02.16.2016 Amendments to Virginia Hazardous Waste Regulations Offer Increased Flexibility By: Henry R. "Speaker" Pollard, V

One of the most vexing aspects of hazardous waste management hinges on a very basic question: whether something is in fact a regulated hazardous waste in the first place.  This fundamental issue often arises for recycled or reclaimed materials.  These materials are important to manufacturers because they can have value as substitutes for virgin materials and because of lower costs of waste management.  However, regulatory provisions and agency guidance about whether these materials must be managed as hazardous waste can be complicated and confusing.

Last year, EPA revised its hazardous waste regulations to provide greater clarity and flexibility on this issue, and Virginia has now incorporated those changes into the Virginia Hazardous Waste Management Regulations.  The amendments create new categories of “hazardous secondary materials” eligible through case-by-case evaluation for relief from regulation as a solid waste and, therefore, as a hazardous waste.  “Hazardous secondary materials” are spent materials, by-products, sludges and similar materials that, when discarded, would be identified as hazardous waste under existing regulations.

Nonwaste determinations may be submitted to EPA or the Department of Environmental Quality (DEQ) to obtain confirmation that certain hazardous secondary materials are not “discarded,” and therefore not solid wastes, and in turn not hazardous wastes.  These non-waste determinations are particularly applicable to hazardous secondary materials that are either (a) “reclaimed in a continuous industrial process if the applicant demonstrates that the hazardous secondary material is a part of the production process and is not discarded” or (b) essentially indistinguishable from a product or intermediate and is not discarded.

In addition, a variance may be sought for hazardous secondary materials to be managed at a verified reclamation facility or intermediate facility where such management is not already addressed under a RCRA treatment, storage or disposal facility permit or interim status standards.  The amendments also clarify that, to obtain a variance for partially reclaimed materials still needing further reclamation before full recovery is completed, the materials must be “commodity-like” in nature, legitimately recycled per EPA regulatory requirements, and meet several other specific criteria addressing distinct reclamation process, economic value, suitability as a substitute for a commercial product, true marketability of the reclaimed material, and prevention of loss of the reclaimed material.      

The amendments still do not allow management of hazardous secondary material in land-based units.  Also, these nonwaste determinations and variances are not permanent: they may be issued for terms not to exceed ten years to ensure they reflect current operations and management of these materials.  Finally, notification of nonwaste determinations and variances must be provided to the EPA administrator in keeping with similar notification required for other forms of management of hazardous secondary materials.

32 Va. Reg. 1585 (Dec. 28, 2015)