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July 24, 2015
Is it safe to say that the RCRA regulations on recyclable materials from which precious metals are reclaimed have not been affected by the 2015 DSW Final Rule?

The 2015 Definition of Solid Waste Final Rule (2015 Final Rule) does not significantly affect the recycling exemption from full RCRA Subtitle C regulation found at 40 CFR 266.70 for precious metals being reclaimed in accordance with the 40 CFR 266.70 provisions. 


When in the process of revising the 2008 DSW rule, however, EPA did consider adding the following requirements to what it identified as 32 pre-2008 exclusions and exemptions, including that at 40 CFR 266.70. In 76 Federal Register (FR) 44139 July, 22, 2011 EPA said:

“Specifically, we are requesting comment on codifying the legitimate recycling standard in 40 CFR 260.43, additional recordkeeping requirements in the speculative accumulation standard in 40 CFR 261.1(c)(8), the contained standard in 40 CFR 260.10, and the notification provision in 40 CFR 260.42 for 32 regulatory provisions that exclude or exempt certain types of recycling from full Subtitle C regulation.”


However, in Section XIX of the preamble to the 2015 Final Rule, the EPA stated the following concerning its consideration of adding new requirements to recycling provisions such as 40 CFR 266.70:

“Regarding legitimacy, in lieu of adding a legitimacy requirement to the specific recycling exclusions, EPA is instead codifying a general statement in § 261.2(g) that makes it clear that a hazardous secondary material found to be sham recycled is discarded and thus, is a solid waste. EPA finds that this will give implementing agencies a clear regulatory statement that can be used to enforce against sham recyclers, yet not require the vast majority of recyclers that are performing legitimate recycling under the pre-2008 exclusions and exemptions to revisit previously-made legitimacy determinations….Regarding the contained standard and notification, for reasons stated above, the Agency is deferring action on applying the contained standard and notification to the pre-2008 exclusions and exemptions in order to consider how best to implement these conditions in the context of the case-specific circumstances of the regulatory provisions.”

EPA also noted : “We have also determined that documentation of legitimacy is not necessary or required for the pre-2008 recycling exclusions and exemptions, except in the rare case where the recycling is legitimate, but does not meet factor 4” (which requires that the product of recycling be comparable to a legitimate product or intermediate).


In sum, while documentation of legitimacy is not now required of those who recycle precious metals in compliance with 40 CFR 266.70, the legitimacy standard does apply to this recycling activity (as has always been the case). Other 2015 Final Rule requirements EPA considered making directly applicable to pre-2008 recycling exclusions and exemptions (e.g. 40 CFR 266.70) such as the contained standard and notification prior to operating under a recycling provision have been deferred by EPA for possibly further consideration.


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