jump in recycling was driven by the LDR program’s treatment requirements.

Prohibition of uncontrolled land disposal provided the engine for this transition to

recycling. This fact is and has been acknowledged by industry, including the American

Iron and Steel Institute (AISI) representative in attendance at my presentation to the

EPA.

7

TABLE 5: K061 Management Trends: 1983-1993*

Management Method Percent (%) EAF Dust

Managed-1983

Percent (%) EAF Dust

Managed-1993 +

HTMR** <10% 72 (86.5)+

Other Recovery, Reuse ---- 6 (2.3)+

Landfill >80% 19 (11.2)+

* Data based on 1983, 1993 Biennial Reporting data.

** HTMR-High Temperature Metals Recovery

+ Figures in ( ) are for 1992, based on a 1993 PRI Study, “Electric Arc Furnace Dust – 1993

Overview,” EPRI Center for Materials Production, CMP Report 93-1, July, 1993, p. 3-5.

Fortuna, Richard C., “Steel Industry W aste and RCRA’s Solid W aste Definition,” Presentation

6

before EPA’s Common Sense Initiative, Iron & Steel Society Committee; Ambassador W est Hotel,

Chicago, IL, August 24, 1995.

At this CSI Session, John W ittenborne of the American Iron and Steel Institute, (AISI)

7

acknowledged this finding in his own presentation as well.

6
2. Twenty-One Firms Were Developing Technologies To Reclaim

EAF Dust After The LDRs Took Effect

Another indication of the robust market for recycling electric arc furnace dust is the

number of firms that invested in new technologies to recycle the material. In 1995 

there were 21 separate firms developing a broad array of recycling technologies to

reclaim zinc and other metals from electric arc furnace dust. These methods included:

electrowinning, plasma cupola, plasma arc, hydrometallurgy and the re-injection of EAF

dust back into the electric arc furnace. This recycling based industry was driven by the

LDR program – indeed, virtually none of these technologies existed prior to the LDR

program.

3. RCRA's Impact On Recycling Economics; Without RCRA Most

Recycling Would Be Impossible

Another measure of the premise at issue would be to examine whether RCRA

regulations were making it economically impossible for firms to enter or compete in this

marketplace. The argument is frequently made that the cost of permitting and

compliance are so high that economically sensitive operations such as recycling

facilities must be exempt from RCRA regulation in order to survive. 

In fact, quite the opposite is the case. It is precisely due to RCRA regulation that many

otherwise marginal, or non-profitable recycling and/or reuse operations are able to

provide services that both return resources back to the economy and protect the

environment. For example, the Electric Power Research Institute (EPRI) released a

study of electric arc furnace dust recyclers concluding that none of the leading

commercially available EAF dust zinc reclaimers would be profitable without a

hazardous waste tipping fee. Data from this study, reflected in Table 6,

8 9

demonstrates that no facility in existence in 1994 (i.e., Bold entries in Table 6) could

survive on the sale of reclaimed zinc product alone. Five of the eight existing and

proposed facilities in Table 6 would not be profitable without a hazardous waste tipping

fee. In fact, it is the hazardous waste tipping fee companies charge that makes both

the facility profitable, and provides the revenues to ensure that the toxic residues of

recycling are properly managed. 

A “tipping fee” is the fee a firm charges for proper management of a waste and its residuals.

8

The term originated when land disposal was the predominant method of management (i.e., trucks tipping

their contents into the disposal cell), but now refers to the fee charged for all forms of management,

including recycling.

The EPRI Center for Materials Production. Proceedings of the CMP Electric Arc Furnace Dust

9

Treatment Symposium IV. A Summary of the Technical Presentations and Panel Discussion from the

January 25, 1994 Symposium. February 1994. CMP Report No. 94-2.

7
Thus, while industry has in the past argued that the cost of RCRA permitting and

compliance are so high that economically sensitive operations such as recycling

facilities cannot afford to comply and will be shut down, just the opposite is true. RCRA

regulation makes recycling economically feasible, and provides stability in the market by

serving as a buffer against the sometimes violent pricing swings in commodity markets,

avoiding the temptation to then cut corners on environmental compliance requirements.

TABLE 6: Comparative Earnings of EAF Dust Recyclers Before Taxes**

Process Earnings/Ton ($) For

EAF Dust Facilities Scaled To

100,000 Tons Per Year***

No Tip Fee Tip Fee

Metal Producers

 Enviroplas 37 103

 Modified Zincex 24 83

Oxide Producers

 Ausmelt NP* 108

 Flame Reactor NP 120

 Enviroplas NP 66

 ScanArc NP 71

 Single Stage Waelz Kiln 8 119

 Two Stage Waelz Kiln NP 75

* NP=Not Profitable

** The EPRI Center for Materials Production. Proceedings of the CMP Electric Arc Furnace Dust

Treatment Symposium IV. A Summary of the Technical Presentations and Panel Discussion from

the January 25, 1994 Symposium. February 1994. CMP Report No. 94-2.

*** Pre-tax earnings are per ton, and are based on facilities scaled to manage at least 100,000

tons/yr. “Earnings” typically refers to actual revenues, minus the cost of sales, before taxes.

4. Comparative Analysis of EAF Dust Recycling In The U.S.

Versus Canada

A comparison of electric arc furnace dust recycling markets in the United States and in

Canada provides further evidence that RCRA regulation – particularly its LDR program

– can and will drive increases in recycling and reuse rates. As discussed above,

8
electric arc furnace dust became regulated under RCRA in the 1980’s, and by 1993,

over 70 percent of the dust was being recycled. 

At the same time, however, Canada left electric arc furnace dust largely unregulated.

Ontario did not institute an RCRA-type LDR program until approximately 2005, nearly

20 years after the RCRA LDR program was enacted in HSWA. Quebec still has no

program comparable to the RCRA LDR program.10

In the 1993-95 period, when the United States was recycling 70 percent of its electric

arc furnace dust, in Ontario most such waste (i.e., K061-type waste (Ontario waste

code 143H (NA 9380)) was simply stored or disposed of in piles on-site. Moreover, the

volume of EAF dust being recycled in Canada from domestic sources in most areas

was virtually zero, and was merely being piled on the ground. Other large EAF dust 11

recyclers in the U.S. also investigated various Canadian markets in the early 1990s and

found no interest in recycling or treatment technologies for EAF dust as well. One

Canadian steel manufacturer was interested in recycling EAF dust, but only if it was

“free.”

Thus, in 1995 the very waste that was being reclaimed to a 70%-86% level (Table 5) in

this country was simply being placed into huge land-based piles in Ontario, much as it

was in the U.S. prior to the existence of the RCRA Land Disposal Restrictions (LDR)

program of 1984.

C. RCRA’s Land Disposal Restriction Program Has Driven The Success

Of Mercury Lamp Recycling

RCRA regulation, and the LDR program in particular, has had a similarly beneficial

impact on recycling of Mercury lamps. Prior to the institution of the Land Disposal

Restrictions for mercury-containing waste in 1990, including mercury-containing

lamps, virtually no mercury recycling was occurring. There were only three firms 12

The only standards that conceivably govern such wastes in Canada, are the characteristic

10

leaching tests for heavy metals. These levels are quite permissive and could be easily achieved.

Typically, the U.S. LDR standards for reclamation residues will be at least one order of magnitude more

stringent then the characteristic leach levels for Pb, Hg, and Cr.

“Evaluation of the Future Market for EAF Recycling in the U.S. and Canada,” prepared for the

11

Scientific Ecology Group, prepared by Strategic Environmental Analysis, L.C., May 8, 1995.

55 FR 22520 (June 1, 1990). Third Third Scheduled W aste; Final Rule. This rule established

12

the treatment standards for a wide range of RCRA hazardous waste including the “D” code characteristic

wastes such as D009 mercury-containing lamps. The LDR for D009 largely required the use of thermal

retorting technology to achieve the maximum amount of mercury recovery prior to the land disposal of any

remaining mercury-containing residuals. 40 CFR 268.40, 268.48. Recycling via retorting was deemed

Best Demonstrated Available Treatment (BDAT) to achieve maximum toxicity reduction prior to the land

disposal of mercury-containing residuals.

9
recycling lamps in the U.S. in 1990, handling only about 5 million lamps total.13

Subsequent to the implementation of the LDR program for mercury-containing waste, 

including mercury lamps, by 2000, there were over 60 businesses operating in 33

states to collect and recycle mercury-containing products. This growth continued after 14

2000 as well. The 2007 RCRA Biennial Report Survey reports that as of 2007, there

were 814,000 tons of mercury-containing lamps recycled in the U.S., the last year for

which complete data is available, as indicated in Table 2 above

In addition, to facilitate the recycling of mercury-containing lamps from small

businesses, retailers and households, EPA amended the Universal Waste Rule to

include mercury-containing lamps in 1999. The recycling of mercury-containing 15

lamps, a frequently generated household hazardous waste, and the establishment of an

industry to facilitate this recycling, would not have occurred but for the increased

stringency of RCRA’s hazardous waste regulations.16

D. Regulation Under The Clean Air Act NESHAP Program Has Driven

The Success Of Mercury Auto Switch Recycling

Most automobiles built through 2003 commonly utilized mercury-containing switches to

operate a variety of lighting and other circuitry in the vehicle. At the end of a vehicle’s

life, these mercury-containing switches were typically crushed and shredded, along with

Presentation of Paul Abernathy, Executive Director, Association of Lighting and Mercury

13

Recyclers (ALMR) before the U.S. EPA W orkshop on Mercury Products, Processes, W astes, and the

Environment; Plenary Session: National Implementation of the Universal W aste Rule for Mercury Lamps.

Baltimore, MD, March 22, 2000, p. 1.

Ibid.

14

64 FR 36465 (July 6, 1999); Final Rule. Amendments to the Universal W aste Rule to include

15

mercury-containing lamps. The Universal W aste Rule (UW R) provided a modified regulatory system to

ease the regulatory burdens on retail stores and others that wish to collect wastes such as mercurycontaining lamps and encourage the development of municipal and commercial programs to reduce the

quantity of these wastes going to municipal solid waste landfills or combustors. In addition the UW R

regulations ensure that the wastes subject to this system will go to appropriate treatment and recycling

facilities pursuant to the full hazardous waste regulatory controls.

www.epa.gov/wastes/hazard/wastetypes/universal/.

