Revised Definition of Solid Waste
On October 7, 2008, the EPA Administrator signed a final rule that revises the definition of solid waste at 40 CFR 261.2. This definition is used to determine which materials may be hazardous waste. The new rule provides additional exclusions to EPA's definition of solid waste for certain recycling activities.
Reclaimed Under Control of Generator
Previously, secondary materials (e.g., spent materials, sludges, or byproducts) would be solid wastes unless otherwise indicated at 40 CFR 261.2 Table 1. So, for example, if a facility produced a spent paint thinner of blended solvents and sent it off to be processed into the solvent constituents, it would be a solid waste. As a solid waste it would have to be managed as hazardous waste if the discarded thinner was either listed or exhibited a characteristic. Under the new rule, these hazardous secondary materials are not solid waste when reclaimed under one of three conditions:
- Generated and reclaimed at the same facility (i.e., same geographically contiguous property)
- Generated and reclaimed at different sites under “common control” — control is defined as having the “power to direct the policies of the facility, whether by ownership of stock, voting rights, or otherwise.” [40 CFR 260.10] This includes the following scenarios:
- Both sites controlled by generator (e.g., Company A owns both sites)
- Both sites controlled by a person with control over both site (e.g., Company A owns the Division 1 site generating the secondary material and the Division 2 site reclaiming the material)
- Reclaimed under a contract between a tolling manufacturer and a tolling contractor (e.g., Company A contracts with Company B to manufacture a product for Company A. Company A will reclaim hazardous secondary materials produced by Company B.)
Written certifications are required under Options 2 and 3 above. To receive the relief, the secondary materials cannot be speculatively accumulated and must be reclaimed within the United States. Also, the secondary materials must be “contained” as described in the rules for non–land–based units (40 CR 261.2(a)(2)(ii)) or land–based units (40 CFR 261.4(a)(23)).
Transfer–Based Exclusion
The new rule contains an exclusion from the definition of solid waste for hazardous secondary material that is transferred to another company for reclamation (40 CFR 261.4(a)(24). Under this provision, the generator must contain the secondary materials and make “reasonable efforts” to assure that the reclamation facility will properly handle and legitimately reclaim the material. These efforts must be documented, certified, and repeated at least every three years. Although hazardous waste manifests are not required, the generator will have to retain records of off–site shipments. Intermediate facilities and reclaimers must meet the TSDF financial assurance requirements at 40 CFR 264, Subpart F.
“Sham” Recycling Defined
The rule contains a provision to determine whether a recycling activity is “legitimate.” To qualify:
- The secondary material must provide a useful contribution to the recycling process, and
- The recycling process must produce a valuable product or intermediate, and
- The recycled material must be managed as a valuable product, and
- The recycled product does not contain toxic constituents at levels higher than non–recycled products manufactured from virgin materials
The new exclusions do not apply to materials that are inherently waste–like, used in a manner constituting disposal, or burned for energy recovery.
While the rule has been finalized and signed by the Administrator of the EPA, it will not be legally official until it is published in the Federal Register. The rule will become effective 60 days after publication. For more information on the new rule, including the pre–publication rulemaking, please see EPA’s DSW Rulemakings. The revised definition of solid waste and other hazardous waste management requirements are covered in detail at upcoming Lion Technology hazardous waste training workshops
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