Nevada’s Division of Environmental Protection (NDEP) has announced proposed amendments to its hazardous waste regulations, signaling changes that could affect facilities managing hazardous and universal waste. Much of the proposed regulatory updates are administrative or involve adopting federal hazardous waste regulations, the Resource Conservation and Recovery Act (RCRA), by reference. However, there are a few updates or explicit exclusions from adoption that signal NDEP will maintain some state-specific frameworks and requirements.
With the proposed regulatory updates, NDEP is moving forward with adopting certain provisions related to the hazardous secondary materials (HSM) exclusions (40 CFR 216.4(a)(23), (24) & (27)). NDEP had not previously adopted all HSM provisions included in the 2018 federal Generator Improvements Rule (GIR), which severely limited facilities generating and recycling hazardous wastes.
Prior to these proposed rule updates, facilities engaged in hazardous waste recycling and reclamation were required to petition NDEP for approval to manage secondary material as HSM instead of as fully regulated hazardous waste. NDEP was not required to review such petitions, leaving facilities with limited processing and management options. However, under the new proposed rules, facilities are only required to determine HSM and reclamation applicability and manage the HSM in accordance with the streamlined requirements (labeling, notifications, recordkeeping, etc.). NDEP can request the required documentation at any time, but a facility does not need to request permission from NDEP to manage HSM under the exclusions.
Hazardous secondary material (HSM) refers to a secondary material (e.g., spent material, by-product, or sludge) that, if discarded, would be classified as hazardous waste (40 CFR 260.10). In lieu of disposal, the HSM would be reclaimed by the generator or shipped to another facility for reclamation or remanufacturing. Whether a material qualifies as HSM depends on meeting specific exclusion requirements and satisfying the recycling legitimacy criteria outlined in 40 CFR 260.43. For a material to fall under one of these exclusions, all associated conditions, notifications, and recordkeeping requirements must be satisfied. In states that have not adopted the HSM exclusions, and where there is not a state-specific approval process (such as Nevada’s previous regulatory framework), the material must be managed as hazardous waste when generated, shipped or received.
The steps to determine if material and reclamation process meets the legitimate recycling criteria are outlined below. Note that the first three factors must be met, and the fourth factor must be considered to determine overall legitimacy.
- Evaluate if the secondary material provides a “useful contribution” to the recycling process or to a product or intermediate of the recycling process. EPA considers a “useful contribution” to be:
- contributing valuable ingredients to a product or intermediate;
- replacing a catalyst of carrier in the recycling process;
- providing a valuable constituent that is recovered;
- being recovered or regenerated; or
- being used as an effective substitute for a commercial product.
- The first factor is intended to prevent generators from simply adding a secondary material to an industrial process to avoid managing it as a hazardous waste, regardless of the level of contribution the material makes to the manufacturing process.
- The recycling process must produce a valuable product or intermediate that is:
- sold to a third party; or
- used by the recycler or the generator as an effective substitute for a commercial product or as an ingredient or intermediate in an industrial process.
- The second factor requires demonstration that the secondary material holds true value – if the generator can demonstrate that the secondary material is as valuable as a non-waste material, this indicates legitimate recycling.
- Secondary material must be managed as a valuable commodity by the generator and recycler. If the secondary material has an analogous raw material, it must be managed in a manner consistent with the raw material. Where there is no analogous raw material, the material must be contained. For example, a recycler would not meet this factor if the secondary material is stored on the ground while the analogous material is stored in drums.
- The product of the recycling process must be comparable to an analogous product or intermediate (no “toxics along for the ride”). The concentrations of hazardous constituents found in the product or made from the secondary material must be comparable to those found in the analogous products made from virgin materials.
- The fourth factor does not need to be satisfied, but must be considered to determine the overall legitimacy of the recycling process. If the fourth factor is not met, the facility should have documentation as to why the recycling process overall is still legitimate.
If the factors of legitimacy are not met, this is an indicator that the reclamation process qualifies as “sham” recycling, and that the material should truly be managed as a hazardous waste, not HSM.
Within the HSM rule amendments, NDEP is not adopting federal certification and recordkeeping requirements for hazardous secondary materials (HSM) that are generated and reclaimed under the same entity’s control (40 CFR 261.4(a)(23)(i)(B)). It remains unclear whether NDEP will introduce its own certification rules or remove these requirements altogether. This ambiguity could affect facilities needing clarity on compliance protocols.
The rule amendments also remove the requirement under 40 CFR 261.4(a)(24)(v)(B)(3) that generators rely on publicly available violation histories when selecting reclaimers. While violation data is typically accessible through the EPA’s
ECHO website, the length of time required to publish inspection reports could pose risks to affected sites’ compliance. NDEP may require additional diligence steps to address this change.
NDEP is also not adopting by reference the rules governing facilities that recycle hazardous waste or universal waste without prior storage (40 CFR 261.6(c)(2) and 40 CFR 273.60(b)). Instead, Nevada appears to continue to rely on its state-specific approval by Written Determination (WD) process to regulate such facilities. It is yet to be determined if the Nevada specific WD requirements or review process will change.
Additionally, NDEP will no longer allow companies to assert business confidentiality for information submitted to justify exclusions or exemptions under 40 CFR 260.2(b). This change raises concerns for businesses relying on confidentiality to protect sensitive data or retain a competitive advantage in nascent fields. NDEP has indicated a willingness to discuss confidentiality for Written Determination applications, but details remain unclear.
Lastly, the proposed updates will replace certain references to the state approved hazardous waste programs (40 CFR Part 272) to the federal permit program (40 CFR Part 270). Under this change, NDEP may transition from recognizing certain state-specific universal waste classifications to managing them under RCRA hazardous waste rules. This could mean that waste types previously handled as universal waste (as designated in other states with additional state-only wastes) will need to be treated as hazardous or non-hazardous waste, depending on their federal hazardous waste classification. If the material is classified as hazardous waste upon entry to Nevada, facilities would require an RCRA Part B permit if they intend to store waste prior to processing. RCRA Part B permits can be quite time intensive to receive and carry significant state and federal oversight. This shift could significantly affect companies who have been, or intended to, process or recycle out-of-state designated universal waste without a Part B permit.
A
public workshop to discuss these changes will be held on October 30th, 2025, in Carson City and Las Vegas, with a virtual option available via Microsoft Teams. The full details of the proposed amendments are accessible on the
NDEP website. Stakeholders are encouraged to keep an eye out for additional updates regarding these regulatory changes and attend the workshops to understand how the new rules may affect their operations and provide feedback to the agency.
If you have questions regarding the updates outlined above and how they may affect your facility, or would like support in submitting industry feedback, please reach out to Trinity’s
Reno office or call
775.242.3200.
