Definition of Solid Waste (DSW) Final Rule

On July 22, 2011, the Environmental Protection Agency (EPA) issued a new proposed definition of solid waste that retreats from the significant progress to encourage recycling in an October 2008 final rule. EPA took this action pursuant to a September 2010 settlement with the Sierra Club, whereby EPA agreed to propose a new regulation by June 2011 and finalize it by December 2012.

On January 13, 2015, the EPA Administrator published in the Federal Register the final revisions to the Definition of Solid Waste rule.  The primary purpose of the revisions was to close perceived regulatory gaps in the 2008 definition of solid waste rule that allowed the recycling of hazardous secondary materials without sufficient regulatory controls.  Hazardous Secondary Materials (HSM) are defined as “a secondary material (e.g., spent material, by-product, or sludge) that, when discarded, would be identified as a hazardous waste…” The 2008 rule allowed that if HSMs were recycled, they were not wastes.  The new revisions provide that the recycling of HSMs can occur only if specific regulatory requirements are met.

On July 7, 2017, the U.S. Court of Appeals for the D.C. Circuit upheld part, and vacated part, of EPA’s most recent definition of solid waste regulation that was finalized in January 2015.  Specifically, the court upheld one of the recycling legitimacy factors and vacated another.  It also vacated the so-called “Verified Recycler” exclusion and reinstated the “Transfer-Based” exclusion from the October 2008 final rule.  As a result, if a HSM is now recycled in a manner that meets the applicable legitimacy factors, then it is not discarded, and therefore, not subject to regulation as a hazardous waste.

Based on the court’s opinion, legitimately recycled HSMs are not discarded, and therefore, are not subject to regulation as a waste pursuant to RCRA.  Recycled products do not have to have levels of hazardous constituents comparable to a legitimate product or intermediate, provided that the other legitimacy factors are met.  This new interpretation of the definition of solid waste would apply to recycling that is controlled by the generator and that is transferred off-site to a third-party recycler (provided that the generator has audited the recycler).

On May 30, 2018 EPA issued a direct final rule (without public notice and comment) to implement the changes directed by the court that were effective immediately.  Because RCRA is implemented by state-authorized programs that will need to incorporate these changes, facilities are encouraged to contact their individual states to determine how these changes will be implemented.