The US EPA’s View on Legitimate Recycling and the Generator-Controlled and Transfer-Based Exclusions for Hazardous Secondary Materials

The concept of defining legitimate recycling in a manner that does not contribute to the disposal problem has been a historically difficult issue for the United States Environmental Protection Agency (EPA or Agency).  The Agency has described many past environmental contamination and/or cleanup issues from the stockpiling of materials that were never actually recycled.  In some cases, companies continued to stockpile these materials until they went out of business leaving cleanup issues behind.  This has resulted in an approach to recycling by the Agency that resulted in codification of the concept that recycling equals discard.  Therefore, the EPA has historically created a number of requirements that have formed a barrier or disincentive to conduct legitimate recycling.   These requirements have been similar enough to the Resource Conservation and Recovery Act (RCRA)[i] regulatory requirements involving the actual discard of hazardous wastes to prompt the Courts to describe them as “RCRA anyway” provisions.

Materials that will be discarded are considered under RCRA as “solid wastes.”  Only materials that meet the RCRA definition of solid waste can be classified as hazardous wastes, which are subject to additional regulation.  The EPA has developed detailed regulations that define what materials qualify as solid and hazardous wastes.  Additionally, the RCRA regulations include certain solid and hazardous waste exclusions and exemptions to encourage facilities to recycle eligible wastes.  These exclusions and exemptions typically depend on the type of waste, the manner in which the waste is managed, or both.  These exclusions and exemptions may involve administrative processes such as applying for non-waste determinations, certain types of variances, delisting petitions, etc.

[i] The RCRA regulations are the set of rules and requirements for managing hazardous waste and are found in Title 40 of the Code of Federal Regulations (“40 CFR”).  The United States Environmental Protection Agency (“EPA” or “Agency”), and authorized states, administer the RCRA program across the country.