Waste Redefined

The U.S. Environmental Protection Agency (EPA) has developed a new definition of solid waste under the Resource Conservation and Recovery Act (RCRA) designed to encourage recycling and to streamline regulation of reclaimed hazardous secondary materials. The EPA says it believes the streamlined regulations, which will affect about 5,000 facilities, will make recycling safer, easier and more cost effective.

Rule Development
To develop the new rules, the EPA studied current industry best management practices for the recycling of hazardous secondary materials and the environmental problems associated with recycling. The EPA also conducted an economic study of incentives and disincentives for recycling before publishing the rule. The EPA initially proposed its new rules in 2007.

State environmental agencies were generally supportive, as was industry; however, certain environmental groups opposed it. The Sierra Club appealed the rulemaking, and the EPA published its revised rule July 6, 2011, committing to promulgate a final rule by Dec. 31, 2011. The EPA says it believes the revised rule will improve accountability and oversight of hazardous materials recycling while allowing for important flexibility that will promote its economic and environmental benefits.

Rule Mechanics
The rule encourages recycling by excluding or exempting certain hazardous secondary materials from the definition of solid waste under RCRA, which takes the materials out of the often burdensome RCRA regime of handling and disposal restrictions and recordkeeping requirements.

"Hazardous secondary materials" are eligible for treatment under the rule, which means secondary materials (e.g., any spent material, byproduct or sludge) that, when discarded, would be identified as hazardous waste under RCRA. A generator cannot use the rule for materials recycled by a use constituting disposal or burned for energy recovery, for inherently waste-like materials, for materials already excluded from the definition of solid waste under some other exemption or for spent lead acid batteries or spent petroleum catalysts.

The rule includes four separate exclusions or exemptions from the definition of solid waste:

• Under control of the generator;
• Transfer based;
• Nonwaste determination; and
• Legitimate recycling.

We will take a closer look at each of these exclusions.

Generator Controlled
The "under control of the generator" exclusion eliminates from the definition of solid waste hazardous secondary materials generated and reclaimed at the same facility (which includes facilities leased by the generator and on-site contractors) or by the same company (even at different facilities) if the reclaiming facility is controlled by the generator or if the generator and reclaimer are under common control or under certain toll manufacturing arrangements.

To take advantage of this exclusion, a generator must legitimately recycle materials and may not speculatively accumulate materials. Generators must submit certain specified notifications using the site ID Form, ensure the materials are contained and reclaim the materials within the United States.

To take advantage of this exclusion, facilities must send a notification form prior to operating under the exclusion and then again by March 1 of each even numbered year thereafter.

Generally material is considered contained if it is placed in a unit that controls the movement of the material out of the unit and into the environment. Material that is released from the unit is a solid and potentially hazardous waste unless it is immediately recovered. Please note also that a significant release could result in classification of material actually remaining in the unit as a solid and hazardous waste. Because the new exclusions are based on the idea that the material will be re-used, the materials must be stored as if they were raw materials whose quality is important. If they are not, the exclusion would be unavailable. Land-based units are defined as an area where materials are placed in or on the land before recycling (such as a service pile or waste pile) and storage in a nonland based unit is not required.

Transfer Based
Hazardous secondary materials that are generated and transferred to another person for reclamation are now exempt from the definition of hazardous waste under the "transfer based" exclusion. To take advantage of this exclusion, a generator must:

1. Legitimately recycle materials; avoid speculative accumulation of materials; submit certain notifications; ensure materials are contained; make reasonable efforts to evaluate the reclaimer and intermediate facilities to determine they will safely and legitimately recycle the materials; and
2. Enter into contractual arrangements with intermediate facilities to ensure that materials are actually sent to the reclamation facility, maintain records of off-site shipments and confirmations of receipt and provide notice and obtain consent before waste is exported from the United States.

For this exclusion to be available to the generator, reclaimers and intermediate facilities also must legitimately recycle materials and not speculatively accumulate materials; submit certain notifications; ensure that materials are contained; manage recycling residuals safely; maintain records of shipments and send confirmations of receipt to the generator; and post sufficient financial assurance.

As indicated above, the exclusion requires generators to make reasonable efforts to evaluate the reclaimer or intermediate facility to ensure they intend to properly manage and legitimately recycle the material prior to shipment. Generators must undertake such reasonable efforts and record the results of those efforts no less frequently than once every three years.