Recycling of mercury lamps was further aided by EPA’s 1999 amendment of the Universal

16

W aste Rule which advanced the recycling of mercury-containing lamps by small businesses, retailers and

households 64 FR 36465 (July 6, 1999); Final Rule. Amendments to the Universal W aste Rule to include

mercury-containing lamps. More specifically, the Universal W aste Rule (UW R) provided a modified

regulatory system to ease the regulatory burdens on retail stores and others that wish to collect wastes

such as mercury-containing lamps and encourage the development of municipal and commercial

programs to reduce the quantity of these wastes going to municipal solid waste landfills or combustors. In

addition, the UW R regulations ensure that the wastes subject to this system will go to appropriate

treatment and recycling facilities pursuant to the full hazardous waste regulatory controls.

www.epa.gov/wastes/hazard/wastetypes/universal/.

10
the balance of the automobile, resulting in the rapid volatilization and environmental

release of the mercury contained therein. 

In 2007, EPA instituted a National Emissions Standard for Hazardous Air Pollutants

(NESHAPs) for Electric Arc Furnace (EAF) Steelmaking. Among the regulatory and

17

demonstration provisions included in the rulemaking was a provision requiring MACT

standards for the control of mercury from EAFs. This program states that the final 18

standards for mercury are based on pollution prevention and requires EAF owners or

operators who melt scrap for motor vehicles either to purchase or otherwise obtain the

motor vehicle scrap only from scrap providers participating in an EPA-approved

program for removal of mercury switches. EAF facilities participating in an approved

program must maintain records identifying each scrap provider and documenting the

scrap provider’s participation in an EPA-approved mercury switch removal program.

Until the institution of the NESHAP program there was no regulatory requirement or

program to collect mercury switches and as a result none had been collected. As a

result of the NESHAP CAA regulation, in 2007, 2008 and 2009, a total of over

2,584,000 mercury-containing switches have been removed from automobiles prior to

scrapping. Absent this regulatory program established under the Clean Air Act 19

NESHAP program, very few of these switches would be collected, recycled and

removed from becoming part of the waste disposal problem.

E. Halogenated Solvent Recovery Flourishes under RCRA

Historically, solvent recycling facilities have been one of the leading causes of

Superfund sites or otherwise have been a leading source of environmental damages for

many years. According to a 1992 survey, solvent recycling sites were the second most

prevalent recycling-based cause of Superfund sites. Today, there are more solvent 20

recovery facilities permitted under RCRA (i.e., 456) than any other type of hazardous

waste management facility.

Moreover, in the solvent recovery sector there are a large number of facilities (i.e., 456)

managing a significant, but relatively smaller, volume of solvents (i.e., 328,000 tons). 21

72 FR 74088 (Dec. 28, 2007).

17

72 FR 74088, 74089-90 (Dec. 28, 2007).

18

Personal communication with and data transmitted from Charles Griffith, Executive Director,

19

The Ecology Center, Ann Arbor, Michigan, Oct. 27, 2010; www.ecocenter.org.

"RCRA's Recycling Loopholes," EDF/HW TC, April, 1992. Submitted at the hearing of the

20

House Energy and Commerce Committee on Sham Recycling, April, 1992.

W eb citation:

21 http://www.epa.gov/osw/hazard/recycling/index.htm

11
This means that there is a relatively large number of small volume solvent reclamation

facilities permitted under RCRA. Apparently, even small recycling operations were not

“stigmatized” by RCRA’s “onerous” and “burdensome” regulatory requirements.

Solvents are inherently much more dangerous than coal ash. Exposure to organic

solvents can result in serious health impacts, including major birth defects, immune

system disorders (such as rheumatoid arthritis, scleroderma, and lupus erythematosus),

and several kinds of cancer. Yet a healthy reuse market, used to great advantage by

large corporations such as Safety-Kleen, operate without the extreme trepidations

expressed by coal ash reuse industries. Spent solvents are collected in great quantities

daily by such companies, transported large distances to reclamation/distillation facilities,

and freely returned to companies for reuse. The recycling companies manage the risks

posed by spills of the material during transport, storage and processing without great

impact to their bottom line. Users of solvents, including both small and large

businesses, accept the risk of use and storage without a second thought.

Furthermore, ASTM provides specifications for the reuse of solvents and thus, by

implication, does not appear to take issue with the use of these recycled wastes,

despite their classification as hazardous wastes when disposed. If risk and 22

environmental impact were taken into account, there is far more reason for solvent

recyclers to be driven from this enterprise than concrete and wallboard manufacturers. 

F. Catalyst from Petroleum Refining Are Almost Universally Reclaimed

Prior to the enactment of RCRA and the 1986-90 Land Disposal Restriction Program,

large volumes of catalysts used in the refining process were simply land-disposed,

rather than reclaimed. Data from the 2007 BRS reveals that in 2007 81% of 23

petroleum refining catalysts were recycled, directly contradicting the dire predictions of

the petroleum industry when EPA proposed the regulation of such material. See Table

3 above, and Appendix B.

The parallels between EPA’s proposed regulation of CCR wastes at issue here and

EPA’s regulation of catalyst waste are striking. When RCRA regulation of petroleum

catalysts was first proposed, the petroleum industry resisted RCRA regulation on the

grounds that RCRA regulation would depress beneficial reuse and recycling, just as the

electric industry has asserted that RCRA regulation would depress beneficial reuse and

recycling of CCR. However, the empirical evidence is that RCRA regulation of

See, for example, ASTM Volume 15.05, Engine Coolants, Halogenated Organic Solvents and

22

Fire Extinguishing Agents; Industrial and Specialty Chemicals,

http://www.normas.com/ASTM/BOS/volume1505.html. See also ASTM D5396 - 04 Standard Specification

for Reclaimed Perchloroethylene, http://www.astm.org/Standards/D5396.htm .

Personal communication with former executives of Duratherm, a leading petroleum residuals

23

recycling firm.

12
petroleum catalysts has had just the opposite effect, and has instead driven reuse and

recycling to 81 percent, directly contradicting the dire and predictions of the petroleum

industry.

G. Lead Acid Battery Recycling -- No Longer a Leading Cause of

Superfund Sites 

In a 1992 survey, battery reclamation sites were the 4 leading cause of recycling- th

related Superfund sites identified in that survey.

24 Today, however, as the data from

Table 3 reveals, 93% of lead acid batteries were being reclaimed rather than disposed

of (See Table 3). This is due in no small part to the transformation in management

practices for lead acid battery reclaimers brought about by the imposition of RCRA

regulations throughout the 1980's and 90's.

H. RCRA Requirements Or Procedures Are Not An Impediment To

Recycling Markets Or Market Entry

As the above examples demonstrate, RCRA has a stimulating effect on beneficial reuse

and recycling. Time and again, recycling and reuse have increased dramatically after

wastes become RCRA regulated, for the reasons identified above. 

Moreover, the entities that are actually participating in the recycling and reuse markets

of materials that have already been regulated under RCRA do not assert that RCRA

regulations are unduly burdensome, onerous, or an impediment to recycling, contrary to

the arguments advanced by industries when they oppose proposals by EPA to extend

RCRA regulation in the first instance, such as the comments asserted in the present

case in opposition to EPA’s proposed regulation of CCR as a subtitle C waste. In the

only survey ever conducted on this question, only 7 percent of the facilities surveyed

identified RCRA permitting, manifesting or financial responsibility requirements as the

impediment to market entry. Good recycling is its own incentive, and should not have

25

to be subsidized by sub-standard regulatory controls.

"RCRA's Recycling Loopholes," EDF/HW TC, April, 1992. Submitted at the hearing of the

24

House Energy and Commerce Committee on Sham Recycling, April, 1992.

U.S. EPA, 1993 RCRA Biennial Report, Exhibit 3-11, based on 1988-1989 data. This data was

25

collected long after RCRA corrective action and permitting requirements were in effect.

13
III. USE AND/OR RECYCLING OF RCRA HAZARDOUS WASTES IS

FLOURISHING IN THE CONSUMER/RESIDENTIAL SECTORS AS WELL

A. Background

In much the same way that RCRA regulation has seen dramatic increases in industrial

recycling/reuse of a regulated substance, the history of RCRA regulation shows

increasing rates of use and recycling of RCRA regulated substances in the

consumer/residential sectors as well. This indicates that RCRA’s regulation of the

substance does not stigmatize it and/or reduce its use/recycling, regardless of whether

the use and recycling is in the industrial, commercial or residential sectors. Examples

of this trend are discussed in greater detail below.

B. Use And Recycling of Mercury Lamps Has Been Unaffected by

RCRA’s Hazardous Waste Listing. Demand for CFL’s Is Flourishing 

Mercury lamps have been regulated as hazardous since 1980 pursuant to the initial

RCRA regulatory program, and were further subject to the Land Disposal Restriction

Program in the late 1980s. Neither of these promulgations in any way diminished

demand for mercury-containing fluorescent lamps. If anything, demand for high

efficiency or compact florescent mercury-containing lamps (CFLs) has flourished, as

has the recycling and reuse of these lamps. As Table 2 above indicates, in 2007,

approximately 814,000 tons of mercury lamps were recycled as “hazardous waste.”

Indeed, mercury lamps represent one of the most commonly occurring household

hazardous wastes generated. Increasingly lamp manufacturers as well as retail stores

are instituting take-back programs to collect and recycle yet additional volumes of

mercury lamps generated at the household level. The fact that these materials, once

their useful lives are past, are regulated as “hazardous waste” has in no way deterred,

and in fact has accelerated, the purchase of these products and the responsible

recycling of spent mercury fluorescent lamps. The increasing rates of purchase, use,

and subsequent recycling of a RCRA regulated substance in residential and

commercial applications refutes the assertion by industry that RCRA regulation would

stigmatize CCR and depress its beneficial reuse/recycling by consumers. 

C. “Stigma” Never Affected Saccharin

For many years saccharin, clearly a consumer product, and its salts have been listed as

a hazardous waste under RCRA, Waste Code U202. Saccharin was listed as a

hazardous waste due to the determination by EPA’s Carcinogen Assessment Group

was that it was a potential human carcinogen. Listing saccharin as a “hazardous

14
waste” on the “U” list of waste has meant that since 1980 the disposal of saccharin as a

pure product must occur in accordance with hazardous waste regulations.26

Despite its many years of regulation as a hazardous waste, there was no apparent

stigma from RCRA’s hazardous waste listing that was in any way distinguishable from

broader public concerns regarding saccharin’s carcinogenic potential. Indeed,

saccharin continues to be important for a wide range of low-calorie and sugar-free food

and beverage applications. In fact, in its public discussion of its petition to remove

27

saccharin from RCRA’s list of hazardous waste, the Calorie Control Council (CCC)

makes no mention whatsoever of the stigmatic effects of the RCRA listing on the use of

saccharin as a consumer product.

