What's In a Name?

As Shakespeare probably would say if he were an environmental activist living today, hazardous waste by any other name would still be toxic.

He would be echoing the views of a number of opponents to the recent attempt by the U.S. Environmental Protection Agency to revise the definition of solid waste so that certain materials would be considered exempt from regulation under the Resource Conservation Recovery Act (RCRA). The dispute centered on EPA’s definition of solid waste, which determines when waste generated during industrial processes is regulated under RCRA.

On October 28, 2003, EPA first proposed changes to the definition of solid waste set out in 40 Code of Federal Regulations (CFR) Section 261.2. As stated in the initial rule, which was published in the Federal Register (Vol. 68, No. 208, Page 61558), the definition of solid waste would have been changed to exclude 1.5 million tons of hazardous waste annually from RCRA regulation. This exemption would have included certain spent materials, byproducts, and sludges listed as hazardous that are “generated and reclaimed in continuous process within the same industry.” Additionally, that proposed rule contained a broader option that would allow the recycling of these materials in industries other than those that generated them.

The agency received a large number of comments concerning its attempt to redefine solid waste. Critics argued that it was just a name game maneuver to change the legal status of these materials and this legal ploy did not alter the fact that these substances still pose a danger to human health and the environment. For example, the Sierra Club took the position that “by increasing the likelihood that hazardous waste would be mismanaged, this proposed rule puts our land and water at greater risk.” The environmental organization argued that the 2003 proposed rule would create economic incentives for “midnight dumping” of hazardous waste, spawn a new generation of waste sites and undermine Superfund’s principle of polluter liability, leaving U.S. taxpayers with the cleanup bill.

In contrast, other groups supported the agency’s approach. One such group was the American Chemistry Council (ACC) (www.americanchemistry.com). The trade association stated that it “supports the exclusion from the definition of waste of all legitimate recycling because this would encourage recycling and reuse, allow useful products to not be characterized as waste, reduce waste in landfills, and focus waste disposal on truly discarded materials that have no productive use.”

In the end, the agency did not move forward with the 2003 proposed rule. Instead, EPA re-examined the issues and reviewed new data and new analyses. Then on March 15, 2007, EPA reissued a new proposal restructuring the definition of solid waste. The latest rule was published in the Federal Register (Vol. 72, No. 57, Pages 14171-14218) on March 26. The agency is accepting comments about the new rule until May 25, 2007.

The 2007 proposed rule potentially affects approximately 4,600 facilities in 17 economic sectors, including chemical manufacturing, coating and engraving, semiconductor and electronics manufacturing, pharmaceutical manufacturing, and the industrial waste management industry. In the new rule, the agency seeks (1) an exclusion for hazardous secondary materials that are generated and then reclaimed under the control of the generator; (2) a conditional exclusion for hazardous secondary materials that are generated and then transferred to another person for reclamation; (3) a petition process for obtaining a case-specific nonwaste determination for certain hazardous secondary materials that are recycled.

In an interview with Environmental Protection on March 29, EPA Press Officer Roxanne Smith said the March 2007 proposal supplements the October 2003 proposal. It builds on the 2003 action, while presenting a number of important new provisions that are designed to encourage recycling, while maintaining environmental protections.

The most important difference is that EPA has decided not to pursue the exclusion in the 2003 proposal that would have limited the exclusion to materials "generated and reclaimed in a continuous process within the same industry." In addition, the 2007 proposal revises provisions that address the "legitimacy" of recycling practices in a way that clarifies the original proposal and provides additional guidance for making these determinations. According to Smith, EPA's goal is to have the rule finalized by the summer of 2008, but that depends on the complexity of comments received.

At press time, many stakeholders were still in the process of reviewing the recently proposed regulation. For example, in an interview with Environmental Protection on March 29, Bob Elam, ACC director of regulatory and technical affairs, said he and his organization were still “digesting” the newly proposed rule. However, he said he thinks it is a “step in the right direction.” He emphasized that ACC’s position continues to be that EPA needs to exclude legitimate recyclers from the definition of solid waste.

For an overview of the newly revised rule, go to www.epa.gov/epaoswer/hazwaste/dsw/abr.htm. For more information on the specific aspects of this proposed rule, contact Tracy Atagi, Office of Solid Waste, Hazardous Waste Identification Division, at (703) 308-8672 or atagi.tracy@epa.gov.

This article originally appeared in the 05/01/2007 issue of Environmental Protection.

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