The recordkeeping will include a certified statement. The minimum standard for "reasonable efforts" consists of an analysis of five issues. (Please note, the reasonable efforts are not required if a generator chooses to send materials to a facility that will manage the material under a RCRA Part B Permit or interim status standards.) The five issues to be analyzed are:

1. Is the reclamation process legitimate?
2. Has the facility notified authorities and indicated that it has appropriate financial assurance?
3. Does publicly available information indicate that there are no formal enforcement actions taken against the facility in the previous three years and that the facility is not in significant noncompliance with RCRA? If there is evidence of such an enforcement action or significant noncompliance, does the generator have creditable evidence that the material will now be properly managed?
4. Does the facility have the equipment and trained personnel to safely recycle the material?
5. Does the facility have the required permits to manage recycling residuals and have a contract to dispose of them at a permanent facility or does the generator have creditable evidence that residuals will in fact be safely managed?

Intermediate facilities are facilities that store materials (but do not engage in generation or reclamation) for more than 10 days. Intermediate facilities do not include transfer facilities that hold materials during the normal course of transportation for less than 10 days. Intermediate facilities must comply with the same conditions as the reclaimer. Generators must perform "reasonable efforts" on each intermediate facility handling the material and must enter into contractual arrangements with each immediate facility to ensure the materials are sent to the reclamation facility chosen by the generator.

Financial assurance is a mechanism by which facilities ensure they will not abandon the materials in the event they cease operations. Financial assurance required under the new regulated definition is very similar to that required for interim status TSD (treatment, storage and disposal) facilities with some modifications. The regulations have been revised to allow a unit at the end of its operating life to be released from financial assurance if it can demonstrate that all hazardous secondary materials have been removed. That is, there is no post-closure-care financial assurance.

To establish appropriate financial assurance, a facility must develop an estimate for the potential costs of closing the facility and disposing of any hazardous secondary material as hazardous waste. The same types of financial instruments available for interim status TSD facilities will satisfy the requirements for reclaimers' interim facilities (trust funds, bonds, letters of credit, insurance or a financial test for the corporate guarantee.)

In addition to notification and documentation certification of "reasonable efforts," for three years a facility must maintain records of all off-site shipments sent and received at the facility. The reclaimers must send and the generators must maintain, for three years, confirmation of receipt of materials. Generators must obtain notice and consent for exports and must file annual reports of materials exported to foreign reclaimers.

Nonwaste Determination
Hazardous secondary materials that are reclaimed in a continuous industrial process or are indistinguishable in all relevant aspects from a product or intermediate are now excluded as nonwaste under the revised definition. However, materials recycled by a use constituting disposal or burning for energy recovery are not eligible for a nonwaste determination. To obtain a nonwaste determination, a facility must legitimately recycle the materials, demonstrate the hazardous secondary material meets the eligibility criteria and submit an application to the EPA or its state authority.

Legitimate Recycling
The "legitimate recycling" provision is a condition of each of the new exclusions and determinations. The provision is equivalent to the existing policy for legitimate recycling. The legitimate recycling provision includes two mandatory factors. To quality for the exemption, material must provide a useful contribution to the recycling process or to a part or intermediate, and the recycling must produce a valuable product or intermediate. Two other factors must also be considered (though they are not mandatory.)

The designated materials must be managed as valuable commodities, and the products of recycling must not contain significantly higher levels of hazardous constituents than those found in analogous products.

Mandatory Factors Material
provides a useful contribution to the recycling process or a product or intermediate if it contributes valuable ingredients, replaces a catalyst or carrier in the recycling process, is a source of a valuable constituent, is recovered or regenerated or is used as an effective substitute for a commercial product. Recycling produces a valuable product or intermediate if it is sold to a third party or used by the recycler as an effective substitute for a commercial product or as an ingredient or intermediate.

Generators also must consider the nonmandatory factors. The recycled or reclaimed materials must be managed as valuable commodities, and the products of recycling must not contain a significantly higher level of hazardous constituents than those found in analogous products. If the recycling does not satisfy one of the nonmandatory criteria, the recycler should be prepared to explain why this recycling is still legitimate.

The author is a shareholder and an environmental litigation attorney at Moore & Van Allen PLLC, a law firm based in Charlotte, N.C. He recently authored the manual, "EPA's New Regulated Waste Definition under RCRA," which offers guidance to industrial facilities who will be impacted by the change.