Court Invalidates Parts of EPA's 2015 Definition of Solid Waste Rule

Posted on 8/14/2017 by Roger Marks

A D.C. Circuit Court last month invalidated parts of EPA’s 2015 update to the Definition of Solid Waste (DSW) pertaining to the reclamation of hazardous secondary materials.

When it took effect in 2015, the revised DSW made myriad updates to the hazardous waste rules, among them imposing new requirements for hazardous waste generators and facilities that accept waste shipments for the purpose of reclamation. Called the “Verified Recycler Exclusion,” the updated requirements replaced the 2008 iteration of the exclusion—the “Transfer-based Exclusion.”

RCRA Reclamation Exclusions Background

Both the 2008 Transfer-based Exclusion and its replacement, the 2015 Verified Recycler Exclusion, impact which hazardous secondary materials may be excluded from the definition of solid waste. If a material is not a solid waste, it cannot be a hazardous waste. This gives generators a clear incentive to recycle.

What Changed Between the 2008 and 2015 DSW Rules?

Under the 2008 transfer-based exclusion, hazardous waste generators were required to make a “reasonable effort” to ensure any facility to which they sent their waste for reclamation would, in fact, properly and legitimately reclaim the material.

Receiving facilities, in turn, were required to notify EPA of their intention to perform the reclamation activity.

Under the revised 2015 Definition of Solid Waste, EPA instead requires receiving facilities to obtain a variance from US EPA (or an authorized State Agency) in order to reclaim hazardous secondary materials. Alternatively, facilities can meet this requirement by obtaining or modifying a RCRA permit.  
The 2015 DSW also requires hazardous waste generators to take additional steps to defend against emergency releases. Namely, generators are required to adequately contain their hazardous waste and meet certain emergency preparedness requirements before shipping waste off site to be reclaimed.

What Did the D.C. Court Decide, Exactly?

In its decision, the D.C. Circuit Court upheld the new containment and contingency planning requirements for generators shipping waste to a third party to be reclaimed. However, the court struck down the requirement for receiving facilities to obtain a variance or permit.

If the D.C. Court’s decision is upheld, the 2008 transfer-based exclusion will be reinstituted—but will include the elements of the 2015 Rule that the court upheld.   

RCRA Recycling Legitimacy Factors 

The 2015 DSW also requires generators to comply with four factors in order to capitalize on the exclusions for recycling hazardous secondary materials in any way:
  1. Utility—The recycled material must provide a useful contribution to the process or intermediate or serve as an effective substitute for a commercial product.
  2. Value—The recycling process must yield a valuable product or intermediate.  
  3. Management—The material must be managed as a valuable commodity.
  4. Comparable—Levels of hazardous constituents in the recycled product must be comparable to or lower than similar existing products.
Industry groups challenged the third and fourth factors on this list. The D.C. Court struck down the fourth factor—“Comparable”—because in order to compare a recycled product to an existing commodity, we must know the level of hazardous constituents in the existing commodity. Because this hazard information is not always available for commercial products, the court deemed this requirement to be unreasonable.

As for factor three, which requires facilities to manage materials destined for recycling as “valuable commodities”—the court determined this requirement to be reasonable—especially given the alternatives EPA authorizes in the Final Rule—and upheld it. 

Given this decision, whether the 2008 or the 2015 recycling legitimacy criteria will remain in place is unclear. It will likely depend on whether the court’s decision is upheld and how it is implemented.

Why Is This RCRA Recycling Stuff So Confusing?

To understand one major reason that RCRA recycling rules are so involved and confusing for generators and Treatment, Storage, and Disposal Facilities (TSDFs), we have to go back to 1985—the year EPA crafted its first major update to the Definition of Solid Waste. In that Rule, EPA equated reclamation with discarding hazardous waste—allowing for no exclusion.

EPA was quickly challenged on this by industry groups who saw reclamation as a legitimate recycling activity and lost in the 1987 case American Mining Congress v. EPA. For the last thirty years, EPA has tried to “fix” the initial overreach by promulgating a number of specific exclusions for certain recycling activities.

RCRA Manager Training Now Updated

The 2015 DSW isn’t the only RCRA update hazardous waste generators are grappling lately. In 2016, EPA finalized the “Hazardous Waste Generator Improvements Rule,” which made major changes to the rules for managing hazardous waste on site.    

Lion’s comprehensive RCRA manager online courses are now updated to reflect the historic updates RCRA updates in this Final Rule—from new contingency planning requirements to updated hazardous waste container labels, new exclusions, re-shuffled generator standards, and much more.  Complete either course below to meet your annual EPA training mandate (40 CFR 262.17) and be confident you’re ready when your state adopts the new RCRA rules.

RCRA Hazardous Waste Management (Initial)
RCRA Hazardous Waste Management—Refresher 

Plus, when you enroll now, you get a full year of Lion Membership for fast answers from EHS compliance experts, exclusive updates and content, and discounts on select training events. 

Tags: DSW, EPA, hazardous waste, new rules, recycling

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