Posted by: Lawyer Sanders | December 4, 2008

Environmental lawyer Sanders says U.S. EPA’s new rule exempting recycling of hazardous secondary materials will become final on December 29, 2008.

U.S. Environmental Protection Agency (“EPA”) issued a final rule revising the current definition of “solid waste” under the Resource Conservation and Recovery Act (RCRA) in October 2008.  The agency published the new rule in the Federal Register on October 30, 2008 (73 Fed. Reg. 64668) and it will become legally effective on December 29, 2008.


The new rule excludes from the definition of “solid waste” certain hazardous secondary materials (“HSM”) that are being recycled by reclamation.  Thus, the rule will prevent EPA from regulating HSM, as a hazardous waste, if the material is being legitimately recycled. 


HSM are defined by the EPA as materials which would be hazardous wastes if discarded.  The final rule makes four principal regulatory changes: 

  1. HSMs that are generated and legitimately reclaimed under the control of the generator are no longer considered to be solid wastes; 
  2. Under certain conditions, HSMs that are generated and transferred to another company for     legitimate reclamation are no longer considered to be solid wastes; 
  3. Prior EPA guidance on criteria to be used in determining the legitimacy of recycling are codified into regulations; and  
  4. The new rule creates a voluntary petition process to permit the exclusion of HSMs by either the EPA or an authorized state on a case-by-case basis. 

To many, the new rule will reduce some red-tape for generators and recyclers of HSM.  The rule may also give birth to additional recycling of HSMs as a viable option to disposal of such material.  On the other hand, others believe that the new rule will simply give new meaning to term “sham recycling.” This latter view is focused on waste management activities at smaller sized companies that generate HSM. 

The jury will remain out for some time on deciding whether this rule helps or hurts environmental protection.  Let’s give the new rule some time before we make up our minds on recycling of HSMs.

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