Bergeson & Campbell, P.C.

Legal Lookout: Redefining solid waste

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Some hazardous secondary materials excluded from EPA's revised definition under RCRA.

The definition of solid waste has long been the subject of controversy. At the heart of the debate is what constitutes 'discard,' versus legitimate recycle or reuse such that RCRA regulation should not apply. This question has been especially vexing for secondary materials, including spent materials, listed sludges and listed byproducts.

Summary overview

The rule establishes two self-implementing exclusions for certain hazardous secondary materials that are legitimately recycled. One exclusion streamlines management requirements for hazardous secondary materials legitimately reclaimed under the control of the generator. The other exclusion streamlines requirements for hazardous secondary materials that are transferred for legitimate reclamation, provided certain conditions are met. The rule also contains a procedure for applying for a case-by-case non-waste determination, and provisions for assessing the legitimacy of hazardous secondary
material recycling practices.

The final rule contains an important provision intended to determine which recycling activities are legitimate. To be legitimately recycled, the hazardous secondary material: (1) must provide a useful contribution to the recycling process; and (2) the recycling must make a valuable new intermediate or final product.

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