Posted by: Lawyer Sanders | October 15, 2008

Lawyer Sanders says U.S. EPA issues new rule under RCRA regarding reclaimation of hazardous secondary materials via legitimate recycling.

EPA recently issued a final rule under the Resource Conservation and Recovery Act (RCRA) regarding reclamation of hazardous secondary materials via recycling.  The new rule deregulates hazardous wastes that can be reclaimed. The rule excludes regulation of materials from RCRA that are:

 

  • generated and legitimately reclaimed under the control of the generator;
  • generated and transferred to another company for legitimate reclamation under specific conditions; or
  • determined by EPA or an authorized state to be non-wastes on a case-by-case basis via a petition process.

The rule also contains a provision to determine which recycling activities are legitimate under the new exclusions and non-waste determinations. These exclusions are not available for materials that are considered inherently waste-like, used in a manner constituting disposal, or burned for energy recovery.

The rule contains a provision to determine which recycling activities are legitimate under the new exclusions and non-waste determinations.  This provision ensures that only authentic recycling, and not treatment or disposal under the guise of recycling, receives the benefits of these streamlined regulations.

In order to be legitimately recycled under these exclusions, the hazardous secondary material (1) must provide a useful contribution to the recycling process; and (2) the recycling must make a valuable new intermediate or final product. Two additional factors must also be taken into account: (1) whether the recycled material is managed as a valuable product; and (2) whether the recycled product contains toxic constituents at significantly greater levels than a non-recycled product made from virgin materials.

 

These exclusions are not available for materials that are: (1) considered inherently waste-like; (2) used in a manner constituting disposal; or (3) burned for energy recovery. The restrictions for the exclusions in this final rule are substantially similar to those contained in the supplemental proposal published on March 26, 2007 (72 FR 14172) with certain modifications regarding:

 

  • Reporting and recordkeeping;
  • Reasonable efforts required of generators to ensure that their hazardous secondary materials are safely and legitimately recycled;
  • Intermediate facilities storing hazardous secondary materials for more than 10 days are eligible under the transfer-based exclusion; and
  • Tailoring the financial assurance requirements to intermediate facilities and reclaimers of hazardous secondary materials.   

EPA estimates that about 5,600 facilities handling approximately 1.5 million tons of hazardous secondary materials annually may be impacted by this rule. The activities most affected are metals and spent solvent recycling.  To read this rule: epa.gov/epawaste/hazard/dsw/rulemaking.htm

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