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.
___________________________________________________________________
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
Frequent Questions
(PDF) (3 pp, 239 K)
Fact Sheet
(PDF) (4 pp, 239 K)
Final DSW Environmental Justice Analysis
Executive
Summary (18 pp, 315 K)
Volume 1
– Hazard Characterization (268 pp, 2.07 MB)
Volume 2
– Assessment of Disproportionate Adverse Impact (112
pp, 1.48 MB)