By Philip L. Comella
EPA’s struggle to distinguish between a waste and a recyclable material, which began in its original May 1980 rulemaking under the Resource Conservation and Recovery Act, takes its latest turn in a new proposed rule signed by EPA Administrator Lisa Jackson on June 30, 2011.
This proposed rule, which should be published in the Federal Register soon, is the result of a settlement between EPA and the Sierra Club over EPA’s October 2008 rule on the same topic, in which the Agency liberalized the regulation of the form of recycling known as reclamation. Prior to the 2008 rulemaking EPA had generally considered reclamation (the processing or regeneration of a material to recover a usable product), as akin to treatment, and hence considered most materials destined for reclamation to be solid wastes.
EPA’s October 2008 rule exempted certain forms of reclamation from hazardous waste regulation but in doing so increased the complexity of an already intricate regulatory scheme known as the definition of solid of waste. This definition is used to determine the threshold question of whether a given material is regulated as a solid or hazardous waste under RCRA or is instead a recyclable material exempt from regulation. The October 2008 rule, among other things, established streamlined requirements for (a) materials generated and legitimately reclaimed under the control of the generator; (b) materials that are transferred to another entity for legitimate recycling; and (c) determining, on a case-by-case basis, whether a given material should be exempt from waste classification because of the manner in which it would be recycled. The rule also defined legitimate recycling by comparing the composition and handling of the reclaimed material against the raw material it was intended to replace.
The Sierra Club thought the 2008 relaxation of the rule governing reclamation activities lacked adequate safeguards and thus sued EPA, resulting in the settlement that forced EPA’s agreement to sign a revised proposal by June 30, 2011. In sharp contrast to the 2008 rule, the new proposal tilts the balance of “recycling” in the other direction, and cuts back on some of the flexibility in the October 2008 rule. Among other things, gone is the “transfer-based exclusion” now found at 40 CFR 261.4(a)(24), which is proposed to be replaced with an “alternate hazardous waste standard” under Part 266, and which requires notification and operating standards similar to those of a hazardous waste facility. EPA’s new proposal also adds a definition for when a recyclable material is adequately “contained” while it is being stored, and makes it clear that legitimate recycling can only occur if the secondary material (the material destined for reclamation) has comparable levels of constituents to products made from raw materials.
So what does this mean? First, with regard to applicability, it is important to note that because EPA’s October 2008 final rule was considered less stringent than the existing definition of solid waste, it is generally effective only in the few states (including Illinois, Pennsylvania, New Jersey, Iowa, Idaho and Alaska) that have adopted it. The same will be true for the new proposal. Second, as of this time, the fear of adverse environmental consequences from “sham recycling” continues to have great weight in EPA’s attempt to strike a fair balance between protecting the environment and encouraging recycling.
Watch here for additional updates and information about this rulemaking.