The U.S. EPA recycling rules for “hazardous secondary materials” have been like the mathematical word problems you wanted to avoid on the algebra test: complicated and mind-bending. But what wastes are exempted from hazardous waste rules (because EPA does not consider them to be wastes)? Now that complex problem has real-world consequences.
In regulatory-speak, this new EPA “Definition of Solid Waste” rule tells us what is a waste, what isn’t, and what requirements generators and recyclers might follow to avoid the hazardous waste regulatory program. After the 2008 Bush administration revisions were legally challenged by the Sierra Club, President Obama’s new EPA administrator agreed with environmentalists that changes were necessary and settled the lawsuit, agreeing to revamp the rules. After many delays, the final rule is to be published in the Federal Register by mid-December 2014, and we have reviewed the 507-page prepublication version (the rule alone consumes 189 pages). A link can be found here.
For most wastes subject to recycling rules adopted before 2008, there will be few changes (including no change to the popular scrap metal exemption). EPA also believes that most internal-company recycling will be substantially unaffected. EPA justifies the new rules as a better balance between environmental protection and promoting recycling, citing over 200 examples of recycling damage, many of which occurred in low-income and minority areas that are often referred to as the environmental justice communities.
EPA projects that 5,000 generators and recyclers are likely to be affected. Here is a laundry list of the changes:
- Adoption of mandatory “legitimacy criteria” for all recycling under the regulation (useful contribution to recycling process, produces a valuable product, is managed as a valuable commodity, and is comparable to a legitimate product)
- “Generator-controlled” recycling is subject to additional record-keeping, notification, and emergency preparedness
- The 2008 “transfer-based exclusion,” generally allowing transfer to others for recycling, has been terminated
- Off-site recyclers must obtain an EPA permit or enter a newly-created class of regulated entities: “Verified Recyclers” with public participation for variances
- Verified Recyclers are subject to specific regulations including notification, demonstration of legitimacy, management practices, equipment and training, and financial assurance for cleanup and closure
- A new “remanufacturing” exclusion for 18 high-value materials and solvents
It seems obvious that some on-site and off-site recyclers will have to change practices, obtain additional financial assurance (and perhaps funding) and take other steps -- or stop recycling and even shut down. Additional requirements are likely to raise the cost and difficulty of finding recyclers – and possibly promote disposal as an alternative.
Most states are authorized to implement the federal hazardous waste program through state laws. As a result, for better or worse (or both), impacts will not be realized until states change their rules to implement this new federal rule, which will likely take months or years, depending on how quickly states act. New state rules may also be more stringent than EPA rules.
Who should care about this rule? Anyone who recycles materials that would be hazardous waste by characteristic or listing (whether recycled on site or off-site) may be affected, but the combination of the federal rule, current state rules, and potential future state rules makes it difficult to predict the final outcome for some materials. Nevertheless, forward-thinking generators and recyclers will want to consider what changes the new rules will bring, and plan accordingly, or even seek to shape state rules to promote sensible and protective recycling.