In Search of the Unified Field

Although some recent environmental regulations are fairly clear, scrap processors must navigate a road to compliance filled with inconsistencies.

Scrap processors operating in today’s business climate face a complicated array of environmental regulations, ranging from CFC containment to stormwater rules to clean air and water laws to Superfund. Staying in compliance is a challenge made even more difficult by inconsistencies between related laws and between state and federal legislation, and seemingly capricious enforcement activities.

"The comments I hear are that the laws are confusing, people don’t seem to know what the specific rules are, and they seem to implemented differently throughout the country, or person to person," according to Catherine Lowery, director of environmental compliance, Tewksbury Industries Inc., Tewksbury, Mass., and chair of the New England chapter of the Institute of Scrap Recycling Industries, Washington.

"We seem to have unclear enforcement of incompletely worded regulations, from the perspective of the scrap industry," Lowery continues.

This applies to both stormwater and CFC regulations, she adds, but especially CFCs, "because there was supposed to be an exemption for handling and recycling documentation that seems to be enforced differently from place to place and enforced differently than written."

Processors in many areas also face inconsistencies between federal legislation and state legislation, Lowery adds. For example, she cites state rules for SARA Title III for reduction of toxic chemicals, including lead. In some states, recyclers are included in the list of industries that must reduce the use and even handling of lead, impeding companies’ ability to recycle the material.

"This is not the intent, but there’s confusion about what the scrap industry is and what it really does so it gets mistakenly included in these rules that are intended to enhance the amount of recycling that occurs but actually they don’t," she says. "It can lead to instances of unintentional noncompliance."

In order to navigate today’s rocky regulatory environment, scrap processors need some kind of resource such as legal counsel, says Lowery. The Northeast chapter of ISRI has hired a Boston law firm, she adds.

"Their role includes some regulatory interpretation, participation in development of regulations from legislation that occurs, and then tracking legislation that may need testifying. We’re alerted when we should participate at a more intense level with the legislative process."

Legislators don’t really understand the recycling industry, says Lowery, despite repeated efforts to explain that scrap is not the same thing as waste, and that the safe recycling of toxic materials should be enhanced, not discouraged.

"What happens, I think, is that a national law is used for the basis of state laws — but they don’t check the language," she says. "One state has a solid waste closure program where you have to set aside a certain number of dollars to close a landfill, but since scrap is considered solid waste, that same language is used for a scrap yard. And some of the language of the statute says you must assume no value of the material there. I’m sure it was drafted without realizing that scrap yards were also considered solid waste facilities because of another rule. So this is another thing that has to be undone."

In addition to regulations being confusing, enforcement is sporadic, Lowery adds.

"They don’t come out and say ‘this is what you have to do and why.’ So you feel you need several experts for advice. Our member companies are aware of environmental regulations, are trying to comply, but are sometimes lost in the morass. Even when we compare notes we get different opinions."

STORMWATER. Although EPA’s stormwater regulations are considered fair by many in the industry, scrap processors must keep a close watch on developments on both the federal and state level, says Robin Weiner, director of environmental compliance for the Institute of Scrap Recycling Industries, Washington.

"It has become an issue at the state level in most states, because the states have the authority to run the program in most cases — not in all cases — and therefore facilities should be paying attention to what their states are requiring," she says.

EPA has developed an enforcement strategy for stormwater regulations and will soon begin penalizing facilities in all industries — not just recycling — that have not yet filed for a stormwater permit of any kind.

ISRI’s group stormwater permit application was filed and approved some time ago, says Weiner. Now the Environmental Protection Agency must finalize the permit — along with permits for many other industries.

"There are a little over 700 group applications, and each application has a number of facilities. Our application has a little over 1,100," Weiner explains. "Each one of these groups is waiting for its permit. They will all issued at one time, and it will be several months, I would imagine, at this point."

Most scrap facilities are currently covered under state general permits, adds David Kendziorski, a consultant with Woodward-Clyde, Milwaukee, and may already be proceeding with state stormwater requirements.

"Many facilities have completed their stormwater pollution prevention plans and are in the process of implementing best management practices," says Kendziorski. "Some facilities have actually started the stormwater monitoring as part of a compliance program. Different states have different monitoring requirements."

"Most of the states are using the general EPA model which gives them 180 days to prepare a stormwater pollution prevention plan," adds Michael Tant, vice president of W.Z. Baumgartner & Associates, Brentwood, Tenn. "This includes, among other things, a documenting of their best management practices. So some folks have already got those in place, and others have informal policies ... and then, within one year following the completion of the stormwater pollution prevention plan, any physical improvements that need to be made to the site that are recommended in the pollution prevention plan have to be in place."

Under the state general permits, says Kendziorski, facilities have some flexibility as to which BMPs they implement. However, under the EPA multi-sector permit, specific BMPs could be imposed, which is one of ISRI’s main objections, he says. Scrap processors need to be taking action now in order to avoid future problems.

"Depending on the state, they could be in violation of the Clean Water Act, and there could be substantial penalties and fines for that," Kendziorski points out. "Again, it depends by state what their deadlines are. But in many if not most states, the deadlines are upon us and (processors) should have applied for the permit and be in the process of preparing their stormwater pollution prevention plan."

