Portland Cement, Kiln Groups Challenge EPA Over Nonhazardous Secondary Materials Rule

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By Anthony Adragna  


Several industry groups have filed lawsuits challenging a final Environmental Protection Agency rule that clarifies which materials may be treated as fuels, rather than as solid wastes, when burned in boilers or solid waste incinerators (Portland Cement Ass'n v. EPA, D.C. Cir., No. 13-1156, 5/6/13; Cement Kiln Recycling Coalition v. EPA, D.C. Cir., No. 13-1157, 5/6/13).

In lawsuits filed May 6, the Portland Cement Association and the Cement Kiln Recycling Coalition asked the U.S. Court of Appeals for the District of Columbia Circuit to review EPA's nonhazardous secondary materials final rule issued in December 2012 under Section 7006(a)(1) of the Resource Conservation and Recovery Act.

A separate petition for review was filed May 2 by the National Association of Clean Water Agencies (National Ass'n of Clean Water Agencies v. EPA D.C. Cir., No. 13-1152, 5/2/13).

Multiple other challenges are expected to be filed on the rule in the next several days.

Scrap Tires Still at Issue

Mike Benoit, executive director of the Cement Kiln Recycling Coalition, said the group filed the challenge largely over processing requirements the rule imposes on certain types of scrap tires.

“They have moved a significant distance in the right direction, but they held onto a requirement for processing that they acknowledge doesn't make any sense in terms of utilizing scrap tires,” Benoit told BNA May 6.

Under the final rule, scrap tires taken from landfills would have to undergo expensive metal removal and shredding for them to be considered fuel rather than solid waste.

Benoit said he would be surprised if other groups did not file similar challenges to the scrap-tire processing requirement.

The final rule took effect April 8 and amends an earlier rule at 40 C.F.R. Part 241, which was issued in March 2011 (78 Fed. Reg. 9112). EPA says the final rule does not impose any direct costs.

Signed in December 2012 by former EPA Administrator Lisa Jackson, the rule says resinated wood, coal refuse that has been recovered from legacy piles, scrap tires that are not discarded and are managed by established tire collection programs, and dewatered pulp and paper sludges that are not discarded will be treated as fuels and not as wastes (246 DEN A-11, 12/26/12).

'Comfort Letters' Being Issued

According to EPA, the rule assists boiler and incinerator operators and nonhazardous secondary material producers in identifying whether materials will be regulated more strictly as solid waste or less strictly as fuel. Solid wastes are regulated more strictly under Section 129 of Clean Air Act, while fuels are subject to regulations under Section 112.

Concurrent with the December signing of the nonhazardous secondary materials rule, two Clean Air Act regulations were signed for commercial and industrial solid waste incinerators. Both of those regulations have also been challenged in court (68 DEN A-3, 4/9/13).

Two attorneys with Foley & Lardner LLP told a Bloomberg BNA webinar in March that the RCRA rule would likely stand at least a year before an appeals court considers it, and they said industry and environmental groups would likely challenge “various aspects” of the final rule (49 DEN A-12, 3/13/13).

EPA continues to issue “comfort letters” to businesses affirming its intent to regulate certain characteristic types of wastes as fuels rather than as solid wastes. The most recent letter was issued April 17 (79 DEN A-5, 4/24/13).

The Portland Cement Association was not available for comment.

By Anthony Adragna  

The petition in Portland Cement Association v. EPA is available at http://op.bna.com/env.nsf/r?Open=aada-97fsfe.

The petition in Cement Kiln Recycling Coalition v. EPA is available at http://op.bna.com/env.nsf/r?Open=aada-97fsft.

The petition in National Association of Clean Water Agencies v. EPA is available at http://op.bna.com/env.nsf/r?Open=smiy-97bqv4.

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