Hazardous Waste Recycling Under the Definition of Solid Waste (DSW) Rule Tribal Lands Forum August 2011 1
Agenda 1) Briefly explain the 2008 DSW rule, which is in effect on tribal lands; 2) Identify resources that are available to assist tribes with implementation of the 2008 rule; and 3) Describe EPA s proposed changes to the rule, which are open for comment until September 20. 2
Background What is the Definition of Solid Waste? Under the Resource Conservation and Recovery Act (RCRA), a material must be a solid waste in order to be a hazardous waste. RCRA defines solid waste as: any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material resulting from industrial, commercial, mining, and agricultural operations, and from community activities (RCRA Section 1004 (27) (emphasis added)). A key issue since the 1980 s has been whether RCRA provides EPA the authority to regulate recycling or reuse of hazardous secondary materials and, if so, when such recycling or reuse constitutes discard and therefore is potentially subject to RCRA regulation. 3
Background A lot of work has been done on this issue Original DSW proposal Supplemental DSW proposal Jan 2009: Sierra Club petitions EPA to repeal DSW rule; Sierra Club and API file lawsuits Last twenty years 2003 2007 2008 2009 2011 Several court decisions on when a material is a solid waste EPA conducts recycling studies Oct 2008: DSW final rule Became effective Dec 2008 June 2009: Public meeting to discuss issues raised in Sierra Club administrative petition June 2011: EPA proposes revisions to address stakeholder concerns. 4
2008 DSW Final Rule 2008 Definition of Solid Waste Rule [40 CFR 261.2(a)(2)(ii), 261.4(a)(23), (24), and (25)] The 2008 DSW final rule was published on October 30, 2008 (73 FR 64668) and became effective on December 29, 2008. The rule remains and will remain effective as part of the federal program throughout this current rulemaking process. The rule is currently effective in six states (AK, IA, ID, IL, NJ, and PA), in many territories, and on tribal lands. 5
2008 DSW Final Rule Basic Facts of the 2008 DSW Final Rule Only applies to hazardous secondary materials, which are secondary materials that, when discarded, would be hazardous wastes. Does not affect any existing exclusion, exemption, or determination. Is limited to reclamation, and does not include burning for energy recovery or use constituting disposal (i.e., used directly on the land). DSW is an optional rule: RCRA authorized states can choose to adopt the rule. Facilities in states that adopt can choose to manage hazardous secondary materials under the rule. 6
2008 DSW Final Rule Four major components: 1. Under the Control of the Generator Exclusion Self-implementing exclusion for materials generated and reclaimed under the control of the generator. 2. Transfer-based Exclusion Self-implementing exclusion for materials generated and transferred to another company for reclamation. 3. Legitimate Recycling Provision 4. Non-waste Determination Procedure Materials that are non-wastes (determined through a petition process). 7
2008 DSW Final Rule Generator-controlled Exclusion Includes hazardous secondary materials that are generated and reclaimed at the same facility by the same company (even at different facilities) under certain toll manufacturing arrangements Under this exclusion, generators must: Legitimately recycle materials Not speculatively accumulate materials Submit notifications (using the Site ID form) Ensure materials are contained Reclaim materials within the United States 8
2008 DSW Final Rule Transfer-based Exclusion Includes hazardous secondary materials that are generated and transferred to another person for reclamation. Under this exclusion, generators must: Legitimately recycle materials Not speculatively accumulate materials Submit notifications (using the Site ID form) Ensure materials are contained Make reasonable efforts to evaluate the reclaimer and intermediate facility to determine that they will safely and legitimately recycle Maintain records of off-site shipments and confirmations of receipt Provide notice and obtain consent for exports Under this exclusion, reclaimers and intermediate facilities must: The above first four conditions that a generator must complete Manage recycling residuals safely Maintain records of shipments and send confirmations of receipt to generator Have financial assurance 9
2008 DSW Final Rule Non-waste Determination Includes hazardous secondary materials that are reclaimed in a continuous industrial process; or indistinguishable in all relevant aspects from a product or intermediate Materials recycled by use constituting disposal and burning for energy recovery are not eligible for a non-waste determination. To obtain a non-waste determination, facilities must: Legitimately recycle materials Demonstrate that the hazardous secondary material meets eligibility criteria Submit application to EPA or authorized state 10
