Analysis of the recent calls for legislation aimed at managing MSW in Michigan will be reserved for the next chapter. What has happened in Washington, D.C. and what has happened in many cities and states across the nation, is the topic of this section.

When both EPA and OTA called for a more active federal role in managing the nation's MSW, they did so believing that while incineration and landfilling could – with proper controls – be part of the solution, real legislative emphasis had to be on source reduction and recycling. Such legislation has been offered in Washington.

Both before and since the EPA and OTA reports were issued, the federal focus has been on recycling and waste reduction. Waste is regulated under the Resources Conservation and Recovery Act (RCRA) and the Solid Waste Disposal Act (SWDA).

The following is a partial list of some amendments which have been offered to both RCRA and SWDA: [91]

HR 130: Would require that the disposable trays, dishes and beverage containers used in food service operations be biodegradable.

HR 500: Would encourage scientific research and development of recycling technologies.

HR 586: Would require a return deposit on all plastic and glass beverage containers.

HR 871: Would create a National Packaging Institute to establish national packaging standards.

HR 1439: Would require the administrator of the Environmental Protection Agency to issue rules requiring that certain plastic articles be made of naturally degradable material.

HR1810: Would amend the Solid Waste Disposal Act to promote recycling activities and the use of recycled goods and facilitate recycling efforts by states and municipalities.

HR 2156: Would prohibit the introduction of a plastic container into interstate commerce if it is not coded by resin.

HR 2723: Would amend the Resource Conservation and Recovery Act to improve procedures for establishing and operating regional disposal facilities for municipal and industrial solid waste.

HR 2845: Would amend the Solid Waste Disposal Act to promote recycling and other resource conservation.

HR 3105: To encourage the development and use of a recyclable consumer labeling system for plastic consumer products; and encourage other methods to reduce municipal solid waste.

HR 3127: To establish national goals for the reduction and recycling of municipal solid waste, and to require the Environmental Protection Agency to promulgate regulations to attain these goals.

HR 3264: To prohibit disposal of solid waste in any state other than the state in which the waste was generated ( Senator Dan Coats of Indiana and Senator Don Riegle of Michigan have independently offered similar legislation to block the interstate movement of MSW); to require a refund value for certain beverage containers; to require a study of degradable materials and recycling; and to establish an office of recycling research information in the Department of Commerce.

S 1112: The Municipal Solid Waste Source Reduction Act would impose restrictions on packaging materials and provide assistance to municipalities to develop recycling and reclamation programs.

S 1237: The Degradable Commodity Procurement And Standards Act would require federal agencies to utilize materials that are biodegradable.

S 1884/HR 3663: To promote the use of recycled materials derived from municipal refuse.

S 1885: The National Recyclable Commodities Financing Act.

The most comprehensive federal RCRA reauthorization bills introduced to date are S113 and HR 3735/3736/3737. These bills are aimed at regulating municipal incinerators, restricting solid waste exports, tightening requirements for land disposal of solid waste, establishing source reduction and recycling goals (despite the fact that EPA has virtually conceded that source reduction is so problematic as to be hardly worth pursuing), and encouraging incentives for Federal procurement of recycled materials. [92]

The following list of legislation proposed or enacted at the state and/or local level is only a sample of what has been done or is proposed to be done to manage municipal solid waste:

Alabama: Following a two-year moratorium on landfills, the only legislation likely to be proposed will focus on more recycling statewide.

Alaska: Bills of intent are being considered to encourage recycling.

Arizona: At the state level, legislation to assess the feasibility of statewide recycling is under consideration. At the local level, the City of Tucson voted to ban plastic foam cups from all local government offices.

California: Numerous bills are under consideration focusing on mandatory recycling aimed at raising recycling to 50 percent of MSW by the year 2000. Included in these proposals are ones for higher specific taxes on certain kinds of plastics packaging unless the manufacturer can prove that at least 35 percent is recycled.

Massachusetts: Legislation has been approved banning the disposal of metals, glass and plastic containers, newspapers, cardboard, and office paper in either landfills or incinerators. Landfill and incinerator operators who fail to block these materials from their facilities will face fines of up to $25,000 per day.

New Jersey: Already the only state which has made recycling mandatory, bills to review and assess all nonrecyclable, nondegradable packaging materials continue to be proposed.

New York: Under The Solid Waste Management Act of 1988 (Chapter 70, Laws of 1988), a recycling goal of 50 percent is to be achieved by 1997. All local governments must have a state-approved recycling program in place. Two bills specifically require that retail foods be sold only in biodegradable packages and use of nonbiodegradable packages in all packaging uses would be banned. One bill calls for state purchases of recycled paper if economically feasible (emphasis added). Under Chapter 70, local communities must design a solid waste plan with special emphasis on recycling.

North Carolina: One bill already ratified calls for strict limits on the use of certain plastic packaging unless it can be demonstrated that at least 25% of it is being recycled. This applies especially to plastic grocery bags and polystyrene food containers. However, even though the State has an overall goal of 25 percent recycling, this applies only in those communities where recycling is economically feasible and markets for the materials exist in close enough proximity to make transportation practical (Emphasis added).

North Dakota: Legislation recently signed into law requires certain plastic products to be degradable and encourages state agencies to use recycled products. Moreover, one bill was introduced mandating that only biodegradable materials could be put into a landfill. This bill was introduced and then withdrawn from consideration.

