June 16, 2014

Does RCRA Apply to Recyclable Materials Shipped Through the US?

Is a material originating in Mexico, that is not a solid waste based on §261.2(c), then transported through the United States to Canada for reclamation exempt from RCRA regulation—specifically from the export and import requirements of Part 262, Subpart H? In RO 14841, the agency clarifies that under the federal regulations, this material would not be a solid or hazardous waste; therefore, the RCRA export/import requirements would not apply.

EPA went on to caution generators; they should consider DOT and state requirements, which may regulate these materials more stringently than the federal RCRA program. However, the agency states in RO 14841 “where the shipment is simply transiting a state with more stringent requirements than the federal program…we believe the state’s requirements would not likely apply to transit only activity.” This statement seems contrary to previous EPA guidance found in preamble language at 67 FR 40520 (June 12, 2002). In that guidance, EPA noted a waste which is subject to an exclusion from the definition of solid waste may be sent through a state where it is subject to the full hazardous waste regulations. In this scenario, for the portion of the trip through any states that do not consider the waste to be excluded, the transporter would have to have a manifest and must move the waste in compliance with Part 263. The agency does specify in RO 14841, any transporter stopping to consolidate the above-mentioned materials in a state with more-stringent regulations, would be required to comply with the more-stringent requirements. This statement is more in line with the previous 2002 guidance.

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Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

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.