2008 DSW Final Rule Legitimate Recycling Two mandatory factors Materials must provide useful contribution to product or recycling process Recycling must produce valuable product Two factors must be considered Materials must be managed as valuable commodities Products of recycling must not contain significantly higher levels of hazardous constituents than are in analogous products 11
2008 DSW Final Rule Where the 2008 DSW rule is effective Idaho is waiting to implement the rule until it is authorized. (Implemented by Region 7) Tribal Areas Virgin Islands (Implemented by Region 10) American Samoa (Implemented by Region 2) Puerto Rico (Implemented by Region 9) Northern Mariana Islands Guam 12
2008 DSW Final Rule Status of State Adoption The rule is in effect in only a few states because: States have to adopt the DSW rule and their legislative process takes time. States are unwilling to adopt the rule when they know that changes may be coming in the 2011 proposed rulemaking process. Some states will not adopt the rule because they believe it is not protective enough in its current form. As for the states that did adopt AK and IA are implemented by the region (plus territories and tribal areas). NJ and PA adopt rules automatically. ID adopts by reference. 13
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2008 DSW Final Rule Website: 15 http://www.epa.gov/epawaste/hazard/dsw/impresource.htm
2011 DSW Proposed Rule 2011 DSW Proposed Rule On June 30, 2011, the EPA Administrator signed a rule proposing new safeguards for recycling hazardous materials to protect public health and the environment. The proposal modifies EPA s 2008 Definition of Solid Waste (DSW) rule, which revised hazardous waste regulations to encourage recycling of hazardous materials. The proposal will improve accountability and oversight of hazardous materials recycling, while allowing for important flexibilities that will promote its economic and environmental benefits. 16
Overview of Major Areas of Proposal Improving Safeguards Replacing the transfer-based exclusion with alternate hazardous recyclable materials standard. Adding a regulatory definition of contained and additional recordkeeping requirements for generator-controlled exclusion. Making all four legitimacy factors mandatory and requiring documentation. Applying the regulatory definition of legitimate recycling to all hazardous waste and hazardous secondary material recycling. Requesting comment on applying the contained standard, notification, and recordkeeping for speculative accumulation to existing recycling exclusions. Encouraging Recycling Alternative standard allows generators longer accumulation time (one year) if there is a reclamation plan in place. Retaining the generator-controlled exclusion for recycling performed on-site, at the same company, or under certain tolling agreements. Providing a petition process for instances where legitimacy factors are not met, but recycling is still legitimate. Requesting comment on a targeted exclusion for higher-value hazardous solvents which are re-manufactured into commercial-grade products. 17
2011 DSW Proposed Rule Propose to replace transfer-based exclusion with alternative Subtitle C regulation for hazardous recyclable materials Under alternative requirements, hazardous recyclable materials would be managed according to the current RCRA Subtitle C requirements, including manifesting and hazardous waste permits for storage. However, generators may label these materials as hazardous recyclable materials, and accumulate them up to a year without a RCRA permit. The generator must make advance arrangements for legitimate reclamation and document those arrangements in a reclamation plan. EPA also requests comment on setting an upper limit on the amount of hazardous recyclable material accumulated at the generator site at any one time. 18
2011 DSW Proposed Rule Propose to retain generator-controlled exclusion, with changes. EPA is also proposing four changes to the generator-controlled exclusion: 1. Revising the contained standard Unit is in good condition with no leaks or continuing or intermittent releases; Is designed as appropriate to prevent releases such as precipitation runoff, releases to groundwater, dust, fugitive air emissions, and catastrophic unit failures; Is properly labeled or has a system to identify the materials in the unit; and Does not hold incompatible materials and addresses risks of fires or explosions. 2. Making notification a condition of the exclusion 3. Adding recordkeeping requirements for tolling 4. Documenting compliance with speculative accumulation storage limits 19
