Beveridge & Diamond

EPA Issues Final Rule for Definition of Solid Waste

Beveridge & Diamond, P.C., October 7, 2008

On October 7, 2008, the Administrator of the Environmental Protection Agency (“EPA”) signed a final rule revising the definition of solid waste.  EPA also issued a pre-publication copy of the final rule, which will go into effect 60 days after publication in the Federal Register.  The rule revises the Resource Conservation and Recovery Act (“RCRA”) regulatory definition of solid waste in order to facilitate safe recycling of hazardous secondary materials and to increase recycling.  The final rule is substantially the same as the proposed rule (72 Fed. Reg. 14,172 (March 26, 2007)), but a few key changes and clarifications from the proposal are noted below.  For Beveridge & Diamond’s analysis of the supplemental proposal, EPA’s Supplemental Definition of Solid Waste Proposal:  Another Regulatory Go-Round, please click here.

Conditional Exclusions from Definition of Solid Waste:
The rule creates two new conditional exclusions to the definition of solid waste for certain secondary materials (i.e., spent materials, listed sludges, and listed by-products) that are legitimately reclaimed.

(1) Generator-Control Exclusion:  EPA proposed excluding these secondary materials if reclaimed under the control of the generator within the United States or its territories. “Under control of the generator” includes circumstances in which the materials are (1) generated and then reclaimed on-site 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.

The proposal stated that the above conditions apply only to hazardous secondary materials that are handled in non-land based units (i.e., tanks, containers, containment buildings).  If such secondary materials are managed in land based units (i.e., surface impoundments, waste piles, injection wells, landfills), an exclusion will be available only if the materials are “contained” in these units and not released into the environment.  

In the final rule, EPA makes several changes or clarifications:

  • Generator Control:  EPA attempts to clarify issues surrounding the definitions of “on-site,” “same company,” and “tolling arrangement;”
  • Containment:  EPA explains that hazardous secondary materials must be contained when they are managed either in land-based units or non-land-based units, cautioning that such materials are “discarded” if they are released into the environment and not immediately recovered.  EPA revises the definition of land-based unit to be “an area where hazardous secondary materials are placed in or on the land before recycling,” and land-based unit does not include production units.
  • Notification:  EPA includes additional data elements to the notification requirement for generators taking advantage of the exclusion.

(2)  Transfer-Based Exclusion:  EPA also proposed 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.

In the final rule, EPA makes several changes or clarifications:

  • Reasonable Efforts:  The final rule provides specific questions for the generator’s reasonable efforts inquiry, and EPA is requiring certain documentation and certification for this inquiry. 
  • Transfer and Intermediate Facilities:  EPA is allowing hazardous secondary materials to be stored at a intermediate facility for more than 10 days, provided the intermediate facility complies with the same conditions as the reclamation facility, the generator engages in the same reasonable efforts to approve intermediate facility, and the intermediate facility sends the materials to the reclamation facility selected by the generator.  In addition, EPA clarified that an intermediate facility that stores hazardous secondary materials 10 days or less is eligible for existing transfer station requirements and is not subject to the conditions on reclamation facilities.
  • Financial Assurance:  EPA provides financial assurance requirements tailored to the reclamation and intermediate facilities subject to the conditional exclusion.

Legitimacy Criteria:
EPA also proposed establishing two mandatory criteria to determine whether legitimate recycling is taking place for all recycling of secondary materials. 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”). 

In the final rule, EPA limits the application of the legitimacy criteria to the conditionally excluded hazardous secondary materials in this rule as well as the non-waste determinations promulgated in this rule (discussed below). 

Non-Waste Determinations:
EPA proposed establishing 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; or (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 the final rule, EPA limits the eligible categories for non-waste determinations to materials (i) reclaimed in a continuous industrial process or (ii) indistinguishable in all relevant aspects from a product or intermediate. 

Click here to read the pre-publication copy of the final rule.

For more information, please contact Don Patterson at (202) 789-6032 ( or Beth Richardson at (202) 789-6066 (