Some states, such as California, have begun preliminary inspections to ensure that facilities have prepared a pollution prevention plan, but most have not gotten to that stage yet. Larger-scale site inspections may be a few years away, says Kendziorski, although they will certainly occur before the end of the first five-year permit term.

Giving the states responsibility for setting stormwater standards, he says, has made it easier on scrap processors because "it’s generally easier to work effectively with a more local regulator — such as a state regulator — than with an EPA regulator."

Additional environmental compliance issues that the scrap industry should be aware of -- although they may have little affect in the short-term -- include soil and groundwater remediation and cleanup regulations and requirements, says Kendziorski.

"Air pollution controls are going to become more of an issue for some of the facilities probably within the near future, probably within the next two years," he says. "Depending on the facility, they will require some permitting and could require some emission testing and monitoring."

RATIONAL SYSTEM. What is really needed is a "more rational system for regulating the scrap recycling industry," according to David Baumann, environmental attorney and vice president and general counsel for Technology Partners Inc., Fairfax, Va.

"Most importantly, we need a unified approach — one where regulators take into account both all the positive benefits achieved by recycling, the fact that as a consequence of those operations, there’s going to be certain waste and byproducts that are generated."

Scrap processors currently face an extremely complicated set of regulations, says Baumann. "I’ve never met a scrap processor yet that said anything other than ‘I want to comply with the laws in any way that I can, just don’t give me a Catch-22 where it seems like everything I do is wrong or potentially wrong, and just make sure you do it in a way that I can understand it and it’s reasonably efficient.’

"People shouldn’t have to hire environmental attorneys just to understand what their obligations are," he adds. "It should be relatively simple and straightforward."

Although he says the stormwater program is "a very rational program that has been implemented fairly," Baumann expresses concern about possible future problems stemming from the regulations.

"Basically, there’s an approach under the water act that’s called ‘ratcheting down,’" he explains. "Under this approach, you’re not ever supposed to allow your wastewater discharges to increase — you only make them tougher. And if they keep making them tougher and tougher, it’s going to become increasingly expensive for processors to comply, and increasing numbers of them will go out of business because of the cost of keeping up with environmental requirements. But the alternatives are very adverse on the environment."

Making environmental regulations that affect scrap processors increasingly stringent is not necessarily good or bad, Baumann points out, as long as these regulations are universally applied in every instance.

"You need to have a level playing field," he says. "Because otherwise, when one guy has the sky fall on him and most of the rest of the industry doesn’t have anything happen to them, you’re creating a powerful incentive for people not to do anything because people can’t afford it. They say ‘if I go ahead and do all that stuff to comply with the laws, Joe across the street will get all my business because he’s not doing it, and he’s not imbedding all those costs in his operations.’"

The same is true with enforcement, Baumann adds. If regulations are to be strictly enforced in one area, they should be strictly enforced across the board.

"For the enforcement dollars that are being spent, they could get far more bang for the buck if they focussed more on making things applicable to everyone and coming up with a way to do that than just picking out selected scrap processors and deciding to hit them over the head."

State laws that contradict federal laws are a fairly common occurrence, says Baumann. Within RCRA, he says, the laws are structured so that there is an incentive not to treat hazardous waste to reduce its toxicity, because once you handle the material, you are subject to potential hazardous waste regulation. State laws designed to clarify the situation actually contract the federal law.

"What it all comes down to is it didn’t work," says Baumann. "It’s easy to come back and say the government isn’t being fair, but there are specific examples here where it’s contradictory, it’s inconsistent, and that’s not in anyone’s best interest."

With respect to lead, Baumann adds, there is a lot of inconsistency in the regulations. "Lead’s fairly toxic stuff that most people would concede has an adverse impact on health and safety when it gets out in the environment. So scrap processors should be regulated, but it should be done clearly, and it should be consistently applied. There’s some things they regulate the heck out of that reasonable minds could differ about what the real risks to health and safety are. Lead’s one where I think many people agree there’s legitimate need for regulation, but you’ve got to apply it evenly."

RCRA and Superfund will have to be reauthorized soon, regardless of the politics involved, says Baumann.

"I really think it’s a political bombshell but it’s got to be tackled," he says.

"People will have to step up to the plate and say ‘the system’s broke, we’ve got to fix it.’ The waste laws alone in RCRA are as voluminous as the U.S. tax code, if not more so. And these conflict with provisions in the Superfund act that deal with releases, that conflict with provisions in the water and the air act — it’s just gotten to the point of insanity. They need to have a unified field approach."

Although it is too early to know how the new Republican-controlled Congress will effect the regulatory situation, Weiner points out that a bill has been proposed that would place a moratorium on regulations. "We really don’t know the odds of that being passed, so it’s hard to know what’s going to happen," she says.

Such a law could be problematic if it didn’t allow for revisions to existing regulations, adds Lowery, especially in cases where state and federal laws contradict one another, or the result could be unresolvable confusion.

EVER-EVOLVING. The environmental regulatory arena is constantly changing, according to Baumann. His strongest advice to scrap processors is not to give up in the face of confusing regulatory pressure.