In a recent webinar titled “Hazardous Waste Recycling: Uncover Cost-Effective and Legally Compliant Strategies for Your Organization’s Program,” speaker Philip Comella, Esq., head of the Environmental, Safety and Toxic Torts Group in the Chicago office of Seyfarth Shaw LLP, voiced what many have suspected: that the Resource Conservation and Recovery Act (RCRA) hazardous waste recycling regulations are, in the words of one judge, a “labyrinthian maze.”

To ease his listeners through the confusing hazardous waste recycling requirements, Comella focused on teaching what not to do, using a case study of Marine Shale Processors. Operating an aggregate kiln in Louisiana that burned hazardous waste to produce aggregate for road fill, this company found itself on the wrong side of the law in the 1980s and 1990s by posing as a recycler producing a product when it was actually a “sham recycler” that pleaded guilty to several criminal violations and ended up as a Superfund site.

Crediting this company as an impetus for the Environmental Protection Agency’s (EPA) recent overhaul of the hazardous waste recycling regulations (the 2015 Definition of Solid Waste Rule (the DSW Rule)), Comella emphasized that the key compliance strategy for hazardous waste recyclers that claim they are exempt from RCRA regulation due to their entitlement to an exemption or exclusion from RCRA rules can be found at 40 CFR 261.2(f). This regulation requires documentation of any claims that the recycling is legitimate. Anyone claiming that a certain material is not a solid waste or is conditionally exempt from regulation must demonstrate that:

• There is a known market or disposition for the material being recycled (i.e., show who’s buying it and where it’s going)
• They meet the terms of the exclusion or exemption (e.g., the material is being used as an ingredient in a product)
• They have appropriate documentation (e.g., contracts showing that a second person uses the material as an ingredient in a production process) to demonstrate that the material is not a waste or is exempt from regulation, and
• The owners or operators of facilities claiming they are recycling materials can show that they have the necessary equipment to do so (to make a product).

Comella reviewed the steps for showing that recycling is “legitimate” and not “sham” and pointed out that these steps are now codified in the DSW Rule at 40 CFR 260.43. The speaker also spent time reviewing the specific recycling exemptions and exclusions from the RCRA rules and provided additional strategies for being in compliance with the hazardous waste recycling requirements. 

The webinar concluded with Comella’s recommendation to seek technical and legal advice to ensure you meet all exemption conditions as the hazardous waste recycling rules remain a gray area of the RCRA regulations.