EPA's "Legitimacy Determination" For Recycling Activities Challenged

In 2014, EPA issued a revised definition of solid waste rule ("Final DSW Rule"). The Final DSW Rule revised certain RCRA recycling exemptions that were first promulgated as part of a 2008 rulemaking ("2008 DSW Rule"). One of the revisions mandates the use of all of the following four factors for determining whether a recycling activity is legitimate:

1. Hazardous secondary material must provide a useful contribution to the recycling process or to a product or intermediate.
2. Recycling must produce a valuable product or intermediate.
3. Hazardous secondary material must be managed as valuable commodities.
4. The product of recycling must be comparable to a legitimate product or intermediate.