The Washington Department of Ecology (“Ecology”) has proposed new dangerous waste management rules that require local companies that generate, treat, and dispose of dangerous waste to prove the legitimacy of their recycling operations as part of an effort to combat “sham recycling.”

“Sham recycling” is the exploitation of state Dangerous Waste Regulations whereby a business takes advantage of the recycling rules to avoid the expense of properly managing dangerous waste.

And Ecology is right to be concerned. In 2016, a local watchdog group planted tracking devices in TVs and computers that Seattle-area residents dropped off at a local recycling center. Those electronics turned up in Asia, and were not being recycled at all. Rather, they were being dismantled by workers who were being exposed to the harmful chemicals and components contained within them.

New burden on recyclers to prove legitimacy of recycling operations

Still, new criteria for proving legitimacy will create a burden for business owners, especially small recyclers. Recyclers must address all of the criteria. Any hazardous material that is not legitimately recycled is considered discarded material and a solid waste, and must be disposed of accordingly.

Under the proposed rules, legitimate recycling must involve a hazardous secondary material that provides a “useful contribution” to the recycling process or to a product or intermediate of the recycling process. A hazardous material provides a useful contribution if it (a) contributes valuable ingredients; or (b) replaces a catalyst or carrier; or (c) is the source of a valuable constituent recovered in the recycling process; or (d) is used as an effective substitute for a commercial product.

Additionally, the recycling process must produce a “valuable product or intermediate.” A product or intermediate is valuable if it is (a) used by the recycler or generator as an effective substitute for a commercial product or ingredient or intermediate in an industrial process; or (b) sold to a third party.

The generator, recycler, or third party must manage the hazardous material as a valuable commodity.

Finally, the product of the recycling process must be comparable to a legitimate product or intermediate.

Sham recycling rules accompany other changes as well

The new sham recycling rules accompany additional changes to the state Dangerous Waste Regulations, some of which are merely housekeeping, and some of which represent meaningful new regulatory requirements for generators.

In addition to the recycling legitimacy requirements, Ecology has proposed changes related to solvent-contaminated wipes, an entirely new pharmaceutical waste section, and even to variances from the Dangerous Waste Regulations themselves, among other things. Ecology anticipates the new rules will go into effect in late 2018.

Federal court dialed back EPA “sham recycling” requirements

However, on the federal level, the D.C. Circuit Court of Appeals ruled 2 to 1 to dial back some of EPA’s proposed “sham recycling” requirements, noting that the rule created draconian paperwork requirements and conflicted with the federal Resource Conservation and Recovery Act definitions.

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