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Proposed Revisions to Definition of Solid Waste - Frequent Questions

This page provides answers to frequently asked questions regarding revisions to the definition of solid waste presented in the 2007 Supplemental Proposal.

Purpose

Differences between the 2003 and 2007 Proposals

Scope and Applicability

Legitimacy

Notifications

Economic Impacts


Q. What is the "definition of solid waste," and what is the intent of this proposal?

A. Under RCRA, a material must first be classifed as a solid waste before it can be considered a hazardous waste. The current definition classifies some materials as solid wastes when they are recycled, but not others. This proposal would change the existing rule to exclude additional materials that are recycled from being regulated as solid (and therefore hazardous) wastes. The proposal also contains provisions for assessing the "legitimacy" of hazardous material recycling practices. For more information, please see the Definition of Solid Waste homepage.

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Q. How would this proposal encourage industrial recycling?

A. The proposal would modify the current hazardous waste regulations under RCRA to encourage recycling, while ensuring protection of human health and the environment. Currently, some recycling is discouraged because of the high costs of meeting Subtitle C requirements, such as facility permits. To address this problem, the proposal would exclude from the definition of solid waste those materials that are generated and reclaimed under the control of the generator, and materials that are transferred by a generator to a reclamation facility, provided certain conditions are met. The proposal also provides a case-by-case petition process for "non-waste determinations," for recycling operations that closely resemble normal manufacturing processes.

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Q. When was this rule first proposed, and why is EPA not finalizing that proposal?

A. EPA first proposed changes to the definition of solid waste, as well as regulatory criteria for determining when recycling is legitimate, on October 28, 2003. (68 FR 61581-61588) After evaluating the comments received on the October 2003 proposal and conducting independent analyses, EPA decided to restructure its approach. This proposal builds on the 2003 action, while presenting a number of important new provisions that are designed to encourage recycling, while maintaining environmental protections.

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Q. How are the exclusions in the proposal different from the 2003 proposed rule?

A. The most important difference is that EPA has decided not to pursue the exclusion in the 2003 proposal that would have limited the exclusion to materials "generated and reclaimed in a continuous process within the same industry." Under the new proposal, recycling via reclamation would not have to occur within the same industry to qualify for an exclusion.

The exclusions in this new proposal are based on the idea that if hazardous secondary materials are not "discarded," they should not be regulated as wastes. We believe this is consistent with the RCRA statute, as well as with recent court decisions that have addressed the definition of solid waste. Further, we believe that the specifics of the proposal that define what "discard" means are supported by the Agency's recycling studies, which are part of the administrative record for this new proposal.

Specifically, the new proposal would provide three different exclusions:

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Q. What types of hazardous waste would not be eligible for the proposed exclusions?

A. Materials that are burned for energy recovery, used "in a manner constituting disposal," or that are inherently waste-like under the current regulations would not be eligible for the proposed exclusions

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Q. What is the scope of the proposed exclusion for hazardous secondary materials that are generated and reclaimed under the control of the generator?

A. This proposed exclusion would apply to materials that are reclaimed within the United States: (1) by the generator at the generating facility; (2) by generator at a different facility that the generator owns or operates; and (3) according to certain types of "tolling" (i.e., contractual) arrangements. Under this exclusion, notification to EPA or the authorized state would be required, speculative accumulation would not be allowed, and (as with all recycling exclusions) the material must be legitimately recycled. If excluded materials are managed in land-based units (e.g., piles or lagoons), the materials also must be contained in the units.

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Q. What information would be required in generators' notifications?

A. Notifications would need to identify the name, address, and EPA ID number of the generator (if applicable); the name and phone number of a contact person; the type of material that will be managed according to this exclusion; and when the material will begin to be managed in accordance with this exclusion.

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Q. How would the exclusion for certain tolling arrangements work?

A. This exclusion addresses a particular type of recycling arrangement between two companies that have a contractual relationship. Specifically, the exclusion would apply in situations where a "tolling" company contracts with a manufacturer to produce a product, and that manufacturing process generates a residual material that can be recycled by the tolling company. If the contract specifies that the tolling company owns and has responsibility for the recyclable material once it is generated, and the material is returned to the tolling company for reclamation, the material would be excluded from regulation under this proposal. In these types of situations, management and recycling of the material is in essence done under the control of the tolling company, even though the material is generated by another company.

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Q. What is the scope of the proposed conditional exclusion for hazardous secondary materials that are generated and then transferred to another company for the purpose of reclamation (i.e., the "transfer-based" exclusion)?

A. Under this proposed exclusion, materials that are generated by one company and then transferred to another company for reclamation would be excluded from regulation, as long as both parties comply with certain conditions. As with the other exclusions being proposed, the materials would need to be "legitimately" recycled to qualify for the exclusion.

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Q. What conditions would generators need to meet to qualify for the exclusion?

A. The following conditions would apply to generators under this proposed exclusion: (1) generators would need to maintain records of material shipments for three years; (2) if materials are managed in land-based units, they would need to be contained in the units; and (3) generators would need to make "reasonable efforts" to ensure their excluded materials will be safely and legitimately recycled.

