June 11, 2018

EPA Revises DSW Rule per Court Mandate

EPA issued a final rule on May 30, 2018 revising some of its 2015 definition of solid waste (DSW) reclamation exclusions in §§261.4(a)(23–25) and its recycling legitimacy factors in §260.43. [83 FR 24664] This rule is in response to the July 7, 2017 and March 6, 2018 findings by the U.S. Court of Appeals for the District of Columbia Circuit, upholding some aspects of the 2015 DSW rule and vacating others. (A detailed review of the court’s findings can be found in a previous RCRA Review article.) The May 2018 revisions result in the following:

  1. The verified recycler exclusion, which was codified by the 2015 DSW rule at §261.4(a)(24), has been deleted and replaced with the previous transfer-based exclusion (TBE) from the 2008 DSW rule. Significantly, the emergency preparedness provisions and expanded containment requirements that were part of the verified recycler exclusion have been retained and apply to the reinstated TBE. The TBE allows a generator to send materials to a reclaimer that does not have a RCRA permit or interim status if the generator has made reasonable efforts to ensure that the chosen reclaimer will properly and legitimately reclaim the hazardous secondary material and not discard it. Of importance to the petroleum refining industry, the reinstated TBE is available for spent catalyst that will be reclaimed (i.e., spent catalyst that otherwise would require management as K171/K172).
  2. While the TBE for reclamation within the United States is codified at §261.4(a)(24), EPA also reinstated the TBE associated with exporting hazardous secondary materials for reclamation if the conditions in §261.4(a)(25) are met.
  3. When evaluating the legitimacy of all (pre- and post-2008) recycling exclusions, EPA’s definition of legitimate recycling in §260.43 must be used. Recycling legitimacy factor 4 in §260.43, which was revised by the 2015 DSW rule, has been deleted and replaced with the previous version of factor 4 from the 2008 DSW rule. This is notable because the reinstated factor 4 must only be considered (i.e., it is not mandatory as are the other three). The reinstated version of factor 4 reads as follows:

“The product of the recycling process does not (i) Contain significant concentrations of any hazardous constituents found in appendix VIII of part 261 that are not found in analogous products; or (ii) Contain concentrations of hazardous constituents found in appendix VIII of part 261 at levels that are significantly elevated from those found in analogous products, or (iii) Exhibit a hazardous characteristic (as defined in part 261 subpart C) that analogous products do not exhibit.” [§260.43(b)(1)]

These revisions to the DSW reclamation exclusions and RCRA recycling legitimacy factors became effective on the date of their publication in the Federal Register: May 30, 2018. Thus, they became effective in Alaska and Iowa on that date. The preamble to the rule noted the effects that this rule will have on authorized state programs [83 FR 24666]:


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