On January 13, 2015, EPA published a Final Rule in its long-pending rulemaking regarding “the definition of solid waste used to determine hazardous waste regulation under Subtitle C of the Resource Conservation and Recovery Act (“RCRA”).” 80 Fed. Reg. 1,694. In states where EPA administers RCRA requirements, the final rule becomes effective July 13, 2015. The rule does not become effective in RCRA-authorized states until those states act to incorporate it into their regulations. Because the new rule modifies some 2008 regulatory requirements that were less stringent than earlier RCRA rules, RCRA-authorized states may or may not be required to adopt certain portions of the final rule. If existing state RCRA requirements are more stringent than the final rule, the state may elect not to adopt the rule, because RCRA allows states to regulate hazardous wastes more stringently than EPA. If existing state requirements are less stringent than the final rule, the state will have to incorporate the final rule.

The term “solid waste” in RCRA has been controversial since the statute was enacted in 1976, and EPA has struggled to define it clearly. Since RCRA’s onerous hazardous waste requirements apply only to a subset of materials that have first met the definition of “solid waste,” the definition is crucial to establish RCRA’s jurisdictional boundaries. In particular, the solid waste definition determines when RCRA applies to materials that are recycled.

EPA first produced a regulatory definition of “solid waste” in 1985. That rule was challenged successfully in American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987). Subsequent court challenges and EPA rulemaking efforts have perpetuated regulatory uncertainty about the scope of EPA’s definition. These circumstances led to the current final rule, which is actually the culmination of a rulemaking process that began in 2003, when EPA proposed three new conditional exemptions from the definition of solid waste and proposed clarifying regulations regarding the “legitimacy” of recycling. EPA finalized that rule in 2008, but it was immediately challenged by industry and environmental groups. In a court settlement with the Sierra Club, EPA agreed to reconsider certain aspects of the 2008 rule. According to EPA’s fact sheet on the final rule, the rulemaking is intended to address gaps created by exclusions from the definition of solid waste for recycling activities that were added to the regulations in 2008 (the “2008 rule”).

Specifically, the final rule:

  • Modifies, but preserves, the exclusion from the definition of solid waste for hazardous secondary materials reclaimed under the control of the generator found at 40 C.F.R. § 261.4(a)(23). This exclusion was promulgated to allow companies to recycle spent materials and listed sludges and byproducts without complying with full RCRA requirements. The revisions require additional recordkeeping, notice, and emergency-preparedness and response planning.
  • Replaces two exclusions from the definition of solid waste for hazardous secondary materials transferred by the generator to another party for reclamation found at 40 C.F.R. § 261.4(a)(24) and (25) with one new exclusion that requires hazardous secondary materials sent off site for reclamation to be sent to a “verified recycler”.
  • Provides a definition for “contained” at 40 C.F.R. § 260.10.
  • Adds an exclusion at 40 C.F.R. § 261.4(a)(27) from the definition of solid waste for 18 high-value solvents transferred for the purpose of “extending the useful life of the solvent by remanufacturing the spent solvent back into the commercial grade solvent.”
  • Revises the requirements for solid waste variances and non-waste determinations under 40 C.F.R. §§ 260.30 – 260.34 to include additional notification requirements and limit the duration of variances or non-waste determinations to ten years.
  • Adds a recordkeeping requirement to 40 C.F.R. § 261.1(c)(8) providing that a person accumulating hazardous secondary materials must document the accumulation period by labeling the storage unit in which the material is accumulated with the date the material began to accumulate or, where labeling is impracticable, by another method such as an inventory log.
  • Revises the definition of legitimate recycling at 40 C.F.R. § 260.43 to make clear that all four of the criteria comprising the definition are mandatory and to add flexibility in application of the third and fourth criteria, which require that hazardous secondary materials be managed “as a valuable commodity” and be “comparable to a legitimate product or intermediate.”
  • Adds a specific provision at 40 C.F.R. § 261.2(g) stating that any hazardous secondary materials recycled in a manner that does not meet the definition of legitimate recycling codified at 40 C.F.R. § 260.43 is a solid waste. This extends the legitimacy requirements, which were originally codified in 2008 and previously only applied to the exclusions and exemptions promulgated in the 2008 rule, to all recycling activities that occur under the exclusions and exemptions in the rule, including those in effect prior to the 2008 rule.

The changes to the exclusions added by the 2008 rule may have a significant impact on any company that was relying on the exclusions. However, because only eight RCRA-authorized states have adopted those exclusions, those impacts will not be widespread unless more states adopt the newly promulgated versions of the exclusions (The 2008 exclusions generally are considered to be less stringent than previous requirements, so states have the option not to adopt them, since state RCRA requirements may be more stringent than federal requirements.) Similarly, the impact of the new exclusion for 18 specific high-value solvents being remanufactured will depend on how many states incorporate the new provision into their RCRA programs.

The aspect of the final rule likely to have the most widespread impact is the codification of mandatory legitimacy requirements and their extension to all recycling exemptions. Under the existing regulations, hazardous secondary materials recycled under a pre-2008 exemption or exclusion were not required to satisfy the definition of legitimate recycling at 40 C.F.R. § 260.43. Now all recycling occurring under any exclusion will be required to meet the four mandatory criteria. The specific impact of this provision on parties operating under a pre-2008 exclusion or exemption will require a case-specific analysis of the recycling activity against the codified legitimacy criteria.

In finalizing these requirements, EPA did make some effort to address concerns raised by the mining and mineral processing sectors about meeting legitimacy requirements, and these changes will make it easier for the mining industry, in many cases, to meet the new legitimacy criteria than would have been the case under the proposed rule. EPA also eliminated a proposed variance process that would have required any recycler not meeting the four mandatory legitimacy criteria to petition the Agency for relief. In the final rule, EPA replaced the variance with a notice-and-documentation requirement.

During the public comment period, many industry and environmental organizations objected to numerous aspects of the 2011 proposed rule that were ultimately incorporated into the final rule. As a result, it would not be unreasonable to anticipate one or more challenges to the final rule now that it has been published in the Federal Register.