After years of relative easing in its interpretation of the Resource Conservation and Recovery Act rules that govern industrial recycling, the Environmental Protection Agency is now taking a harder line. A recently issued regulation makes recycling almost as heavily regulated as other hazardous waste management activities under RCRA.

A long-term project by EPA to reform, reduce and relax the regulatory obstacles to the reclamation and recovery of valuable by-products generated by manufacturing and other industrial practices and operations appears to have come to an end. On December 10, 2014, the Administrator of EPA signed a final rule which again revises the agency’s regulatory definition of “solid waste,” which is the linchpin of EPA’s authority to regulate the management of hazardous waste. This action, albeit long-delayed, blunts or reverses the modest regulatory actions taken by EPA in October 2008 to encourage the legitimate recycling of “hazardous secondary materials” that would otherwise be subject to EPA’s very strict and complex RCRA Subtitle C hazardous waste rules. The agency states that it has revised the 2008 rules because it was concerned that the application of those rules would increase risk to human health and the environment from discarded hazardous secondary materials without additional safeguards. The many conditions that EPA placed on the new recycling exclusions in 2008 have been made more prescriptive, to the extent that the conditions attending a proposed recycling activity are similar in scope and complexity to the rules that apply to permitted RCRA treatment, storage and disposal facilities. This result also appears to conflict with the stated purpose of RCRA to “promote the protection of health and the environment and to conserve valuable material and energy resources.”

To place these changes in context, it may be helpful to briefly review the history of these rules.