Today, the U.S. Environmental Protection Agency announced a proposed rule to modify the 2008 Definition of Solid Waste (DSW) rule. The DSW rule had been intended to promote recycling of “hazardous secondary materials.” The EPA’s proposed modifications are in response to concerns raised by the Sierra Club and other environmental groups through various court actions.
The 2008 rule established a group of materials that are excluded from the definition of solid waste (and thus excluded from hazardous waste regulation) if recycled in certain ways. Environmental groups felt that the wording of the exclusions allowed the possibility of materials “falling through the cracks” and not being managed correctly, thus increasing the risk of those materials having a detrimental effect on the environment and human health at large. The current modification is intended “to ensure that the rule, as implemented, encourages reclamation in a way that protects human health and the environment from the mismanagement of hazardous secondary materials.”
The proposed modifications include:
- Creating a new category of “hazardous recyclable materials.” Per the proposed rule preamble, “a hazardous recyclable material is a hazardous waste that is recycled. Unlike “hazardous secondary materials,” hazardous recyclable materials have clearly been discarded and therefore are always solid wastes.”
- Replacing the exclusion currently found at 40 CFR 261.4(a)(24) and (25) for hazardous secondary materials that are transferred from the generator to other persons for the purpose of reclamation with new rules for “hazardous recyclable materials,” to be located in 40 CFR 266 and to include:
- Management of hazardous recyclable materials according to current Subtitle C (hazardous waste) requirements, including counting towards generator status, manifesting shipments, and the acquisition of permits for storage;
- Submission of a biennial notification by March 1 of every even-numbered year;
- Extension of the accumulation time period for generators of hazardous recyclable materials to ONE YEAR, so long as a reclamation plan is created and followed;
- Marking of containers with the words “hazardous recyclable material” rather than “hazardous waste;” and
- Establishment of an upper limit on the amount of hazardous recyclable material accumulated at the generator’s site at any one time.
- Revising the exclusion for hazardous secondary materials reclaimed under the control of the generator currently found at 40 CFR 261.4(a)(23) ◦Adding a regulatory definition of “contained” to 40 CFR 260.10;
- Making notification to the U.S. EPA or the authorized State agency a condition of the exclusion; and
- Increasing recordkeeping for speculative accumulation and reclamation under toll manufacturing agreements.
The proposed rule also includes revisions to the definition of “legitimate recycling,” currently found in 40 CFR 260.43. The revisions would make all legitimacy factors mandatory, would create a petition process for those situations where a given factor is not met but the recycling activity is still legitimate, and would require documentation proving the recycling legitimacy factors have been met. The EPA is also proposing that the definition of legitimate recycling be applied to all recycling activities regulated under 40 CFR 260-266, which would be a major change from the way the definition of legitimacy is currently applied.
The EPA is also seeking comment on a number of alternate standards, especially in regards to the management standards for hazardous recyclable materials. These include the creation of a “hazardous recyclable materials manifest” as an alternative to the existing hazardous waste manifest or adopting shipping paper requirements similar to those for universal wastes.