USEPA Proposes Broadening RCRA Definition of "Hazardous Waste" to Preclude "Sham" Recycling

On July 6, 2011 the United States Environmental Protection Agency (USEPA) proposed to narrow the Resource Conservation and Recovery Act (RCRA) "definition of solid waste" (DSW), and to broaden the definition of RCRA "hazardous waste" to subject additional materials to stricter reclamation requirements. (See USEPA Proposed Rule). The proposed rule would effectively undo certain changes made to the definition of solid waste in October 2008¹. The proposal would reclassify as "hazardous waste" certain hazardous secondary materials that are recycled.

USEPA states that the proposal, if implemented, would encourage reclamation of hazardous secondary materials in a way that protects human health and the environment. USEPA believes that this change is necessary because (1) absent specific conditions, transfers of hazardous secondary materials to third-party recyclers often involve the "discarding" of the materials; and (2) the current draft of the rule can create incentives to accumulate large volumes of hazardous secondary materials, which are classified as "solid waste" under the 2008 rule, without the strict permitting requirements and regulatory oversight USEPA believes appropriate to these materials.

USEPA proposes to modify the current program for hazardous secondary materials that are transferred from the generator to other persons for the purpose of reclamation by removing the current exclusion found at 40 CFR § 261.4(a)(24) and (25), with an alternative Subtitle C regulation for hazardous recyclable materials, to be located at 40 CFR § 266.30. USEPA intends for this change to promote the safe and sustainable reclamation of these materials.

Under these alternative requirements, the hazardous secondary materials to be recycled must be managed according to the current RCRA Subtitle C requirements, including manifesting and hazardous waste permits for storage, except that generators may accumulate hazardous recyclable materials for up to a year without a RCRA permit if they make advance arrangements for legitimate reclamation and document those arrangements in a reclamation plan. USEPA also requests comment on setting an upper limit on the amount of hazardous recyclable material accumulated at the generator at any one time.

In addition to modifying the current regime through regulating the hazardous recyclable materials under Subtitle C, the proposed rule contemplates the following:

• Revisions to the definition of "legitimacy" in 40 CFR § 260.43, to include (1) all recycling activities regulated under 40 CFR §§ 260-266; (2) language making all legitimacy factors mandatory, with a petition process for instances where a factor is not met, but the recycling is still legitimate; and (3) a requirement to provide documentation of the legitimacy of any such recycled materials.
• Revisions to the solid waste variances and non-waste determinations found in 40 CFR §§ 260.30-260.34 in order to foster greater consistency on the part of implementing agencies and help ensure the protectiveness of the implementation of the solid waste variances and non-waste determinations. Proposed revisions include (1) requiring facilities to re-apply for a variance in the event of a change in circumstances that affects how a material meets the criteria upon which a solid waste variance has been based; (2) requiring facilities to re-notify every two years with updated information; (3) revising the criteria for the partial reclamation variance to more clearly explain when the variance applies and to require, among other things, that the criteria for this variance be reviewed and evaluated collectively; (4) revising the criteria for the non-waste determination in 40 CFR § 260.34 and requiring petitioners to demonstrate why the existing solid waste exclusions would not apply to their hazardous secondary materials; and (5) designating the Regional Administrator as the USEPA recipient of petitions for variances and non-waste determinations.
• The possible addition of an exclusion from the definition of solid waste for specific types of higher-value hazardous secondary materials sent for re-manufacturing into similar products and of a petition process for higher-value hazardous secondary materials that are not included within this exclusion, but that are destined to be re-manufactured into similar products. According to USEPA, such an exclusion would help promote sustainable materials management by extending the productive use of these materials and thus minimizing the amount of raw materials used overall and all the associated environmental impacts of production.
• Potential changes to various recordkeeping and notification requirements incident to RCRA.

USEPA's proposed changes seek to close regulatory gaps identified by a recent environmental justice review by USEPA, which showed that low-income and minority populations could be disproportionately affected by the current version of the rule, and which are required under a settlement agreement with the Sierra Club reached following the group's filing of an administrative petition pursuant to RCRA Section 7004(a), 42 U.S.C. § 6974(a).

USEPA will accept public comment on the rule for a 60-day period ending on September 5, 2011.

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