Standards/Regulations: Rule Revisions Encourage Facilities to Waste Not, Want Not

EPA’s revisions to the 2008 DSW rule encourage responsible recycling from waste generators and commercial recyclers with a focus on decreasing risk to people and the environment. With legitimate recycling activities, you can become less regulated, recover material costs, and generate good will rather than waste.

Lisa Neuberger

On January 13, 2015, EPA published final revisions to the 2008 Definition of Solid Waste (DSW) rule. While the revisions focus mainly on commercial hazardous materials recyclers, there are some new requirements for solid and hazardous waste generators, too. These federal revisions take effect in July. However, most states have the authority to run their own solid and hazardous waste programs, so generators should check with their states to find out when, and how, the new rule will apply to them.

Know Your Level of Coverage

Waste generators know that one of the most critical and complex areas of waste management can be identifying the waste and determining its level of coverage under the regulations. Understanding the various exemptions and exclusions to the definitions of hazardous waste along with the required management conditions at 40 CFR 261 can be the first step in becoming less regulated. For instance, non-terne plated used oil filters can be managed as solid rather than hazardous wastes according to §261.4(b)(13), but only if they are gravity hot-drained using one of three methods listed in the regulation.

The new DSW rule affirms these existing regulatory “loopholes” for waste generators and also recognizes new processes that qualify as legitimate recycling activities. These include:

• Exclusions such as the scrap metal exclusion, which allow generators to sell or recycle certain potentially hazardous materials for legitimate uses.
• In-process recycling and recycling of commodity-grade recycled products. In-process recycling involves returning hazardous secondary materials to their original production process.
• Recycling under the control of the generator, including onsite recycling, both within the same company and through tolling agreements.
• Targeted remanufacturing for some higher-value spent solvents that are converted into commercial-grade products.

New Rule is EPA’s Answer to a Petition

In 2009, environmental groups petitioned EPA to revoke the DSW rule because of safety concerns, particularly for minority and low-income communities. These groups said that “significant regulatory gaps” in the 2008 rule put people and the environment at risk by exempting certain hazardous materials from the definition of solid waste. This meant the rule also exempted the materials from protections in the regulations such as storage time limits, weekly inspections, training and contingency planning.

EPA agreed that some minority and low-income communities were disproportionately affected by third-party recycling and were vulnerable to the potential mismanagement of hazardous materials. The Agency said that the economics of recycling encouraged over-accumulation and discouraged public access to information, which in turn exposed these communities to fires, explosions, accidents and releases of hazardous materials into the environment.

The new rule means third-party recyclers will be accountable to federal and state authorities. They must submit financial assurance plans with proof of their ability to respond to unexpected releases. In addition, the local community will have an opportunity to weigh in on whether the facility should receive a verified recycler variance. This means the recycler must respond to any community concerns and address any environmental impacts of their activities.

Further, waste generators will only be able to send their waste for recycling to facilities that have received a verified recycler variance. Along with the financial assurances, verified facilities will have met strict federal or state permitting requirements.

Emergency Response and Preparedness

Both generators and recyclers must meet new emergency response and preparedness requirements. These requirements are similar to those already in place for large quantity hazardous waste generators; namely, they must make arrangements with local emergency response officials (i.e., local fire departments and hospitals) with facility-specific information to enable a targeted response to a hazardous materials emergency and reduce risk to the surrounding community.

Generator-Controlled Exclusion

The generator-controlled exclusion at §261.4(a)(23) excludes certain hazardous wastes from the definition of solid waste if they are generated and legitimately recycled while under the control of the generator. To qualify for the exclusions, generators must:

1. Notify the authorized state or EPA of their recycling activities.
2. Ensure adequate containment for their hazardous secondary materials. The rule includes a new definition of “contained,” which specifies storage units must be in good condition, properly labeled, do not hold incompatible materials, and address potential risks of fires or explosions.
3. Comply with emergency preparedness requirements, which will be tailored according to the amount of hazardous secondary materials that are accumulated onsite.
4. Document that recycling activities are legitimate.
5. Keep good records. Generators must maintain records of shipments and confirmations of receipt for transfers of recyclable materials offsite. This requirement is aimed at preventing the over-accumulation of hazardous materials, or “speculative accumulation.”

Keep it Legitimate

The new revisions stress the importance of legitimate recycling. “Sham” recycling occurs when a facility claims to recycle a material in order to avoid regulation of the material as hazardous waste, but does not actually recycle it. Examples of sham recycling include mixing heavy metals into concrete when they do not contribute to the concrete’s properties, or using excessive materials as an ingredient, such as using too much chlorine in a process that requires chlorine. To be legitimate, recycling must meet the following four criteria:

1. The hazardous secondary material must provide a useful contribution to the recycling process or product.
2. The recycling process must produce a valuable product or intermediate.
3. The hazardous secondary material must be managed as a valuable commodity.
4. The recycled product must be comparable to a legitimate product.

The Bottom Line

EPA’s revisions to the 2008 DSW rule encourage responsible recycling from waste generators and commercial recyclers with a focus on decreasing risk to people and the environment. Recycling hazardous secondary materials can be beneficial for your business, your community, and the environment. With legitimate recycling activities, you can become less regulated, recover material costs, and generate good will rather than waste.

 Lisa Neuberger specializes in workplace safety and environmental topics at J. J. Keller (Neenah, WI). She writes articles for J. J. Keller’s manuals and newsletters with timely environmental news and topics for safety and environmental professionals. Lisa can be reached at [email protected].  

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