March 17 --The White House Office of Management and Budget began its review March 15 of a long-delayed proposal from the Environmental Protection Agency that would revise a 2008 Bush-era rule exempting certain recycled materials from hazardous waste regulation, according to OMB's website.
If finalized, the July 2011 proposed rule would promote greater accountability and oversight of hazardous materials under the Resource Conservation and Recovery Act, according to the EPA, while also ensuring continued economic and environmental benefits through recycling.
The EPA agreed in a 2010 settlement with the Sierra Club to finalize the revisions to the Definition of Solid Waste rule by Dec. 31, 2012, but failed to meet that deadline and has not provided any definite time frame for completing its work.
In its July 2011 proposed rule, the EPA estimated the revisions would impact 6,500 to 9,100 industrial facilities and impose costs anywhere from $7.2 million to $47.5 million annually, depending on state adoption.
EPA's top waste official acknowledged frustration from groups in finalizing the regulation in a January interview with Bloomberg BNA, but attributed delays to the need to “fine tune” aspects of the final rule.
The 2008 final rule remains in effect throughout the rulemaking process.
Industry groups told Bloomberg BNA in late 2012 that challenges to the eventual final rule are likely unless the agency incorporates significant changes, and they expressed concerns that the final rule would limit their ability to legitimately recycle hazardous secondary materials.
Abigail Dillen, an attorney for Earthjustice, which has represented the Sierra Club in the case, said OMB beginning its review is a positive step but vowed to remain vigilant in ensuring President Barack Obama's administration finalizes the “vitally important safeguards” to prevent hazardous waste pollution.
“We are hopeful this means that this rule is back on track, but we will be watching closely to make sure the White House doesn't let this rule wither at OMB as so many other rules have done,” Dillen told Bloomberg BNA in an email. “The failure to get this rule done and provide actual protections raises doubts about this Administration's real commitment to environmental justice. It's past time for the White House to move swiftly and get this rule done.”
Environmental justice advocates and other public interest groups, led by the Sierra Club, originally challenged the 2008 rule as insufficiently protective of human health and the environment.
The EPA said it discovered 218 instances environmental damage due to waste recycling that it partially attributed to less stringent storage standards, reduced oversight in the hazardous secondary material recycling process and limited access to public information and participation in the recycling process.
In 2010, the agency reached an agreement with the Sierra Club to revisit the 2008 rule, which removed 1.5 million tons of materials from regulation under RCRA (Sierra Club v. EPA,D.C. Cir., No. 09-1041, 9/10/10).
The July 2011 proposed rule would add notification and storage requirements for facilities that recycle hazardous secondary materials on-site or within the same company, create a petition process for facility owners to demonstrate the legitimacy of their recycling practices, remove an exclusion for hazardous secondary materials sent to third-party recyclers and require all hazardous waste recycling to meet federal recycling standards.
EPA's proposal did call for several new regulatory exclusions in addition to repealing several others. The agency has highlighted a new proposed exclusion for high-value solvents being sent for remanufacturing, which it said would result in significant energy savings and greenhouse gas reductions.
A petroleum industry challenge to the 2008 EPA rule has been held in abeyance by a federal appeals court until the EPA finalizes the revisions to the rule (American Petroleum Institute v. EPA,D.C. Cir., No. 09-1038, case held in abeyance 6/8/12).
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