D. Other Household Chemical Products--No Stigma Here

In addition to saccharin, there are numerous other commonly encountered household

and personal care chemicals that have been listed as “hazardous” under RCRA since

1980, and yet which consumers readily purchase. These include, for example: 

acetone (U002), or nail polish remover; 1-butanol (U031), a compound which has many

uses including a flavoring ingredient in a wide range of foods; and methyl alcohol or

methanol (U154), the most common additive to gasolines and something which is

encountered by the typical consumer on an almost weekly basis. In fact, the most

recent BRS data for 2007 shows that these and other commercial chemical products

are also being recycled as well.

Despite being listed as hazardous waste, for the last thirty-plus years, there is no

evidence whatsoever that the consumer has attached any “stigma” to the use of these

products either in the car, in the home, or on their own person. Nor is there any

evidence that suggests that CCR, if regulated as a hazardous waste under RCRA,

would be treated any differently by the consumer than, for example, nail polish remover.

E. Do-It-Yourselfer Used Oil Collection–Stigma Takes a Holiday

Several states have established targeted programs for the collection of do-it-yourselfer

(DIY) used oil collection. California, which lists used oil as “hazardous,” has been a

leader in championing used oil collection from do-it-yourselfers as it has one of the best

tracking and management systems in the country. California’s ability to measure what

As a result of recent determinations by the National Toxicology Program that saccharin is not

26

reasonably expected to be a human carcinogen, EPA has proposed to remove saccharin from the “U” list

of wastes. www.epa.gov/osw/hazard/wastetypes/wasteid/saccharin/faqs.htm

www.caloriecontrol.org/sweetners-and-lite/sugar-substitutes/saccharin

27

15
is happening with used oil and why is the nation’s most effective do-it-yourselfer used

oil programs.28

The California program promotes curbside collection and includes state certified

collection centers and local government and state-wide education and information

efforts. The program is funded by a fee ($0.04 a quart) on lubricating oil. Grants are

available to local governments as an incentive to recycle. In physical year, 2005 -

2006, approximately 7.8 million gallons of used oil were collected from do-it-yourselfers

over 2500 collection sites in California, the most of any state in the nation.29

Thus, despite listing used oil as a hazardous waste and widely publicizing its status as a 

hazardous waste, California has not only developed a robust state-wide collection

program from all used oil generators as discussed in greater detail in Section IV below,

but moreover, has succeeded in targeting the DIY market unlike any other state in the

nation. In short, listing used oil as a hazardous waste in California, has done nothing to

“stigmatize” or discourage the purchase and recycling of oil.

F. The American Consumer Has Shown Growing Sophistication in

Understanding Hazardous Material Threats in the Home and Is

Increasingly Engaging in Proper Management of These Materials

The American consumer has demonstrated increasing sophistication in understanding

the breadth and depth of hazardous materials contained in the typical household. 

Consumers are well aware that a wide range of household cleaners, automotive

products, toner cartridges, mercury lamps, batteries, pharmaceuticals, paints, and

home maintenance chemicals contain a wide variety of hazardous substances which

much be managed properly.

This awareness is attested by the dramatic growth in household hazardous waste

collection programs throughout the nation. In fact, EPA issued its first manual to guide

communities in establishing household hazardous waste collection programs in 1993.30

Since 1993 states, counties, and commercial management firms have established

broad-ranging household hazardous waste collection programs for a wide range of

Arner, Robert, “2006 Used Oil Recycling In America,” Presented Before the 22 International

28 nd

Conference on Solid W aste Technology and Management, March, 19, 2007, p. 4,

www.robarner.com/usedoil.html.

Arner, Robert, “2006 Used Oil Recycling In America,” Presented Before the 22 International

29 nd

Conference on Solid W aste Technology and Management, March, 19, 2007, p. 3,

www.robarner.com/usedoil.html.

U.S. EPA, Office of Solid W aste and Emergency Response, “Household Hazardous W aste

30

Management,” EPA 530-R-92-026, August, 1993.

16
household hazardous waste, many of which are in fully concentrated form, or are not

encapsulated or bound-up to prevent contaminant release. 

In fact, interviews with leading commercial waste management firms indicate that: 1)

over the past 15 years all major firms have established separate programs or divisions

dedicated to household hazardous waste collection; and, 2) the trends in household

hazardous waste collection has been “dramatic” since the early 1990's. Most firms

experienced a 4% yearly increase in household hazardous waste collection since 1995,

for an overall increase of approximately 60% over this period.31

The assertion that consumers will shun any products employing coal combustion

residuals (CCR), even those such as cement or wallboard which are encapsulated uses

of CCR, because of an alleged stigma associated with treating disposed CCR wastes

as hazardous is simply untenable. All available evidence points to the fact that

consumers purchase, properly manage, and are increasingly recycling full strength,

non-encapsulated chemicals found throughout the home, workshop and garage –

including chemicals subject to regulation under RCRA. 

Interviews with sales managers of various commercial waste management firms.

31

17
IV. CALIFORNIA’S USED OIL RECYCLING PROGRAM, WHICH LISTS USED OIL

AS A HAZARDOUS WASTE, HAS A HIGHER BENEFICIAL REUSE RATE

THAN THE FEDERAL PROGRAM WHICH, WITH LIMITED EXCEPTIONS,

DOES NOT LIST USED OIL AS HAZARDOUS

Perhaps the most striking evidence that listing a used material as a hazardous waste

does not stigmatize that material and depress its reuse – even when that material is a

consumer product used in residential contexts – is California’s used oil program. 

California classifies used oil as a hazardous waste. Meanwhile, the volume and rate

32

of used oil recycling in California has increased virtually every year from 1995 through

2005, the last year for which complete data is available. Table 7 depicts these trends

in terms of the volume and rate of used oil recycling in the State. In 2005, California

recycled used oil at a 59% rate. However, in reviewing the table, it is important to note -

- for comparison with federal used oil reuse rates -- that the reuse rates expressed in

Table 7 do not include burning used oil for energy recovery as a form of

recycling/reuse. The State estimates that, if one includes used oil that is

recycled/reused by burning for energy recovery, California’s reuse rates would increase

by another 20 to 40 percent of total used oil volume. Thus, in 2005, if one includes

burning used oil for energy recovery, the recycling/reuse rate would be at least 79% and

potentially much higher.

TABLE 7: California Used Oil Recycling Rates 1995-2005

+++

1995 1997 1999 2001 2003 2005

Lube Oil Sales+

 (M gal) 140.8 137.5 150.0 163.6 150.2 153.3

Lube Oil

Recycled (M gal) 54.6 60.9 76.9 81.9 83.7 91.3

Recycling Rate++39%

(59%)

44%

(64%)

51%

(71%)

50%

(71%)

58%

(78%)

59%

(79%)

Reflects only volumes of lubricating oils, not industrial oils.

+

Lube oil recycling rate does not account for oil that is burned or spilled during use which is

++

estimated at 20-40%. Figures in parenthesis ( ) represent the addition of the low end of this 20-

40% range to the documented recycling rate.

Calrecycle, “Used Oil Recycling Rate Annual Report: 2005,”

+++

www.calrecycle.ca.gov/usedoil/RateInfo/

In comparison, the Federal RCRA program does not list used oil as a hazardous waste. 

 Notably, as Table 8 reveals, in 1992, approximately 1.35 billion gallons of used oil

were generated in the U.S., of which only approximately 63 percent or 850 million

gallons were recycled (this figure does include recycling through burning for energy

American Petroleum Institute, Used Motor Oil, Frequently Asked Questions, 2010,

32

www.recycleoil.org/faqs/index.html

18
recovery – in fact, the vast majority -- 90 percent -- was recycled by burning for energy

recovery).33

Fourteen years later, the Department of Energy conducted a survey of the used oil

generation and management methods and determined that in 2006, 1.37 billion gallons

of used oil was generated of which approximately 780 million was used as a fuel, 165

million was re-refined, for a total recycle rate of only about 69% – while the remaining 

426 million gallons were annually disposed of in landfills or improper locations.34

TABLE 8: Used Oil Management Trends in the U.S. 1992- 2006

Year Total

Volume

Generated

(Gallons)

(1) *

Total

Volume

Recycled

(Gallons)

(2) **

Volume

Burned

Fuel

(Gallons)

(3)

Volume

ReRefined

 (4)

Total

Volume

Disposed

(5)

Total

Recycle

Rate

(6) ***

ReRefining

Rate

(7) +

1992 1.35 B 850 M 765 M 85 M 500 M 63% 6.3%

2006 1.37 B 945 M 780 M 165 M 426 M 69% 12.0%

* Column (1) = Columns (2) + (5)

** Column (2) = Columns (3) + (4)

*** Column (6) = Column (2) ÷ Column (1)

+ Column (7) = Column (4) ÷ Column (1)

Thus, at the very least, the California Used Oil Recycling/Reuse Rate -- including

burning – is substantially greater (at least 79% and potentially as high as a 99%

recycling rate) than that which is occurring on a national basis (69%), despite, and most

likely because of the fact that the material is listed as a “hazardous waste” in California. 

Just as important for present purposes is that the “hazardous” material at issue is being

reused in a consumer product purchased retail for commercial and residential

applications, such as personal automobile use. The experience in California therefore

indicates that consumers will in fact purchase consumer products derived from a waste

listed as “hazardous” – they do it each time they purchase oil for their cars that has

been through the recycling process.

Used Oil Recycling Markets and Best Management Practices In The United States,” Presented

33

To The National Recycling Congress, Boston, Massachusetts, October 27, 1992, p. 50.

U.S. Department of Energy, “Used Oil Re-Refining Study To Address Energy Policy Act Of 2005,

34

Section 1838, “ 2006, p. 5-1.

