How the DSW Rule Changed Recycling Under RCRA

On January 13, 2015, EPA issued a rule that amended its definition of solid waste (DSW) to promote recycling while still protecting human health and the environment. This rule, together with the 2008 DSW rule, added three exclusions to RCRA for hazardous secondary materials being:

1) reclaimed “under the control of the generator,”

2) reclaimed at third-party “verified recyclers,” or

3) “remanufactured” within certain industries.

Although these new exclusions have received much attention, less has been said about another important part of the 2015 DSW rule: all recycling under RCRA must now be “legitimate” as defined in §260.43. This includes recycling under the numerous pre-2008 exclusions, such as scrap metal recycling, using a secondary material as an ingredient to make a product, recycling oil-bearing secondary materials within the refining industry, etc. Recycling that is not legitimate is considered a sham, and materials that are sham recycled are considered discarded and are solid wastes. EPA has not changed the language of the pre-2008 recycling exclusions to require a demonstration of, or documentation to prove, legitimacy. However, facilities should be able to prove to a regulatory authority that all of their recycling exclusions and exemptions from RCRA meet the four legitimacy factors in §260.43.

In this presentation, we’ll give a detailed explanation of this significant new RCRA rule, which was effective July 13, 2015. We’ll also explain how the rule is challenging the legitimacy of all recycling conducted under RCRA.