In December 2014, the U.S. Environmental Protection Agency (EPA) finalized its revised “Definition of Solid Waste” (DSW) Rule, which aims to reestablish hazardous waste restrictions eased by the Bush administration in 2008. Rulemaking on the Definition of Solid Waste. 80 Fed. Reg. 1694 (Jan. 13, 2015) (to be codified at 40 CFR Parts 260 and 261).

Solar sludge drying facility (Source: EPA's new definition of "solid waste" will significantly affect how hazardous secondary materials (e.g., by-products such as sludge generated during industrial processes) can be reclaimed and not be deemed "waste."

Solar sludge-drying facility (Source: EPA’s new definition of “solid waste” will significantly affect how hazardous secondary materials (e.g., by-products such as sludge generated during industrial processes) can be reclaimed and not be deemed “waste.”

Hazardous wastes subject to regulation under Subtitle C of the federal Resource Conservation and Recovery Act (RCRA) are a subset of solid wastes. Materials that are not solid wastes are not subject to regulation as hazardous wastes; consequently, the definition of “solid waste” plays a key role in defining the scope of EPA’s authority under RCRA. The statute defines ‘‘solid waste’’ in relevant part as

‘. . . any garbage, refuse, sludge from a  waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material…resulting from industrial, commercial, mining, and agricultural operations, and from community activities . . . (RCRA section 1004 (27) (emphasis added)).

Over the last three decades EPA has struggled to distinguish between materials that are legitimately recycled for beneficial reuse (and thus not “discarded” as waste) and those that are not. In particular the agency has attempted to guard against “sham” recycling—practices that claim to be recycling but in reality are storage or treatment—as well as types of recycling in which the hazardous materials continue to pose a danger.

The last iteration of the DSW rule, finalized in 2008, expanded the number of practices that were deemed to be legitimate recycling. In particular the 2008 rule liberalized the regulation of a form of recycling known as “reclamation”—the processing or regeneration of a material to recover a usable product—which EPA had previously generally deemed akin to “treatment” (not recycling). According to EPA, the 2008 rule effectively de-regulated 1.5 million tons of materials, such as arsenic, benzene, trichloroethylene, lead and mercury. Environmental groups, including the Sierra Club, claimed that the deregulation resulted in third-party recyclers over-accumulating materials, which increased the risk of accidents and environmental releases and also raised environmental justice concerns.

Accordingly, then new DSW rule rolls back the flexibilities of the 2008 rule, redefining certain materials as hazardous waste and implementing stricter controls on facilities and processes.  EPA’s preamble to the proposed rules groups the regulatory changes into six major categories:

  1. Exclusion for hazardous secondary materials that are legitimately reclaimed under the control of the generator (retaining the exclusion from “solid waste” for companies who recycle the waste they generate).
  2. Verified Recycler Exclusion (replacing the 2008 transfer-based exclusion with an exclusion for verified recyclers reclaiming hazardous materials, placing more responsibility on the generator who selects the recycler).
  3. Remanufacturing Exclusion (excluding from “solid waste” certain hazardous spent solvents that are remanufactured into commercial-grade products).
  4. Prohibition of Sham Recycling and Revisions to the Definition of Legitimacy (imposing more stringent requirements for demonstrating “legitimate recycling”).
  5. Revisions to Solid Waste Variances and Non-Waste Determinations (providing for a variance to conduct recycling or reclamation and for product-specific non-waste determinations).
  6. Deferral on Revisions to Pre-2008 Recycling Exclusions (largely allowing existing facilities operating under a pre-2008 solid waste exclusion determination to continue doing so).

The new DSW rule takes effect on July 13, 2015, although states such as Minnesota that are authorized to enforce RCRA must individually adopt the rule before it becomes effective in those States. These states have until July 1, 2016 to do so. The new rule will have significant ramifications for affected businesses. A good starting point for understanding hazardous waste recycling is EPA’s web page on the subject.