EPA Proposal to Eliminate Exemption Would Harm Reuse Industry, Groups Say

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Key Development: Groups say in public comments that EPA's proposal to withdraw an exemption for certain recycled materials from federal hazardous waste regulations violates RCRA and would harm the recycling industry.

Potential Impact: Subjecting third-party recyclers of secondary hazardous materials to notification, testing, and storage requirements is cost-prohibitive and will discourage recycling, the head of one recycling company says.

What's Next: EPA committed to taking final action on proposed rule by Dec. 31, 2012, under a settlement agreement with the Sierra Club.

By Avery Fellow

An Environmental Protection Agency proposal that would subject certain recycled wastes to federal hazardous waste regulations would harm the recovery and reuse industry, recycling and business organizations say.

The agency's proposal includes notification and documentation requirements for recyclers of hazardous secondary materials that would be cost-prohibitive for the industry, the groups said in comments on the proposed rule.

The proposed rule would withdraw a Bush-era exemption from federal regulations for hazardous secondary materials sent to a third-party recycler. The exemption was carved out in the 2008 Definition of Solid Waste rule. The rule exempted 1.5 million tons of spent materials, sludges, and byproducts from hazardous waste regulations under Subtitle C of the Resource Conservation and Recovery Act.

EPA's July proposal would subject these materials to hazardous waste regulations or alternative Subtitle C regulations for hazardous recyclable materials (76 Fed. Reg. 44,094;141 DEN A-12, 7/22/11).

Discourages Recycling.

Recycling companies say notification and documentation requirements under the proposal would be prohibitively expensive.

Requirements for recyclers to provide information about recycled materials, test and document how recycled materials compare to raw materials, and storematerials that are not immediately recycled according to federal containment standards are cost-prohibitive, according to Steve Budd, chief executive officer of Integrated Recycling Technologies, a scrap metal recycler based in Monticello, Minn. “You will discourage recycling,” he wrote.

Walmart, in comments dated Oct. 20, said requirements to document the transport of used consumer electronics would discourage retailers from establishing recycling programs for consumer products.

Expands RCRA Without Authorization.

Additionally, the proposed rule expands RCRA to include materials that are not discarded, which goes beyond the bounds of the statute, according to recycling representatives and business groups. “To meet the RCRA definition of solid waste a material must be discarded,” the American Forest and Paper Association wrote in comments dated Oct. 20. “If it is not discarded, then EPA has no authority under RCRA to regulate it.”

“A ‘hazardous secondary material' that is designated for recycling is not discarded,” wrote William Kovacs, senior vice president for environment, technology, and regulatory affairs at the Chamber of Commerce, in comments dated Oct. 20. “EPA, however, believes that it may interpret the term ‘solid waste' to mean both discarded material and recyclables at the very same time,” he wrote.

Objections to Legitimacy Criteria.

Recycling companies and organizations also objected to a requirement that facilities meet all four federal criteria to show that recycling is legitimate. The criteria include demonstrating that recycled products contain comparable levels of hazardous components as products made from raw materials.

Recycled products often have impurities that are not present in products made from raw materials that pose no realistic risk to health or the environment, the Society of Chemical Manufacturers and Affiliates said in comments dated Oct. 20. Additionally, the cost of testing recycled materials for hazardous constituents “could easily destroy any value of a recycling process,” the group stated.

Waste Management said in comments dated Oct. 20 EPA should take into account decreases in toxic chemical releases, transportation emissions, and resource depletion when materials are recycled.

Costs Underestimated.

The proposed rule omits the cost for facilities of documenting the legitimacy of their recycling practices and underestimates the number of facilities that would be subject to the legitimacy determination requirements, the American Petroleum Institute said in comments dated Oct. 20. The proposed rule also fails to account for the cost of storing materials according to federal hazardous waste regulations while facilities are seeking a recycling exemption, the organization said.

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

By Avery Fellow

EPA's proposed rule on the definition of solid waste is available at http://op.bna.com/env.nsf/id/jsml-8jypqg/$File/solid-rule.pdf.

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