The Resource Conservation and Recovery Act (RCRA) and its state counterparts provide requirements to govern hazardous wastes during every step of their management, from “cradle to grave.” Although these rules are intended to improve management and provide incentives for recycling and other beneficial uses of hazardous wastes, many organizations find many of the rules unnecessarily onerous – and therefore potentially counterproductive if they actually discourage beneficial activities. In addition, over time changes in technologies, commercial activities and regulatory priorities reveal gaps in existing rules. In January, the Environmental Protection Agency (EPA) revised its “Definition of Solid Waste” rules governing a number of potentially hazardous wastes that it instead considers to be “hazardous secondary materials”, and the range of recycling and recovery activities eligible for special regulatory considerations. The revisions become effective on July 13, 2015.
What Are “Hazardous Secondary Materials”?
EPA has revised exclusions from the category of (potential) hazardous wastes defined as hazardous secondary materials. The general definition remains the same:
Hazardous secondary material means a secondary material (e.g., spent material, by-product, or sludge) that, when discarded, would be identified as hazardous waste under part 261 of this chapter.
EPA’s use of the subjunctive “would be discarded” tells us how EPA considers spent materials, by-products and sludges that are managed in some way other than being discarded. The most recent changes revise the lists of materials being addressed, and the non-discard activities that qualify for special regulatory consideration. Most importantly, reclamation of a hazardous secondary material may qualify for one of two dozen exclusions—a specified material managed in a specified way is not a solid waste (i.e., is excluded from the definition, and therefore from all associated regulatory requirements).
Which General Revisions Apply To Hazardous Secondary Materials Handling?
EPA is revising the following generally-applicable requirements:
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Revises the definition of “legitimate recycling” to focus on whether the products make a “useful contribution” to an economic process, confirming that in-process recycling and transfers to other processes can both be legitimate.
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Revises rules for transfers to third parties, to require that the recipient be a “verified” recycler or reclamation facility (i.e, with appropriate permit or variance to conduct the activity).
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Clarifies onsite management requirements, including container labeling.
What Revisions is EPA Making to Material-Specific Exclusions?
These revisions eliminate one pre-existing exclusion, revise two, and add one. The following provisions will apply once the revisions become effective in July:-
Reclamation under control of the generator’s organization (revised).
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Change from requirement for land-based management at the generator’s facility to management under control of the generator’s organization (i.e., including at other facilities).
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Addition of details to requirements for emergency preparedness and response programs.
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Reclamation at a third party “verified reclamation facility” (revised).
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Addition of requirements that facility be subject to formal regulatory authority to conduct reclamation (permit or variance).
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Conforming requirements to notify EPA or state agency, providing reporting.
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Clarify onsite management requirements (including containment).
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Excluded exports (repealed, so all exports will be subject to RCRA requirements).
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Remanufacturing specified solvents from specified industrial sectors (new).
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Available only to these solvents: toluene, xylenes, ethylbenzene, 1,2,4-trimethylbenzene, chlorobenzene, n-hexane, cyclohexane, methyl tert-butyl ether, acetonitrile, chloroform, chloromethane, dichloromethane, methyl isobutyl ketone, NN-dimethylformamide, tetrahydrofuran, n-butyl alcohol, ethanol, and/or methanol.
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Available only if solvent originated from chemical processing use (e.g., reacting, extracting, blending) and not if from other uses (such as degreasing).
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Available only if generator in a specified sector: pharmaceutical, basic organic chemical manufacturing, plastics and resin manufacturing, or paint and coatings sectors.
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Available only if the solvents are remanufactured at a facility in one of those sectors.
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Available only if the solvents are then used in one of those chemical processing use at a facility in one of those sectors.
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Available only if the spent solvents are managed in compliance with new, detailed standards for containment, tank systems, and air emissions.
Self-Assessment Checklist
Does the organization generate chemical process wastes that EPA’s regulations identify as hazardous secondary materials?:
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Before July 13, 2015?
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On or after July 13, 2015?
Does the organization manage any hazardous secondary materials that it generates:
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Before July 13, 2015?
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On or after July 13, 2015?
Does the organization manage any hazardous secondary materials generated by other organizations:
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Before July 13, 2015?
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On or after July 13, 2015?
For any activity involving generation or management of a hazardous secondary material:
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Has the organization determined whether the activity is excluded from RCRA regulation:
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Before July 13, 2015?
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On or after July 13, 2015?
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For any non-excluded activity, has the organization determined its compliance responsibilities:
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Before July 13, 2015?
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On or after July 13, 2015?
Where Can I Go For More Information?
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EPA website “Wastes” homepage
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EPA “Definition of Solid Waste Rulemaking” webpage
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EPA rulemaking (January 13, 2015 Federal Register)
Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 12 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com.