Beveridge & Diamond

EPA Proposes Revised Definition of Solid Waste Rule

Beveridge & Diamond, P.C., July 6, 2011

On June 30, 2011, the United States Environmental Protection Agency (“EPA”) signed a RCRA Subtitle C definition of solid waste proposed rule (“2011 DSW Proposed Rule”) pursuant to a settlement agreement between the Sierra Club and EPA in the Sierra Club’s challenge to EPA’s October 2008 definition of solid waste (“DSW”) rule.  In addition to making significant changes to the October 2008 rule, the 2011 DSW Proposed Rule would also expand EPA’s reach over recycling beyond the regulations that were in place prior to October 2008. 

Key aspects of the 2011 DSW Proposed Rule include the following:

1.      Legitimacy Criteria.

  • Recyclers must demonstrate that all four legitimacy factors are met (the 2008 regulations required that two factors be addressed and two, including the so-called “toxics along for the ride” (“TARs”) factor, only be considered).
  • All entities relying on any recycling “exclusions or exemptions from the hazardous waste regulations or alternate regulatory standards” will be required to make and document a legitimacy determination (2008 regulations only applied the new regulatory legitimacy criteria to the new exemptions and determinations adopted in that rule).
  • The TARs factor requires that the levels of hazardous constituents in the products made from secondary materials be “comparable to or lower than” the levels in “analogous” products (the 2008 regulations required that the levels of hazardous constituents not be “significantly elevated” from those found in analogous products).
  • Recyclers must petition EPA or a state agency for a legitimacy variance if the “valuable commodity” or TARs factors cannot be met.

2.      Elimination of Transfer Based Exclusion.

  • The “transfer based” exclusion in the October 2008 rule would be eliminated.
  • In the alternative, EPA proposes to subject recyclers that would have been eligible for the transfer based exclusion to full Subtitle C regulation, with the exception that EPA would allow the accumulation of recyclable materials for up to one year (if notification and reclamation plan requirements are met).

3.      Modification of “Generator Control” Exclusion.

  • EPA proposes a regulatory definition of the “contained” condition (which would also apply to the “valuable commodity” legitimacy factor).
  • EPA adds notification and labeling/log requirements.
  • EPA adds recordkeeping requirements for tolling contractors.

4.      Modifications to Variance and Determination Requirements.

  • EPA proposes a number of changes to the variance and determination requirements.

5.      Re-Manufacturing Exclusion

  • EPA requests comment on a new exclusion for the transfer of 18 higher-value solvent secondary materials generated in the pharmaceutical, organic chemical, plastics and resins, and paints and coating sectors from one manufacturer to another.

6.      Potential Additional Requirements Applicable to Pre-2008 Recycling Exclusions and Exemptions

  • In addition to proposing to apply the legitimacy criteria to all other recycling exemptions, EPA seeks comment on applying the contained condition and periodic notification requirements to 32 existing recycling exclusions and exemptions.

The proposal has not yet been published in the Federal Register.  The comment period will extend for 60 days beyond the date of publication of the 2011 DSW Proposed Rule.  If you have questions about the 2011 DSW Proposed Rule, please contact Don Patterson at (202) 789-6032, or Beth Richardson at (202) 789-6066,

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