What’s Happening to the Definition of Solid Waste?
On December 10th, 2014, the Environmental Protection Agency finalized a long proposed ruling (referred to as the Final DSW Rule) on the regulatory definition of solid waste (DSW).
This recent regulation is deserving of attention because solid wastes, regulated under subtitle C of the Resource Recovery and Conservation Act (RCRA), are all considered hazardous wastes; conversely, all hazardous wastes must be solids to have the hazardous label. Waste recyclers, the manufacturing sector, health services, and certain waste-producing industries all have the potential to be affected by this new rule.
From 2008 to Now
The stipulations of the 2014 revision overturn legislation passed in 2008 on the solid waste definition and do not cover pre-2008 recycling exclusions. The 2008 provisions included exemptions for secondary materials that could be reclaimed from the definition of solid waste (DSW) in the hazardous waste treatment or recycling process.
Under this ruling, the EPA effectively let 1.5 million tons of what would be otherwise hazardous materials (HAZMAT), such as arsenic, lead, mercury, and benzene, go unregulated. This excess of de-regulated waste accumulation—according to various environmental groups and the EPA in its environmental justice analysis—led to an increased incidence of community and environmental damage, which especially impacted residents living near third-party recyclers.
The new Final Definition of Solid Waste (DSW) Rule is split into six categories of interest to hazardous waste generators and recyclers alike:
- The Rule Trades the 2008 Transfer-Based Exclusion with a Verified Recycler Exclusion.
Before, the 2008 ruling mandated a “transfer-based” exclusion. This exclusion is now replaced by the “verified recycler exclusion,” which differs in that a generator must first apply for a specific solid waste variance (or have a RCRA permit) to recycle hazardous secondary materials (HSM).
The EPA and state agencies, through this new recycling variance application exclusion, will be able to tell if a recycler has trained personnel, adequate emergency response plans, and the proper equipment to handle the hazardous secondary materials. The rule will also allow for community notification and public participation before a recycler seeking variances moves into a town.
- The Rule Re-Affirms the Legitimacy of In-Process Recycling Under the Control of the Generator.
All pre-2008 DSW exclusions are kept intact by this ruling, including the scrap metal exclusion. The rule will also not change the regulatory status of secondary materials or solid waste recycled either on-site by a generator, within the same company, or through a toll agreement. However, revisions to this upheld exclusion are created, including:
- Notification. The rule requires notification to the regulatory authority as a condition of the exclusion. Failure to notify could thus result in loss of the exclusion.
- Legitimacy. The rule requires generators to document that their recycling is “legitimate” by maintaining on-site documentation of how they meet all four legitimacy factors.
- Containment. The rule requires generators to “contain” HSM pursuant to a new definition of “containment,” which includes three criteria: the unit must (1) be in good condition; (2) be properly labeled; and (3) hold HSM that are compatible with the unit and its contents. If the criteria are not met, the HSM would be considered solid waste.
- The Finalization of the DSW Allows for a Remanufacturing Exclusion for Hazardous Spent Solvents.
Hazardous spent solvents which are remanufactured into commercial-grade products will be granted an exclusion that will allow manufacturers to use less virgin solvents. According to the EPA, this is both an environmental and economic boon, resulting in energy conservation, sustainability, and reduced greenhouse gas emissions.
- A New Prohibition of “Sham Recycling” is Added to the Final DSW Ruling.
This part of the rule will address what has been termed “sham recycling”, or disposal of solid waste which is disguised as recycling. The Final DSW Rule codifies the legitimacy of all HSM recycling with the addition of this prohibition by strictly adhering hazardous secondary materials recycling to legitimacy factors. However, facilities which have been honestly recycling HSM should not be worried by this new prohibition, and need not revisit their procedures and operations or define their recycling against legitimacy determinations retroactively.
- The Final Rule Changes the Definition of “Legitimate Recycling.”
The Final DSW Rule revises the what constitutes legitimate recycling by making mandatory all four of the EPA’s legitimacy factors, which are that:
- the recycling involves HSM that provide a useful contribution to the recycling process or to a product;
- the recycling produces a valuable product or intermediate;
- the HSM is managed as a valuable commodity; and
- the product must be comparable to a legitimate product, i.e., there are not “toxics along for the ride” in the product.
The previous 2008 rule only made recyclers adhere to factors 1 and 2, but now all four factors have become compulsory. But the EPA also provides some flexibility for facilities that cannot meet all four factors, and include in the rule a “self-certification option” for the fourth factor.
- Revisions to Solid Waste Variances and Non-Waste Determinations.
Businesses can seek a variance to conduct recycling or reclamation, or they may apply for a non-waste determination for a specific product or waste stream.
This new rule, as with most others, will become effective six months after the date of publication, but most states will have to adopt the Final DSW rule individually before it goes into effect in those states.
Such states will have until July 1st, 2016 to adopt the federal ruling (though a one-year extension may be granted if needed), and it is likely that compliance with this ruling will require significant investment in preventative planning measures.