US EPA has completed Final Rule to implement a DC Circuit Court’s July 2017 decision
regarding the Agency’s Definition of Solid Waste (DSW) as modified in 2015. The new Final Rule will re-instate the 2008 “transfer based exclusion” for reclamation activities and adjust the “four factors” for legitimate recycling, which EPA bolstered in the 2015 DSW rule.
Vacating the Verified Recycler Exclusion
The new Final Rule
vacates the “verified recycler exclusion” found in the Definition of Solid Waste, which requires facilities that receive waste to obtain a variance from EPA (or their state) to reclaim hazardous secondary materials. Get reliable, up-to-date RCRA training when Lion presents the RCRA Hazardous Waste Management Workshop in a city near you. In July, catch the workshop in Williamsburg, Charlotte, Atlanta, Birmingham, Nashville, Memphis and Little Rock.
Included in the EPA’s 2015 Definition of Solid Waste (DSW) Rule
, the verified recycler exclusion replaced the “transfer based exclusion,” which required receiving facilities only to notify EPA of their intention to perform reclamation activity—and did not require the facility to obtain a variance.
Four Factors of Legitimate Recycling
In addition to re-instating the 2008 transfer-based exclusion, this Final Rule will vacate one of the four factors meant to ensure proper recycling hazardous secondary materials. These four factors for legitimate recycling were introduced in EPA’s 2008 DSW rule and updated in 2015:
- Utility—The recycled material must provide a useful contribution to the process or intermediate or serve as an effective substitute for a commercial product.
- Value—The recycling process must yield a valuable product or intermediate.
- Management—The material must be managed as a valuable commodity.
- Comparable—Levels of hazardous constituents in the recycled product must be comparable to or lower than similar existing products.
Under the 2008 rule, factors 1 and 2 were mandatory, and generators were required to consider
factors 3 and 4. In the 2015
DSW Rule, EPA made all four factors mandatory for all types of excluded recycling activities.
Following orders from a court decision which vacated parts of the 2015 DSW Rule
, EPA will now require that factor number four be “considered” but it will no longer be mandatory.
Factors 1—3 will remain mandatory.
A pre-publication version of the new Final Rule is available here.
Learn the New RCRA Rules
From stricter contingency planning and reporting responsibilities to updated container labeling rules, re-organized generator regulations, new reliefs, and more—find out what to expect when your state adopts EPA’s “Generator Improvements Rule,” electronic manifests, the new Definition of Solid Waste, and more.
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