EPA Final Rule Revising Definition of Solid Waste

The Environmental Protection Agency’s (EPA) final rule on the definition of solid waste will become effective on July 13, 2015. Perhaps the biggest revision in the rule is EPA’s withdrawal of the transfer-based exclusion codified in the 2008 rule. In its place, EPA created the “verified recycler exclusion.” This new provision requires that all recyclers operating under this provision have RCRA permits or obtain variances prior to reclaiming hazardous secondary materials. Factors in the new provision:

• hazardous secondary material must provide a useful contribution to the product or recycling process
• recycling process must produce a valuable product or intermediate
• hazardous secondary material must be managed as a valuable commodity
• recycled product must be comparable to a legitimate product or intermediate

According to analysis conducted by Bergeson & Campbell, PC:

The rule retains the exclusion for hazardous secondary materials that are legitimately reclaimed under the control of the generator (generator-controlled exclusion), but adds several conditions to the exclusion, including notification and recordkeeping requirements and emergency preparedness and response conditions. EPA also modified the transfer-based exclusion by adding several conditions, including one that recyclers have financial assurance in place to manage the materials left behind when the facility closes. An addition to the rule is the remanufacturing exclusion, which exempts 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 commercial grade solvent.

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