U.S. EPA has worked for years on revisions to the definition of Solid Waste to encourage greater recycling and capturing the energy in discarded materials. The road to changes that encourage recycling has been long and, as the following discussion indicates, is still very bumpy.

Definition of Solid Waste

At the end of 2008, U.S. EPA issued a number of final rules that (1) revised the definition of solid waste to allow for more recycling; (2) expanded the comparable fuel exclusion; and (3) expanded the oil-bearing hazardous secondary waste exclusion. The new rules exempt categories of hazardous secondary materials ("HSM") from solid waste regulations for recycling purposes. When these rules were issued, U.S. EPA stated that the creation of additional solid waste and hazardous waste exclusions will promulgate an increase in recycling of usable HSM and extraction of energy from HSM. For businesses that work with the applicable materials, these rule could translate to reduction in environmental compliance costs and more efficient operations.  

Conditional Exemption of Hazardous Secondary Materials That Are Legitimately Reclaimed from Definition of Solid Waste

On October 7, 2008, U.S. EPA issued a Definition of Solid Waste rule ("DSW Rule") that exempted certain hazardous secondary materials ("HSM") from the definition of solid waste. 73 Fed. Reg. 64668 (Oct. 30, 2008). The final rule became effective on December 29, 2008. More recycling of metals and solvents sludges and spent catalysts would occur.

The definition was changed in three ways:

  1. There is a Generator-Control Exclusion which applies when a generator legitimately recycles HSM at facilities under the generator's control.
  2. As long as conditions and requirements are satisfied there is an exclusion for HSM that are transferred from one company to an intermediate facility, or to another company, for the purpose of legitimate reclamation.

There is a Non-Waste Determination for a facility that generates and reclaims HSM in a continuous industrial process or generates HSM that is indistinguishable from an intermediate or final product of the process. The company may petition for this exclusion. This exclusion is intended to address recycling activities that do not involve discard of materials.

On May 5, 2009, U.S. EPA announced it would take comments on whether to reconsider or repeal the rule. In a contradictory statement in the announcement U.S. EPA said it was not considering repealing the rule, only revising it. U.S. EPA will hold a public meeting on June 30 and take written comments on the rule until July 14, 2009.

Some delegated RCRA states are not promulgating the rule until the Obama administration announces its decision on the review. In other states the rule goes into effect automatically. Check your local EPA for the status of the rule in your state.

Comparable Fuel Exclusion

The U.S. EPA issued a final rule that expanded the scope of the preexisting comparable fuels and synthesis gas exclusion that is provided under Subtitle C of RCRA (hereinafter referred to as the "Emission Comparable Fuel Rule" or "ECF Rule"). 73 Fed. Reg. 57. U.S. EPA issued the ECF Rule on December 19, 2008, and it became effective on January 20, 2009.

Prior to the ECF Rule, RCRA excluded comparable fuels and synthesis gas from the definition of solid waste. These materials are energy-rich HSMs which would otherwise be hazardous waste, but they have the same hazardous constituent concentrations as fossil fuels that would be burned in their place. 40 CFR § 261.38 (March 12, 2009). The ECF Rule expanded the exclusion to cover energy-rich HSM that have emissions that are comparable to fossil fuels that would be burned in their place.

On May 5, 2009, U.S. EPA announced in a press release that it plans to propose a rule to withdraw the ECF Rule. The publication of the rule proposing withdrawal is planned for November 2009.

Check with your state to see if the rule is currently in effect.

Exclusion of Gasification of Oil-Burning HSM

In addition to the expansion of the comparable fuel exclusion, U.S. EPA also expanded the oil-bearing HSM exclusion of RCRA in a January 2, 2008, final rule (hereinafter referred to as "Gasification Rule"). RCRA's oil-bearing HSM exclusion is used by the petroleum refinery industry.

Prior to the issuance of the Gasification Rule, RCRA provided an exclusion from the definition of solid waste for oil-bearing hazardous secondary materials that are generated at a petroleum refinery and recycled by being re-inserted back into the refining process. 40 CFR 261 (July 1, 2008). The processes that were covered under the exclusion include distillation, catalytic cracking and fractionation. U.S. EPA's Gasification Rule expanded the processes covered to include gasification. 73 Fed. Reg. 57. For additional information please contact U.S. EPA: Roxanne Smith, 202.564.4355.

U.S. EPA issued the Final Rule on January 2, 2008, and it became effective on February 1, 2008.

U.S. EPA will not reconsider this rule. Check with your state to learn if the rule is in effect in your locale.