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August 10, 2015
What didn't change with the 2015 DSW final rule
By Elizabeth M Dickinson, JD, Senior Legal Editor - EHS

On January 13, 2015, the EPA published in the Federal Register (FR) its long-awaited final rule revising regulations affecting hazardous materials recyclers under the Resource Conservation and Recovery Act (RCRA). Known as the 2015 Definition of Solid Waste (2015 DSW final rule), this final rule exempts certain types of hazardous secondary materials (HSMs) from the definition of solid waste provided certain conditions are met. It became effective on July 13, 2015, although, in general, the exclusions in the final rule do not go into effect unless and until an EPA-authorized state adopts them. While the new rule adds many requirements that significantly impact HSM recycling activities, it does not extend its regulatory reach to affect certain recycling activities that have enjoyed exclusions or conditional exemptions from RCRA regulation for many years (and in some cases, decades).


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What changed

A great deal of the focus on the 2015 DSW final rule has been in connection with the provisions that are new and/or more stringent than the current hazardous waste program:
•  The codification of the definition of “sham recycling” and the revised definition of legitimate recycling;
•  The revised exclusion for HSMs legitimately reclaimed under the control of the generator;
•  The new, verified recycler exclusion (which replaced the transfer-based exclusion);
•  The new remanufacturing exclusion for HSMs (for higher-value solvents); and
•  Changes to the standards and criteria for the solid waste variance.

The objective of the 2015 DSW final rule is to provide strong protections against the potential for mismanagement of HSMs intended for recycling and to establish a clear, uniform, legitimate recycling standard for all HSM recycling that will improve compliance and help ensure that HSMs are, in fact legitimately recycled, rather than illegally disposed of.

What didn’t change

In addition to these changes, the 2015 DSW final rule is also notable for what the EPA decided not to change. The rule does not significantly affect the 32 recycling exemptions and exclusions that existed before the 2008 version of the DSW rule. This is not to say that the EPA didn’t think about tweaking these pre-2008 exemptions and exclusions; it did. 

In its notice of proposed rulemaking in 76 FR 44139 July 22, 2011, the EPA mused about adding requirements to what it identified as 32 pre-2008 exclusions and exemptions, which address, among other recyclable materials, reclaimed lead-acid batteries, spent sulfuric acid, cathode-ray tubes, shredded circuit boards, processed scrap metal, waste-derived fuels and oils from petroleum refineries, pulping liquors, closed-loop recycling, precious metal recovery, and certain spent refrigerants.

However, the Agency came down on the side of not adding additional requirements to the exclusions and exemptions, stating in the preamble to the 2015 DSW final rule,
“Regarding legitimacy, in lieu of adding a legitimacy requirement to the specific recycling exclusions, EPA is instead codifying a general statement in Sec. 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….”

The EPA also noted that “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.”

The EPA added: “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).

Safe—for now

It may be an understatement to say that most recyclers utilizing the 32 pre-2008 exclusions and exemptions are greatly relieved to know the 2015 DSW final rule has no significant effect on how they conduct their recycling operations.

In sum, while documentation of legitimacy is not now required of those who utilize any of the 32 pre-2008 exclusions, the legitimacy standard does apply to these recycling activities, but that has always been the case. And although the EPA in its 2011 proposed rulemaking considered making directly applicable to the 32 exclusions several of the provisions that are among the changes in the 2015 DSW final rule, it did not. However, the EPA indicated that the door is still open for making certain 2015 DSW final rule provisions (such as notification before operating under a recycling exclusion and the contained standard) applicable to the 32 pre-2008 exclusions. No one should be surprised if the EPA revisits this issue.


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