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:

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).
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.
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]:

States that did not promulgate similar rules—States that have RCRA authorization but did not adopt the 2015 verified recycler exclusion (and therefore were not authorized for the exclusion) are not required to adopt or become authorized for the reinstated TBE, because it is less stringent than the pre-existing Subtitle C hazardous waste regulations. However, states that have RCRA authorization but have not adopted the 2015 version of §260.43 are required to adopt and become authorized for a definition of legitimate recycling that is equivalent to, and at least as stringent as, the §260.43 definition promulgated in the May 30, 2018 revisions.
States that adopted similar rules but are not yet authorized for them—For states that have adopted rules similar to the 2015 verified recycler exclusion and the 2015 definition of legitimate recycling, but have not yet been authorized for them, the authorization status that was established prior to the adoption of the state counterpart rules remains in effect. Deletion of certain 2015 federal regulations and subsequent reinstatement of the 2008 federal regulations (as discussed above) will result in state provisions that are broader in scope than the federal program as it pertains to those specific provisions.
States that adopted similar rules and have been authorized for them—For states that have previously been authorized for rules similar to the 2015 verified recycler exclusion and the 2015 definition of legitimate recycling, and have been authorized for them, the effect of the federal deletions/reinstatements (as discussed above) is that those previously-authorized state provisions will be considered broader in scope than the federal program as it pertains to those specific provisions.

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This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.