Tuesday, December 30, 2014

EPA Overhauls Hazardous Secondary Materials Exclusion



EPA Overhauls Hazardous Secondary Materials Exclusion

December 12, 2014
In a new rule, the EPA has overhauled the majority of federal regulations governing the recycling of hazardous secondary materials (HSMs).
The Agency is unambiguous about the main objective of the rule—to correct aspects of a 2008 rule issued by the G.W. Bush EPA, which, the Agency now says, exposed economically disadvantaged communities to the risks posed by HSM recycling facilities where legitimate recycling may not be occurring.
Prompted by petitions and lawsuits lodged by environmental groups, the EPA reviewed the 2008 definition of solid waste (DSW) rule and largely agreed that the action was riddled with regulatory “gaps” in environmental justice (EJ).
“In particular, EPA identified third-party hazardous materials recyclers as posing a risk of fires, explosions, accidents and releases of hazardous constituents to the environment,” says the Agency.  “This is because the economics of commercial recycling contain market disincentives that encourage over-accumulation and mismanagement of hazardous secondary material.  In addition, the 2008 DSW rule lacked the tools needed for proper oversight of these facilities by EPA, states, and the communities affected by them.”
EJ review
Specifically, the new action addresses a number of regulatory exclusions in the 2008 rule, which affected both generators of HSMs and recycling facilities, which were intended to promote legitimate recycling.
But in a detailed analysis of the EJ ramifications of those exclusions, the EPA identified multiple gaps that exposed both the general public and communities neighboring both the generating facility and the recycling facility to increased risk.
Examples of these gaps, according to the EPA, include the absence of measures to ensure proper oversight, incentives to accumulate larger volumes of HSMs, the lack of prescriptive standards for waste storage and containment, potential issues associated with the interstate transport of HSMs for recycling, and reduction in access to information and the opportunity for public participation.
State adoption
The 2008 rule was largely a RCRA deregulatory action, meaning it was less stringent than the baseline federal hazardous waste regulations.
RCRA is implemented almost entirely by the states, which may adopt federal hazardous waste regulations verbatim or apply their own regulations, which may be more stringent than the federal regulations but no less stringent.
According to the EPA, since the 2008 DSM rule became effective, it has been adopted by only eight states, a strong indication that the large majority of the states did not wish to surrender fundamental controls over HSMs as envisioned in the rule.
Major provisions
The new rule is a lengthy document that includes many technical amendments.
Affected businesses and their industry associations will need to commit significant resources to get a clear picture of their new responsibilities.
Several of the major revisions are summarized below.
·                     The Agency’s long-standing criteria to determine if legitimate recycling is occurring has been codified.  The EPA says these four criteria are generally well understood in the regulated community and address both the characteristics or chemistry of the HSM and how they are handled.  For example, one criterion indicates that sham recycling is occurring if either the generator or the recycler does not manage the HSM as a valuable commodity when it is under their control.  The rule includes a new requirement that documentation of how each of the four legitimacy criteria is being met be maintained on-site.  
·                     The 2008 rule contained a “transfer-based exclusion,” defined as an exclusion from the definition of solid waste for HSMs transferred to another party for reclamation.  This provision has been replaced by a verified recycler exclusion.  The new provision requires that all hazardous materials recyclers operating under this provision have RCRA permits that address the materials or obtain a variance before operating under the exclusion.  The intent of the new provision is to ensure that recyclers are financially stable; meet emergency response and preparedness requirements, including having the funds needed to respond to an emergency; and meet public participation requirements before earning the exclusion.
·                     The 2008 provided that an HSM is not discarded if it is contained.  However, that rule did not provide specific guidance on how an implementing agency or the regulated community would determine if a unit adequately controlled the movement of HSM and met the contained standard.  The new action adds a definition of “contained” to ensure that the containing unit meets specific good condition criteria to ensure that unpermitted releases do not occur. 
·                     The rule retains the 2008 exclusion for recycling that occurs under the control of the generator, including recycling on-site, within the same company and through toll manufacturing agreements.  However, this provision has been amended with new recordkeeping requirements as well as the addition of emergency preparedness and response conditions.   The EPA has also finalized an exclusion from the definition of “solid waste” for certain higher-value solvents transferred from one manufacturer to another for the purpose of extending the useful life of the solvent by remanufacturing the spent solvent back into the commercial grade solvent.  According to the Agency, these two amendments would be considered less stringent when compared to the federal program that was in place before the 2008 DSW final rule was finalized.
The amendments are effective 180 days after their publication in the Federal Register.
The amendments and supporting documents, including the complete EJ analysis, are available here.

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Definition of Solid Waste (DSW) Rulemakings for RCRA Hazardous Waste Regulations
You will need Adobe Reader to view some of the files on this page. See EPA's PDF page to learn more.
This page provides information on current and past rulemakings and links to Federal Register Notices specific to the definition of solid waste.
Rulemakings
2014 Final Rule
The EPA finalized new safeguards that promote responsible hazardous secondary materials recycling. The final rule modifies the EPA’s 2008 Definition of Solid Waste (DSW) rule to ensure it protects human health and the environment from the mismanagement of hazardous secondary materials intended for recycling, while promoting sustainability through the encouragement of safe and environmentally responsible recycling of such materials.
Pre-publication version of final rule (PDF) (507 pp, 1.51 MB) - December 10, 2014
The docket for this rulemaking is EPA-HQ-RCRA-2010-0742 and can be accessed at Regulations.gov. Documents supporting the final rule will be available after the final rule Federal Register Notice is published.
Press Release - December 10, 2014
Fact Sheet (PDF) (4 pp, 239 K)
Final DSW Environmental Justice Analysis
Executive Summary (18 pp, 315 K)