On March 26, 2007, EPA proposed revising the definition of solid waste under Subtitle C of the Resource Conservation and Recovery Act (RCRA), the federal hazardous waste management regulatory scheme. 72 Fed. Reg. 14172. The proposal seeks to streamline regulation of hazardous secondary materials, and would revise the all important definition of "solid waste" to exclude certain hazardous secondary materials, such as solvents, metals, and certain other chemicals, from RCRA regulation to provide for the recycling of such materials. According to EPA, the proposal is "de-regulatory in nature because certain recyclable materials that have heretofore been subject to the hazardous waste regulations would no longer be regulated as hazardous waste." EPA states that the proposed revisions are "not intended to bring new wastes into the RCRA regulatory system."

The publication of this definition of solid waste proposal follows EPA's efforts in 2003, at which time EPA proposed to exclude certain types of recycling activities involving hazardous secondary materials from the federal hazardous waste regulations. After evaluating comments on the 2003 proposal and undertaking several background studies, EPA developed the 2007 proposal. According to the 2007 proposal, the revised regulatory scheme would provide exclusions for: materials that are generated and reclaimed under the control of the generator; materials that are generated and transferred to another person or company for reclamation under specific conditions; and materials that EPA deems non-waste through a case-by-case petition process.

Integral to these proposed revisions is EPA's definition of "legitimate recycling." EPA defines legitimate recycling activity to ensure that the streamlined requirements will benefit only this activity, rather than treatment or disposal under the guise of recycling.

According to the proposal, to be recycled legitimately (1) the material must provide a useful contribution to the recycling process, and (2) the recycling must yield a valuable product or intermediate. Under the proposal, two additional factors that should be considered in making the "legitimate recycling" determination are: (1) whether the recycled material is managed as a valuable commodity; and (2) whether the recycled product does not contain toxic constituents at equivalent or significantly greater levels than non-recycled product. Significantly, EPA has not proposed changes for recycled materials that are: (1) considered inherently waste-like; (2) used in a manner constituting disposal; or (3) burned for energy recovery. Any currently regulated material managed in these ways must still comply with the federal hazardous waste regulations. Comments must be submitted by May 25, 2007.