2011 DSW Proposed Rule Propose changes to definition of legitimate recycling 1. Applying the legitimacy provision to all hazardous secondary material and hazardous waste recycling 2. Making all four factors in the legitimacy provision mandatory, with a petition process 3. Proposing new text be added to legitimacy factor 3 language to allow materials to be managed in an equally protective manner as a raw material 4. Proposed change to legitimacy factor 4 language. Levels of toxics in products from recycling have to be comparable or lower than analogous products (rather than significantly elevated ) 5. Recyclers must document legitimacy determinations 20
2011 DSW Proposed Rule Propose changes to variances and non-waste determinations in 40 CFR 260.31(c), 40 CFR 260.33 and 40 CFR 260.34 1. Require facilities to re-notify every other year using the Site ID form 2. Require facilities that receive a variance to re-apply in the event of a change in circumstances that affects how the material meets the variance criteria 3. Require that all of the criteria for the partial reclamation variance must be reviewed and met for a variance to be granted 4. Require petitioners for non-waste determinations to explain why their hazardous secondary material cannot meet, or should not have to meet, an existing DSW exclusion 5. Designate the Regional Administrator as the EPA recipient of petitions for variance and non-waste determinations in non-authorized States. 21
2011 DSW Proposed Rule Request comment on a new exclusion for high value solvents used as processing aids in the pharmaceutical, organic chemical, plastics and resins, or the paint and coatings sector. Studies by EPA s Green Engineering Program identified these industry sectors and reuse of these solvents as chemical manufacturing and processing aids as a potential opportunity to obtain large environmental benefits. The solvents identified as possible candidates for a re-manufacturing exclusion are highly energy-intensive and carbon-intensive at their creation and destruction and are used in very high volumes. It takes significantly less energy to bring solvents used as chemical manufacturing aids back to commercial grade than to bring solvents used as cleaners and degreasers back to functionality. More environmental benefits will be obtained by maximizing the number of times a high-purity grade chemical product can be used as an aid to chemical manufacturing and processing. 22
2011 DSW Proposed Rule Conditions of the re-manufacturing exclusion: The hazardous secondary material must be one 18 solvents that originated and is re-manufactured for use in one of four industry sectors for reacting, extracting, blending, and purifying purposes. (The solvent cannot be used for cleaning or degreasing.) The generator and re-manufacturer must: Notify their regulatory authority prior to using the exclusion and every other year thereafter. Develop a re-manufacturing plan. Maintain records of shipments and confirmations of receipt. Store the spent solvents in tanks or containers that meet the same technical standards as those in 40 CFR 264 Subparts I and J. Comply with air emission standards (NESHAP and 40 CFR 264 subparts AA, BB, and CC). Meet speculative accumulation storage limits. We also request comment on other opportunities for remanufacturing of hazardous secondary materials. 23
2011 DSW Proposed Rule Request comment on adding notification, containment, and recordkeeping for speculative accumulation to other (pre-2008) exclusions and exemptions from hazardous waste regulations. We analyzed 218 recycling damage cases documented for the 2008 DSW final rule and determined that over half of these damage cases were probably associated with an existing recycling exclusion or exemption from the hazardous waste regulations. We are not reopening comment on any substantive provisions of the regulatory exclusions or exemptions. 24
List of pre-2008 recycling exclusions and exemptions 25
2011 DSW Proposed Rule Next Steps Date August 31, 2011 Event Q&A Webinar on the DSW Proposed Rule Mid-September 2011 September 20, 2011 December 31, 2012 Two Public Meetings (To be announced) 60-Day Public Comment Period Ends Final Rule Published Information regarding the proposal, upcoming public meetings, and how to submit comments can be found at: http://www.epa.gov/epawaste/hazard/dsw/rulemaking.htm. Docket for this Rulemaking: EPA-HQ-RCRA-2010-0742 26
For additional information, contact: Amanda Geldard geldard.amanda@epa.gov (703) 347-8975 27