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Frequent Questions for Definition of Solid Waste 2011 Proposed Rule

What is the definition of solid waste?

For a material to be classified as a hazardous waste under the Resource Conservation and Recovery Act (RCRA), it must first be defined as a solid waste. Thus the “definition of solid waste” is contained in the hazardous waste regulations. In the 2008 Definition of Solid Waste (DSW) rule, EPA sought to define “solid waste” so as to exclude certain hazardous secondary materials when they are legitimately recycled, as long as certain conditions were met. Through this definition, EPA intends to encourage the recycling of certain hazardous secondary materials, while still ensuring adequate protection.

Why is EPA revising the definition of solid waste?

EPA is proposing to revise the definition of solid waste in order to increase protection of communities while still retaining flexibility to allow companies to use good business practices to increase recycling in a safe and appropriate manner. Stakeholder comments and EPA’s re-examination of the 2008 DSW final rule identified areas in need of improvement to better protect public health and the environment adjacent to recycling facilities, including: incentives to accumulate larger volumes of hazardous secondary materials under less stringent storage standards, a reduction in oversight, and a reduction in the public’s access to information and opportunity for public participation. Additionally, 218 recycling damage cases were identified, more than half of which involved a hazardous secondary material that is associated with an existing recycling exclusion or exemption from the hazardous waste regulations.

The proposal also provides an opportunity to recognize good business practices to increase recycling in a safe and appropriate manner. Specifically, the proposal includes a new proposed exclusion for high-value solvents being sent for re-manufacturing into similar high value products. EPA is proposing this exclusion because it has found that significant energy savings and greenhouse gas reductions can be realized if the product life of these solvents is extended to more than a single use.

How is EPA proposing to address the areas identified within the 2008 DSW rule as needing improvement?

The 2011 DSW proposal includes provisions to address certain areas in the 2008 rule through increased transparency, oversight and accountability for hazardous materials recycling, including:

  1. Replacing the transfer-based exclusion with an alternate hazardous waste standard with streamlined requirements for the generator. This would allow EPA and the states to use the existing permitting process to verify that a facility can safely and legitimately recycle hazardous waste prior to beginning operations, and also give the affected community a voice in the decision-making process.

  2. Tailoring the generator-controlled exclusion by clearly defining when hazardous secondary materials are contained. Having a clear, objective definition in the regulations of when a hazardous secondary material is properly contained would facilitate compliance with the regulation, and help the regulated community understand what needs to be done to ensure proper management of the hazardous secondary material.

  3. Ensuring that only legitimate recycling occurs by requiring that hazardous secondary materials have comparable levels of constituents as in-products made from raw materials. A petition process would be available to accommodate legitimate recycling that varies from the legitimate factors.

  4. Applying the regulatory definition of legitimate recycling, the contained standard, and the notification requirement to all hazardous secondary material and hazardous waste recycling. Having a clear, uniform standard for all hazardous secondary materials recycling will improve compliance and help ensure that the hazardous secondary materials are in fact legitimately recycled, rather than illegally disposed of.

How does the proposal retain flexibility to allow companies to use good business practices to increase recycling in a safe and appropriate manner?

The proposal requests comment on retaining the generator-controlled exclusion, which excludes from the definition of solid waste recycling performed (1) at the generating facility, (2) within the same company, and (3) through certain types of tolling agreements, as long as certain conditions are met, including requiring legitimate recycling and containment of the hazardous secondary material. This exclusion recognizes those generators who follow good business practices by taking responsibility for their recycling and maintaining control of their hazardous secondary materials. In addition, by recognizing the benefits of recycling of hazardous secondary materials on-site, this exclusion can reduce the environmental impacts of hazardous materials transportation off-site, including reducing the potential for transportation accidents and the resulting clean up costs.

In addition, for generators that send their hazardous secondary materials to off-site recyclers, the proposed alternative hazardous recyclable material standards include streamlined requirements that allow additional time to accumulate materials to help make recycling an economically competitive alternative to disposal. EPA is also requesting comment on a number of other proposed tailored regulatory alternative standards for generators that send their materials off-site for recycling.

Finally, EPA is requesting comment on a targeted exclusion for higher-value hazardous secondary materials which are being re-manufactured into commercial-grade products. The goal of the re-manufacturing exclusion is to encourage sustainable materials management by identifying specific types of transfers of hazardous secondary materials to third parties that, under appropriate conditions, can extend the useful life of a commercial-grade chemical. Management of these hazardous secondary materials would also have to meet the other conditions of the exclusion, including notification, recordkeeping, and storage standards.

How did EPA consider environmental justice in developing this proposal?

Under Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, EPA must consider environmental justice when developing a regulation. The environmental justice analysis may be qualitative and/or quantitative and is designed to provide EPA with information on disproportionate adverse impacts to minority and/or low-income populations. If an environmental justice analysis reveals potential disproportionate adverse impacts to minority and/or low-income populations, EPA may use its policy discretion within applicable statutory authorities to pursue specific regulatory options or to engage the public in the implementation of regulations.

EPA reached out to stakeholders through several avenues, including roundtables, conference calls and webinars to obtain feedback on the environmental justice analysis. By working with stakeholders, EPA identified potential hazards that may pose risks to communities from the recycling of hazardous secondary materials and the types of facilities that may take advantage of the 2008 DSW rule through illegitimate recycling practices. The facility locations were then mapped against demographics of the surrounding communities.

EPA’s review of the information found that communities adjacent to recycling facilities could be impacted from mismanagement due to gaps in the 2008 rule The environmental justice analysis found that the total population in potentially affected communities had a higher percentage of minority and low-income individuals as compared to the overall population both in the applicable state and in the nation as a whole. EPA incorporated these considerations in the revised proposed rule, as allowed under applicable authorities.

How do I comment on this rulemaking?

The comment period closed on October 20, 2011.

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