FAQs About the Definition of Solid Waste (DSW) Rule—Part 1
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Q: What was the impetus for the DSW final rule?
A: According to the EPA, the 2014 DSW final rule addresses “significant regulatory gaps in the 2008 rule” that could result in negative impacts on “communities adjacent to third-party recyclers, including disproportionately impacting minority and low-income populations.” Specifically, the EPA identified hazardous materials mismanagement by third-party recyclers “as posing a risk of fires, explosions, accidents and releases of hazardous constituents to the environment.”
Q: What did the EPA identify as the cause for the mismanagement by third-party hazardous materials recyclers?
A: The EPA identified “market disincentives that encourage over-accumulation and mismanagement of hazardous secondary material.” One example described by the EPA is from a damage case involving a facility “whose primary business was mixing electric arc furnace dust (K061) with agricultural lime for sale as a micronutrient.” When the facility lost its customers and could no longer sell the product, it continued to accept K061 and, after several months, had accumulated over 60,000 tons of the hazardous waste, which it stored in 30-foot-tall piles on the ground. Since the facility no longer had the prospect of using the K061 to produce a product for sale, it was no longer legitimately recycling the hazardous materials, which also posed a “significant risk to human health and the environment from discarded material.”
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Q: How does the DSW final rule address the “gaps” in the 2008 DSW rule?
A: According to the EPA, the changes include “increased transparency, oversight and accountability for hazardous materials recycling,” including the following three primary provisions:
1) Replacing the former “transfer-based exclusion” with the new “verified recycler exclusion,” which will include a number of provisions (see below);
(2) Clearly defining when hazardous secondary materials are contained under the new exclusions, which will “facilitate compliance with the regulation, preventing mismanagement of the hazardous secondary materials and protecting nearby communities”; and
(3) Establishing a clear, uniform legitimate recycling standard for all hazardous secondary materials recycling will improve compliance and help ensure that the hazardous secondary materials are in fact legitimately recycled, rather than illegally disposed of.
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Q: What are the general requirements under the 2014 DSW verified recycler exclusion?
A: The general requirements of the 2014 verified recycler exclusion or variance include:
- All hazardous materials recyclers obtain either a Resource Conservation and Recovery Act (RCRA) permit or a variance before operating under the exclusion. This will provide the EPA and the states the ability “to use the RCRA permitting process or solid waste variance process to verify that a facility has established rigorous safety measures to manage the material.”
- Under the variance process, EPA or state review and approval of facilities’ financial assurance plans are required to ensure financial stability and funds availability.
- Both generators and recyclers meet emergency response and preparedness requirements including making arrangements with local emergency response officials to reduce risk to communities.
- A public participation requirement for recyclers seeking a verified recycler variance, to notify communities and allow them involvement in environmental decisions impacting them.
- A risk assessment for facilities seeking a verified recycler variance to address whether activities pose a risk to local communities and if they add to the cumulative environmental impacts.
- A recycler that obtains a RCRA permit will have gone through the RCRA public participation process and have all of the protections now required for recyclers managing hazardous waste, including financial assurance, emergency preparedness and response requirements, specific management standards (e.g., tank and container standards), and recordkeeping and reporting requirements.