EPA Revises Definition of Solid Waste to Encourage Recycling of Hazardous Secondary Materials

On October 30, 2008, the United States Environmental Protection Agency (EPA) published a final rule revising the definition of “solid waste” to exclude certain hazardous secondary materials from regulation under Subtitle C of the Resource Conservation and Recovery Act (RCRA). The new rule was promulgated to “encourage safe, environmentally sound recycling” of hazardous secondary material generated during industrial production processes. The rule will become effective on December 29, 2008.

“Hazardous secondary material” is defined as secondary material (e.g., spent material, by-product, or sludge) that, when discarded, would be identified as hazardous waste. Under the new rule, hazardous secondary materials are excluded from regulation as a hazardous waste if the material will be reclaimed. There are two primary exclusions in the rule: (1) an exclusion for certain hazardous secondary materials legitimately reclaimed under the control of the generator within the United States and its territories; and (2) a conditional exclusion for hazardous secondary materials that are transferred for the purpose of legitimate reclamation. Both exclusions require the relevant parties to notify EPA and/or the state authority prior to operating under the exclusions and by March 1 of each even-numbered year. Also, owners and operators of reclamation facilities and intermediate facilities must satisfy financial assurance requirements for disposal and facility closure activities, as well as liability coverage requirements for bodily injury and property damage to third parties. Finally, the rule establishes a voluntary non-waste determination process that provides generators with an administrative process for receiving formal determination that their hazardous secondary materials are not discarded solid wastes when reclaimed.

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