On July 22, 2011 US EPA published a notice of proposed rulemaking that would again revise the definition of “solid waste” under the Resource Conservation and Recovery Act (RCRA). See Definition of Solid Waste, Proposed Rule, 76 Fed. Reg. 44094 (July 22, 2011) (the Proposed Rule). The rulemaking was initiated in response to the requirements of a September 7, 2010 settlement agreement between US EPA and the Sierra Club relative to the Sierra Club’s administrative petition under Section 7004(a) of RCRA, 42 U.S.C. §6974(a), requesting that US EPA repeal the 2008 revisions to the definition of solid waste (DSW Rule) on the basis that those revisions are unlawful and that they increase threats to public health and the environmental without producing compensatory benefits. US EPA agreed to prepare a notice of rulemaking by June 30, 2011 and take final action by December 31, 2012. The Proposed Rule is primarily directed at withdrawal and replacement of the exemption under 40 CFR §261.4(a)(24) for hazardous secondary materials generated and then transferred to another person for the purpose of reclamation. However, US EPA is soliciting comment with regard to provisions to tighten up the enforceability of its regulatory exemptions generally.

Based on its current analysis of the DSW Rule, US EPA now believes that most hazardous secondary materials transferred from the generator for reclamation are ultimately discarded and thus are best regulated under RCRA Subtitle C. Accordingly as drafted, the Proposed Rule would replace the exclusion for hazardous secondary materials with an alternative Subtitle C regulation. Under this alternative, hazardous secondary materials essentially would be managed according to current RCRA Subtitle C requirements, including those related to manifesting and hazardous waste storage, except that generators could accumulate hazardous recyclable materials for up to a year without a RCRA permit if the generator makes advance arrangements for the legitimate reclamation of the materials and documents the arrangements in a reclamation plan.  

Additionally, US EPA’s Proposed Rule would retain the exclusion for hazardous secondary materials reclaimed under the control of the generator, but would include the following revisions:

  1. addition of a regulatory definition of “contained”;
  2. requiring generator notification as a condition of the exclusion;
  3. addition of a recordkeeping requirement for speculative accumulation; and
  4. addition of a recordkeeping requirement for reclamation under toll manufacturing agreements.  

To encourage legitimate recycling, however, US EPA is also proposing revisions to the definition of “legitimacy” under 40 CFR 260.43, which would include:

  1. applying the definition to all recycling activities regulated under 40 CFR 260-266;
  2. making all legitimacy factors mandatory, with a petition process for instances where a factor is not met, but the recycling is still legitimate; and
  3. requiring documentation of legitimacy.  

In addition, to create greater consistency of solid waste variances and non-waste determinations, US EPA proposes the following revisions:

  1. requiring facilities to re-apply for a variance in the event of a change in circumstances that affects how a material meets the criteria upon which a solid waste variance has been based;
  2. requiring facilities to provide updated information every two years;
  3. revising the criteria for partial reclamation variances to more clearly explain when the variance applies; and
  4. revising the criteria for the non-waste determination under 40 CFR 260.34 and requiring that petitioners demonstrate why the existing solid waste exclusions would not apply to their hazardous secondary.  

US EPA is also seeking comments on revisions that would affect other exclusions and exemptions under the definition of solid waste including:

  1. recordkeeping for speculative accumulation in all cases;
  2. requiring facilities to provide updated information on their operating status every two years; and
  3. containment standards for excluded hazardous secondary materials.  

Facilities affected by these proposed revisions to the RCRA definition of “solid waste” should consider providing comments to US EPA prior to October 20, 2011 to ensure that the agency has all relevant information before taking final action on or before December 31, 2012.