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Challenge to Solid Waste Rule Likely Unless Final Version Incorporates Changes

Friday, November 30, 2012

Several industry groups have told BNA they expect the Environmental Protection Agency's final Definition of Solid Waste Rule to be subject to legal challenge if it is not substantially different from a July 2011 proposed rule.

Groups representing the metal recycling, fertilizer, specialty chemical, and mining industries declined Nov. 20 to specify whether their organizations would challenge the final rule, but said they believed there would be legal challenges if the rule was not substantially different.

EPA confirmed it intends to issue the final rule by Dec. 31 but declined to say where it stands in the rulemaking process. Vincent Atriano, attorney for Gulf Chemical Metallurgical Corp., who has closely followed the rule, also told BNA he believes the agency is on track to finalize the rule by the deadline.

The final rule has not yet been sent to the Office of Management and Budget for review.

In July 2011, EPA proposed revisions of the 2008 Definition of Solid Waste Rule, which excluded 1.5 million tons of spent materials, listed sludges, and listed byproducts from regulation under Subtitle C of the Resource Conservation and Recovery Act (42 ER 1511, 7/8/11).

The proposed rule would remove an exclusion for hazardous secondary materials sent to third-party recyclers, add notification and storage requirements for facilities that recycle hazardous secondary materials on-site or within the same company, require all hazardous waste recycling to meet federal recycling standards, and create a petition process for facility owners to show the legitimacy of their recycling practices.

A federal appeals court June 8 held in abeyance a petroleum industry challenge to the rule until EPA takes final action on the proposal (American Petroleum Institute v. EPA, D.C. Cir., No. 09-1038, 6/8/12; 43 ER 1550, 6/15/12).

Economic, Legal Concerns Cited

Industry groups said the final rule, if it resembles the July 2011 proposal, would harm their ability to reprocess and reuse waste materials and would interfere with decades-old established rules and practices for managing the materials safely.

John Wittenborn, a partner at Kelley Drye & Warren LLP who represents the Metals Industries Recycling Coalition, said the proposed rule would effectively abolish a long-established exclusion for waste materials being sent off-site for recovery and recycling. That exclusion said the waste materials were not being discarded and therefore were not subject to RCRA regulation.

“If the final rule does away with the 'transfer-based' exclusion, it will effectively eliminate any benefit of the rule for the metals recycling industries,” Wittenborn said in a statement to BNA. “If EPA abolishes that exemption, as they proposed, this will be a step back from the reasoned approach embodied in the 2008 final rule and likely will be challenged as exceeding the limits of EPA's statutory authority.”

Mark Reiter, assistant vice president of the Institute of Scrap Recycling Industries, which represents recycling and reprocessing companies, said the proposed rule contradicted well-established, environmentally protective exclusions for scrap metal and warned a similar final rule could “seriously impair” the industry.

“You have a situation where we are very concerned about what comes out in the final rule, because what was proposed would be terribly deleterious to the industry,” he told BNA. “I want to think the best is going to happen, rather than the worst.”

Reiter declined to speculate on whether the final rule could be susceptible to legal challenge, and said ISRI's members would have to make that determination after the final rule is promulgated.

William Herz, vice president for scientific programs at the Fertilizer Institute, warned the final rule could add millions of dollars in analysis costs and would contradict a 2002 zinc fertilizer rule that his organization's members had been working to implement.

“If they do overlay these new requirements, [EPA] will not have articulated why they are necessary,” Herz said. “The final rule could really limit our ability to legitimately recycle in certain cases.”

Bruce Steiner, president of the American Coke and Coal Chemical Institute, which represents the metallurgical coke and tar distilling industry, objected to the proposed rule's elimination of the third-party recycling exclusion and said the proposal would impose substantial new requirements on companies to qualify for exclusions.

“We were quite happy with the 2008 rule,” Steiner said. “We don't feel that off-site, third-party recycling is any different from on-site recycling operations. I think [EPA] understands what industry's concerns are.”

Luke Popovich, vice president of external communications for the National Mining Association, expressed concern the final rule would impose a costly, time-consuming petition process for exclusions and could “thwart EPA's stated purpose of encouraging reprocessing of waste material.”

Environmentalists Weigh In

Lisa Evans, an attorney for the environmental advocacy group Earthjustice, said EPA had not divulged any details about what would be in its final proposal.

Ed Hopkins, director of the Sierra Club's Environmental Quality program, told BNA the final rule would ensure waste products are “properly tracked through the process to ensure hazardous waste is not improperly disposed of and cannot cause human health problems.”

EPA agreed to the Dec. 31 deadline in a 2010 settlement with the Sierra Club (Sierra Club v. EPA, D.C. Cir., No. 09-1041, 9/10/10; 41 ER 2070, 9/17/10).

By Anthony Adragna  


More information on the Definition of Solid Waste Rule is available at http://www.epa.gov/osw/hazard/dsw/rulemaking.htm#2011.