This year, EPA has proposed a rule to regulate GHG emissions from existing sources, the legality of which turns, in significant part, on the meaning of a “source” under section 111(d) of the Clean Air Act. It has also proposed a rule clarifying the definition of “waters of the United States” under the Clean Water Act. Having dealt with gases and liquids, EPA has turned to solids (it’s a metaphor, ok?), and finalized a rule revising in part the definition of “solid waste” under RCRA.
Although the rule is complicated enough to take up 507 pages in the prepublication version, and EPA has provided a fact sheet for those who don’t have time to read the entire rule, the blog version is fairly simple. The rule amends the rule promulgated as the Bush administration was on its way out the door in late 2008 exempting certain materials from the definition of solid waste when recycled. The new rule largely leaves the same types of waste exempt, but imposes some significant new obligations on recyclers if they want to take advantage of the exemptions. Recyclers claim that the new requirements are sufficiently onerous that they will discourage recycling and result in more disposal of wastes at landfills and incinerators.
The question for the day is this. Isn’t 40 years or so sufficient to come to agreement on such fundamental terms as “source”, “waters of the United States”, and “solid waste”? Mightn’t it be appropriate to step back and ask ourselves whether this uncertainty about some fairly basic terms should give us pause about how we are implementing our environmental protection regimes? Shouldn’t we at least acknowledge that the uncertainty about fundamental definitions – heightened by not so infrequent regulatory changes in the definitions – imposes costs on the economy?