Oregon: Already passed and signed into law, Oregon prohibits state agencies from purchasing food packaging material which is not biodegradable or recyclable. Bills still under consideration would ban polystyrene in food service packaging; establish a plastic container tax to fund plastics recycling; ban disposable containers which are not recyclable; require retailers to offer paper as well as plastic bags; and would prohibit the use of plastic containers for which an effective recycling program does not exist.

Pennsylvania: Bills currently under consideration would prohibit the sale of all food service packaging not classified as degradable, manufactured from recycled material, or recyclable. Governor Robert Casey has issued an Executive Order (Order #1989 No. 8) which places a moratorium on the issue of permits for both new landfills and resource recovery facilities (incinerators which burn MSW to produce energy) as well as expansion of previously licensed and operating landfills. However, this Executive Order contains a modifying clause which allows new landfills and incinerators if, and only if, operators can prove that 70 percent of the waste they receive was generated within Pennsylvania.

Wisconsin: In what may prove to be the most far reaching legislative act to date, Wisconsin has banned disposal of a wide range of materials which are believed to be recyclable. Newspapers, metal, glass and plastic containers, cardboard, office paper, magazines, and foam containers may not be disposed of in landfills or incinerators. Landfill and incinerator operators who allow such materials to enter their facilities will face stiff fines. Wisconsin expects to support this ban through laws supporting investment in recycling plants to assure a steady supply of secondary materials. Moreover, the state is attempting to develop laws which require 10% recycled content in all plastic containers sold in the state by 1995, and 45% in newspapers by 2001.

The common theme which runs through virtually all the legislation one finds at both the state and federal level is as follows:

  1. Recycling is to be the top priority.

  2. Governments should buy recycled goods.

  3. Special tax subsidies should be available to promote recycling.

  4. Any tax advantage enjoyed by virgin materials should be ended.

  5. Biodegradable materials are to be preferred to nonbiodegradable materials.

  6. Landfills are to be either blocked outright or discouraged.

  7. In Massachusetts and Wisconsin, fines are to be levied if certain recyclable materials enter either landfills or incinerators.

What have been the problems so far?

In 1987, New Jersey passed the nation's first mandatory statewide recycling program. How's it doing? In its 1989 survey of solid waste management programs nationwide, Biocycle magazine reported that New Jersey recycled 18 percent of its waste, almost the same proportion of MSW as did its neighboring state of Delaware, which has no law mandating recycling. In addition, while 80 percent of New Jersey MSW goes to landfills, only 37 percent of Delaware's MSW ends up in landfills. [93] Conclusion? Even with a mandatory recycling law, New Jersey has come virtually no closer to pulling goods into secondary materials markets than has its neighbor. Clearly, legislative mandates aimed at forcing recycling have not yielded the outcome expected.

The situation is no different at the federal level. Despite federal legislation mandating paper recycling, The U.S. General Accounting Office found that only 120 of the more than 6,000 federal agencies nationwide have records documenting recycling, despite the fact that the government buys 1.7 million tons of paper annually. The reason? Agencies have been unable to sell paper at an economic price which covers separation and collection costs; employees haven't gotten into the habit of separating paper for recycling; internal controls are weak; many government offices do not have storage space to hold accumulated paper; and, with a supply glut, the paper recycling brokers cannot absorb the quantities of wastepaper that increased mandatory recycling might generate. [94]

Conclusion? Even the federal government can't push paper – of which it has more than virtually any other paper-using entity in the country – through secondary materials markets when markets are not able to take them at prices sufficient to cover the cost of source-separation, collection, and storage.

One problem with all efforts to force recycling through legislative mandate is that they are based on the assumption that source separation and collection will automatically yield recycling. The problem with that assumption is that it is false. While source separation and collection are necessary conditions for recycling, they are not sufficient conditions for recycling.

True recycling occurs only when secondary materials have come back to final consumers in the form of new products and secondary materials will live to serve again only when market conditions exist to make the use of such materials cost effective in competition with virgin materials. In effect the most that can be said in favor of incurring the costs to source separate and collect MSW for entry into secondary materials markets is that when it makes economic sense it will happen on its own and when it doesn't. it won't. The presumption that simply passing laws will turn something which makes no economic sense into something which does is not only bad economics it's bad politics.

Efforts to mandate recycling in the absence of market forces which are acting to pull marketable secondary materials from the solid waste stream end up effectively damning recycling with faint praise, i.e., "We'll try to recycle only if it makes economic sense. If it doesn't make economic sense, we'll forget it." But, as our own political history teaches all too well, foolish laws are seldom repealed, they just stay on the books without being enforced with unintended consequences for both law and the political process.

Could it ever be the case that special interests will rally around laws which mandate recycling even when the reality of market forces sends contrary signals? The answer is, yes. Indeed the history of much government policy is that once a government program which ignores market forces has been instituted, special interests develop to maintain the program for its own sake. Those interests, whether inside or outside government, will generally argue that the program's failure to attain its ends was not the fault of the program itself, but the fault of inadequate funding. The normal response is, "Give us more money in the next budget cycle and we'll make this program work." The result is virtually always a continuing allocation of scarce tax resources to old programs which did not work because they could not work.