19
This is affirmative evidence that “stigma” has not attached to the used oil recycling

industry in California to deter or diminish the willingness of retail consumers to purchase

consumer products containing that “hazardous” material. To the contrary, they readily

purchase oil that was recycled – that is, oil that was derived from a listed hazardous

waste (used oil), and that they then recycle again. If anything, the State’s “hazardous

waste” based used oil recycling program has resulted in even more robust recycling

program than one sees on the national level.

20
V. INDUSTRIES’ ARGUMENTS THAT RCRA REGULATION WILL REDUCE

BENEFICIAL REUSE AND RECYCLING ARE UNFOUNDED AND

UNORIGINAL

A. Background

In the context of the pending coal combustion residuals (CCR) rulemaking, opponents

of EPA’s proposed approach have argued that listing of any coal combustion residuals

as “hazardous waste” under RCRA will reduce the beneficial reuse and recycling of

material. To this end, opponents have asserted that, for example, applying the label of

“hazardous” to a material will create an adverse public perception or “stigma” that will

reduce the public’s willingness to purchase products made from the material. They 35

have also asserted that regulating a material under RCRA will result in such additional

regulatory burdens that industry will not be willing to recycle the material, or that the

recycled product will be disadvantaged or “stigmatized” by virtue of higher production

costs due to RCRA compliance requirements. These arguments are referred to

variously as “stigma” and/or “regulatory burden” type arguments, the essence of which

is that regulating a material as “hazardous” under RCRA will inherently discourage its

use particularly in recycling applications.

In this rulemaking, opponents of listing CCR wastes under subtitle C assert both types

of arguments. For example, the American Coal Ash Association (ACAA) has asserted

that listing CCR wastes under Subtitle C would result in an adverse public perception

and an unwillingness to use the product and depress beneficial reuse and recycling of

the product. Similarly, the National Ready Mix Concrete Association (NRMCA) has 36

argued that listing CCR wastes under Subtitle C would result in significant additional

regulatory burdens that would depress beneficial reuse.

37

As discussed above, empirical data over the last thirty years of RCRA rulemaking

demonstrates the fallacy of Industry’s arguments that RCRA regulation will depress

EPA has made several attempts over the years to address the “hazardous waste” label aspect

35

of the “stigma” argument, but to no avail. W hile most proponents of recycling-related stigma assert that it

is only the “hazardous waste” label that they object to; in reality it is the substantive requirements for

hazardous waste facilities that are frequently the source of their objection. See Appendix B; Statements

of API (1983), Cadence (1986), Lafarge (1987), and Horseheads (1995).

See W ebinar conducted by Citizens for Recycling First, ACAA, NRMCA, and NPCA on August

36

19, 2010, concrete_products_webinar__81910.pdf. See in particular the presentation of ACAA.

See W ebinar conducted by Citizens for Recycling First, ACAA, NRMCA, and NPCA on August

37

19, 2010, concrete_products_webinar__81910.pdf. See in particular the presentation of NRMCA

complaining that as a result of the RCRA listing of CCR, states would establish stricter management laws.

See also transcript of August 30, 2010, EPA Public Hearing on the Proposed CCR Rule in which industry

witnesses discussed the “burdensome” nature of RCRA’s regulatory requirements in the event of a

Subtitle C listing and the potentially costly impact on their recycled product.

21
beneficial reuse and recycling. Beneficial reuse and recycling has increased after a

material is regulated under RCRA Subtitle C. Direct comparisons between markets

where the same or similar material is regulated as hazardous in one, and not regulated

as hazardous in the other – examples such as electric arc furnace dust and used oil –

demonstrate that the beneficial reuse/recycling/reclamation of the material is higher in

those areas where the material is regulated as a hazardous waste. Indeed, to a large

extent, many recycling markets would not exist, but for hazardous waste regulations

[See Section II above]. 

What makes industry’s argument even more untenable in this case is that EPA is not, in

fact, proposing to list as hazardous CCR that is beneficially reused. To the contrary,

EPA is only proposing to list CCR as hazardous if, and when, it is disposed of. Not only

does this negate the argument that EPA’s proposal to regulate CCR will result in an

adverse public perception or stigma – because, in fact, no “hazardous” label will be

applied to reused CCR–but moreover, it creates an even stronger incentive for industry

to reuse the materials and not dispose of it as waste. Industry’s efforts to stretch the

stigma argument to CCR material that will not even be labeled as hazardous is both

unprecedented and absurd. Usually “stigma” is a self-serving smokescreen to preserve

an unregulated status quo. In this case utilities are attempting to avoid RCRA

regulation of their disposal practices which, based on science and risk, is indefensible. 

Therefore, they have tried to move the argument away from disposal to the purported

negative impact on beneficial use by arguing “stigma.” 

The balance of this section: 1) tracks industry’s repeatedly false assertions over the

last 30 years that RCRA regulation will depress beneficial reuse and recycling; and, 2)

provides information as to what actually happened when the materials were regulated.

Not once have claims of stigma ever been realized in the hazardous waste

marketplace. Industry’s claims in this regard are nothing short of RCRA’s equivalent of

the “boy crying wolf.” Section C below and Appendix B provide detailed examples of

the false claims of “stigma” over the past 30 years – claims which are both unfounded

and unoriginal.

B. Even Opponents Of Subtitle C Regulation of CCR’s Acknowledge

That Beneficial Reuses of Fly Ash Will Be Largely Unaffected by the

Rule. Promises of Better Management Practices Are 30+ Years Old 

1. The August, 2010 Industry Webinar

On Friday, August 19, 2010, a consortium of groups opposed to the regulation of CCR

under Subtitle C conducted a “webinar” under the auspices of a group entitled, “Citizens

For Recycling First,” chaired by John Ward. This Webinar produced some interesting, if

not ironic results. Presentations were made by the following groups: Citizens For

Recycling First, ACAA (American Coal/Ash Association), the NRMCA (National Ready

Mixed Concrete Association), and the NPCA (National Precast Concrete Association).

22
Both the NRMCA and NPCA conducted surveys of their members regarding the impact

of a Subtitle C listing of disposed of CCR residuals. In response to a question from the

NRMCA to its membership regarding whether they would continue to use fly ash in their

products if CCR’s were listed as a Subtitle C waste when disposed, 69 percent

responded affirmatively.

38

In addition, in response to a question from the NPCA to its membership, 84 percent of

surveyed participants indicated they would still use fly ash even if the EPA designated it

as a Subtitle C hazardous waste.

39

2. March, 1979 Comments of the National Ash Association

Assertions regarding the recyclable nature of fly ash and assurances by ash generators

to regulate themselves date back to 1979. Ironically, in 1979 the National Ash

Association in its comments on the very first RCRA rulemaking stated:

“Power plant ash is becoming available in greater quantities in more

locations across the country, the quality is improving, and acceptability

continues to increase. We are dealing with a recoverable resource and

not a discarded material. . . .What we are really trying to point out is that

the ash industry has demonstrated the capability of initiating an effective

ash management program . . . .”40

Thirty years later, 64% of coal combustion residual (CCR) is still simply being disposed

of in landfills, surface impoundments or caves and mines, rather than recycled.41

Damage incidents from improper disposal, and some recycling operations continue to

mount. The utility industry has failed to institute any industry-wide minimum standards

42

of practice to prevent damage as such has occurred at the TVA. Properly regulated

CCR, which will put a higher price on disposal, will provide the economic incentives

needed to increase, not decrease, the recycling of fly ash, and reverse this 30+ year

pattern of excessive dependence on sub-standard landfills, lagoons and piles. 

“Coal Ash as Hazardous W aste,” NRMCA response, Lionel Lemay, Senior Vice President

38

Sustainable Development, Presentation At Industry W ebinar, August 19, 2010, p. 14.

Presentation of National Precast Concrete Association, Claude Goguen, Director of Technical

39

Services, Industry W ebinar, August 19, 2010, p. 9.

RCRA Docket EPA-HQ-RCRA-1980-002, Docket ID # A-D1-TT-01000, pp. 1 - 2.

40

See 75 FR 35128, 35151 (June 21, 2010); CCR Proposed Rule.

41

Stant, Jeff, “Out of Control: Mounting Damages from Coal Ash W aste Sites,” Environmental

42

Integrity Project and Earth Justice; Feb. 24, 2010.

23
C. What They Said About “Stigma” and What Really Happened in the

Marketplace

In order to examine the veracity of “stigma” claims attributable to recycling-related

regulations under RCRA, a thorough review of major RCRA recycling-related

rulemakings since 1979 was conducted. These assertions were then compared with

what actually happened in the hazardous waste marketplace regarding the recycling

practices in question. In short, this analysis reveals that claims of “stigma” associated

with recycling-related rulemakings under RCRA are wholly unfounded and baseless. 

Not once have any of these claims come to pass. Not only are these claims untrue, but

in many cases the exact opposite result was witnessed in the marketplace compared to

the contentions of the industry. 

Immediately below, four examples of “stigma” claims that closely approximate the ones

being made in the CCR rulemaking are contrasted with what actually happened in the

hazardous waste marketplace.

1979 – Phoenix Cement Company: In commenting on EPA’s first proposed RCRA

regulation, which would have potentially regulated some forms of recycling including

burning hazardous waste for energy and/or materials recovery, Phoenix Cement in their

comments stated as follows: 

“Instead, the harsh ‘cradle to grave’ regulations that are proposed by EPA

would impose regulatory costs and administrative burdens that will

permanently discourage producer interest in recycling. . . .Also,

individuals, private industry and governmental agencies will totally avoid

any items carrying the ‘hazardous waste’ label even if the application is

termed environmentally safe.”43

Subsequently, EPA regulated burning hazardous wastes for recovery. Today, burning

hazardous waste in cement kilns for energy and/or materials recovery is a major

method of thermal processing of hazardous waste, despite a series of strict operational

and MACT emission control standards issued throughout the 1980's, 1990's, and

2000's. In 2007, approximately 1.1 million tons of hazardous wastes are burned in

commercial cement kilns compared to 0.6 million tons burned in commercial

incinerators. Clearly industry’s assertion that stricter recycling rules would 44

“permanently discourage” burning for recovery proved false.

RCRA Docket EPA-HQ-RCRA-1980-002; Docket ID #: A-D1-TT-01120, p. 2. Comments of the

43

National Ash Association, Marcy 14, 1979.

2007 National Biennial RCRA Hazardous W aste Report. See also

44

www.epa.gov/epawastes/hazard/tsd/td/combustion.htm.

