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HTRW CX Regulatory Fact Sheet FY 04-01

Title:  Revisions to the Definition of Solid Waste                            

Date: Oct 28, 2003

SARS RIN#:  2050-AE98

Action Type: Proposed Rule

CITE: 68 FR 61557

Executive Summary:  EPA has responsibility for regulating wastes and has historically taken the position that discarded materials, even if recycled, are under their jurisdiction.  This was challenged in court, and the Court held that "discarded materials" could not include materials destined for beneficial reuse or recycling in a continuous process by the generating industry.  This is because they are not yet part of the waste disposal problem.  In response, EPA proposes to modify the definition of solid waste to make clear that secondary materials generated and reclaimed in a "continuous process" within the "same industry" are not solid waste.  If not solid wastes, by definition, they also would not be subject to hazardous waste regulation.  

Other topics addressed in this proposal include the following:

• Proposed one-time notification regarding newly excluded waste.
• Discussion on whether to require periodic reporting of recycling activities to provide information such as types and volumes recycled, where shipments were sent, types of reclamation processes used, types of products produced from the reclamation process, etc.
• Discussion on whether to require generators and reclaimers to keep records regarding types and volumes of materials handled.
• Proposed criteria for establishing legitimate recycling as opposed to "sham" recycling.
• Proposed conforming changes to remove sections made obsolete as a result of the modified definition of solid waste.

Request for input regarding other actions that may be necessary to encourage recycling of materials that otherwise remain regulated as solid/hazardous waste...

Impact:  This proposed rule is primarily deregulatory in nature but has potential impacts to DoD.  Changes to the scrap metal exclusion proposed in 40 CFR 261.4(a)(13) would allow scrap metal to be either excluded under 40 CFR 261.4 or 261.2(g).  Where the latter exclusion is used, there may be a need for additional recordkeeping to ensure processed scrap metal is not being speculatively accumulated.  Another potential impact would be the precedent setting enforcement strategy suggested in this proposal.  EPA proposes that were a secondary material loses its exclusion anywhere in the handling process, that it be subject to hazardous waste management standards retroactively to the point the material was first generated. 

USACE POC: USACE HTRW CX, 402 697 2559

Full Text Location: Can be found at this location

Key Elements of the Proposed Rule:
Modification of Definition of Solid Waste

This proposes to modify the definition of solid waste regarding hazardous secondary materials.  Under this proposal, provided the secondary materials are not inherently waste-like, used in a manner constituting disposal, or burned for energy recovery, they are not solid waste when generated and reclaimed in a "continuous process" within the "same industry". 

Another approach discussed in the preamble, but not proposed, would allow materials generated and reclaimed in a continuous process at the same site to be excluded from the definition of solid waste regardless of whether different industries were involved.  EPA is also accepting comments on this approach.

Determining "Same Industry"

The North American Industry Classification System (NAICS) is proposed as the basis for determining whether secondary materials remain within the same industry. For the most part, industries with the same first four digits of this six digit classification system would be considered to be within the same industry.  These industry codes are listed in proposed Appendix X to Part 261.  Exceptions are discussed in the preamble regarding the primary mineral processing industry, the petroleum industry, NAICS classification 3256 (soap, cleaning compound, and toilet preparation manufacturing), NAICS classification 3259 (other chemical product and preparation manufacturing), and waste management and remediation services.  

Determining "Continuous Process Within the Same Industry"

To be considered "generated and reclaimed in a continuous process within the same industry", material can not be handled by any entity or facility outside of the generating industry (except for a transporter) and the materials can not be speculatively accumulated.  This means that handlers other than transporters must be have the same 4 digit NAICS industry classification. 

Two approaches for determining eligibility of reclamation facilities are proposed.  Under Option 1:

• Both generation and reclamation would need to occur within the same industry (same 4 digit  NAICS)
• Reclamation would be allowed to involved one or more processing steps, provided that all steps take place within the same industry in which the secondary material was generated
• The reclamation would be required to produce a product or ingredient that is used or reused without further reclamation.
• The reclamation steps would not be required to take place at the site where the material was generated, provided such reclamation activities take place within the generating industry. 

According to preamble discussion, this proposal is less stringent than the current federal program so states are not required to adopt these changes, and materials may be regulated differently from state to state. However, this logic is questionable in light of the Court decision which held secondary materials generated and recovered in the same industry are not wastes.  Thus it would seem that this would also be outside the scope of States to regulate as hazardous waste.