July 12, 2020

Volume X, Number 194

July 10, 2020

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July 09, 2020

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EPA Revisions to Definition of “Solid Waste” Change the Regulatory Landscape for Hazardous Recyclable Materials

On December 10, 2014, the Administrator of the U.S. Environmental Protection Agency (“EPA” or the “Agency”) signed a final rule revising the definition of “solid waste” for purposes of the federal hazardous waste regulatory program under the Resource Conservation and Recovery Act (“RCRA”).  This definition is a key element of the RCRA regulations, inasmuch as only solid wastes can be subjected to regulation as hazardous wastes. 

EPA originally proposed this latest round of changes in 2011, in response to a court challenge that alleged that the last major set of changes, in 2008, inappropriately excluded certain recyclable materials from RCRA regulation, thereby posing risks to the environment and human health, with disproportionate impacts on minority and low-income populations. See 73 Fed. Reg. 64,668 (October 30, 2008) (“2008 DSW Rule”).  The new final rule (“2014 DSW Rule”) significantly cuts back on the 2008 DSW Rule, and also imposes new requirements on recyclable materials that were excluded or exempted from regulation under the pre-2008 RCRA rules.  The 2014 DSW Rule also amends the Agency’s “legitimacy criteria” for determining when recycling is legitimate, rather than a sham, and establishes one new regulatory exclusion for certain solvent recycling operations, referred to as “remanufacturing.” 

The 2014 DSW Rule makes the RCRA requirements for recyclable materials more stringent in some ways, and less stringent in others.  Although the formally effective date for the rule is 180 days after publication in the Federal Register (expected in early January 2015), in virtually all States, the rule will not be effective unless and until adopted by the State.  The more stringent portions of the rule (e.g., the new legitimacy criteria) will have to be adopted within 1-3 years, but the less stringent portions of the rule (e.g., the new remanufacturing exclusion) are not required to be adopted.  

A detailed summary and analysis of the 2014 Rule is available here

© 2020 Beveridge & Diamond PC National Law Review, Volume V, Number 14


About this Author

Donald J. Patterson, Jr. Environmental Litigation Attorney Beveridge & Diamond Washington, DC

Don’s extensive environmental counseling practice enables him to represent his clients effectively in rulemakings, enforcement, and appellate litigation.

His environmental litigation, negotiation and enforcement experience allows him to evaluate complex and nuanced environmental issues that arise in environmental due diligence and the drafting of stock and asset purchase agreements. Moreover, his experience with many federal and state environmental programs – Resource Conservation and Recovery Act (RCRA) hazardous and solid waste, state medical and infectious waste, the Clean Water...

Aaron H. Goldberg Hazardous Waste Regulatory Law Attorney Beveridge & Diamond Washington, DC

Aaron applies his decades of experience with hazardous waste regulatory law to help clients comply with the rules, help mold the rules, and defend against allegations of noncompliance.

He holds an advanced degree in chemistry, has extensive training in economics, and is a former consultant to the U.S. Environmental Protection Agency. His unique, multidisciplinary background—law, science, economics, and government—informs nearly every aspect of his work and makes him a valuable bridge between attorneys, engineers, business managers, consultants, and regulators.

Aaron has focused on hazardous waste issues since the beginning of the federal regulatory program in 1980. With this historical experience, he offers clients broad-based regulatory counsel on hazardous waste matters, including compliance counseling, strategic planning, advocacy, challenging rules in the courts, applying for permits and variances, and responding to enforcement actions. His clients consist of companies and trade associations in the chemicals, electronics, recycling, petroleum, pharmaceuticals, retail, steel, and mining industries, as well as government entities and non-profit organizations.

In addition to helping clients manage hazardous wastes and recyclable materials, Aaron advises companies on U.S. and international requirements for transport of hazardous materials and dangerous goods, as well as on worldwide regulations for preventing diversion of chemical products to use in the production of chemical weapons or illegal drugs. He was recently appointed by the National Academy of Sciences as the sole attorney on a committee tasked with advising the U.S. Army on planning for eventual closure of two facilities currently being used to destroy the nation’s remaining stockpile of chemical weapons.

Aaron is the firm’s most senior LGBTQ lawyer. Throughout his career, he has seen remarkable changes—from the start when he feared that his future would be in jeopardy if people discovered anything about his personal life, to now when his orientation is not only accepted but embraced by colleagues and clients.