Telling Legitimate Recycling From Shams

Telling Legitimate Recycling From Shams

My post on “recycling” batteries by turning them into roadbed aggregate, via mill slag, raised the question of what constitutes “legitimate” recycling. The US Environmental Protection Agency has been struggling with this issue for decades; claims to turn hazardous waste inexpensively into “aggregate” have always been popular. Their most recent discussion of the the topic is a helpful 2010 guidance document,

with the turgid title: Revisions to the Definition of Solid Waste Final Rule Compilations: The Legitimate Recycling Standard.

EPA has long articulated the need to distinguish between “legitimate” (i.e., true) recycling and “sham” recycling and has codified its legitimacy provisions in its Definition of Solid Waste (DSW Rule). As the EPA puts it:

Under the RCRA Subtitle C definition of solid waste, certain hazardous secondary materials, if recycled, are not solid wastes and, therefore, are not subject to RCRA’s “cradle to grave” management system. The basic idea behind this principle is that recycling of these materials often closely resembles industrial manufacturing rather than waste management. However, due to economic incentives for managing hazardous secondary materials outside the RCRA regulatory system, there is a potential for some handlers to claim that they are recycling the hazardous secondary materials when, in fact, they are conducting waste treatment and/or disposal. To guard against this, EPA has long articulated the need to distinguish between “legitimate” (i.e., true) recycling and “sham” recycling, beginning with the preamble to the 1985 regulations that discussed the definition of solid waste (50 FR 638, January 4, 1985) [enhanced version available to lexis.com subscribers], and continuing through [the 2008 DSW] final rule. [73 FR 64670] [enhanced version available to lexis.com subscribers], The legitimacy provision in [the] final exclusions and non-waste determinations is designed to distinguish between real recycling activities— legitimate recycling—and “sham” recycling, an activity undertaken by an entity to avoid the requirements of managing a hazardous secondary material as a hazardous waste. [73 FR 64701] [enhanced version available to lexis.com subscribers]

The four legitimacy factors are:

Core Factors:

• Factor 1—Useful Contribution

• Factor 2—Valuable Product or Intermediate

Factors that Must Be Considered:

• Factor 3—Managed as a Valuable Commodity

• Factor 4—Comparison of Toxics in the Product

The design of legitimacy in the final rule has two parts.

The first is a requirement that hazardous secondary materials being recycled provide a useful contribution to the recycling process or to the product of the recycling process and a requirement that the product of the recycling process is valuable.

These two legitimacy factors make up the core of legitimacy and, therefore, a process that does not conform to them cannot be a legitimate recycling process, but would be considered sham recycling. [73 FR 64701]

The second part of legitimacy is two factors that must be considered when a recycler is making a legitimacy determination. EPA believes that these two factors are important in determining legitimacy, but has not made them factors that must be met because theAgency knows that there will be some situations in which a legitimate recycling process does not conform to one or both of these two factors, yet the reclamation activity would still be considered legitimate. EPA does not believe that this will be a common occurrence, but in recognition that legitimate recycling may occur in these situations, EPA has made management of the hazardous secondary materials and the presence of hazardous constituents in the product of the recycling process to be factors that must be considered in the overall legitimacy determination, but not factors that must always be met. [73 FR 64701]

There is no comparably detailed guide or clear law in Canada. But the same economic and regulatory issues arise here, and the US guidance document is helpful in laying out the many complex issues that arise in telling legitimate recycling from shams.

    By Dianne Saxe, Ontario Environmental Lawyer

Reprinted with permission from the Environmental Law and Litigation Blog.

For more information about LexisNexis products and solutions connect with us through our corporate site