The Court of Appeals for the DC Circuit has vacated provisions of EPA’s 2015 Definition of Solid Waste Rule which addressed recycling of hazardous secondary materials (i.e., spent materials, byproducts and sludges). The court’s majority took issue with (1) one of four tests to demonstrate that recycling by or under the control of the generator was legitimate, and not a “sham” effort to disguise disposal, and (2) the “Verified Recycler Exclusion”, which excluded recyclable secondary materials from the definition of solid waste and therefore from regulation as hazardous waste, provided that the recycling facility has a hazardous waste facility permit or a variance from permit requirements granted by EPA or the State.
The decision seems like a win for hazardous secondary material generators, as it removes the test for legitimacy that required demonstration that the reclaimed secondary material not contain hazardous constituents except at levels less than or consistent with the analogous virgin or raw product that the reclaimed material would replace.
A further win for generators is that eliminating most of the Verified Recycler Exclusion means a fall-back to the previous (2008) transfer-based exclusion, which allowed delivery of the recyclable secondary material to not only a permitted facility but also to a reclamation facility that did not have a RCRA permit, so long as the generator had made “reasonable efforts” to ensure that the reclaimer would properly and legitimately reclaim the hazardous secondary material. The court ruling does retain one provision of the Verified Recycler Exclusion which set forth emergency preparedness requirements for the generator.
On the down side for generators of spent petroleum refining catalysts (K171 and K172 hazardous wastes), reversion to the transfer-based exclusion also restores the “exclusion from the exclusion” for spent catalysts, meaning that these materials could only be transferred for reclamation to a facility operating under a RCRA permit (or interim status). Perhaps this issue will be given further consideration in the future.
The full text of the Court’s decision is available here, if you really want to plow through it.