Beveridge & Diamond

OMB Completes Review of EPA's Proposed Revisions to Definition of Solid Waste

Beveridge & Diamond, P.C., September 30, 2008

On September 17, the White House Office of Management and Budget announced that it had completed its review of EPA's highly-anticipated proposal to modify the definition of solid waste under the Resource Conservation and Recovery Act.  According to a report by BNA, Inc., an EPA spokeswoman said the promulgation of the final rule will now occur "in a few weeks." 

Under RCRA, to be considered a hazardous waste, a hazardous secondary material must first be determined to be a solid waste.  On October 28, 2003, EPA first proposed changes to the definition of solid waste to exclude hazardous secondary materials that are recycled from being regulated as solid (and therefore hazardous) wastes.  That promulgation was largely in response to the decision of the DC Circuit Court in Association of Battery Recyclers v. EPA (208 F.3d 1047 (DC Cir. 2000).  The October 28, 2003 proposal focused on excluding from the definition of solid waste any material generated and reclaimed in a continuous process within the same industry.  After evaluating comments received on the proposal, EPA revised its approach and promulgated the resulting March 27, 2007 supplemental proposal ("Supplemental Proposal").  The Supplemental Proposal would exclude a broader category of material from the definition of solid waste.  The proposed rule provides three exclusions:

  1. an exclusion for materials that are reclaimed under the control of the generator (including materials reclaimed at the generating facility, at a different facility that the generator owns and operates, or according to certain types of generator "tolling" (i.e., contractual) arrangements);
  2. materials that are transferred by the generator to another company for the purpose of reclamation (the "transfer-based exclusion"); and
  3. a case-specific petition process for obtaining "non-waste determinations." 

Consistent with the current regulatory scheme, the proposed definition would not exclude hazardous secondary materials that are burned for energy recovery, that are used "in a manner constituting disposal," or that are inherently waste-like.

The proposal also contains provisions for assessing the "legitimacy" of hazardous material recycling practices.  Those provisions generally track what EPA proposed on October 28, 2003.  However, instead of specifying four criteria that would need to be considered on a case-by-case basis, EPA's Supplemental Proposal would make two of the criteria mandatory requirements.  Those two requirements are: (1) the hazardous secondary material being recycled must provide a useful contribution to the recycling process or to the product of the recycling process; and (2) the recycling process must produce a valuable product.  The other two criteria, which address management of materials prior to recycling and "toxics along for the ride" in recycled products, would still need to be considered on a case-by-case basis under the Supplemental Proposal.

To view a copy of the Supplemental Proposal, and other information about the rule package, please click here.  Beveridge & Diamond, P.C. will issue a alert upon the promulgation of the final rule.