What’s been going on?

It’s been over a year since the U.S. Environmental Protection Agency (EPA) published in the Federal Register its long-awaited final rule revising regulations affecting recycling of hazardous materials under the Resource Conservation and Recovery Act (RCRA). Known as the 2015 Definition of Solid Waste rule (2015 DSW rule), this final rule exempts certain hazardous secondary materials (HSMs) from the definition of solid waste (and thus RCRA regulation), provided certain conditions are met.

EPA’s objective in establishing the 2015 DSW rule was to provide stronger protections against potential mismanagement of HSMs intended for recycling and to establish a uniform, legitimate recycling standard for all HSM recycling in order to improve compliance and help ensure that HSMs are, in fact, legitimately recycled rather than illegally disposed of.

The 2015 DSW rule became effective on July 13, 2015, although for states with RCRA authorization from the EPA (all states except Alaska and Iowa and U.S. territories), the provisions of the final rule do not go into effect unless and until the RCRA-authorized state adopts them. Pursuant to RCRA regulation, RCRA-authorized states must adopt the more stringent provisions of the 2015 DSW rule by July 1, 2016, (or July 1, 2017, if a state statutory change is necessary). However, it’s very common for the EPA to extend the adoption deadline for a state on a case-by-case basis.

State adoption of the rule

The 2015 DSW rule is a mixed bag of more stringent provisions and less stringent provisions, which means that while a state must adopt the more stringent or broader in scope regulations, it does not have to adopt any regulations that would allow less stringent management of HSMs than would be required under the state’s RCRA-approved hazardous waste program.

States are beginning to adopt the 2015 DSW rule. Already, Pennsylvania, New Jersey, and Colorado have determined the degree to which they’ll embrace the rule, with the first two states adopting it in its entirety, and Colorado adopting the more stringent provisions but eschewing the less stringent regulatory provisions. South Carolina’s adoption of the 2015 DSW rule, still in the proposal stage, appears to mirror that of Colorado.

More stringent provisions

These are the 2015 DSW rule provisions that (whether new or revised) are more stringent than requirements under the current hazardous waste program:

• The prohibition and new definition of “sham recycling”;
• The new standards for, and the revised definition of, “legitimate recycling”;
• The new definition of “contained”;
• The new accumulation date tracking requirements to disprove speculative accumulation; and
• The revised standards and criteria for solid waste variances and nonwaste determinations.

Less stringent provisions

These 2015 DSW rule provisions are new or revised and are less stringent than requirements under the current hazardous waste program:

• The revised exclusion for HSMs legitimately reclaimed under the control of the generator;
• The new, verified recycler exclusion (which replaced the transfer-based exclusion); and
• The new remanufacturing exclusion for HSMs that are certain higher-value solvents.

These three conditional exclusions are the less stringent provisions that Colorado and South Carolina decided not to adopt.

More questions than answers

Why didn’t Colorado and South Carolina adopt the less stringent provisions? Don’t such provisions provide a clear regulatory road map for HSM recyclers to travel in order to ensure that their recycling activities meet EPA’s legitimate standard? You would think that managing HSMs addressed by the three new/revised 2015 exclusions pursuant to those exclusions would be less difficult than managing the same materials under hazardous waste regulations. But is it? Such “exclusions” are not free. Part and parcel of these three exclusions are requirements for notification, recordkeeping, and emergency preparedness and response. In addition, the generator-controlled exclusion also requires written documentation describing how the recycling meets all four factors of the legitimacy recycling provision. To give other examples, to take advantage of the verified recycler exclusion, the recycler must satisfy financial assurance requirements; the remanufacturing exclusion is limited to certain solvents and industries. So how will these additional factors affect a state’s decision as to whether to adopt these conditional exclusions? Will other states follow Colorado and South Carolina’s lead? All 50 states will be answering these questions soon.