Beveridge & Diamond

EPA Schedules Public Meeting on Definition of Solid Waste Rule

Beveridge & Diamond, P.C., June 2, 2009

EPA recently announced that it will hold a public meeting on possible revisions to the October 30, 2008 final rule that redefined “solid waste” under RCRA.  The rule provides a conditional exclusion for certain hazardous secondary materials destined for reclamation under the control of the generator (“generator-control exclusion”) and at third party reclamation facilities (“transfer-based exclusion”).  73 Fed. Reg. 64,668 (2008) (“DSW Rule”).  EPA will conduct the public meeting on June 30, 2009 and give members of the public an opportunity to present oral statements and submit written comments on the need for changes to the rule.  74 Fed. Reg. 25,200 (May 27, 2009).

The DSW Rule went into effect on December 29, 2008, and is the most recent step in a lengthy rulemaking process.  Previous EPA rules were repeatedly struck down by the U.S. Court of Appeals for the D.C. Circuit.  An in-depth discussion of the rule is available here

On January 29, 2009, the Sierra Club filed a petition for administrative review of the DSW Rule.  Specifically, the Sierra Club asked EPA Administrator Lisa Jackson to “reconsider and repeal” the rule.  On May 27, 2009, EPA announced that it “does not plan to repeal the rule in whole or stay its implementation” but, through the public meeting, “is interested in receiving comments on possible revisions to the rule.”  74 Fed. Reg. at 25,200, 25,202. 

EPA is particularly interested in comments on the following:

  • Developing a definition of “contained”; the DSW Rule requires that hazardous secondary materials be “contained” as a condition of the new exclusions without defining “contained”
  • Requiring as a condition of the exclusion that persons taking advantage of the exclusion notify EPA, rather than the existing notice requirement in the final rule that was promulgated under RCRA’s record authority
  • Clarifying how criteria for legitimate recycling should operate:
    • Codifying a single legitimacy standard that would apply to all recycling, rather than the current standard in the final rule that applies only to the DSW Rule exclusions
    • Further restricting discretion in how legitimacy criteria operate with respect to the DSW Rule exclusions; specifically, whether all four legitimacy criteria should be mandatory (currently two criteria are mandatory while two more are to be considered)
  • Approaching the transfer-based exclusion in alternative ways: 
    • Repealing the exclusion and returning to the prior standards under which most hazardous secondary materials sent to third parties for recycling were considered hazardous wastes
    • Returning to the approach outlined in the 2003 proposed rule (64 Fed. Reg. 61,558 (October 28, 2003)) and excluding materials reclaimed “in a continuous industrial process within the generating industry,” to be defined in reference to NAICS codes
  • Limiting the exclusion to situations where the hazardous secondary material is sold by the generator to a third party for reclamation
  • Allowing intermediate facilities to store hazardous secondary materials prior to reclamation
  • Requiring an approved closure plan for intermediate facilities and reclamation facilities

74 Fed. Reg. at 25,202-04. 

Because EPA is not currently planning to repeal the entire rule or stay its implementation, States may continue to adopt the DSW Rule during the Agency’s review process.  EPA explained that if the Agency revises the DSW Rule in a way that makes the revised rule more stringent than the October 2008 rule (e.g., by repealing the transfer-based exclusion), States that have adopted the October 2008 rule must modify their programs to include the more stringent requirements in order to retain authorization.  Id. at 25,205.

A copy of the Federal Register notice announcing the public meeting is available here.  Additional details from EPA about the meeting are available here.

For more information about these and other RCRA developments, please contact Don Patterson at, (202) 789-6032, or Beth Richardson at, (202) 789-6066.