On October 28, 2003, EPA published notice of its intend to revise the definition of solid waste to exclude certain recyclable hazardous secondary materials from regulation as wastes under Subtitle C of the Resource Conservation and Recovery Act (“RCRA”). 68 Fed. Reg.61558 (October 28, 2003). The proposed revisions would clarify that certain hazardous secondary materials that are recycled would not be considered to have been discarded and thus would not be considered a solid waste subject to regulation. In effect, the proposal would expand the universe of materials that are allowed to operate outside the scope of RCRA Subtitle C because they are recycled.

     Currently, secondary materials that are hazardous are not subject to regulation if they are recycled by being used or reused directly as an effective substitute for a commercial product or if they can be used as ingredients in an industrial process. That is, secondary materials that are generated in amounts that can not be used directly (i.e., immediately reused) even though the materials will be recycled ultimately and used as product, are considered wastes and must be: 1. considered in the calculation of the volume of generated wastes that determine whether an entity is regulated as a large or a small quantity generator; and 2. must be managed in accordance with Subtitle C until recycled. Materials that are reclaimed, such as what occurs with the processing of spent solvents, are also regulated.

     The proposal under consideration by EPA would remove these secondary materials from regulation – because they would be excluded from the definition of wastes – provided that the materials are subject to legitimate recycling – that is, they are destined for beneficial reuse or recycling in a continuous process by the generating industry. The effect of the proposal would be to remove reclamation from regulation provided that the reclamation occurred within the same industry, as defined by the North American Industry Classification System (“NAICS”). The exclusion would put no geographic limitation on the movement of the materials such that reclamation could take place at a different location or facility, as long as each reclamation step occurs within the same generating industry and the materials were not “accumulated speculatively” as defined in 40 CFR 261.1(c)(8). This would permit a company with geographically different facilities to transport secondary materials to one location for reclamation provided that each the operations at each facility would be defined the same using NAICS.

     Why is EPA making this proposal? Two reasons. First, and perhaps foremost, is the fact that the proposal will encourage recycling by removing the unnecessarily rigid analysis that RCRA imposes on the reclamation process. The Pollution Prevention Act of 1990, 42 U.S.C. §13101(b), makes recycling the second most preferred strategy for waste management. EPA encourages recycling because it reduces the volume of waste that is subject to disposal and treatment. EPA is also proposing this change as a response to a number of decisions by the United States Court of Appeals for the D.C. Circuit that have addressed the issue of EPA jurisdiction to regulated recycled materials. These decisions culminated in the case of Association of Battery Recyclers v. EPA, 208 F.3d 1047 (D.C. Cir. 2000), in which the court concluded that hazardous secondary materials that are generated and reclaimed in a continuous process within the generating industry were not discarded and not solid wastes. EPA’s proposal amends the definition of solid waste to conform to this ruling.

     EPA is accepting comments on the proposal until January 26, 2004.