Final EPA Rule Revises Solid Waste Definition
This advisory addresses the Environmental Protection Agency's (EPA) final rule providing for regulatory exclusions from the definition of solid waste. The following summarizes key provisions of the new regulation.
On October 30, 2008, the EPA published a final rule revising the definition of solid waste to exclude certain hazardous secondary materials from regulation under Subtitle C of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6921 through 6939(e). The rulemaking was originally proposed in October 2003, in response to a series of seven decisions by the U.S. Court of Appeals for the D.C. Circuit that provided the EPA with additional direction regarding the proper formulation of the RCRA regulatory definition of solid wastes for purposes of Subtitle C. The EPA's stated purpose for the final rule was to streamline the regulation of hazardous secondary materials in order to encourage recycling.
The final rule establishes exclusions from the definition of solid waste for secondary hazardous materials (i.e., listed sludges, listed by-products and spent materials) that are generated and legitimately reclaimed under the control of the generator. The scope of this exclusion includes:
The final rule clarifies the RCRA concept of legitimate recycling regarding the EPA's approach to recycling hazardous secondary materials. In order to be legitimately recycled under the new exclusions and non-waste determinations, the hazardous secondary materials must provide a useful contribution to the recycling process and the recycling must make a valuable new intermediate or final product. In addition, the rule provides for non-waste determination process that affords interested parties with an administrative process to receive an EPA determination that their hazardous secondary materials are not discarded and, therefore, not solid wastes when legitimately reclaimed. This process is voluntary and establishes two types of non-waste determinations:
The EPA estimates that approximately 5,600 facilities handling an estimated 1.5 million tons of hazardous secondary material annually may be affected by the final rule. The anticipated cost savings for all affected industries is expected to be approximately $95 million per year. The final rule is effective December 29, 2008.
On October 30, 2008, the EPA published a final rule revising the definition of solid waste to exclude certain hazardous secondary materials from regulation under Subtitle C of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6921 through 6939(e). The rulemaking was originally proposed in October 2003, in response to a series of seven decisions by the U.S. Court of Appeals for the D.C. Circuit that provided the EPA with additional direction regarding the proper formulation of the RCRA regulatory definition of solid wastes for purposes of Subtitle C. The EPA's stated purpose for the final rule was to streamline the regulation of hazardous secondary materials in order to encourage recycling.
The final rule establishes exclusions from the definition of solid waste for secondary hazardous materials (i.e., listed sludges, listed by-products and spent materials) that are generated and legitimately reclaimed under the control of the generator. The scope of this exclusion includes:
- Recycling onsite at the generating facility
- Off-site recycling within the same company
- Recycling through a "tolling" agreement.
The final rule clarifies the RCRA concept of legitimate recycling regarding the EPA's approach to recycling hazardous secondary materials. In order to be legitimately recycled under the new exclusions and non-waste determinations, the hazardous secondary materials must provide a useful contribution to the recycling process and the recycling must make a valuable new intermediate or final product. In addition, the rule provides for non-waste determination process that affords interested parties with an administrative process to receive an EPA determination that their hazardous secondary materials are not discarded and, therefore, not solid wastes when legitimately reclaimed. This process is voluntary and establishes two types of non-waste determinations:
- Determination for hazardous secondary materials reclaimed in a continuous industrial process.
- Determination for hazardous secondary materials indistinguishable in all relevant aspects from a product or intermediate.
The EPA estimates that approximately 5,600 facilities handling an estimated 1.5 million tons of hazardous secondary material annually may be affected by the final rule. The anticipated cost savings for all affected industries is expected to be approximately $95 million per year. The final rule is effective December 29, 2008.
Contributors
Related Services & Industries