Beveridge & Diamond
 

EPA Issues Supplemental Definition of Solid Waste Proposal

Beveridge & Diamond, P.C., March 30, 2007

On March 15, 2007, the Administrator of the Environmental Protection Agency ("EPA") signed a supplemental proposed rule to revise the Resource Conservation and Recovery Act ("RCRA") regulatory definition of solid waste with the goal of making it easier to safely recycle hazardous secondary materials and to increase recycling. The proposed rule was published in the Federal Register on March 26, 2007 (72 Fed. Reg. 14,172).

EPA characterizes its supplemental proposal as reflecting the fundamental logic of the RCRA statute as interpreted by Association of Battery Recyclers v. EPA, 208 F3d 1047 (D.C. Circuit 2000) and other leading cases, i.e., that only secondary materials that are "discarded" under a plain language reading of the term are subject to regulation as hazardous wastes. EPA proposes to exclude from regulation as "non-discarded" certain secondary materials (i.e., spent materials, listed sludges, and listed by-products) that are legitimately reclaimed under the control of the generator within the United States or its territories that are handled in non-land based units (i.e., tanks, containers, containment buildings). "Under control of the generator" includes circumstances in which the materials are (1) generated and then reclaimed in the same facility, (2) generated and reclaimed by the same company at a different facility if the generator certifies that the reclaimer is under the same ownership and the owner acknowledges responsibility for the safe handling of the materials, or (3) generated and reclaimed under tolling or batch manufacturing agreements. A generator of such materials shall be required to submit a one-time notification to EPA or the authorized State. If such secondary materials are managed in land based units (i.e., surface impoundments, waste piles, injection wells, landfills), an exclusion will be available if the materials are "contained" in these units and not released into the environment.

EPA also proposes a conditional "transfer-based exclusion" for spent materials, listed sludges, and listed by-products that are transferred directly from a generator to another person or company for reclamation. Several conditions must be met for this exclusion to apply, including a one-time notification by the generator and reclaimer to EPA or an authorized state, proper management of residuals generated from the recycling process, and reclaimer financial assurance equivalent to RCRA Subtitle C financial assurance. In addition, a generator seeking to take advantage of this exclusion must use "reasonable efforts," using any "credible evidence," to ensure that its materials will be safely and legitimately recycled. Finally, a secondary material that is "transferred" by being exported from the United States for reclamation in another country must comply with specified notice and consent procedures, including consent of the importing country.

EPA’s proposed rule would also establish two mandatory criteria to determine whether legitimate recycling is taking place. Specifically, the secondary material must provide a useful contribution to the recycling process or to a product of the recycling process, and the recycling process must produce a valuable product or intermediate. In addition, in determining whether legitimate recycling is occurring, the generator must consider how the secondary material is managed, and the presence of hazardous constituents in the product of the recycling (whether "toxics are along for the ride").

The proposed rule would also establish procedures for a petition process for case by case non-waste determinations by EPA or the authorized State for secondary materials that are "clearly not discarded," including materials that are (i) reclaimed in a continuous industrial process; (ii) indistinguishable in all relevant aspects from a product or intermediate; and (iii) materials that are reclaimed under the control of the generator, including under contractual arrangements similar to the tolling arrangements eligible for the generic exclusion.

In response to comments received on EPA’s earlier October 28, 2003 proposal (64 Fed. Reg. 61,558), EPA studied to what extent recycling of hazardous secondary materials resulted in environmental problems. The Agency found 208 cases in which environmental damages resulted from recycling activities. EPA found that 40% of the cases involved mismanagement of hazardous secondary materials prior to reclamation, and 34% involved mismanagement of recycling residuals. Apparently, only 7 of the 208 cases were "sham recyclers," while a total of 69 cases involved abandonment of materials. Only a small number of cases (13) involved on-site recycling.

By EPA’s estimates, the proposed rule could impact about 4,600 facilities across the country in a wide range of industries including chemical manufacturing, mining, semiconductor and electronics manufacturing, utilities, and industrial waste management. Interested parties have until May 25, 2007 to submit comments on the proposal to EPA.  Click here to read the published version of the proposed rule.    

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For more information, please contact Don Patterson at (202) 789-6032 (dpatterson@bdlaw.com) or Beth Richardson at (202) 789-6066 (erichardson@bdlaw.com).