24
1983 – Cadence Chemical Resources (CCR): In a 1983-85 rulemaking to revise

RCRA’s “Definition of Solid Waste,” extending RCRA jurisdiction to many previously

exempt recycling practices, including fuel blending and burning for energy recovery,

Cadence Chemical stated: “To label the primary result of such effort [fuel blending to

produce a hazardous waste-derived fuel] as ‘waste” or employing a euphemism such as

‘regulated recyclable materials’ as is done in Proposed Section 261.6, would be a

significant disincentive for future development of bonafide recycling of energy-bearing

residuals. This is because designating residual-derived products as ‘waste’ or

‘regulated recyclable materials’ would exacerbate the already negative and highly

volatile public perception of such materials.”45

EPA moved forward with its regulations and again industry’s dire predictions that EPA’s

proposed regulations would depress beneficial use proved false. Despite a series of

increasing stringent regulations on fuel blending and burning for energy recovery

throughout the 1980's and 1990's, by 2007 burning for energy recovery combined with

blending of waste-derived fuels emerged as the dominant method of hazardous waste

recycling, accounting for 2.5 million tons of hazardous waste managed in 2007.

46

1985 – Halogenated Solvents Industry Alliance (HSIA): The HSIA, which

represented most of the largest chemical companies in the country, opposed EPA’s

1985 attempt to establish a stopgap measure to distinguish between burning for energy

recovery, which was unregulated at the time, and incineration which was fully

controlled. The proposal stated that burning any waste materials with less than 4,000

BTUs per pound would be deemed to be “burning for destruction” and would be

regulated as incineration until such time as formal and comprehensive standards for

burning hazardous waste in boilers and industrial furnaces (BIFs) were proposed in

1987 and issued in the 1991. In proposing these standards for burning some of the 47

most toxic and potentially carcinogenic solvents, (i.e., perchloroethylene,

trichloroethylene and chloroform), the HSIA grabbed for a familiar argument, “stigma”: 

“The labeling of these blended fuels as ‘hazardous waste fuels’ is not only

unnecessary, but counterproductive to encouraging this beneficial and

effective means of reducing or eliminating any risk that might be related to

other disposal.” 

48

RCRA Docket: EPA-HQ-RCRA-1985-006; Docket ID#: A-DW -16-00003; p. 21.

45

The National Biennial RCRA Hazardous W aste Report, 2007, Exhibit 2.5. Combination of Fuel

46

Blending and Energy Recovery volumes. Combined Volume is the largest of any recycling method

surveyed in the 2007 Biennial Report.

56 FR 7208 (Februrary 21, 1991). The original Boiler and Industrial Furnace Rule (BIF Rule);

47

Final Rule.

RCRA Docket: EPA-HQ-RCRA-1985-0002, Docket ID#: BW OF002, Slide 1337, p. 3

48

25
Once again, industry’s arguments proved false. The solvent manufacturing and

recovery industries were affected by numerous RCRA rulemakings throughout the

1980's, including the BIF rule. Despite these regulations, both energy recovery and

solvent recovery are flourishing. According to the 2007 Biennial Report there were 456

separate solvent recovery facilities, accounting for 32.7% of all RCRA hazardous waste

management facilities in existence. Moreover, given the fact that a relatively smaller

total volume of hazardous waste (i.e., 329,000 tons) are managed via “Solvent

Recovery” indicates that many of the 456 facilities engaging in the recovery of this

329,000 tons of solvent are relatively small recovery operations. Apparently, even

small recycling operations are not “stigmatized” by RCRA’s regulatory requirements.49

1996 – American Petroleum Institute (API): In 1995, EPA proposed to list various

refinery residuals as hazardous waste, including several spent catalysts the refining

process. 60 FR 57747 (Nov. 20, 1995). Virtually without exception every member of

the petroleum industry predicted that listing spent catalysts would discourage if not fully

undermine recovery of these catalysts. Along with BP, Exxon Mobil and others, the

trade association for the petroleum industry, the American Petroleum Institute, invoked

“stigma” once again: 

In addition, listing of these residuals could actually discourage additional

or innovative recycling/reclamation practices. . . Designating these

materials as listed hazardous waste would discourage existing recycling

and further increase the costs of recycling relative to disposal.50

This did not happen. In fact, In 2007, over 80% of refinery catalysts that were listed as

hazardous under RCRA were recycled, not disposed. Appendix B chronicles the 51

many additional, and amiss, claims of “stigma” in RCRA rulemakings beginning in 1979. 

D. Even Major Proponents of “Stigma” Such as the Cement Industry

Acknowledge that this Factor Plays No Role in Business Decision

Making

One of the most frequent advocates of “stigma” in recycling-related rulemakings has

been the cement industry. Since 1979, the cement industry has been asserting 

“stigma” virtually whenever EPA has proposed to regulate any aspect of its operations

involving the burning of hazardous waste for either energy or materials recovery. In 52

2007 RCRA Biennial Report, Exhibits 2.6 and 2.7.

49

RCRA Docket: EPA-HQ-RCRA-1995-0058, Docket ID#: F-95-PRLP-00046, pp. 2, 101.

50

Table 3 above, 2007 RCRA Biennial Report Survey Database.

51

See Appendix B, comments of Phoenix Cement, Portland Cement Association, Lafarge

52

Corporation, and Cadence Chemical.

26
the pending CCR rulemaking the cement industry has resurrected the “stigma“ stalking

horse once again. In fact, it is difficult to find a RCRA rulemaking of any kind where 53

someone in the cement industry didn’t summon a claim of “stigma.”54

For the record, not one of these many claims of “stigma” by the cement industry has

ever been realized. Even when commercial hazardous waste incinerators, which

compete with cement kilns in the hazardous waste combustion marketplace, tried to

“stigmatize” the cement produced by plants that burn hazardous waste as a fuel, there

was no perceptible marketplace impact whatsoever from these efforts. If anything,

there was a backlash against the incinerator consortium.

Moreover, when cement kilns have announced decisions to cease burning hazardous

waste fuels in some of their facilities, “stigma” is never mentioned as a reason for

ceasing this hazardous waste management practice. While some cement kilns have

cited the MACT standards and their related compliance costs as a basis for ceasing to

burn hazardous waste, stigma has never been mentioned. If “stigma” were as potent a

force as the cement industry repeatedly contends, one would expect that they could

produce a bounty of press releases, customer letters, supplier letters, and/or SEC 10-K

filings that identified “stigma” as the basis for ceasing their recycling activities. Such

releases and filings do not exist because “stigma” has never played such a role. 

For example, this past summer TXI, formerly known as Texas Industries, announced

that it would close four of its oldest cement kilns and stop burning hazardous waste fuel

altogether. A TXI company spokesperson stated that the decision was “based on its 55

desire to boost efficiency in preparation for a recovery in the North Texas construction

market.” The TXI spokesperson even went so far as to say that new impending Federal

MACT rules governing toxic air emissions from [non-hazardous waste burning] cement

kilns did not contribute to the decision. Thus in this case there was “no stigma” from

the CCR rule, not even an impact from pending Clean Air Act (MACT) regulations; 

simply a desire to boost overall production efficiency. 

Letter from Richard Stoll to Matt Hale, “Concerns over ‘Stigma’ for Coal Combustion Products,”

53

August 7, 2009.

In addition to the various rulemakings identified in Appendix B, the Cement Industry also

54

raised the specter of “stigma” when EPA proposed to regulate cement kiln dust (CKD) as “hazardous”

under RCRA. 64 FR 45632 (Aug. 20, 1999); Proposed Rule. 67 FR 48648 (July 25, 2002); NODA.

RCRA Docket ID: F-1999-CKD-FFFFF. See also Kelly, Kathryn, “Is CKD Hazardous to Your Health,”

Cement Americas, March 1, 2000.

“TXI to Shut Four Older Cement Kilns, Quit Burning Hazardous W aste,” The Dallas Morning

55

News, July 7, 2010; www.dallasnews.com.

27
E. “Stigma” Under RCRA Is Illegal

In 1986 EPA issued a final decision not to list recycled oil as hazardous waste because

the stigmatic effect of such a listing would discourage recycling. Despite its own

56

report indicating that certain types of used oil should be listed as hazardous waste

because of various toxic constituents, EPA failed to act on its own determinations. As a

result in the 1984 HSWA, Congress adopted Sections 241-242 requiring EPA to decide

within a specified time whether to list used oils as hazardous. 

EPA’s decision not to list used oil because of “stigma” was challenged by The

Hazardous Waste Treatment Council (HWTC), petroleum refining organizations and

57

the Natural Resources Defense Council. In its opinion, the Court ruled unanimously,

stating tersely that:

The EPA erroneously based its decision not to list recycled oils as

hazardous waste on the stigmatic effects of such a listing, a factor not

permitted by the statute.58

51 FR 41900 (November 18, 1986), Used Oil Listing; Final Rule.

56

I was the Executive Director of the HW TC at the time.

57

861 F.2d 270 (D.C. Cir. 1988), Hazardous Waste Treatment Council v. EPA (HW TC I). Used

58

Oil Recycling Litigation.

28
APPENDIX A
I. QUALIFICATIONS

A. Overall Experience

I have over 30+ years experience in developing and implementing waste management

policies involving solid, hazardous and radioactive wastes. I have developed key

legislative provisions, implemented them for nearly 30 years, and witnessed firsthand

regulated industry’s response to statutory and regulatory directives of RCRA and

CERCLA and the Clean Water Act (CWA). I have testified at over 20 Congressional

hearings; organized eight other hearings while serving on the House Energy and

Commerce Committee Staff; organized 12 national and regional conferences on

hazardous waste policy and technology issues since 1984; and, been admitted as a

RCRA/CERCLA and industry practices expert in Federal and State court and in an EPA

Administrative Law proceeding. 

