After previous attempts by the U.S. Environmental Protection Agency (“EPA”) to rework the definition of “solid waste” to encourage recycling of hazardous wastes were scrapped due to overwhelming criticism, EPA is trying again.  Its most recent proposal (72 Fed. Reg. 14172-14218, March 26, 2007) provides three different categories of exclusions from the definition of solid waste and would codify “legitimate recycling” criteria.  The proposed exclusions supplement the existing exclusions codified in 40 C.F.R. Part 261.

Category One Exclusion
To qualify for a full exclusion for hazardous waste generated and reclaimed under the generator’s control, the waste:

1. Must be generated and reclaimed within the US or its territories.
2. Must be managed in:  non-land-based units (e.g., tanks, containers); or land-based units (e.g., landfills surface impoundments) that contain the material (e.g., case-by-case determination of no movement of waste from the unit).
3. May not be speculatively accumulated.
4. Must be identified on a one-time notification to EPA or the authorized state agency.
5. Must be solely under the generator’s control (i.e., part of the generator’s operations).

Category Two Exclusion
To qualify for a conditional exclusion for hazardous waste generated and transferred to another entity within the United States, the waste must meet the criteria under the Category One Exclusion items 1 through 4 above; and in addition, it must not be handled by an entity other than the generator, transporter, or reclaimer.  To be eligible for this exclusion, the generator must:

1. Make reasonable efforts to ensure:  that the reclaimer intends to legitimately recycle the material; and that the material will be managed in an environmentally protective manner.
2. Retain records of all off-site shipments for at least three (3) years.
3. Ensure that any land-based management is contained.

Category Three Exclusion
To be considered for a case-by-case non-waste determination exclusion, a generator and/or reclaimer could petition for an exclusion for materials not eligible for the Category One and/or Two Exclusions.

There are three subcategories of determinations for such materials:

1. Those recycled in a continuous industrial process.
2. Those indistinguishable from the product or intermediate.
3. Those reclaimed under the control of the generator through a tolling arrangement or other contractual arrangement.

Each subcategory has its own criteria.  Under all three subcategories, the petitioner must show that hazardous constituents in the materials are effectively recycled as opposed to being released to the environment from the primary production process.  The petitioner is given an opportunity to provide any other relevant information to demonstrate that the material is not discarded.

“Legitimate Recycling”
The new rule proposes to codify “legitimate recycling” if the following is met:

1. The material being recycled must provide a useful contribution to the recycling process or to the product of the process; and
2. The product of the recycling process must be valuable.

The following two criteria must also be weighed:

1. How the material is managed; and
2. The presence of hazardous constituents in the product of the recycling activity.

Comments
Each authorized state must adopt the final regulations before they become effective in that state.  Because many states adopt EPA regulations by reference or verbatim, it is important that any comments be submitted as soon as possible.

The deadline for comments is May 25, 2007.

---

Paul Bruder is a member of Rhoads & Sinon's Environmental Law and Litigation Practice Group. If you have any questions about this issue, or if you need legal assistance in any area of environmental law, you can contact Mr. Bruder via email at pbruder@rhoads-sinon.com , or by telephone at 717-233-5731.