EPA Issues Proposed Rule to Revise Bush-Era Hazardous Waste Exemption

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An Environmental Protection Agency proposed rule released July 6 would make certain wastes that are recycled subject to federal hazardous waste regulations after they were exempted under a Bush-era rule.

The proposed rule would revise EPA's 2008 Definition of Solid Waste (DSW) rule, which redefined hazardous waste under the Resource Conservation and Recovery Act to exclude “hazardous secondary materials” from regulation if the materials were reclaimed and recycled.

That rule excluded 1.5 million tons of spent materials, listed sludges, and listed byproducts from regulation under Subtitle C of RCRA.

EPA developed the proposal to modify the 2008 Definition of Solid Waste rule as part of its commitment under a September 2010 settlement agreement with the Sierra Club, which petitioned EPA to withdraw the 2008 rule (Sierra Club v. EPA, D.C. Cir., No. 09-1041, 9/10/10; 41 ER 2070, 9/17/10).

The proposed rule would remove an exclusion for hazardous secondary materials sent to a third-party recycler and make them subject to federal hazardous waste standards under Subtitle C, including hazardous waste manifest and storage permit requirements.

The proposed rule would retain an exclusion for facilities that recycle hazardous secondary materials on site or within the same company, but would add notification and storage requirements.

It also would require all hazardous waste recycling to meet legitimate federal recycling standards, which require recycled products to have comparable levels of components as products made from raw materials.

The proposed rule would include a petition process for facility owners to show legitimacy.

New Exclusion for High-Value Solvents

The proposal would exclude from hazardous waste requirements high-value solvents that are remanufactured into similar high-value commercial products.

The agency identified 18 chemicals that could be covered by the exclusion, including chloroform, ethanol, and methanol.

“These higher-value solvents were selected because there are existing markets for all these solvents to be remanufactured to serve similar purposes to those of the original commercial grade materials,” an EPA spokeswoman told BNA July 6. The solvents are used as chemical manufacturing and processing aids in the pharmaceutical, organic chemical, plastics and resins, or paint and coatings industries.

The agency cited potential significant energy savings and greenhouse gas reductions by extending the life of the solvents.

Draft Environmental Justice Analysis

The agency also released for comment its draft environmental justice analysis of the proposed rule, which evaluates its potential impact on low-income and minority communities.

In its analysis, EPA found that the population in communities close to recycling facilities had a higher percentage of minority and low-income individuals compared to the overall state and national populations.

Abigail Dillen, an attorney with Earthjustice, which is providing legal representation for the Sierra Club, said her organization is still reviewing the proposed rule but said EPA addressed the issues of greatest concern to the communities that they are representing.

She called the draft environmental justice analysis “very encouraging” and said that the proposed rule covered some of the key gaps in the 2008 rule. “The worry was that some irresponsible facilities were completely exempt from federal oversight” under the 2008 rule, Dillen said. “Overall, I think we're very much heartened. Clearly EPA has taken environmental justice concerns very seriously.”

The agency published the proposed rule as part of its commitment under a September 2010 settlement agreement with the Sierra Club, which argued that the 2008 rule would disproportionately affect disadvantaged communities. The group said that the waste was potentially hazardous. Under the settlement agreement, EPA promised to issue a final rule by Dec. 31, 2012.

The White House Office of Management and Budget cleared EPA action on the proposed rule June 29, and EPA Administrator Lisa Jackson signed the proposed rule June 30, which was the court-ordered deadline for the proposed rule.

Opportunity for Public Input

EPA plans to hold webinars and two public meetings to facilitate public comment on the proposed rule.

Public comments on the proposed rule may also be submitted at www.regulations.gov under Docket ID No. EPA-HQ-RCRA-2010-0742 for 60 days after the rule's publication in the Federal Register.

“The purpose of these proposed revisions is to ensure that the recycling regulations, as implemented, encourage reclamation in a way that does not result in increased risk to human health and the environment from discarded hazardous secondary material,” the prepublication version of the proposal stated.

“Today's proposed enhancements show EPA's commitment to achieving sustainable materials management through increased recycling, while retaining safeguards to protect vulnerable communities and the environment,” Mathy Stanislaus, EPA assistant administrator for solid waste and emergency response, said in a statement July 6.

By Avery Fellow

The proposed rule to revise the Definition of Solid Waste rule is available at http://www.epa.gov/waste/hazard/dsw/downloads/2011-pr-fr-prepub.pdf .

The draft environmental justice analysis for the proposed revisions to the Definition of Solid Waste rule is available at http://www.epa.gov/waste/hazard/dsw/downloads/2011-ej-draft-analysis.pdf .