The 2015 Definition of Solid Waste Rule (read a summary of the requirements of the 2015 DSW) modified the existing Transfer-Based Exclusion at 40 CFR 261.4(a)(24) and renamed it the Verified Recycler Exclusion. Among the requirements of this conditional exclusion is that a generator of a hazardous secondary material send it to a verified reclamation or intermediate facility. A facility may become verified in one of two ways:
- Obtain a RCRA Part B permit as a Treatment, Storage, or Disposal Facility (TSDF) from the EPA or a state with an authorized hazardous waste program.
- Obtain a variance under 40 CFR 260.31(d) from the EPA or its state.
Note that the requirements to obtain a variance or RCRA Part B permit apply equally to a reclamation facility and intermediate facility if it seeks an exclusion from regulation under 40 CFR 261.4(a)(24).
The purpose of this article is to explain both the criteria and the procedure for obtaining a variance as a reclamation facility or intermediate facility under 40 CFR 260.31(d).
Criteria for a facility seeking to obtain a Verified REcycler variance under §260.31(d):
- The reclamation facility or intermediate facility must demonstrate that the reclamation process for the hazardous secondary materials is legitimate pursuant to §260.43 (Read Legitimate Recycling Under the 2015 DSW). The four factors for determining legitimate recycling are as follows:
- The material must provide a useful contribution to either the recycling process or to the result of the recycling process (the result of the recycling process must be either a final product or an intermediate to be used in the creation of a final product).
- The recycling process must produce either a valuable product or an intermediate.
- The generator and the recycler of the hazardous secondary material must manage it as a valuable commodity.
- The product of recycling is comparable to a legitimate product or intermediate.
- The reclamation facility or intermediate facility must satisfy the financial assurance condition in §261, Subpart H which is specific to the management of excluded hazardous secondary materials.
- The reclamation facility or intermediate facility must not be subject to a formal enforcement action in the previous three years and not be classified as a significant non-complier under RCRA Subtitle C or it must provide credible evidence that the facility will manage the hazardous secondary materials properly.
- Credible evidence may include a demonstration that the facility has taken remedial steps to address the violations and prevent future violations, or that the violations are not relevant to the proper management of the hazardous secondary materials.
- The intermediate or reclamation facility must have the equipment and trained personnel needed to safely manage the hazardous secondary material and must meet emergency preparedness and response requirements under 40 CFR part 261 Subpart M.
- The requirements of §261, Subpart M are the same as those for generators of hazardous waste found in §265, Subpart C and Subpart D and §262.34(d)(5) as explained below:
|Applies to…||Requirements found at…||Which are the same as those for a…||Which are found at…|
|Generator, Intermediate Facility, & Reclamation Facility that accumulates ≤6,000 kg of hazardous secondary material.||40 CFR 261.410 Preparedness & Prevention||Small Quantity Generator of hazardous waste||40 CFR 265, Subpart C Preparedness & Prevention|
|40 CFR 261.411 Emergency Procedures…||40 CFR 262.34(d)(5) “Basic Plan”|
|Generator, Intermediate Facility, & Reclamation Facility that accumulates >6,000 kg of hazardous secondary material.||40 CFR 261.410 Preparedness & Prevention||Large Quantity Generator of hazardous waste||40 CFR 265, Subpart C Preparedness & Prevention|
|40 CFR 261.420 Contingency Plan & Emergency Procedures…||40 CFR 265, Subpart D Contingency Plan & Emergency Procedures|
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- If residuals are generated from the reclamation of the excluded hazardous secondary materials, the reclamation facility must have one of the following:
- The permits required (if any) to manage the residuals.
- Have a contract with an appropriately permitted facility to dispose of the residuals.
- Present credible evidence that the residuals will be managed in a manner that is protective of human health and the environment.
- The intermediate or reclamation facility must address the potential for risk to proximate populations from unpermitted releases of the hazardous secondary material to the environment (i.e., releases that are not covered by a permit, such as a permit to discharge to water or air), which may include, but are not limited to:
- Potential releases through surface transport by precipitation runoff.
- Releases to soil and groundwater.
- Wind-blown dust.
- Fugitive air emissions.
- Catastrophic unit failures.
- And must include consideration of potential cumulative risks from other nearby potential stressors.
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Procedure for a Facility Seeking to Obtain a Verified Recycler Variance at §260.31(d):
Note that this procedure is also required for facilities seeking a variance to classify a particular enclosed controlled flame combustion device as a boiler or for non-waste determinations.
- The applicant must apply to EPA or its state, if authorized, for the variance. The application must address the relevant criteria contained in §260.31(d) as explained in the first half of this article.
- EPA or state will evaluate the application and issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be provided by newspaper advertisement or radio broadcast in the locality where the recycler is located. EPA or state will accept comment on the tentative decision for 30 days, and may also hold a public hearing upon request or at his discretion. EPA or state will issue a final decision after receipt of comments and after the hearing (if any).
- In the event of a change in circumstances that affect how a hazardous secondary material meets the relevant criteria contained in §260.31(d) upon which a variance has been based, the applicant must send a description of the change in circumstances to EPA or state which may issue a determination that the hazardous secondary material continues to meet the relevant criteria of the variance or may require the facility to re-apply for the variance.
- Variances shall be effective for a fixed term not to exceed ten years. No later than six months prior to the end of this term, facilities must re-apply for the variance. If a facility re-applies for a variance within six months, the facility may continue to operate under an expired variance until receiving a decision on their re-application from EPA or state.
- Facilities receiving a variance must provide notification as required by §260.42 and as explained here: The New Notification Requirement for Recyclers of Hazardous Secondary Materials Under the 2015 Definition of Solid Waste Rule.
Remember, if you intend to recycle a hazardous secondary material under the conditional exclusion of either 40 CFR 261.4(a)(23) or (24), then the Intermediate Facility – if there is one – and/or the Reclamation Facility must either have a RCRA Part B Permit or a Verified Recycler Variance as explained in this article.
Please don’t hesitate to contact me if you have any questions about the management of hazardous secondary materials under the 2015 Definition of Solid Waste Rule.
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