I was a principal architect of the cornerstone elements of the 1984 Hazardous and Solid

Waste Amendments (HSWA), including the “hammer” provision as well as Corrective 59

Action, the Land Disposal Restriction, and Burning and Blending Provisions. I led the

nation’s leading association of technology-based waste management firms, the

Hazardous Waste Treatment Council (HWTC), for 11 years. HWTC members included

hazardous waste incinerators, cement kilns, fuel blenders and other major solvent and

metal-bearing waste recyclers. In addition, I authored a book on RCRA and the 1984

HSWA Amendments with a forward by Sen. John Chaffee, the Floor Manager of the

HSWA, and co-authored by Dave Lennett, Chief RCRA Attorney for the Environmental

Defense Fund (EDF) at the time. Other accomplishments include:

! As Executive Director of the HWTC, was involved in 10+ legal challenges to EPA

and State interpretations of RCRA/CERCLA provisions, including a challenge

which secured HSWA’s “technology-based” treatment standards;60

! Submitted over 100 comments to Federal and State Agencies on RCRA,

CERCLA, TSCA, and CWA proposed regulations;

“ RCRA: The Birth of the Hammer,” The Environmental Forum, Environmental Law Institute,

59

W ashington, Vol. 7, No. 5, September/October 1990, p. 18.

62 FR 26041, 26058-60, (May 12, 1997), Land Disposal Restrictions Phase IV; Final Rule. “To

60

satisfy RCRA Section 3004(m), EPA has chosen to promulgate treatment standards based on

performance of ‘best demonstrated available technology’ (BDAT), See 51 FR 40,572, 40,578, (Nov. 7,

1988); provided such standards are not established at a point beyond which threats are minimized. See

Hazardous Waste Treatment Council v. EPA, 886 F.2d 355, 361-66 (D.C. Cir. 1989) (upholding

establishing technology-based treatment standards as a reasonable construction of RCRA section

3004(m), cert. denied, 498 U.S. 849 (1990) (‘HWTC III’).”

A-1
! Worked with over 200 commercial firms in navigating the waste management

and remediation marketplaces; and,

! Conducted dozens of market studies in the thermal and other waste

management sectors.

B. Specific Recycling Experience

In addition to these overall credentials, I have been involved in a number of specific

regulatory, legal and investigatory projects regarding RCRA’s Definition of Solid Waste

and its recycling provisions. These accomplishments include:

! Worked for years to limit the exemptions from RCRA’s Solid Waste Definition for

various forms of recycling, especially use constituting disposal and burning for

energy/materials recovery; 

! Served as a RCRA regulatory and compliance Expert to the DOJ in a recent

case involving a facility blending hazardous waste-derived fuels without a RCRA

permit. Case involved the calculation of the economic benefit derived from illegal

operation using the BEN Model and other methodologies;

! Commented on proposed Solid Waste Definition revisions since 1985;

! Filed the initial inquiry with EPA and the DOJ in 1986 on the legitimacy of Marine

Shale Processors (MSP) recycling operation as head of HWTC. Our group

initiated or participated in numerous administrative and legal proceedings at the

Federal and State level to ensure proper enforcement of RCRA at MSP;61

! Filed a successful suit in 1987 to challenge EPA’s decision to not list used oil

based on “stigma.” HWTC v. EPA (HWTC I);

! Authored numerous articles on RCRA policy and legislation including a 1988

article, “Escape from RCRA,” in The Environmental Forum which examined the

62

impact of RCRA’s recycling loopholes;

See “An Assessment of Environmental Problems Associated with Recycling of Hazardous

61

Secondary Materials,” U.S. EPA, Office of Solid W aste, Appendix 2, p. 142, RCRA Docket # EPA-HQRCRA-2002-0031, for chronology of MSP events. See also Louisiana DEQ Press Release, September

18, 2006 stating that, “DEQ does not expect that [existing settlements of $6.2 M + $850,000 Letter of

Credit] will be sufficient for a full remediation and will pursue other responsible parties for the remainder of

the cost.”

The Environmental Forum, the Environmental Law Institute, W ashington, D.C., May/June,

62

1988, p. 30;

A-2
! Participated in EPA’s Solid Waste Definition Task Force in 1990, an Office of

Solid Waste’s initiative to reform the Solid Waste Definition as it pertained to

recycling and reuse of secondary materials, and to better define sham recycling;

! Issued a Report with the Environmental Defense Fund on recycling loopholes in

RCRA’s Solid Waste Definition that was aired at a hearing of the House Energy

and Commerce Committee in 1992; 

! Filed several comments and actively worked with EPA to limit the use of

hazardous waste as ingredients in fertilizers, particularly K061 Electric Arc

Furnace (EAF) dust; and,

! Initiated numerous inquiries regarding the legitimacy of other purportedly exempt

hazardous waste “recycling” practices.

A-3
APPENDIX B
“Stigma” Claims vs. Marketplace Reality – 1979 to Present

Date: March 13, 1979

Company: The National Ash Association, Inc.

RCRA Rulemaking: Original RCRA “Base Program” Rulemaking. Proposed Rule, 43 FR 58946, (December 18, 1978); Final Rule, 45 33066 

(May 19, 1980).

Recycling Practice: General reuse of power plant ash

What They Said: “Power plant ash is becoming available in greater quantities in more locations across the country, the quality is improving,

and acceptability continues to increase. We are dealing with a recoverable resource and not a discarded material. . . .What we are really

trying to point out is that the ash industry has demonstrated the capability of initiating an effective ash management program . . . .”

Source: RCRA Docket EPA-HQ-RCRA-1980-002, Docket ID # A-D1-TT-01000, pp. 1 - 2.

What Really Happened: In 2008, 64% of coal combustion residual (CCR) was still being disposed of in landfills, surface impoundments or

caves and mines, rather than recycled. See 75 FR 35128, 35151 (June 21, 2010); CCR Proposed Rule. Damage incidents from improper

disposal, and some recycling operations continue to mount. The fly ash industry failed to institute any industry-wide minimum standards of

practice to prevent damage as such has occurred in the TVA incident. While this example does not purely depict a false claim of “stigma” that

was undermined by subsequent EPA regulation, it is included here as an example of the consequences of Agency acquiescence to a

deregulatory argument such as “stigma” or an assurance to self-police.

Source: Stant, Jeff, “Out of Control: Mounting Damages from Coal Ash Waste Sites,” Environmental Integrity Project and Earth Justice; Feb.

24, 2010.

B-2
“Stigma” Claims vs. Marketplace Reality – 1979 to Present

Date: March 14, 1979 

Company: Phoenix Cement Company

RCRA Rulemaking: Original RCRA “Base Program” Rulemaking. Proposed Rule, 43 FR 58946, (December 18, 1978); Final Rule, 45 FR

33066, (May 19, 1980). 

Recycling Practice: Burning hazardous waste for energy/materials recovery

What They Said: “Instead, the harsh ‘cradle to grave’ regulations that are proposed by EPA would impose regulatory costs and

administrative burdens that will permanently discourage producer interest in recycling. . . .Also, individuals, private industry and governmental

agencies will totally avoid any items carrying the ‘hazardous waste’ label even if the application is termed environmentally safe.”

Source: RCRA Docket EPA-HQ-RCRA-1980-002; Docket ID #: A-D1-TT-01120, p. 2. 

What Really Happened: Burning hazardous waste in cement kilns for either energy and/or materials recovery as a major method of thermal

processing of hazardous waste, despite a series of strict operational and MACT emission control standards issued throughout the 1980's and

1990's. For example, with regard to commercial facilities, in 2007, approximately 1.1 million tons of hazardous tons of hazardous wastes are

burned in commercial cement kilns compared to 0.6 million tons burned in commercial incinerators.

Source: 2007 National Biennial RCRA Hazardous Waste Report. See also www.epa.gov/epawastes/hazard/tsd/td/combustion.htm. See (*)

at end of Appendix B describing methodology for calculating 1.1 m ton and 0.6 m ton volumes. 

Date: December 1, 1981

Company: National Association of Recycling Industries, Inc. (NARI)

RCRA Rulemaking: Definition of Solid Waste Rulemaking. 48 FR 14471 (April 4, 1983); Proposed Rule. 50 FR 614 (January 4, 1985);

Final Rule.

Recycling Practice: All recycling practices generally.

What They Said: NARI was commenting on the EPA’s 1983-85 proposal to extend RCRA jurisdiction to a broader range of recycling

practices that heretofore had been excluded from RCRA. In this regard NARI stated, “In any event, it is imperative for EPA effectively to

exclude recyclable and recycled materials from the definition of ‘solid waste’ for the following reasons...”

Source: RCRA Docket, EPA-HQ-RCRA-1985-0006; Docket ID#: A-DW-11-00050, p. 1

What Really Happened: Despite extending RCRA regulation to a broad array of hazardous waste recycling practices in 1985, recycling is

expansive and growing.

Source: See Tables 2, 3, and 4 above.

B-3
“Stigma” Claims vs. Marketplace Reality – 1979 to Present

Date: July 28, 1983

Company: Chemical Industries Council (CIC)

RCRA Rulemaking: Proposed Definition of Solid Waste Rulemaking. 48 FR 14471 (April 4, 1983); Proposed Rule. 50 FR 614 (January 4,

1985); Final Rule.

Recycling Practice: All recycling practice employed within the chemical industry at the time.

What They Said: CIC commented on EPA’s 1983-85 proposal to extend RCRA jurisdiction to a broader range of recycling practices that

heretofore had been excluded from RCRA. Regarding EPA’s proposed actions, CIC stated, “More importantly, however, we believe the EPA

proposal will be a strong deterrent to recycling and will thus result in more waste being generated. The concept that recycling is a waste

treatment operation places a stigma in their communities on recyclers and on those wishing to use such facilities or conduct such activities

onsite incidental to manufacturing operations.”

Source: RCRA Docket: EPA-HQ-RCRA-1985-0006; Docket ID#: A-DW-2-XXXXX, Frames 0598-0602, p. 2.

What Really Happened: In 2007 only 4 of the 563 RCRA waste codes reported no recycling activity for that reporting year. Over 99% of

RCRA waste codes reported at least some level of recycling during the 2007 biennial reporting period.

Source: See Table 4 above.

B-4
“Stigma” Claims vs. Marketplace Reality – 1979 to Present

Date: August 1, 1983

Company: Cadence Chemical Resources, Inc.

RCRA Rulemaking: Definition of Solid Waste Rulemaking. 48 FR 14471 (April 4, 1983); Proposed Rule. 50 FR 614 (January 4, 1985);

Final Rule.

