Beveridge & Diamond

EPA’S Final Revisions to the Definition of Solid Waste:

Recycling the Rules for Recyclable Materials
Beveridge & Diamond, P.C., October 30, 2008

On October 30, 2008, the United States Environmental Protection Agency (“EPA” or “the Agency”) published its long-awaited final rule revising the Resource Conservation and Recovery Act (“RCRA”) regulatory definition of solid waste (“2008 Final DSW Rule”), which will go into effect on December 29, 2008.  See 73 Fed. Reg. 64668 (October 30, 2008).  The 2008 Final DSW Rule revises EPA’s regulatory definition of solid waste to exclude conditionally certain types of recycled materials and reclamation operations from the onerous RCRA hazardous waste requirements that otherwise would apply.

The two main elements of the 2008 Final DSW Rule are new exclusions from the definition of solid waste and a new process for obtaining case-by-case determinations that specific materials are non-wastes.  EPA also establishes new legitimacy criteria for purposes of assessing whether hazardous secondary materials are being legitimately recycled and, therefore, eligible for one of the new exclusions or a non-waste determination. 

The 2008 Final DSW Rule may provide some degree of regulatory relief to persons who generate, recycle, or otherwise manage certain hazardous secondary materials destined for reclamation.  However, the potential benefits of the rule are uncertain, given the limited scope of the rule, the numerous conditions placed on the new solid waste exclusions, and the cumbersome process for obtaining non-waste determinations.  Moreover, many States may decide not to adopt the rule, which could create complicated issues for interstate movements of hazardous secondary materials. Legal challenges to the 2008 Final DSW Rule may be filed soon in the courts, addressing the issue of whether the rule is consistent with prior rulings of the D.C. Circuit, which limit EPA's authority to materials that are truly "discarded."

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