Get to Know the Changes in the Recent Definition of Solid Waste (DSW) Rulemaking

Recently, the United States Environmental Protection Agency (USEPA) published final revisions to the Definition of Solid Waste (DSW) Rule (January 13, 2015; 80 FR 1694).  This modifies the USEPA’s 2008 DSW rule to protect human health and the environment from the mismanagement of hazardous secondary material, while promoting sustainability through the encouragement of safe and environmentally responsible recycling of such materials.  The 2015 revisions reestablish hazardous waste restrictions, which were reduced by the 2008 DSW Rule.  The 2008 DSW Rule exempted hazardous waste secondary materials that would be reclaimed from the definition of solid waste.  In an effort to eliminate alleged sham recycling, USEPA redefines certain materials as hazardous waste and implements stricter controls on would-be recyclers.

What is Hazardous Secondary Material and Why Should You Care?

“Hazardous secondary material” is defined as secondary material (e.g., spent material, by-product, or sludge) that, when discarded, would be identified as hazardous waste.  USEPA expects over 5,000 facilities in 634 industries that generate or recycle hazardous secondary materials to be affected by the 2015 DSW final rule.

Summary of 2015 Regulatory Changes

The six major regulatory changes are summarized below.

  • 1. Exclusion for Hazardous Secondary Materials That Are Legitimately Reclaimed Under the Control of the Generator
    • Retaining generator-controlled exclusions for hazardous secondary material recycled under control of the generator (on-site, same company, and toll manufacturing recycling) with strengthened requirements.
    • This is intended to prevent mismanagement of hazardous secondary material during storage.
  • 2. Verified Recycler Exclusion Replacing the Exclusion for Hazardous Secondary Materials that are Transferred for the Purpose of Legitimate Reclamation
    • Replacing transfer-based exclusion with new verified recycler exclusion where off-site transfers for recycling must go to recyclers permitted by the Resource Conservation and Recovery Act (RCRA) or recyclers that have obtained a variance from the state or USEPA.
    • Unpermitted facilities will not be able to receive hazardous secondary material unless they a have obtained a variance from the state or USEPA.
    • USEPA has changed the definition of legitimate recycling in § 260.43 to clarify that all four factors identified in § 260.43 must be met, but also to provide some flexibility in determining legitimacy for certain types of recycling.  In particular, in cases where there is no analogous product made from raw materials, USEPA explains that the product of recycling is still a legitimate product when it meets widely recognized commodity standards (e.g., commodity-grade scrap metal) or when the hazardous secondary material is recycled back into the production process from which it was generated (e.g., closed-loop recycling).  In addition, for cases in which the product of therecycling process has levels of hazardous constituents that are not comparable to analogous products, the revised legitimacy standard includes a process that allows the facility to document and certify that the recycling is still legitimate, keep such documentation at the facility, and send a notification to the regulatory authority to thateffect.  Further discussion of legitimacy can be found in section VIII of the preamble to the revised rule (January 13, 2015; 80 FR 1694).
  • 3. Prohibition of Sham Recycling and Revisions to the Definition of Legitimacy
    • Codifying definition of legitimate recycling with built-in recognition for in process recycling and commodity-grade materials.
    • All four legitimacy factors must be met and legitimacy documentation is required when recycled product has elevated levels of hazardous constituents.
  • 4. Remanufacturing Definition
    • Finalizing remanufacturing exclusion for certain higher-value spent solvents that are remanufactured into commercial-grade products.
  • 5. Revisions to Solid Waste Variances and Non-Waste Determinations
    • Strengthening existing variance and non-waste determination provisions, which are granted to facilities on a case-specific basis.
  • 6. Deferral on Revisions to Pre-2008 Recycling Exclusions
    • USEPA is not finalizing revisions to the pre-2008 recycling exclusions and exemptions to include the contained standard or to require notification.  These possible revisions include:
      • Recordkeeping for speculative accumulation as applicable
      • Requiring facilities to re-notify every two years with updated information on their operating status under the various exclusions and exemptions
      • Containment standards for excluded hazardous secondary materials.
    • USEPA is insteaddeferring action until it can more adequately address commenters’ concerns.

The final rule will be effective July 13, 2015.

State Authorization

Because the 2015 DSW rule is more stringent than the 2008 DSW rule, states that adopted the 2008 DSW rule (Idaho, Illinois, New Jersey, and Pennsylvania) will be required to modify their programs to be at least as stringent as the federal program.

Other states will be required to adopt, at minimum, those provisions in the 2015 DSW rule that are more stringent than the current hazardous waste program:

    • Prohibition of sham recycling and the definition of legitimate recycling (including contained definition)
    • Accumulation date tracking requirement for speculative accumulation provisions
    • Changes to the standards and criteria for the solid waste variance and non-waste determinations.

In general, the exclusions in the final rule do not go into effect unless and until the authorized state adopts them.  USEPA will be working with states to help facilitate state adoption of the new rule and to encourage legitimate recycling of hazardous secondary materials.

 

How Can EHS Support Help?

We can help you navigate through the 2015 DSW rulemaking and determine how the changes may apply to your facilities.  EHS Support’s RCRA experts specialize in assisting with hazardous waste determinations and other generator and disposal/recycling company needs.  Feel free to contact Amy Bauer for further information.

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