Recycling Practice: Fuel blending/burning for energy recovery

What They Said: In a 1983-85 rulemaking to revise RCRA’s “Definition of Solid Waste,” extending RCRA jurisdiction to many previously

exempt recycling practices, including fuel blending and burning for energy recovery, Cadence Chemical stated: “To label the primary result of

such effort [fuel blending to produce a hazardous waste-derived fuel] as ‘waste” or employing a euphemism such as ‘regulated recyclable

materials’ as is done in Proposed Section 261.6, would be a significant disincentive for future development of bonafide recycling of energybearing residuals. This is because designating residual-derived products as ‘waste’ or ‘regulated recyclable materials’ would exacerbate the

already negative and highly volatile public perception of such materials.” 

Source: RCRA Docket: EPA-HQ-RCRA-1985-006; Docket ID#: A-DW-16-00003; p. 21.

What Really Happened: Despite a series of increasing stringent regulations on fuel blending and burning for energy recovery throughout the

1980's and 1990's, by 2007 burning for energy recovery combined with blending of waste-derived fuels was the most dominant method of

recycling by volume, accounting for 2.5 million tons of hazardous waste managed in 2007, or more than any other method of

recovery/recycling identified by the Biennial Report Survey.

Source: The National Biennial RCRA Hazardous Waste Report, 2007, Exhibit 2.5. 

B-5
“Stigma” Claims vs. Marketplace Reality – 1979 to Present

Date: August 2, 1983

Company: American Petroleum Institute (API)

RCRA Rulemaking: Proposed Definition of Solid Waste Rulemaking. 48 FR 14471 (April 4, 1983); Proposed Rule. 50 FR 614 (January 4,

1985); Final Rule.

Recycling Practice: Petroleum waste recycling

What They Said: API was commenting on the EPA’s 1983-85 proposal to extend RCRA jurisdiction to a broader range of recycling practices

that heretofore had been excluded from RCRA. In this regard API stated, “In order to mitigate the impact on recycling activities, EPA has

designated ‘hazardous waste’ that are used, reused or reclaimed as ‘regulated recyclable materials’. We oppose this approach for several

reasons. First, the impact of recycling will be significant regardless of the new title EPA gives these materials because they would be subject

to potentially expensive regulatory requirements.”

Source: RCRA Docket: EPA-HQ-RCRA-1985-0006; Docket ID#: AA-DW-5-00106.

What Really Happened: Despite listing numerous petroleum refinery wastes as “hazardous” under RCRA and subjecting many petroleum

waste recycling practices to separate regulations, petroleum wastes remain one of the most frequently recycled wastes generated by any

industry in the U.S. Nearly 80% of refining sludges/catalysts are recycled according to the 2007 Biennial Report data. 

Source: See Tables 3, 4 above.

B-6
“Stigma” Claims vs. Marketplace Reality – 1979 to Present

Date: March 12, 1985

Company: The Halogenated Solvents Industry Alliance (HSIA)

RCRA Rulemaking: Hazardous Waste as Fuel Specification. 50 FR 1684 (January 11, 1985); Proposed Rule 50 FR 49164 (November 29,

1985); Final Rule.

Recycling Practice: Solvent recovery and burning wastes fuels.

What They Said: The HSIA, which represented most of the largest chemical companies in the country, opposed EPA’s 1985 attempt at

established a stopgap measure to distinguish between burning for energy recovery, which was unregulated at the time, and incineration which

was fully controlled. The proposal stated that burning any waste materials with less than 4,000 BTUs per pound would be deemed to be

“burning for destruction” and would be regulated as incineration until such time as formal and comprehensive standards for burning hazardous

waste in boilers and industrial furnaces (BIFs) were issued in the late 1980's. In proposing these standards for burning some of the most toxic

and potentially carcinogenic solvents, (i.e., perchloroethylene, trichloroethylene and chloroform), the HSIA grabbed for a familiar argument,

“stigma”: “The labeling of these blended fuels as ‘hazardous waste fuels’ is not only unnecessary, but counterproductive to encouraging this

beneficial and effective means of reducing or eliminating any risk that might be related to other disposal.” 

Source: RCRA Docket: EPA-HQ-RCRA-1985-0002, Docket ID#: BWOF002, Slide 1337, p. 3 

What Really Happened: The solvent manufacturing and recovery industries were affected by numerous RCRA rulemakings throughout the

1980's including the burning of hazardous wastes for energy recovery. Despite these regulations, both energy recovery and solvent recovery

are flourishing. The most prevalent type of hazardous waste management facility according to the 2007 Biennial Report was solvent

recovery. In 2007 there were 456 separate solvent recovery facilities, accounting for 32.7% of all RCRA waste management facilities in

existence. Moreover, given the fact that a relatively smaller total volume of hazardous waste (i.e., 329,000 tons) are managed via “Solvent

Recovery” indicates that many of the 456 facilities engaging in the recovery of this 329,000 tons of solvent are relatively small recovery

operations. Apparently, even small recycling operations were not “stigmatized” by RCRA’s “onerous” and “burdensome” regulatory

requirements.

Source: 2007 RCRA Biennial Report, Exhibits 2.6 and 2.7.

B-7
“Stigma” Claims vs. Marketplace Reality – 1979 to Present

Date: March 5, 1986

Company: Cadence Chemical Resources, Inc. (CCR)

RCRA Rulemaking: Hazardous Waste as Fuel Specification. 50 FR 1684 (January 11, 1985); Proposed Rule 50 FR 49164 (November 29,

1985); Final Rule.

Recycling Practice: Burning waste-derived fuels

What They Said: In response to EPA’s 1985 Hazardous Waste Fuel Specification Rulemaking, Cadence once again pled their case that they

should be exempt from such rules and citing among other things the stigma argument once again: “The regulation of the Cadence product as

a ‘hazardous waste’ will discourage its production and use. Excessive and unjustifiable regulations, unnecessary permitting problems, and

costly waste-end and taxes might eliminate this valuable recycling technology.”

Source: RCRA Docket: EPA-HQ-RCRA-1987-0024, Docket ID#: F-1987-BBFP-S0047. A, p. 22.

What Really Happened: Burning waste-derived fuels for energy recovery has been a leading method of recycling since the mid-1980's and

remains so to this day. In 2007, nearly 1.1 million tons of hazardous waste-derived fuels were burned in commercial BIFs, while 0.6 million

tons were burned in commercial incinerators. In addition, Cadence Chemical Resources went on to become one of the largest and most

successful hazardous waste fuel blending operations in the country. Ted Reese, Cadence President, discovered that there was life and

indeed prosperity after RCRA regulation after all. Mr. Reese named his yacht after his company, “Cadence,” and in 1990, 5 years after the

Hazardous Waste Fuel Specification was finalized, Mr. Reese announced plans to build a new office building to house his rapidly growing

company.

Source: See (*) at end of Appendix B describing methodology for calculating 1.1 m ton and 0.6 m ton volumes. See also 

www.chicagoyachtclub.org (See results of Heyworth Memorial Trophy race);

 www.highbeam.com/doc/1N1-10852FE2B151C75E.html, “Cadence Has Bright Ideas For the Future,” Post Tribune (Indiana), May 7, 1990.

B-8
“Stigma” Claims vs. Marketplace Reality – 1979 to Present

Date: June 26, 1987

Company: National Association of Solvent Recyclers (NASR)

RCRA Rulemaking: Burning Hazardous Waste in Boilers and Industrial Furnaces (BIFs) Rulemaking. 52 FR 16982 (May 6, 1987);

Proposed Rule. 56 FR 7134 (February 21, 1991); Final Rule.

Recycling Practice: Burning hazardous waste for energy/materials recovery.

What They Said: In 1987, EPA proposed specific regulations on facilities burning hazardous waste in boilers and industrial furnaces

pursuant to the directive of the 1984 HSWA. In their comments, NASR equated the new regulations with the specter of industrial furnaces to

“cease burning hazardous waste fuel blends.”

Source: RCRA Docket: EPA-HQ-RCRA-1987-0024; Docket ID#: F-1987-BBFP-00025. 

What Really Happened: Burning hazardous waste in industrial furnaces became the dominant commercial method for burning hazardous

waste of all kinds, dwarfing the volumes burned by permitted hazardous waste incinerators. In 2007, nearly 1.1 million tons of hazardous

waste derived fuels were burned in commercial BIFs, while 0.6 million tons were burned in commercial incinerators.

Source: 2007 National Biennial RCRA Hazardous Waste Report. See (*) at end of Appendix B describing methodology for calculating 1.1

m ton and 0.6 m ton volumes. 

B-9
“Stigma” Claims vs. Marketplace Reality – 1979 to Present

Date: July 1, 1987

Company: Portland Cement Association (PCA)

RCRA Rulemaking: Burning Hazardous Waste in Boilers and Industrial Furnaces (BIFs). 52 FR 16982 (May 6, 1987); Proposed Rule. 56

FR 7134 (February 21, 1991); Final Rule.

Recycling Practice: Burning hazardous waste for energy/materials recovery.

What They Said: In 1987, EPA proposed specific regulations on facilities burning hazardous waste in boilers and industrial furnaces

pursuant to the directive of the 1984 HSWA. PCA in their comments stressed that the imposition of certain emission requirements would

force all cement kilns to cease burning hazardous waste fuels. “An informal survey of the industry by this office indicates that virtually all

cement companies would refrain from burning hazardous waste if the 100 ppm CO limit were required.”

Source: RCRA Docket: EPA-HQ-RCRA-1987-0024; Docket ID#: F-1987-BBFP-0078, p. 2.

What Really Happened: After several revisions of the BIF rule, the CO limit for cement kilns was established at #100 ppm, the level that was

deemed to be the death knell of burning hazardous waste fuels for energy recovery in cement kilns. Cement kilns remain the dominant

method of thermal processing of hazardous waste today, burning nearly twice as much waste as commercial incinerators. While this

constitutes more of a “regulatory burden” than a stigma argument, it is included for purposes of illustrating how easily and frequently recycling

firms resort to hyperbole in responding to proposed regulatory requirements. The “if I am regulated, I will just quit” statement is an all too

common theme in these contexts. See also comments of Lafarge (July 17, 1987). 

Source: 2007 National Biennial RCRA Hazardous Waste Report. See also 56 FR 7208 (February 21, 1991); The BIF Rule.

B-10
“Stigma” Claims vs. Marketplace Reality – 1979 to Present

Date: July 6, 1987

Company: General Battery Corporation

RCRA Rulemaking: Burning Hazardous Waste in Boilers and Industrial Furnaces (BIFs). 52 FR 16982 (May 6, 1987); Proposed Rule. 56

FR 7134 (February 21, 1991); Final Rule.

