Proposed Rule May Increase Hazardous Waste Recycling

January 16, 2006
by NICOLE MOSHANG
Client Alert Newsletter Forecast 2006

Final action is expected this year on a federal rule, originally proposed in 2003, intended to increase recycling of certain secondary hazardous wastes by excluding them from regulation under the Resource Conservation and Recovery Act ("RCRA"). If finalized, the rule will amend RCRA's regulatory definition of solid waste to exclude 1.5 million tons of hazardous wastes annually, including certain spent materials, byproducts, and sludges generated and reclaimed in a continuous process within the same industry. The proposed rule also includes a broad option allowing the recycling of these materials in industries other than those that generated them.

According to an official with the U.S. Environmental Protection Agency's ("EPA's") Office of Solid Waste, the agency has committed to either finalizing or reproposing the rule by year end. Critics of the proposal, which include both environmental organizations and state officials, suggest that the rule should be reproposed to include minimal environmental protections, such as notification, recordkeeping, and tracking requirements. Failure to incorporate the protections into the final rule may prompt states to opt out of adopting the rule and instead create individual state recycling programs. In contrast, industry representatives suggest finalizing a broader rule without conditions, making recycling easier and more cost-efficient. At this time, EPA is reviewing recycling programs while considering whether to finalize or re-propose the rule.