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Rulemaking - Definition of Solid Waste Rule

In 2008, the United States Environmental Protection Agency (EPA) issued the "Definition of Solid Waste (DSW) Rule." The purpose of the rule was to promote recycling of hazardous secondary materials while providing appropriate environmental standards. The DSW Rule redefines "hazardous secondary materials." It streamlines regulation of hazardous secondary materials to encourage beneficial recycling and help conserve resources. The DSW Rule is expected to make it easier and more cost-effective to safely recycle hazardous secondary material. Most states did not adopt the 2008 DSW Rule because of concerns that the rule was not sufficiently protective; however, the nearby states of Pennsylvania and New Jersey did adopt the 2008 rule. Due to implementation issues and other human health and environmental concerns, the DSW Rule was substantially revised. EPA published substantial revisions to this rule in the Federal Register on January 13, 2015. The 2015 DSW rule was later challenged in the courts and on May 30, 2018, EPA published a final rule in the Federal Register revising regulations related to the definition of solid waste to implement vacaturs ordered by the US Court or Appeals for the District of Columbia Circuit. The DSW Rule was challenged again following these vacaturs and is currently in litigation.

Most provisions of the DSW Rule will not be enforceable in New York State until the State adopts it into regulation. Many parts of the rule are not mandatory, but EPA believes that the revised rule will promote environmentally responsible recycling of hazardous secondary materials. Recycling of hazardous secondary materials may conserve energy and natural resources, and have economic benefits.

Mandatory Provisions

Certain parts of the DSW Rule revisions are mandatory. In order to maintain regulations that are as stringent as EPA's regulations, DEC must adopt the revised definition of "legitimate recycling," the prohibition of sham recycling, and new record-keeping requirements to demonstrate that material is not accumulated speculatively. If DEC does not meet the deadline to adopt the more stringent provisions, EPA can enforce those provisions in New York State.

Additional Resources

Please see EPA's Definition of Solid Waste webpage (link leaves DEC's website) for detailed information about the DSW Rule. This link is also located on the right-hand side of this page, under "Links Leaving DEC's Website."

Options DEC is Exploring - Request for Comment

DEC is seeking comments on whether to adopt all of the provisions of the DSW Rule, as revised. Please comment and provide information on impacts of adoption of any portions of the rule, including human health, environmental, environmental justice, and economic costs and benefits.

Please submit all information, data, or comments by:



NYS Department of Environmental Conservation
RCRA Compliance and Technical Support Section
625 Broadway
Albany, NY 12233-7256