EPA Significantly Revises Regulations Affecting Hazardous Materials Recyclers

On December 10, 2014, EPA released a prepublication version of its long-awaited final rule revising regulations affecting hazardous materials recyclers under the Resource Conservation and Recovery Act ("RCRA"). The rule, known as the Rulemaking on the Definition of Solid Waste ("2014 DSW final rule"), is expected to be published in the Federal Register by the end of December 2014 and will go into effect six months after it is published. The final rule may be challenged in the United States Court of Appeals for the District of Columbia within 90 days of the date the final rule is published in the Federal Register.

As anticipated, the 2014 DSW final rule adds a number of new requirements to an existing exclusion, codified at 40 CFR § 261.4(a)(23), that EPA promulgated in 2008 for hazardous secondary materials that are reclaimed under the control of the generator (i.e., spent materials, by-products, and sludges). Specifically, the 2014 DSW final rule (1) adds a recordkeeping requirement for same-company and toll manufacturing reclamation, (2) requires notification to an entity's regulatory authority as a condition of the exclusion, (3) requires documentation that recycling under the exclusion is legitimate, and (4) adds emergency preparedness and response requirements. In addition, the 2014 DSW final rule codifies at 40 CFR § 260.10 a new definition of "contained" for purposes of the requirement that hazardous secondary materials must be contained to qualify for this exclusion.

The 2014 DSW final rule also replaces the exclusions EPA promulgated in 2008 for hazardous secondary materials that are transferred from the generator to other persons or exported for the purpose of reclamation, codified at 40 CFR § 261.4(a)(24) and (25), respectively. The 2014 DSW final rule replaces those exclusions with a more restrictive exclusion, codified at 40 CFR § 261.4(a)(24), under which generators who wish to recycle their hazardous secondary materials without having them become hazardous wastes must send their materials to either an RCRA-permitted reclamation facility or to a verified recycler of hazardous secondary materials who has obtained a solid waste variance from EPA or the authorized state. Both the generator controlled exclusion (40 CFR § 261.4(a)(23)) and the verified recycler exclusion (40 CFR § 261.4(a)(24)) are also subject to new recordkeeping requirements to document compliance with the accumulation time limits of 40 CFR § 261.1(c)(8).

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