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EPA Issues Revised Definition Of Solid Waste To Encourage Recycling Of Metal-bearing Materials

December/November - 2008
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On October 30, 2008 EPA issued a new regulation to revise the definition of solid waste to encourage the recycling of more hazardous secondary materials. 73 Fed. Reg. 64668 (2008). The changes to the definition are in response to several court decisions that held EPA's regulatory definition was overly broad and did not clearly delineate when a material is discarded. Hazardous secondary materials that are sent for legitimate reclamation are eligible to be exempt from regulation as a hazardous waste under the new rule. The NASF submitted comments on the proposed regulation and the final regulations features several provisions that are more favorable to generators to encourage more recycling.
Impact on Surface Finishing Industry

 

The new definition of solid waste could facilitate more recycling of electroplating waste water treatment sludge, i.e., the listed hazardous waste, F006. Under the revised definition of solid waste, sludge that is reclaimed for metals recovery would not be "discarded" for regulatory purposes, and would not, therefore, be subject to hazardous waste regulations, provided that the recycling is legitimate and that plating facilities and reclamation facilities meet a set of conditions regarding the management and recycling of the sludge.
Excluding the recycling of F006 sludge from the hazardous waste regulatory restrictions can encourage more recycling of the sludge and save platers money. The final rule is also broad in scope and could beneficially impact recycling of other hazardous secondary materials used in the finishing industry such as solvents.

Basic Structure of Final Rule
The revised definition of solid waste is comprehensive and detailed rulemaking. There four major components of the final rule:
Under the Control of the Generator Exclusion (a self-implementing exclusion for materials that are recycled under the control of the generator);
Transfer-Based Exclusion (a self-implementing exclusion for materials that are transferred to another company for recycling);
Non-Waste Determination Procedure (a petition process); and
Legitimate Recycling Provision.
Effective Date and Applicability in States

The final rule is effective 60 days from the date of publication in the Federal Register (i.e., December 29, 2008) in states without authorized RCRA programs (e.g., Alaska, Iowa, Puerto Rico and Virgin Islands). The rule is not effective in an authorized state until the state adopts the rule into its own state regulations. While adoption of federal regulations is automatic in some states, most states must take some affirmative action to adopt the new regulation.
EPA estimates that approximately 5,600 facilities will be impacted by this rule, and it will include 30,000 tons of new recycled materials annually. The rule will provide a cost savings to U.S. facilities of approximately 95 million dollars, and the savings could be even higher if more states adopt the new regulations.

If you have any questions on EPA's revised definition of solid waste and how it may impact the surface finishing industry, please contact Jeff Hannapel or Christian Richter at jhannapel@thepolicygroup.com or crichter@thepolicygroup.com.

A copy of the final rule is available on EPA's website at
http://www.epa.gov/epawaste/hazard/dsw/rulemaking.htm.