Recycling Practice: Lead acid battery recycling.

What They Said: General Battery Corporation was concerned that the 1987 Proposed BIF Rule would affect secondary lead smelters

processing spent lead acid batteries. Their comment stated, “Increased regulation will discourage recycling. . . .It is also Exide/General

Battery Corporation’s belief that the increased regulation of recycling chains places stress on the system to the point that regulations act as an

impediment to resource recovery and recycling.

Source: RCRA Docket: EPA-HQ-RCRA-1987-0024; Docket ID#: F-1987-BBFP-00082, p. 4.

What Really Happened: Despite the regulation of various aspects of lead acid battery recycling, in the most recent report, 1.30 million tons

of lead acid batteries were recycled under RCRA regulation in 2007. The Solid Waste Association of North America (SWANA) estimated that

in 2003 over 93% of automotive lead acid batteries were recycled.

Source: 2007 RCRA Biennial Report, FOIA Request # HQ-FOI-01815-10. See Table 2 above. See also “Waste Recycling,” Solid Waste

Association of North America (SWANA), Silver Spring, MD, 2008; Presentation of Dr. Reinhart. 

B-11
“Stigma” Claims vs. Marketplace Reality – 1979 to Present

Date: July 17, 1987

Company: Lafarge Corporation

RCRA Rulemaking: Burning Hazardous Waste in Boilers and Industrial Furnaces (BIFs). 52 FR 16982 (May 6, 1987); Proposed Rule. 56

FR 7134 (February 21, 1991); Final Rule.

Recycling Practice: Burning waste derived fuels for energy recovery 

What They Said: In their comments on the Proposed1987 BIF Rule, Lafarge, one of the largest cement kiln processors of hazardous waste

derived fuels, cautioned that unless the BIF rules were substantially modified it would effectively bring about the end of hazardous waste

derived fuel burning in cement kilns. “Responsible operators, such as fully permitted cement kilns, which may already have final Part B

hazardous waste storage permits and state air permits, would be forced out of business [by the proposed BIF regulations]. This would have

significant adverse effects on treatment capacity and environmental quality.”

Source: RCRA Docket: EPA-HQ-RCRA-1987-0024; Docket ID#: F-1987-BBFP-00122, p. 38.

What Really Happened: Even after the BIF Rule was enacted in 1991, Lafarge continued to burn hazardous waste at all five of its cement

producing plants in Alabama, California, Kansas, Michigan and Ohio. Lafarge remains one of the largest, if not the largest, single cement kiln

processor of hazardous waste-derived fuels today.

Source: Various SEC 10-K Filings.

B-12
“Stigma” Claims vs. Marketplace Reality – 1979 to Present

Date: April 18, 1995

Company: Horsehead Resource Development Company, Inc.

RCRA Rulemaking: Use of Slag Residues Derived from HTMR Treatment of K061, K062, and F006 Waste. 59 FR 67256 (December 29,

1994); 60 FR 10052 (February 23, 1995); Proposed Rules.

Recycling Practice: Metals recovery from steel industry wastes 

What They Said: In 1994, EPA proposed to regulate the use of slag residues derived from high temperature metal recovery treatment of

electric arc furnace dust and related metal bearing wastes. 59 Fed Reg 67256 (Dec. 29, 1994). Despite establishing a relatively permissive

regime for the management of these slag residues, the largest such recycler of K061 Electric Arc Furnace (EAF) dust envisioned an end to its

recycling practice unless the slag was effectively exempt from all RCRA controls: “The HTMR Slag Product Rulemaking does contain several

serious errors and inconsistencies and shortcomings, however, which will render EPA’s Proposed Exclusion unnecessarily stringent and

largely meaningless. Such a result would increase resource recovery and recycling costs and discourage further resource recovery and

recycling, thereby frustrating EPA’s stated purpose of the Rulemaking. . . .The most that this Rulemaking will accomplish is to not further

discourage environmentally sound recycling, but only if the Rulemaking incorporates the changes recommended in these comments. 

Source: RCRA Docket: EPA-HQ-RCRA-1994-0083; Docket ID#: F-1994-SRTP-00062, pp. 14-15, 20.

What Really Happened: EPA subsequently modified and strengthened the Proposed Rulemaking to require that slags derived from high

temperature metals recovery of K061 Electric Arc Furnace dust, when applied to the land, must meet the same toxicity reduction standards as

when those materials are placed into a landfill. Despite this increased stringency and HRD’s dire predictions, HRD remains the largest EAF

recovery facility in N. America, recovering approximately 2/3 of the approximate 1.0 million tons of EAF dust produced annually in the U.S.

Source: EPA, Office of Resource Conservation and Recovery, “Assessing the Management of Lead in Scrap Metal and Electric Arc Furnace

Dust; Final Report,” EPA 530-R-09-004, April, 2009, p. 18.

B-13
“Stigma” Claims vs. Marketplace Reality – 1979 to Present

Date: March 19, 1996

Company: BP Oil

RCRA Rulemaking: Listing of Petroleum Refinery Process Waste as Hazardous. 60 FR 57747 (November 20, 1995); Proposed Rule. 63

FR 42110 (August 6, 1998); Final Rule.

Recycling Practice: Recovery of Refining Catalysts.

What They Said: In 1995, EPA proposed to list various refinery residuals as hazardous waste, including several spent catalysts the refining

process. 60 FR 57747 (Nov. 20, 1995). Virtually without exception every member of the petroleum industry predicted that listing spent

catalysts would discourage if not fully undermine recovery of these catalysts. BP’s comments were typical of Exxon, Mobil and others. 

“Listing catalysts as hazardous waste also serves to discourage the beneficial practice of in-situ or ex-situ regeneration since there is little or

no incentive to render the material non-pyrophoric or non-characteristically hazardous prior to removal from the unit or in subsequent

management.”

Source: RCRA Docket: EPA-HQ-RCRA-1995-0058, Docket ID#: F-95-PRLP-00019, p. 4

What Really Happened: In 2007, over 80% of refinery catalysts that were listed as “hazardous” under RCRA were recycled, not disposed.

Source: Table 3 above, 2007 RCRA Biennial Report Survey Database

Date: March 21, 1996

Company: American Petroleum Institute (API)

RCRA Rulemaking: Listing of Petroleum Refinery Process Waste as Hazardous. 60 FR 57747 (November 20, 1995); Proposed Rule. 63

FR 42110 (August 6, 1998); Final Rule.

Recycling Practice: Recovery of Refining Catalysts.

What They Said: Along with BP, Exxon Mobil and others, the trade association for the petroleum industry, the American Petroleum Institute,

chimed in on the stigma argument asserting that, “In addition, listing of these residuals could actual discourage additional or innovative

recycling/reclamation practices, and direct contravention of the stated goals of both RCRA and EPA’s pollution prevention effort. . . .

Designating these materials as listed hazardous waste would discourage existing recycling and further increase the costs of recycling relative

to disposal.

Source: RCRA Docket: EPA-HQ-RCRA-1995-0058, Docket ID#: F-95-PRLP-00046, pp. 2, 101.

What Really Happened: In 2007, over 80% of refinery catalysts that were listed as hazardous under RCRA were recycled not disposed.

Source: Table 3 above, 2007 RCRA Biennial Report Survey Database.

B-14
“Stigma” Claims vs. Marketplace Reality – 1979 to Present

Date: February 26, 2001

Company: Copper and Brass Fabricators Council, Inc.

RCRA Rulemaking: Using Metal-bearing Hazardous Waste to Produce Zinc-containing Fertilizers. 65 FR 70954 (November 28, 2000);

Proposed Rule. 67 FR 48393 (July 24, 2002); Final Rule.

Recycling Practice: Zinc fertilizers made from hazardous waste.

What They Said: In 2000, EPA proposed various requirements for zinc-containing fertilizers made from hazardous waste. 65 FR 70953

(November 28, 2000). In proposing this rule, the Agency established several standards for testing of the zinc-containing hazardous waste to

be used as a fertilizer including limits for toxic metals and dioxins, and required that the purveyors of this practice bear the burden of

demonstrating the legitimacy of this practice and its compliance with applicable regulatory requirements. Virtually without exception all

industry commenters on this rule found the testing and verification requirements to be burdensome and would effectively discourage the use

of this practice. The comments below are typical: “The Agency should not impose expensive dioxin testing requirements on fertilizer

manufacturers when there is no need to do so. . . . By imposing unnecessary testing burdens [for toxic metals such as lead, cadmium,

arsenic, mercury, nickel, chrome] on the fertilizer manufacturer using secondary hazardous materials, the Agency is at odds with the stated

objective of encouraging recycling of these materials. . . . Recycling of secondary hazardous materials is further discouraged by the burden

shifting provision proposed.” 

Source: RCRA Docket: EPA-HQ-RCRA-2000-0054; Docket ID#: F-2000-RZFP-00104, pp. 3 - 7.

What Really Happened: Use of K061 and other metal-bearing wastes to produce zinc-based fertilizers continues despite the promulgation of

final standards requiring testing for various heavy metals and dioxins.

Source: Hayden, Anita, L., “Truth About Fertilizer,” 2008, www.drdaymaker.com.

* Methodology for Obtaining Data on Incineration and Cement Kiln Volumes: The EPA Biennial Report System (BRS) was searched for volumes of waste

managed by incineration and energy recovery. EPA assigns a code of H040 for management of waste by incineration and H050 for energy recovery. Another

code, H061, is assigned to fuel blending for TSDFs that accept hazardous waste and blends these to make a waste mix of sufficient heat content for use as a

fuel. The database was sorted for these three management method codes to identify the quantities of waste managed by incineration and energy recovery in

cement kilns. To do this the section of the BRS designated for “waste received” was searched, since incinerators and cement kilns would receive the waste

from off-site generators. The search was limited to the 2007 reporting year, which is the most recent data available in the BRS. Specific waste types are also

assigned a unique code and it was possible to also search for specific categories of waste such as solvents, used oil and other organic materials. For example

the code W202 is used for halogenated solvents and W203 for non-halogenated solvents. W 206 is assigned to waste oils. A simultaneous search can be

done by management method (ie incineration – H040) and waste type (ie non-halogenated solvents – W 203). This allows the volume of solvents managed by

incineration vs energy recovery to be evaluated. It is also possible to search by specific RCRA waste codes such as F001 to F005 solvents.

B-15