In 2008, the Resource Conservation and Recovery Act (RCRA) Definition of a Solid Waste (DSW) rule (as it relates to recycling activities) finalized two self-implementing exclusions. These two exclusions were the “generator-controlled” exclusion and the “transferred-based” exclusion.
Concerns with the 2008 DSW Rule Exemptions
However, according to the EPA, the 2008 exemptions led to abuse, including mismanagement by third-party recyclers. The EPA felt that this abuse led to increased risk of fires, explosions, accidents, and releases that were “disproportionately impacting minority and low-income populations.” The EPA also cited “market disincentives” as part of the reason for mismanagement of hazardous, secondary material under the 2008 exemptions.
In 2011, in response to litigation and an environmental justice (EJ) report, the Environmental Protection Agency (EPA) issued a proposal to re-examine the 2008 exclusion.
Fast forward to January 13, 2015, when the EPA issued a final rule that officially changes the DSW rule. The EPA states that this final rule, “…represents a major environmental justice milestone.”
It was just over a year ago when we told you about the EPA’s renewed focus on EJ issues. We suggested then that manufacturing plants in certain communities could receive additional scrutiny. This modified DSW rule seems to be attributed, at least in part, to this EJ focus.
2015 DSW Rule Changes
So what do the DSW rule changes mean to you? Very briefly (and the emphasis is on briefly), here are some of the changes (see EPA’s December 2014 Press Release for more details):
- The rule requires off-site recycling to be done at a facility with a RCRA permit or that has a verified recycler variance.
- The new off-site recycling exclusion requires that the facility truly “recycle” and not dispose (“sham recycling”).
- In order to qualify as an off-site recycler, you must include public participation (this is part of the EJ focus).
- Some of the pre-2008 DSW exclusions remain in place (e.g., scrap metal exclusion).
- The final rule includes a revised definition of “legitimate recycling.”
- The rule retains the exclusion for recycling under the control of the generator, including recycling on site, within the same company.
- The final rule includes a targeted remanufacturing exclusion for certain higher-value, hazardous, spent solvents that are remanufactured into commercial-grade products.
Federal implementation of this final rule will take place six months after the publication of the final notice. However, if you are in a state that has been granted RCRA authority, the implementation time frame will be based on the state schedule.
Again, this is a very brief overview of the 122-page document. For a “deep dive” into this regulation, you should go to the EPA’s website, or we can also recommend a recent article by Seyfarth Shaw, LLP, “Remanufacturing Exclusion for Solvents Under New Definition of Solid Waste Rules.”
Maintaining Environmental Compliance
This modification to the DSW rule is another reminder that environmental compliance is never “done.” And, as anyone who has ever been dinged by a compliance violation can tell you, the fines and penalties can be frightening.
Because the environmental regulations are dynamic and susceptible to the prevailing political winds, it is advisable to have routine “checkups” on your compliance status. You should work closely with your environmental advisors and your legal counsel to correct any non-compliance issues and protect yourself against potential fines and penalties.
If you need assistance or have questions regarding an environmental compliance issue, please feel free to contact me (mschroeder@dragun.com) at 248-932-0228, ext 117.