Download PDF
January 22, 2015

RCRA Definition of Solid Waste Final Rule Published in Federal Register, and Other Recent RCRA Developments

Bergeson & Campbell, P.C.

RCRA Definition Of Solid Waste Final Rule Published In Federal Register: On January 13, 2015, the U.S. Environmental Protection Agency (EPA) published its final rule revising the Definition of Solid Waste (DSW) under the Resource Conservation and Recovery Act (RCRA). 80 Fed. Reg. 1693. The rule overturns or significantly revises several hazardous waste recycling exclusions previously contained in a 2008 EPA final rule. 73 Fed. Reg. 64688 (Oct. 30, 2008). Perhaps the biggest revision in the rule is EPA’s withdrawal of the transfer-based exclusion codified in the 2008 rule. In its place, EPA created the “verified recycler exclusion.” This new provision requires that all recyclers operating under this provision have RCRA permits or obtain variances prior to reclaiming hazardous secondary materials. The rule retains the exclusion for hazardous secondary materials that are legitimately reclaimed under the control of the generator (generator-controlled exclusion), but adds several conditions to the exclusion, including notification and recordkeeping requirements and emergency preparedness and response conditions. EPA also modified the transfer-based exclusion by adding several conditions, including one that recyclers have financial assurance in place to manage the materials left behind when the facility closes. An addition to the rule is the remanufacturing exclusion, which exempts certain higher-value solvents transferred from one manufacturer to another for the purpose of extending the useful life of the solvent by remanufacturing the spent solvent back into commercial grade solvent. Another major change in the rule is the codification of legitimacy criteria that all recyclers of hazardous secondary materials must meet. These criteria are: (1) the hazardous secondary material must provide a useful contribution to the product or recycling process; (2) the recycling process must produce a valuable product or intermediate; (3) the hazardous secondary material must be managed as a valuable commodity; and (4) the recycled product must be comparable to a legitimate product or intermediate. The rule will become effective on July 13, 2015. Because most states are authorized by EPA to administer the RCRA hazardous waste program, however, the changes in the rule will not become effective in RCRA-authorized states until those states revise their programs to adopt the changes, and after EPA approves the states’ revised programs.

EPA Holds Webinar On Electronic RCRA Hazardous Waste ManifestOn November 20, 2014, EPA held a webinar on the implementation of its electronic hazardous waste manifest under the RCRA program. During the webinar, EPA staff stated that the so-called “e-manifest” will be operational no later than the spring of 2018. EPA cautioned, however, that delays in contracting work or Congressional funding could delay its completion. The e-manifest is required under the Hazardous Waste Electronic Manifest Establishment Act. Under that law, the e-manifest system was to have been fully operational by October 5, 2015, but it claims that insufficient Congressional funding will delay that deadline. A PDF version of the slides is available online.

EPA Issues Report On Future Of RCRA Program: On October 29, 2014, at the winter meeting of the Association of State and Territorial Solid Waste Management Officials (ASTSWMO), EPA issued a report on the RCRA program that appears intended to serve as both a defense of the RCRA program and as an argument for its continued relevancy. Entitled “RCRA’s Critical Mission & The Path Forward,” the report details the accomplishments of the RCRA program, identifies existing challenges, and lays out a path forward for the program. The report serves as a “messaging document” to highlight the successes of the RCRA program and the necessity for its continued evolution. According to the report, this new evolution is taking the form of Sustainable Materials Management (SSM). In the report, EPA states that it and state hazardous waste agencies are expanding the “resource conservation aspect of the RCRA program” towards SSM. The report describes SSM as “an approach that considers the entire lifecycle of materials and casts a far broader net than traditional waste and chemicals management approaches.” EPA claims that “SSM can transform production processes, minimizing the amount of materials involved and the associated environmental impacts.” EPA acknowledges in the report that its current RCRA regulatory structure is ill-suited to address SSM, but it pledges to integrate its separate environmental programs to address systematically material movement through the environment. The report is available online.

EPA Clarifies That Waste-Derived Brick Material May Be Regulated As Fuel When Burned: In a letter dated September 29, 2014, the EPA Office of Solid Waste and Emergency Response (OSWER) clarifies that a nonhazardous, waste-derived “brick” intended to substitute for coal or biomass in stocker boilers may be regulated as a fuel rather than a solid waste when it is burned in certain kilns, incinerators, or boilers. The letter was sent to WERC-2 Inc. to provide regulatory clarity under the EPA’s nonhazardous secondary materials rule. The material, EcoTac, consists of 20-40 percent plastics, 10-40 percent paper and cardboard, 5-10 percent organics, 5-10 percent polystyrene, and other residual waste products, according to the letter. It consists of 15 percent or less moisture, 0.3 percent or less of chlorine, and comparable levels of sulfur to those of chlorine, according to the letter. Failure to maintain those specified conditions in the fuel source could mean the regulatory requirements for the material would change, according to EPA. EPA has issued over 20 comfort letters affirming its intent to regulate certain materials as fuels rather than as solid wastes under its final February 2013 nonhazardous secondary materials rule. Aspects of the regulation are currently being challenged in a federal appeals court by industry and environmental groups. Certain materials were categorically exempted from the stricter regulatory standards in that rulemaking — resinated wood, coal refuse that has been recovered from legacy piles, scrap tires that are not discarded and are managed by established tire collection programs, and dewatered pulp and paper sludges. Additional comfort letters have provided regulatory certainty for additional materials. The September 29, 2014, comfort letter from EPA to WERC-2 is available online.

EPA Clarifies Position Regarding Alternative Uses Of CRT Glass: EPA has clarified that using cathode ray tube (CRT) glass as a substitute in ceramic tile manufacturing may be considered legitimate recycling, while using the leaded glass as alternative daily cover in landfills is considered disposal of the material, according to letters EPA issued to Sims Recycling Solutions and Sony Electronics, Inc. on September 10, 2014. EPA would exclude recycling CRT glass in ceramic tiles from solid and hazardous waste regulations under RCRA, while disposing of these materials would require compliance with certain RCRA requirements, according to EPA. Sims Recycling Solutions sought the clarification on how CRT glass used in ceramic tile production would be treated. Sony Electronics, Inc. sought the clarification for alternate daily cover in landfills. EPA concluded the CRT glass provides a useful contribution, produces a valuable product or intermediate, is managed as a valuable commodity, and has concentrations of lead and cadmium that meet standards set by the European Union (EU). EPA also concluded that using CRT glass as alternate daily cover in landfills would not constitute recycling, meaning it would be regulated under certain RCRA regulations. EPA’s letter on the use of CRTs in ceramic tile production is available online. The EPA’s letter on the use of CRTs as alternate daily cover at landfills is available online.