In addition to these conditions, generators would also need to: (1) submit a one-time notice to the authorized state or EPA (providing the same information as notices under the exclusion for recycling by generators) notifying the appropriate regulatory agency that they intend to manage materials under the terms of this exclusion; (2) comply with restrictions on "speculative accumulation" of recyclable materials; and (3) ensure that the excluded material is not handled by anyone other than the generator, the transporter and the reclamation facility.

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Q. What kind of "reasonable efforts" would a generator need to make?

A. We are proposing a general performance standard for reasonable efforts; we're not specifying in definitive terms what generators' reasonable efforts would have to involve, though the issue is discussed at length in the preamble. The proposed regulatory language simply states that the generator must make reasonable efforts to ensure that the reclaimer intends to legitimately recycle the material and not discard it, and that the reclaimer will manage the material in a manner that is protective of human health and the environment. We ask for comment on several options for implementing this requirement.

The idea is that generators should make certain inquiries about potential reclaimers so that they can be reasonably assured that their materials will be managed and recycled safely and effectively. Such inquiries, which can be thought of as a kind of "environmental due diligence," are currently done as a normal business practice by responsible generators. However, generators would not have to make "reasonable efforts" if they ship materials to a RCRA permitted reclamation facility. We believe that RCRA permits provide adequate assurance that reclamation facilities will manage and reclaim excluded materials safely and legitimately.

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Q. What conditions would reclamation facilities need to meet to qualify for the "transfer-based" exclusion?

A. Reclamation facilities would need to meet the following conditions: (1) maintain shipping records for excluded materials for at least three years; (2) manage excluded materials in a manner that is at least as protective as that employed for analogous raw material, or otherwise contains the material; (3) manage recycling residuals in a manner that protects human health and the environment; and (4) comply with the financial assurance requirements that apply to permitted hazardous waste management facilities. In addition to these conditions, reclamation facilities would also be required to submit the same kind of one-time notice to the appropriate agency as required for generators, comply with restrictions on "speculative accumulation" of excluded materials, and ensure that the excluded materials they receive are legitimately recycled.

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Q. Would conditionally exempt small-quantity generators (CESQGs) be required to make "reasonable efforts"?

A. No. Conditionally exempt small-quantity generators (i.e., those who generate less than 100 kg. of hazardous waste in a calendar month) would not be affected by the proposal under the federal program, since their wastes are already excluded from regulation. Thus, these generators could continue to send their wastes to the same types of facilities that are currently eligible to receive their wastes (see 40 CFR 261.5).

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Q. What is the scope of the proposed case-specific non-waste determination petition process?

A. The case-specific non-waste determination petition process would allow petitioners to demonstrate that their hazardous secondary material clearly is not a solid waste because: (1) it is recycled in a continuous industrial process; or (2) it is indistinguishable in all relevant aspects from a product or intermediate; or (3) it is recycled via certain contractual arrangements. This regulatory mechanism is intended to address recycling practices that clearly do not involve discard of materials, and in essence can be considered normal manufacturing processes, rather than waste management operations.

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Q. What would be the procedure for getting a non-waste determination?

A. In order to obtain a non-waste determination, the facility would submit a petition to the authorized state, or to EPA if the state is not authorized for this regulatory provision. The petition would have to demonstrate that the specific recycling practice is consistent with the criteria specified in the regulations. The state or the Administrator would evaluate the application and provide notification to the public in a newspaper or radio broadcast. After evaluating any public comments on the application, the state or the Administrator would make a determination granting or denying the petition.

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Q. What does the proposal say about the legitimacy criteria discussed in the October 2003 proposal?

A. This new proposal contains provisions that address the "legitimacy" of recycling practices in a way that we believe are substantively the same as the original proposal, but will serve to clarify and provide additional guidance for making these determinations. The main change from the original proposal is that instead of specifying four criteria that would need to be considered on a case-by-case basis, we are now proposing that two of the criteria should instead be mandatory requirements. These are: (1) the hazardous secondary material being recycled must provide a useful contribution to the recycling process or to the product of the recycling process; and (2) the recycling process must produce a valuable product. The other two criteria, which address management of materials prior to recycling, and "toxics along for the ride" in recycled products, would still need to be considered on a case-by-case basis under the new proposal. The preamble to the new proposal also contains a much more detailed discussion of how economic factors should be considered in making legitimacy decisions.

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Q. Why is EPA codifying the legitimacy criteria?

A. Many public comments submitted in response to the October 2003 proposal (particularly those from states) stressed the need for clarity, predictability, and consistency in enforcing the legitimacy criteria. We generally agree with these commenters, and believe that explicit regulatory provisions for addressing the legitimacy of recycling practices are the best means of meeting these objectives

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Q. What would be the economic impacts of this proposal if it is finalized?

A. If finalized, we estimate that this proposal would affect approximately 4,600 facilities, would de-regulate or subject to reduced regulation approximately 650 million tons of hazardous waste annually, and would provide cost savings to industry of approximately $107 million per year. The materials that would be de-regulated or subject to reduced regulation include those which are already being recycled under the current regulatory system, as well as materials that would be shifted from disposal or incineration to recycling. The proposal would provide environmental benefits by decreasing pollution and energy consumption that would otherwise be needed to extract raw materials for use in manufacturing.

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