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EPA Issues New Rules Governing Recycling That Will Impact Most Major Industries

The U.S. Environmental Protection Agency (EPA) recently revised its rules governing the recycling of spent materials, listed hazardous sludge and listed by-products associated with the Resource Conservation and Recovery Act (RCRA) definition of solid waste (DSW). See 80 Fed. Reg. 1694-1814 (Jan. 13, 2015), [enhanced version available to subscribers]. The revised rules now require generators of recyclable hazardous secondary materials (HSM) to send these materials to RCRA permitted treatment, storage and disposal facilities or to approved "verified recyclers." In addition, generators of any hazardous materials that are destined for recycling will now be required to: (1) comply with new rigorous recordkeeping requirements designed to prevent the speculative accumulation of recyclable materials; and (2) demonstrate that the recycling of the material is legitimate. EPA also formalized its long-standing policy prohibiting sham recycling and introduced a requirement that HSM must be "contained" in order to prevent releases of the material during storage. Further, generators of and facilities that store or recycle HSM will be required to comply with new notification and emergency preparedness and response requirements.

The rules also introduce a new exclusion from the DSW for 18 higher-value spent solvents transferred from one manufacturer to another for the purpose of extending the useful life of the solvent. EPA has defined this process as "remanufacturing" and has placed restrictions on the companies conducting the remanufacturing and on the use of remanufactured solvents.

Sham Recycling & Legitimacy Criteria

The final rules introduce an explicit prohibition on "sham recycling" and revise the existing "legitimacy criteria" used to distinguish legitimate recycling from sham recycling. All four (4) legitimacy criteria are now mandatory:

1) The HSM must provide a useful contribution to the recycling process;

2) The recycling process must produce a valuable product;

3) The HSM must be handled as a valuable commodity; and

4) The product of the recycling process must be comparable to a legitimate, analogous product (i.e., the product of the recycling process cannot have "toxics along for the ride" that would not otherwise be present in the analogous product).

The new rules do not require documentation of legitimacy criteria for recycling activities excluded under other rules except in cases where there is no analogous product comparison.


HSM must be "contained" in units that are in good condition with no leaks or unpermitted releases (e.g., surface transport via precipitation runoff, fugitive air emissions, windblown dust, etc.). In addition, storage units holding HSM must now be labeled and dated or have a system in place to immediately identify the HSM in the unit.

Notification Requirements

Generators, intermediate facilities and third-party recyclers are now required to send notification to EPA or the authorized state prior to operating under the HSM exclusion.

Speculative Accumulation Recordkeeping Requirement

The new rules expand the current prohibition on speculative accumulation by imposing specific recordkeeping requirements. This expansion applies to both HSM and other materials that are excluded from the DSW provided they are recycled. Storage units must be labeled with an accumulation date or an alternate document must be retained (e.g., inventory log) that demonstrates that the material is, in fact, being recycled (75% of the quantity in storage on January 1 by the end of the same calendar year). Lastly, generators that ship HSM offsite for recycling must maintain documentation of the off-site shipments and make these records available for review by inspectors.

Emergency Preparedness and Response Requirement

Generators and third-party recyclers must now comply with new emergency preparedness and response regulations. The new requirements are similar to the emergency preparedness and response requirements imposed on small and large quantity generators of hazardous waste. Facilities that accumulate less than or equal to 6,000 kilograms (kg) of HSM onsite must now designate an emergency coordinator, make arrangements with local emergency responders and institute basic emergency response measures. In addition to the aforementioned requirements, facilities that accumulate more than 6,000 kg of HSM onsite must also develop a contingency plan outlining planned response measures and share that plan with emergency responders.

Verified Recycling Program

Generators sending HSM offsite for recycling will now be required to send their materials to a RCRA-permitted recycler or intermediate facility, a verified HSM recycler, or an intermediate facility that has obtained a solid waste variance. Verified recyclers must apply for a solid waste variance from the EPA or authorized state to accept HSM. As a part of the application for a variance, applicants must demonstrate that the proposed recycling of HSM is legitimate, address the potential for risk to the surrounding community from unpermitted releases and obtain financial assurance.

Timing for Compliance

This rulemaking will become effective July 13, 2015 in states and territories where EPA implements RCRA’s hazardous waste program (i.e., Alaska, Iowa and various U.S. territories). Authorized states that adopted the 2008 DSW (i.e., Pennsylvania, New Jersey, Illinois and Idaho) will also be required to adopt the new rules because it is more stringent than the 2008 DSW. In addition, states that did not adopt the 2008 DSW will be required, at a minimum, to modify their programs to accommodate the definition of legitimacy, the prohibition on sham recycling and the speculative accumulation recordkeeping requirements.

If you have any questions regarding this development or any other issues related to RCRA, please contact Colleen Grace Donofrio at (856) 256-2495 or, or Naeha Dixit at (412) 394-6580 or

Copyright 2015 • Babst, Calland, Clements and Zomnir, P.C. • Two Gateway Center, Pittsburgh, PA 15222 • 412-394-5400 • Administrative Watch is privately distributed by Babst, Calland, Clements and Zomnir, P.C., for the general information of its clients, friends and readers. It is not designed to be, nor should it be considered or used as, the sole source of analyzing and resolving legal problems. If you have, or think you may have, a legal problem or issue relating to any of the matters discussed in the Administrative Watch, consult legal counsel.

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