Presented by Brooke Dickerson, Of Counsel Air & Waste Management Association Southern Section Conference The New Definition of Solid Waste Presented by Brooke Dickerson, Of Counsel

Definition of Solid Waste Under RCRA Subtitle C, Hazardous Wastes are a subset of “Solid Waste”: 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 activities © 2015. Arnall Golden Gregory LLP

History Judicial Debate: when are hazardous wastes destined for recycling by reclamation, particularly Hazardous Secondary Materials, discarded? If not discarded, EPA does not have the authority to regulate under RCRA as a hazardous waste. Regulatory Definition*: abandoned, recycled, inherently waste-like or a military munition Plain Language Definition: disposed, abandoned or thrown away Policy Debate: risk v. benefits from recycling © 2015. Arnall Golden Gregory LLP

Specific and General Exclusions Over time, EPA added specific exclusions for designated wastes and/or uses, e.g. scrap metal, zinc fertilizers and shredded circuit boards. 2008, EPA added general exclusions: Reclaimed by the Generator: Self Implementing but CONDITIONAL Transferred to a separate Reclaimer: Self Implementing but CONDITIONAL Case by Case determination that a material is not “discarded”: Voluntary but subject to EPA consent 2008 Rule Very Controversial: Concern over sham recycling and mismanagement especially in connection with the transfer-based exclusion. © 2015. Arnall Golden Gregory LLP

Obama Administration Changed the regulations defining “Solid Waste”, withdrawing the transfer-based exclusion and replacing it with the option of a VERIFIED RECYCLER EXCLUSION (VARIANCE) or obtaining a RCRA PERMIT. Finalized December 10, 2014 Published 80 FR 1694, January 13, 2015 Effective July 12, 2015 © 2015. Arnall Golden Gregory LLP

General Concept Use objective criteria to determine if the recycler perceives more economic value in recycling the HSM, or less cost by avoiding RCRA treatment, storage or disposal. If meet the conditions, then eligible for the Verified Recycler Exclusion. Does the recycler treat the material as carefully as the analogous raw material? Is the recycling “legitimate”? Is the material a good substitute in the process for a raw material? Is the recycled end product a valuable commodity? © 2015. Arnall Golden Gregory LLP

Retained Rules Any provisions pre-2008 or in the 2008 regulations not addressed in new final rule remain in effect including: pre-existing specific exclusions* “this exclusion does not include the recycling of hazardous secondary materials . . that are used in a manner constituting disposal or used to produce products that are applied to or placed on the land.” *all exclusions now subject to “legitimacy criteria” © 2015. Arnall Golden Gregory LLP

Conditions for Exclusion of HSM 261.4(a)(24) Exclusion of HSM transferred to a PERMITTED facility or to a VERIFIED RECLAMATION FACILITY for the purpose of reclamation (definition of “reclaim” revised), if meet required conditions: no “speculative accumulation” (new definition) only handled by the generator, transporter, intermediate facility or a reclaimer, and not stored more than 10 days at a transfer facility not otherwise subject to material-specific management conditions and no spent lead-acid batteries reclamation is legitimate (new definition) generator meets designated requirements © 2015. Arnall Golden Gregory LLP

Conditions for Exclusion 261.4(a)(24) (cont’d) record keeping (at least 3 years) must be sent to reclaimer designated by generator send confirmation of receipt to generator storage of HSM at least as protective as analogous raw material and must be “contained” (new definition); protective management of residuals financial assurance ***VARIANCE or hazardous waste PERMIT EPA prior to operating. NOTIFICATION to EPA prior to operations then every other year ***NO EXPORTS outside of the US (deleted from 2008 rule) emergency preparedness and response © 2015. Arnall Golden Gregory LLP

Verified Recycler Variance 260.31(d) 30 day public notice and comment, possible public hearing. Fixed term not to exceed10 years. Legitimate Recycling: All 4 factors mandatory 260.43(a) Must provide a useful contribution to the process or the end product/intermediate recycling process must produce a valuable product or intermediate. “recycling processes may consist of multiple steps at separate facilities; if each step results in a valuable product or intermediate “ HSM managed as a valuable commodity Lower or Comparable levels of toxics between the recycled end product/intermediate and analogous raw material (or document and notify that nevertheless legitimate) © 2015. Arnall Golden Gregory LLP

Verified Recycler Variance 260.31(d) (cont’d) Financial Assurance Not Subject to Formal Enforcement Action In prior 3 years or significant non-complier, or provide credible evidence that will manage properly Necessary Equipment and Trained Personnel Emergency Preparedness Management of Residuals Address Potential Risk of Unpermitted Release Include cumulative effects in the area © 2015. Arnall Golden Gregory LLP

Contemplates Partial Reclamation 260.31(c) Definition of “reclaim” revised to include partially reclaimed HSM that must be reclaimed further, if the partial reclamation has produced a commodity-like material, to be determined based on legitimacy criteria and: whether the degree of partial reclamation is substantial whether the partially reclaimed material has sufficient economic value whether it is a viable substitute for a product or intermediate used in subsequent production whether there is a market for the partially reclaimed material whether it is handled to minimize loss © 2015. Arnall Golden Gregory LLP

Additional Revisions Though not subject to closure rules, when discontinue recycling, must treat remainder HSM as hazardous waste. Once violate a condition, the HSM are no longer excluded and become hazardous waste. Even if currently operating under 2008 exclusion, must qualify or get a permit. No exports after the effective date. Some changes to generator-controlled exclusion, case specific variances and non-waste determination. Added a specific, conditional exclusion for 18 designated high-value hazardous spent solvents recycled into commercial-grade products. © 2015. Arnall Golden Gregory LLP

Outstanding Questions Effective immediately in Alaska, Iowa, US Virgin Islands. Other States that never adopted 2008 rule, only required to adopt parts of 2015 rule. ( All but Idaho, Illinois, New Jersey, Pennsylvania, which must adopt whole 2015 rule.) What officials or department will manage the Variance process? How long will approval take? How to confirm that the generators met the conditions? How to manage Interstate Shipments? If reclaimer never stores or treats the received HSM, what kind of a permit could a facility apply for? What will be the status of the rule while being contested in court? Does this rule accurately clarify the meaning of “discarded”? Issue: If not adopted by the state, what rules will apply to a facility? Can EPA enforce nonetheless? © 2015. Arnall Golden Gregory LLP

Brooke Dickerson, Of Counsel For more information: Brooke Dickerson, Of Counsel brooke.dickerson@agg.com 404.873.8632 All rights reserved. This presentation is intended to provide general information on various regulatory and legal issues.  It is NOT intended to serve as legal advice or counsel on any particular situation or circumstance. © 2015. Arnall Golden Gregory LLP