Author: Donna Oswald, Ph.D.
Under the final rule defining solid waste, published on January 13, 2015, EPA eliminated provisions in the 2008 Bush administration rule that provided flexibility allowing the return of hazardous secondary materials to the economic mainstream. In settling a lawsuit with the Sierra Club, EPA agreed to review the 2008 changes. As a consequence of this review, EPA found human health risk increased disproportionately for minority and low income communities.
Key changes include the following:
To verify that a recycling operation is legitimate and not a sham, the recycler must:
- Prove that the hazardous secondary material makes a useful contribution;
- Demonstrate that the recycling process produces a valuable final or intermediate product;
- Manage the hazardous secondary materials as a valuable commodity; and
- Confirm that the product is comparable to analogous products of virgin materials.
In the 2008 DSW Rule, the first two factors were mandatory, while the third and fourth were to be considered.
- The 2008 generator-control conditional exclusion now requires:
- Documentation of legitimate recycling;
- Proper containment;
- Record keeping for generator-controlled recycling options; and
- Emergency preparedness and response provisions.
- Transfer-based exclusions have been eliminated. These exclusions required that materials be managed by RCRA permitted facilities or “verified recyclers” who obtain a State-issued variance from RCRA. Under the new rules, a facility applying for a variance as a verified recycler must:
- Demonstrate that legitimate recycling is being conducted;
- Maintain necessary equipment and personnel;
- Implement an emergency preparedness and response plan;
- Provide financial assurances;
- Assess risk to the local community from potential releases and cumulative risk from area-wide facilities; and
- Provide public notice and opportunity to comment.
- Variances and non-waste determinations must be renewed each ten years and biennial re-notifications must be submitted.
- An exclusion was added for high-value solvent remanufacturing that requires notification, a remanufacturing plan, tracking, containment, and no speculative accumulation.
The effective date for the rule is 180 days after publication in the Federal Register (January 13, 2015). For States with delegated RCRA authority, the rule will not be effective unless and until adopted by the State. The more stringent portions of the rule (e.g., the new legitimacy criteria) will have to be adopted within one to three years, but the less stringent portions of the rule (such as the new remanufacturing exclusion) are optional.
As of the effective date, facilities operating under the 2008 generator-controlled exclusion must comply with the revised standards, and facilities operating under the 2008 transfer-based exclusion must meet the terms of the verified recycler exclusion.
According to comments on the docket from the regulated community, restrictions will materially curtail recycling. Associations representing affected industries have expressed their concern:
The rule “provides insufficient incentives to promote recycling of secondary materials and maintains many onerous and unnecessary requirements; verified recycler requirements could prove too onerous to encourage additional facilities to recycle secondary materials.” (www.IPC.org)
The rule will “impose additional burdens when there is no evidence that the existing recycling regulations are creating environmental problems” and “will discourage recycling, increase the land filling and incineration of otherwise useful secondary materials, and increase the use of natural resources and energy.” (www.NAM.org)
The Sierra Club had a different view:
“The EPA conducted and included findings from a thorough environmental justice analysis that found loopholes in the DSW rule significantly and disproportionately affected low-income communities and communities of color. While the rule closes some loopholes to control hazardous waste recycling, other sizable gaps remain, including the lack of any enforceable standard for the containment of hazardous waste and the lack of standards for facilities that treat and dispose of similar waste — the source of much of the contamination that has previously been traced to DSW rule loopholes.”
Potential further legal or Congressional action is unclear at this time.
If you have any questions about the proposed Definition of Solid Waste rule and whether your facility may be impacted by these regulations, please contact Beth Schwartz at email@example.com, or Donna Oswald at firstname.lastname@example.org or call them at 888-963-6026.