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Hazardous Waste

Final Rule: 2018 Definition of Solid Waste (DSW) Response to Court Vacatur

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Rule Summary

The EPA Administrator signed the final rule responding to the vacatur of certain provisions of the Definition of Solid Waste (DSW) Rule on May 23, 2018 and it was published in the Federal Register (FR) on May 30. Upon publication the rule went into effect federally immediately.

The final rule implements the March 6, 2018 court decision regarding the 2015 revisions to the DSW rule on the recycling of hazardous secondary materials.  The court replaced specific provisions of the 2015 rule with the requirements from the 2008 version of the rule. In issuing this final decision, the court agreed with EPA's requested clarification regarding defining legitimate recycling of hazardous secondary materials as it applies in all circumstances. This decision ensures businesses and states have a consistent and clear definition of legitimate recycling of hazardous secondary materials.

The regulations resulting from this response to the court provide much-needed regulatory certainty and a common-sense framework to promote the legitimate recycling of hazardous secondary materials. Removing barriers to legitimate recycling is good for business and the environment, and will result in conserving natural resources, reducing waste, saving energy, and reducing costs. 

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Rule History

In October 2008, EPA published a final rule revising the definition of solid waste by promulgating two exclusions: one for hazardous secondary material recycled under the control of the generator (the generator-controlled exclusion, currently found at Title 40 of the Code of Federal Regulations, or CFR, in section 261.4(a)(23)), and one for hazardous secondary material transferred to a third party for recycling (the transfer-based exclusion, currently found at 40 CFR sections 261.4(a)(24) and (25)).  The 2008 DSW rule also codified a definition of legitimate recycling. In January 2015, EPA revised the 2008 final rule by, among other things, (1) replacing the transfer-based recycling exclusion with the verified recycler exclusion, and (2) strengthening the definition of legitimate recycling.

The United States Court of Appeals for the District of Columbia Circuit issued a decision on the 2015 final rule on July 7, 2017 and amended it on March 6, 2018.  These orders (1) vacated the 2015 verified recycler exclusion (except for certain provisions) and reinstated the transfer-based exclusion from the 2008 rule to replace it; (2) upheld the containment and emergency preparedness provisions of the 2015 rule, thus including them in the reinstated transfer-based rule; (3) vacated the fourth factor of the 2015 definition of legitimate recycling and reinstated the 2008 version of the fourth factor to replace it.

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Additional Resources

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