Ryan Whaley Coldiron Shandy

Last fall, EPA issued a final rule entitled Revisions to the Definition of Solid Waste referred to as the DSW rule).  73 Fed. Reg. 64667, Oct. 30, 2008 (amending 40 CFR Parts 260 and 261).  As is often the case, the rule is very complicated and has over 100 pages of explanation (preamble).

The DSW rule potentially applies to industries and facilities that generate or recycle hazardous secondary materials.  The purpose of the DSW rule is to further encourage recycling by removing unnecessary controls over certain hazardous secondary materials and by providing more explicit and consistent factors for determining the legitimacy of recycling practices.  As a result, the rule is substantively less stringent than existing RCRA regulations, but at the same time the rule adds many new procedural conditions (notifications, reporting, recordkeeping, etc.). 

The DSW rule is not currently effective in Oklahoma and many other states pending adoption (because it is less stringent, states are not required to adopt it).  The Oklahoma Department of Environmental Quality has drafted implementing rules with some changes from the federal DSW rule; those proposed rules will be considered by the Hazardous Waste Management Advisory Council at its quarterly meeting on April 23, 2009 and can be found at this link:   http://www.deq.state.ok.us/lpdnew/LPProprules.htm. 

Pending implementation of the DSW rule by the states, industries and facilities should be aware of potential changes to current practice, as well as what is NOT affected.  The preamble to the rule states that it will not supersede any of the current exclusions or other prior solid waste determinations or variances.  73 Fed. Reg. at 64713.  As one example, 40 CFR 261, Table 1, which identifies when various secondary materials (e.g., spent materials, characteristic by-products, etc.) are or are not solid wastes if reclaimed or handled in other ways, remains largely unchanged.