Features - Legislation & Regulations WASTE REDEFINED

The U.S. Environmental Protection Agency (EPA) has developed a new definition of solid waste under the Resource Conservation and Recovery Act (RCRA) designed to encourage recycling and to streamline regulation of reclaimed hazardous secondary materials. The EPA says it believes the streamlined regulations, which will affect about 5,000 facilities, will make recycling safer, easier and more cost effective.

Rule DevelopmentTo develop the new rules, the EPA studied current industry best management practices for the recycling of hazardous secondary materials and the environmental problems associated with recycling. The EPA also conducted an economic study of incentives and disincentives for recycling before publishing the rule. The EPA initially proposed its new rules in 2007.

State environmental agencies were generally supportive, as was industry; however, certain environmental groups opposed it. The Sierra Club appealed the rulemaking, and the EPA published its revised rule July 6, 2011, committing to promulgate a final rule by Dec. 31, 2011. The EPA says it believes the revised rule will improve accountability and oversight of hazardous materials recycling while allowing for important flexibility that will promote its economic and environmental benefits.

Rule MechanicsThe rule encourages recycling by excluding or exempting certain hazardous secondary materials from the definition of solid waste under RCRA, which takes the materials out of the often burdensome RCRA regime of handling and disposal restrictions and recordkeeping requirements.

"Hazardous secondary materials" are eligible for treatment under the rule, which means secondary materials (e.g., any spent material, byproduct or sludge) that, when discarded, would be identified as hazardous waste under RCRA. A generator cannot use the rule for materials recycled by a use constituting disposal or burned for energy recovery, for inherently waste-like materials, for materials already excluded from the definition of solid waste under some other exemption or for spent lead acid batteries or spent petroleum catalysts.

The rule includes four separate exclusions or exemptions from the definition of solid waste:

• Under control of the generator;
• Transfer based;
• Nonwaste determination; and
• Legitimate recycling.

We will take a closer look at each of these exclusions.

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