Posted on December 31, 2008 by Karen Aldridge Crawford
73 Fed. Reg. 64668 (Oct. 30, 2008) to be codified at 40 C.F.R. 260-261
On October 30, 2008, the EPA revised the definition of solid waste to exclude certain recycled materials under RCRA. The purpose behind this change is twofold: first is to respond to a series of decisions by the U.S. Court of Appeals for the DC Circuit and second is to clarify the RCRA concept of “legitimate recycling.” The EPA estimates that 5600 facilities in 280 industries in 21 economic sectors may be affected by this revision and expects that the revision will encourage recycling of additional hazardous secondary materials. Exclusion of certain hazardous secondary materials from the definition based on how they are reclaimed should result in resource conservation, as well as cost savings to those who engage in beneficial recycling/reclamation in accord with the new rules.
Under the new rule, hazardous secondary materials that are legitimately reclaimed may be excluded from regulation as hazardous waste. The new rule excludes certain hazardous secondary materials, such as RCRA-listed sludges, listed by-products, and spent materials that are generated and legitimately reclaimed under the control of the generator. Only those hazardous secondary materials that are handled in non-land based units, e.g., tanks, containers, or containment buildings, are excluded. This exclusion does not apply to hazardous secondary materials that are inherently waste-like, that are used in a manner constituting disposal or used to produce products that are applied to or placed on the land, or that are burned to recover energy or used to produce a fuel or are otherwise contained in fuels. The following activities fall within the exclusion: recycling on-site at the generating facility, recycling off-site within the same company, and recycling through a tolling agreement. Additionally, the rule contains a petition procedure for a generator to obtain a non-waste determination that its recycled hazardous secondary material is not discarded, making it exempt from hazardous secondary materials regulation. Intermediate facilities and recyclers/reclaimers also must comply with provisions of the rule to receive and recycle/reclaim exempt hazardous secondary materials and must meet the financial assurance requirements. Generators who ship to such intermediate facilities or recyclers/reclaimers must make “reasonable efforts”, as defined by the new rules, to ensure proper management and legitimate recycling of the exempt materials prior to shipping, and must document their investigatory efforts addressing specific issues defined in the new rules.
To be excluded from hazardous secondary materials regulation, the recycling of the hazardous secondary material must be legitimate. Legitimacy of the recycling relies on the following mandatory factors: (1) the hazardous secondary material provides a useful contribution to the recycling process or product and (2) the recycling process produces a valuable product or intermediate. The EPA will also consider two other factors, which are not mandatory: (1) the hazardous secondary material should be managed as a valuable commodity and (2) the final product of the recycling cannot contain significantly higher levels of hazardous constituents than are in analogous products.
The EPA received hundreds of comments on the long-awaited new rule (first proposed five years earlier), raising multiple issues, including the scope of the new rule and whether the EPA had the legal authority to make these changes. In particular, the EPA received many comments from environmental groups and the waste treatment and recycling industry regarding the EPA’s authority to define when recyclable hazardous secondary materials are solid wastes and how. Other commenters argued that the EPA needed stronger conditions to protect human health and the environment before it could lawfully claim that excluded materials are not discarded. Additionally, the hazardous waste generating industry disputed the EPA’s authority to promulgate the new rule, arguing that the EPA has no authority to regulate such recycling.
The EPA also received extensive comments requesting that the scope of the rule be expanded to include hazardous secondary materials used in a manner constituting disposal and hazardous secondary materials burned for energy recovery. The EPA maintains, however, that these are outside the scope of the solid waste exclusion’s focus on reclamation.
Additionally, most states, the environmental community, and the waste management industry argued that all four of the legitimacy factors should be mandatory requirements for a recycling activity to be considered legitimate recycling. Industry, however, had some commenters who supported the proposed structure and others who preferred that the factors be balancing factors. The EPA compromised between the two approaches, instituting two mandatory requirements and two non-mandatory factors.
The revised “solid waste” definition provides opportunities to recycle hazardous secondary materials but also includes many details that regulated industries will need to be aware of and implement to ensure their recycling of hazardous secondary materials falls within the newly crafted exception to hazardous secondary materials regulation.