New Issues for Hazardous Waste Recycling

Posted on 7/26/2011 by James Griffin

The EPA is proposing further amendments to the hazardous waste regulations in order to encourage the recycling of hazardous secondary materials while protecting low-income and minority communities from pollution. This proposal would limit the opportunities for waste generators to exclude hazardous secondary materials intended for recycling from the hazardous waste regulations. This proposal also introduces significant new requirements for all existing recycling exclusions.
You may remember that the EPA expanded the range of exclusions for hazardous secondary materials intended for recycling just a few years ago, so why is the Agency restricting recycling just three years later?
In October 2008 (73 FR 64668), the EPA issued a new final rule to revise the definition of solid waste and to provide significant relief from regulation for hazardous secondary materials intended for reclamation. Very soon after the 2008 rule was issued, the Sierra Club and others sued the EPA on the grounds that the new rule could lead to mishandled hazardous materials that would create a disproportionate environmental impact on poor and minority communities. In 2010, the Sierra Club agreed to drop its suit if the EPA did a new environmental justice analysis and issued new revised rules by December 31, 2012.
This proposal is the Agency’s first step towards issuing new rules by the end of the year. The EPA will be accepting public comments on the proposal until September 20, 2011 at and at all the other usual places under Docket ID No. EPA-HQ-RCRA-2010-0742 .
What Changes Is the EPA Proposing?
The EPA is proposing changes in the definition of solid waste and other hazardous waste recycling regulations in three main areas: the transfer–based exclusion, generator reclamation, and legitimacy. The proposal also includes miscellaneous conforming amendments and a request for comment on remanufacturing high–value materials.
Transfer–Based Reclamation
In the 2008 rule, the EPA excluded from the hazardous waste regulations hazardous secondary materials that were transferred from the generator to another party for reclamation. [40 CFR 261.4(a)(24)] Because the EPA’s research has shown that transfer based recycling more often led to mishandled wastes, the EPA is withdrawing the transfer–based exclusion and replacing it with an alternative set of regulations.

Under the new proposal, any hazardous secondary materials intended for reclamation by someone other than the generator must be stored, manifested, and otherwise managed as hazardous waste. The one exception is that generators may accumulate these materials for up to one year, as long as they make advance arrangements to legitimately reclaim the materials and keep appropriate documentation.
The EPA is also considering setting an upper limit on the amount of hazardous secondary materials a generator may accumulate under this provision. However, the proposal did not include any specific quantity.
Generator Reclamation
The 2008 rule also excluded from RCRA regulation hazardous secondary materials reclaimed under the control of the generator. [40 CFR 261.4(a)(23)] Because materials reclaimed by the generator have a much better environmental track record than transferred wastes, the EPA is proposing only a few changes to this area, but they are significant.
The original rule required that hazardous secondary materials intended for reclamation be “contained” by the generator, but provided no regulatory definition of ’containment.’ After receiving comments from State regulators and the waste–generating community on the difficulty of implementing such an undefined standard, the EPA has added an official regulatory definition of what it means to be “contained” and clarified that hazardous secondary materials that are not contained are to be discarded hazardous wastes.
Under the 2008 version of the rule, generators reclaiming hazardous secondary materials are required to notify the EPA or local authorities every other year; however, failure to notify does not invalidate the exclusion. This means that any hazardous secondary materials intended for recycling are excluded from regulation as hazardous waste whether or not the generator notified the EPA.
Because of the possibility of perverse incentives and regulatory confusion, the EPA is proposing instead to make notification a condition of the exclusion. In other words, generators of hazardous secondary materials must continue to manage their materials as hazardous waste until they notify the EPA of their intent to reclaim. A failure to notify would itself invalidate the exclusion, and any reclamation done without a notification would be considered unpermitted waste treatment.
The Resource Conservation and Recovery Act (RCRA) compels the EPA to protect the environment from the dangers of mishandled hazardous waste and to encourage recycling of solid, industrial, and hazardous wastes. Ever since the RCRA regulations were first promulgated in the 1980s, the EPA has struggled to balance these mandates.
Many waste generators, when confronted with the full cost of complying with the hazardous waste regulations, have attempted to avoid the EPA by spuriously claiming their materials are exempt recyclables when in fact they are treating or discarding hazardous waste. For years, the EPA has attempted to encourage ’legitimate’ recycling of hazardous and other solid wastes, while preventing ’sham’ recycling (disposal disguised as recycling). But, the Agency had never introduced a regulatory definition of legitimacy until the 2008 final rule.
The July 22nd proposal would revise the legitimacy criteria to:
  • Create a tougher standard,
  • Mandate documentation for any excluded recycling activity, and
  • Extend the revised legitimacy criteria to all existing recycling exclusions.
Other Provisions
Now that the EPA has settled on an official definition of legitimate recycling and procedures for handling recyclable hazardous materials, the Agency would like to extend these new requirements to all of the existing recycling exclusions. This means that the containment, biennial notification, and legitimacy criteria would apply to anyone who is already recycling scrap metal, drums, batteries, ethanol, or any other hazardous waste under an existing exclusion [40 CFR 261.2, 261.3, 261.4, 261.6, 261.7, Part 266].
As part of the proposal, the EPA would also like to revise the procedures for hazardous waste de–listings and other variances in 40 CFR Part 261, Subpart C.

Tags: hazardous, RCRA, recycling, waste

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