On December 10, 2014, EPA Administrator Gina McCarthy signed a final rule revising the Definition of Solid Waste (DSW) under the Resource Conservation and Recovery Act (RCRA). The 500 plus page-long rule should be published in the Federal Register shortly. The rule overturns or significantly modifies several hazardous waste recycling exclusions previously contained in a 2008 EPA final rule. (73 Fed. Reg. 64688; October 30, 2008).

Perhaps the most significant revision in the rule is EPA’s withdrawal of the controversial transfer-based exclusion codified in the 2008 rule. In its place, EPA created the “verified recycler exclusion.” This new provision requires that all recyclers operating under this provision have RCRA permits or variances. The rule retains the exclusion for hazardous secondary materials that are legitimately reclaimed under the control of the generator (generator-controlled exclusion), but adds several conditions to the exclusion, including notification and recordkeeping requirements and emergency preparedness and response conditions.

EPA also modified the transfer-based exclusion by adding several conditions, including one that recyclers have financial assurance in place to manager the materials left behind when the facility closes. An addition to the rule is the remanufacturing exclusion, which exempts certain higher-value solvents transferred from one manufacturer to another for the purpose of extending the useful life of the solvent by remanufacturing the spent solvent back into commercial grade solvent.

Another major change in the rule is the codification of legitimacy criteria that all recyclers of hazardous secondary materials must meet. These criteria are: (1) the hazardous secondary material must provide a useful contribution to the product or recycling process; (2) the recycling process must produce a valuable product or intermediate; (3) the hazardous secondary material must be managed as a valuable commodity; and (4) the recycled product must be comparable to a legitimate product or intermediate.

The rule will become effective 180 days after it is published in the Federal Register. Because states are authorized by EPA to administer the RCRA hazardous waste program, however, the changes in the rule will not become effective in RCRA-authorized states until those states revise their programs to adopt the changes, and after EPA approves the states’ revised programs.