Greetings from a guest columnist and colleague of Dr. Richard Martin. I am a registered civil engineer with more than 30 years of experience in environmental forensics, product stewardship, water quality, waste management and site remediation.

Effective Dec. 29, 2008, the EPA issued a (new) final rule revising the definition of solid waste. The new rule excludes certain hazardous “secondary materials” from regulation under Subtitle C of the Resource Conservation and Recovery Act (RCRA), and its stated purpose is to “encourage safe, environmentally sound recycling.” Specifically, the new rule exempts many reclamation processes undertaken by the generator on-site, off-site within the same company or via tolling arrangements with a third party.

One of the harshest criticisms levied against RCRA when it was first promulgated in 1976 was the difficulty associated with getting a material “out of the RCRA box” once it was determined to be a hazardous waste. Although the background information for the new EPA rule contains confusing and seemingly contradictory information along with threats of severe penalties for noncompliance, the revised definition of solid waste may actually encourage recycling to a greater extent than the prior definition did.

While the new rule allows for manufacturers to obtain an exemption for certain types of “hazardous secondary materials,” the level of effort required to secure the exemption can be substantial. The following checklist is offered as a screening guide to help process engineers and managers determine whether the exemption is worth pursuing.
  • Is the secondary material indistinguishable from raw materials or intermediates it is replacing?
  • Does the secondary material (before or after reclamation) have value?
  • Does the reclaimed material contain useful or necessary constituents (i.e. is it more than just a “filler”)?
  • Is the final product generated from the reclaimed material no more hazardous than it would be if made from typical raw materials?
  • Will the secondary material be processed and sold in a timely manner (i.e. is it really being recycled or just stored indefinitely)?
  • Is the rate of generation less than or equal to the rate of sale or use?
  • Will the reclaimed material be handled as a commodity so there is no doubt the secondary material wasn’t simply being “discarded”?
If you answered yes to the questions above, you may be ready to initiate the process of obtaining an exemption. Unfortunately, the new rule doesn’t apply yet in 46 out of 50 states. Because the new rule is considered less restrictive, state action is required to replace the former definitions.

Dr. Waverly Thorsen, senior scientist at Exponent, has compiled state-specific information related to the new EPA rule and reports the following: “In Iowa and Alaska, RCRA is administered by the respective EPA region, so the new rule took effect in those states immediately. New Jersey and Pennsylvania have formally adopted the new rule, but generators in the remaining states may need to wait for state-agency confirmation. Some states, including California, have unique definitions for waste, which may supersede the new EPA rule.”

To illustrate the potential benefit of this new rule, consider the case of a secondary aluminum smelting facility that was generating a “black dross” that was high in salt. When the operator abandoned the property, the lending bank was left with a white-elephant site that held 8,000 tons of salt dross.

When an evaluation of the dross determined that it met the state DOT specification for road deicer, the bank sought approval from state regulators to begin a voluntary site cleanup that included selling the dross for $15 per ton. The regulators asked for further clarification regarding whether the proposed application fell into the category of “use constituting disposal” and whether or not the material had been “discarded” by the site operator.

The question of use constituting disposal was resolved by documenting that the dross would replace a commercial product with similar constituents and equal toxicity (i.e. non-toxic to humans; toxic to freshwater fish in high concentrations). The question of whether the dross had been discarded by the site operator was resolved favorably for the bank because the black dross had been handled in a manner that indicated intent to recycle. Regulatory approval was granted to allow sale of the dross for use as road salt.

For the most part, the new EPA rule merely clarifies and simplifies how to secure regulatory approval for processes that reclaim hazardous materials. Although reclamation was also permissible under the old rules, the path was more difficult. This new rule sends a clear signal of the EPA’s intent to encourage legitimate recycling of hazardous materials, and it may permit waste generators to reduce reportable quantities of hazardous materials while meeting internal sustainability targets. IH