Business Law Environmental Law

EPA Revises RCRA Definition of Solid Waste

On December 10 2014, EPA pre-published certain revisions to RCRA’s definition of solid waste. This is a pre-published version of the final rule that EPA is submitting for publication in the Federal Register. The final rule is of greatest impact to the manufacturing sector.  Those areas of the manufacturing sector impacted the most by this final rule consist of metals, metal products, machinery, computer & electronics, electrical equipment, transportation equipment, furniture, wood products, paper, printing, petroleum & coal products, chemicals plastics and rubber products, and nonmetallic mineral products, and other miscellaneous manufacturing sectors. The final rule would also have more limited applicability on the public administration factor and the professional, scientific, technical sectors.

First, the rule revises the exclusion for Hazardous Secondary Materials (HSMs) that are legitimately reclaimed under the control of the generator. The revisions include: (1) adding a codified definition of “contained,” (2)  adding recordkeeping requirements for same-company and toll manufacturing reclamation; (3) making notification a condition of the exclusion; (4) adding a requirement to document that recycling under the exclusion is legitimate; and (5) adding emergency preparedness and response conditions.

The rule also proposes to amend the speculative accumulation exclusion under RCRA. Specifically, the rule would add a record keeping requirement to this exclusion. The record keeping requirement would apply to all persons subject to the speculative requirement.

Second, the final rule would replace the exclusion for HSMs that are transferred for purposes of reclamation with a “Verified Recycler Exclusion.” This revision would apply to generators who send their HSMs for reclamation to a verified recycler who has obtained a solid waste variance from EPA or an authorized state. In order to obtain a variance, the recycler must: (1) demonstrate their recycling is legitimate; (2) have financial assurance in place to properly manage the hazardous secondary material when the facility closes; (3) not be subject to a formal enforcement action in the previous three years and not be classified as a significant non-complier under RCRA Subtitle C, or must provide credible evidence that the facility will manage the hazardous secondary materials properly; (4) have the proper equipment and trained personnel, and meet emergency preparedness and response conditions to safely recycle the material; (5)  manage the residuals from recycling properly; and (6) take steps to protect nearby communities and reduce risk of potential unpermitted releases of the permit (such as a permit to discharge to water or air).

EPA is also finalizing a “Remanufacturing Exclusion” to exclude from the definition of solid waste certain higher-value solvents transferred from one manufacturer to another for the purpose of extending the useful life of the solvent by remanufacturing the spent solvent back into the commercial grade solvent.

Fourth, the rule revises the definition of legitimacy and prohibits “sham recycling.” This would codify a long-standing policy aimed at prohibiting materials that are sham recycled from being excluded from the definition of solid waste under RCRA. This policy will be codified at 40 CFR 261.2(g).

EPA has also changed the definition of legitimate recycling, which is found in 40 CFR 260.43. In addition to the existing four criteria evaluated by EPA in determining if certain types of recycling are legitimate, EPA has added an element of flexibility to determine legitimacy.

Finally, the rule proposes to revise solid waste variances and non-waste determinations. The revisions include: (1) requiring facilities to send a notice to the Administrator (or State Director, if the state is authorized) and potentially re-apply for a variance in the event of a change in circumstances that affects how a hazardous secondary material meets the criteria upon which a solid waste variance has been based; (2) establishing a fixed term not to exceed ten years for variance and non-waste determinations, at the end of which facilities must re-apply for a variance or non-waste determination; (3) requiring facilities to re-notify every two years with updated information; (4) revising the criteria for the partial reclamation variance to clarify when the variance applies and to require, among other things, that all the criteria for this variance must be met; and (5) for the non-waste determinations in 40 CFR 260.34, requiring that petitioners demonstrate why the existing solid waste exclusions would not apply to their hazardous secondary materials.

This rule will become effective 180 days after publication in the Federal Register.

For more information on this final rule or general questions regarding RCRA compliance, please contact Shawna Bligh at

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