The End-of-Life Vehicle (ELV) - the University of Minnesota Law ...

2009] END-OF-LIFE VEHICLE DIRECTIVE 453
generators,” so that small ELV facilities will not be regulated. 164
The Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA) 165 is similarly ineffective. CERCLA
applies only retrospectively; it provides no protection against
pollution other than the specter of possible litigation to recover
clean-up costs. 166 In addition to these regulatory problems, the
United States system of automotive recycling is entirely profit
driven, 167 creating greater susceptibility to economic
fluctuations.
Another justification for an EPR-styled system of
automotive waste recycling is resource conservation. 168 As early
as 1999, the feasibility of recycled material markets for such
products as plastics, glass, and rubber was being touted. 169 In
fact, the market for non-metal recycling in the United Kingdom
increased 40% in 2007. 170 Furthermore, recycling yields energy
savings over virgin material use. 171 However, as long as virgin
materials are available for less, notwithstanding the
environmental costs of their extraction, refinement, and
subsequent disposal, private actors have little incentive, without
regulation, to develop sustainable raw material acquisition. 172
The situation is particularly troublesome given the seeming
willingness of automotive manufacturers to participate in
elevated recycling efforts. 173 Bill Ford, Chairman of Ford Motor
164. Sachs, supra note 16, at 57.
165. 42 U.S.C. §§ 9601–9675 (2005). CERCLA provides for the cleanup of
industrially polluted sites through the use of the “Hazardous Substance Superfund,”
which may be replenished by suits brought under § 107 of the Act. United States v.
Bestfoods, 524 U.S. 51, 55–56 (1998).
166. See generally 42 U.S.C. §§ 9601–9675. Furthermore, new legislation has
tended to mitigate CERCLA’s strict assignment of liability. NAT’L RISK MGMT.
RESEARCH LAB., supra note 159, at 19.
167. Kumar & Sutherland, supra note 71, at 146. This means facilitators of
ELV disposal may forego responsible treatment when it is economically infeasible.
168. One justification for EPR-type waste management is “increase[d] . . .
availability of recyclable and recycled materials to encourage substitution for virgin
materials.” Toffel et al., supra note 21, at 4.
169. See generally SAE INT’L, VEHICLE RECYCLING, REGULATORY, POLICY, AND
LABELING ISSUES (Soc’y of Auto. Eng’rs, Inc. 1999).
170. Research and Markets, supra note 117.
171. For example, energy savings for non-ferrous metals are aluminum, 95%;
copper, 85%; lead, 65%; and zinc, 60%. DEP’T OF THE ENV’T AND HERITAGE, ENV’T
AUSTL., supra note 4, at 7:33. It is estimated that the recycling of ELV metals alone
in the United States produces a savings of 3 days worth of national energy
consumption. Id. at 16.
172. See Short, supra note 27, at 1237.
173. See Staudinger et al., supra note 4, at 39–40 (reviewing the recycling efforts
of Ford, Daimler-Chrysler, General Motors, and Toyota). Some of this amenability