Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

As most of my Massachusetts readers know, on Friday, Secretary of Energy and Environmental Affairs Ian Bowles and DEP Commissioner Laurie Burt announced that Massachusetts would retain its moratorium on new construction or expansion of municipal waste combustors. Although the overall outcome is not really a surprise from this administration, a few points are worth noting.

The announcement says nothing about new technologies, such as plasma arc gasification. Arguably, such a technology is not “incineration” or “combustion,” so we’ll have to see whether the administration remains open to such alternatives to traditional incineration.

The administration emphasized that it is committed to decreasing the volume of the waste stream and noted some specific initiatives that it intends to pursue:

Comprehensive producer responsibility legislation for discarded electronics – The announcement did not refer to any specific legislation (see here for a helpful table summarizing the current state of e-waste legislation nationwide, including in MA), but the administration is clearly going to be pushing for some kind of E-waste bill.

Expansion of the bottle bill to cover water and sports drinks. Since I have joined those who consider bottled water use a pet peeve, I can’t complain about this one.

Finally, the Secretary stated that he had directed DEP to cease permitting any use of construction and demolition, or C&D, waste as fuel in any energy facility until a comprehensive review can be completed.  The announcement specifically called out the Palmer Renewable Energy facility as being affected by the halt.

It is clear that the current economy is not discouraging the Patrick administration from its aggressive environmental agenda.

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On October 7, 2008, the Environmental Protection Agency (EPA) issued a new final rule (the “Rule”) that exempts certain recycled hazardous secondary materials from RCRA’s “cradle to the grave” regulatory system.

Hazardous waste is regulated under Subtitle C of the Resource Conservation and Recovery Act (RCRA). A hazardous secondary material can only be classified as a hazardous waste if it is first determined to be a solid waste as defined in Section 261.2 of the RCRA regulations. Previously, Section 261.2 classified some hazardous secondary materials, but not others, as solid wastes even when recycled. As complying with RCRA can be expensive and burdensome, Section 261.2 likely deterred many companies from recycling hazardous secondary materials deemed to be solid waste.  

The new Rule now explicitly excludes from the definition of solid waste three categories of hazardous secondary materials that are “legitimately” recycled. First, the Rule excludes hazardous secondary materials that are generated and reclaimed under the control of the generator (i.e., generated and reclaimed on-site, by the same company, or under “tolling” agreements). Second, the Rule excludes materials that are transferred by a generator to a reclamation facility (or an intermediate facility prior to recycling at a reclamation facility), provided that certain conditions are met. Finally, the Rule provides a procedure for applying for a case-by-case “non-waste determination” when the hazardous secondary material is legitimately recycled in a continuous industrial process or indistinguishable in all relevant aspects from a product or intermediate. The new exclusions and non-waste determination are, however, not available for materials that are: (1) considered inherently waste-like; (2) used in a manner constituting disposal; or (3) burned for energy recovery.       

For a hazardous secondary material to be “legitimately” recycled under the new exclusions or a non-waste determination, the following factors must be met: (1) the material must provide a useful contribution to the recycling process; and (2) the recycling process must make a valuable new intermediate or final product. Two additional factors must be considered, but are not mandatory: (3) whether the recycled material is managed as a valuable commodity; and (4) whether the recycled product contains toxic constituents at significantly greater levels than a non-recycled product made from virgin materials. EPA has long assessed the legitimacy of recycling activities under RCRA based on substantially these same four factors. See 53 FR 522. This Rule merely codifies the factors with minor adjustments.

Overall, the Rule is a helpful example of deregulation that should facilitate recycling without sacrificing environmental protection. The facilities most likely to benefit from the rule will include manufacturers that generate or already recycle hazardous secondary materials.  The most common types of recyclable materials that would be affected by the rule are metal-bearing secondary materials and solvents.

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