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© 2009 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP which may not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.

Susan Parker BodineBarnes & Thornburg

[email protected]

Air &Waste Management Association

Southern Section

2011 Annual Meeting & Technical Conference

EPA Definition of Solid Waste Rulemakings

August 4, 2011or


EPA DEFINITIONS OF SOLID WASTE

• October 2008 Definition of Solid Waste Rule. 73 Fed. Reg. 64668 (Oct. 30, 2008)

• March 2011 Non-Hazardous Secondary Material Rule. 76 Fed. Reg. 15456 (Mar. 21, 2011)

• July 2011 Definition of Solid Waste Proposal. 76 Fed. Reg. 44094 (July 22, 2011)


Case law on “discard”

• The term “discard” based on the ordinary plain-English meaning of the term which encompasses “disposed of,” “thrown away,” or “abandoned.” See American Mining Congress v. EPA, 824 F.2d 1177, 1188-89 (D.C. Cir. 1987) (“AMC I”).

• If a person has not disposed of, thrown away, or abandoned a material, it is not discarded, even if it is no longer useful in its original capacity. AMC I, at 1185-87.

• Because RCRA was enacted in response to Congressional concerns over “the rising tide of scrap, discarded, and waste materials,” RCRA authority extends only to materials that are part of the waste disposal problem. AMC I, at 1185.

• Discarded materials” cannot include materials that are destined for beneficial use or recycling in a continuous process by the generating industry itself, because such materials are not part of the waste disposal problem. AMC I, at 1190.

• Association of Battery Recyclers v. EPA, 208 F.3d 1047, 1051 (D.C. Cir. 2000) (ABR) (“Congress unambiguously expressed its intent that ‘solid waste’ (and therefore EPA's regulatory authority) be limited to materials that are ‘discarded’ by virtue of being disposed of, abandoned, or thrown away.”).

• The fact that a person transfers a material to a third party does not mean that the material is discarded. See Safe Food and Fertilizer v. EPA, 350 F.3d 1263, 1268 (D.C. Cir. 2003).


Last 20 years 2003 2007 2008

Several court decisions regarding when a

material is a “waste”

EPA proposes to exclude materials “reclaimed in a

continuous process within the same generating

industry”

EPA proposes to exclude materials based

on the concept of “discard”

EPA publishes final rule!

EPA conducts studies on hazardous waste

recycling

History of October 2008 Rule

– Source: EPA


Major components of October 2008 Rule

1. Under the Control of the Generator ExclusionSelf-implementing exclusion for materials generated and reclaimed under the control of the generator.

2. Transfer-based ExclusionSelf-implementing exclusion for materials generated and transferred to another company for reclamation.

3. Non-waste Determination ProcedureMaterials that are non-wastes (determined through a petition process)

4. “Legitimate” Recycling Provision


Legitimacy under the October 2008 Rule

• Two mandatory factors• Recycling must produce valuable product or intermediate• Materials must provide useful contribution to the

recycling process or to a product or intermediate

• Two factors must be considered• Materials must be managed as valuable commodities• Products of recycling must not contain significantly

higher levels of hazardous constituents than are in analogous products

• Rationale: EPA is aware of situations where the second two factors are not met but the recycling is legitimate.


January 2009 Sierra Club Petition

• Definition of “contained” – seeking changes to both generator and transfer-based exclusion by defining “contained.”

• Notice – seeking a change to make notice a condition of the exclusions.

• Legitimacy – seeking to apply codified legitimacy factors to all recycling; seeking to require all four legitimacy factors to be met.

• Transfer-based exclusion – Seeking repeal.


September 2010 EPA SettlementWith Sierra Club

• Agrees to sign a proposed rule by June 30, 2011 that addresses the issues raised in the Sierra Club petition.

• Agrees to sign a final rule by December 31, 2012.


March 2011 Final Rule Identifying Non-Hazardous

Secondary Materials

• BACKGROUND:

• CAA 129 – directs EPA to develop emissions standards for units that combust any solid waste from commercial or industrial establishments. The definition of solid waste is determined by the Administrator under RCRA.


CISWI Rules

• 2000 CISWI Rule – did not cover burning for energy recovery. Petitions for reconsideration filed, including claim that EPA did not provide notice and comment on the definitions used. Court granted EPA a voluntary remand.

• 2005 CISWI Definitions Rule – excluded units designed

for energy recovery. Petition for review granted.


D.C. Circuit Ruling on CISWI Definitions Rule

• NRDC v. EPA, 489 F.3d 1250 (D.C. Cir. 2007). Vacated CISWI Definitions Rule and Boiler MACT. -- Held: the term ‘‘solid waste incineration

unit’’ ‘‘unambiguously include[s] among the incineration units subject to its standards any facility that combusts any commercial or industrial solid waste material at all—subject to the four statutory exceptions identified [in CAA Section 129(g)(1)].” 489 F.3d at 1257–58.


EPA Response

• New Boiler MACT Major Source Rule (Air Office)

• New Boiler MACT Area Source Rule (Air Office

• New CISWI Rule (Air Office)• New Definition of Solid Waste for Non-

Hazardous Secondary Materials Rule (OSWER)


March 2011 NHSM RuleNot a Solid Waste if:

• Traditional Fuel.

• Secondary material that has been processed into a new product and the use of new product meets the legitimacy criteria.

• A secondary material that is burned under the control of the generator for energy recovery and the process meets the legitimacy criteria.

• The secondary material is used as an ingredient and the process meets the legitimacy criteria.

• The secondary materials are resinated wood or scrap tires in a tire collection system and the process meets the legitimacy criteria.

• A non-waste petition has been granted (which includes meeting the legitimacy criteria).


Traditional Fuels

Materials that are produced as fuels and are unused products that have not been discarded and therefore, are not solid wastes, including:

(1) fuels that have been historically managed as valuable fuel products rather than being managed as waste materials, including fossil fuels (e.g., coal, oil and natural gas), their derivatives (e.g., petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, and coke oven gas) and cellulosic biomass (virgin wood); and

(2) alternative fuels developed from virgin materials that can now be used as fuel products, including used oil which meets the specifications outlined in 40 CFR 279.11, currently mined coal refuse that previously had not been usable as coal, and clean cellulosic biomass. These fuels are not secondary materials or solid wastes unless discarded. (40 C.F.R. 241.2).


Legitimacy Criteria for NHSM that are Fuels

• Managed as valuable commodity – length of storage does not exceed a reasonable time frame, and containment is consistent with storage practices for an analogous fuel (if no analogous fuel, must be contained to prevent releases).

• Combusted in a unit that recovers energy and provides meaningful heating value.

• Contains contaminants at levels comparable to or lower than traditional fuels the combustion unit is designed to burn. (Comparison of NHSM to traditional fuel itself, not emissions.)


Pitfall #1: Definition of contaminant

• Definition of contaminants is based on emissions: – Contaminants means any constituent in non-

hazardous secondary materials that will result in emissions of the air pollutants identified in Clean Air Act section 112(b) or the nine pollutants listed under Clean Air Act section 129(a)(4)) when such non-hazardous secondary materials are burned as a fuel or used as an ingredient, including those constituents that could generate products of incomplete combustion.

• Legitimacy criteria are based on concentrations in the secondary material itself.


Pitfall #2: What traditional fuel do you compare to?

• You must compare to the “traditional fuels that the combustion unit is “designed to burn.”

• In a July 11, 2011, draft “concept paper” EPA is now saying that you can compare emissions from the combustion of any material that is in the same form as the material the unit is designed to burn. For example, if your unit is designed to burn a solid, you can compare to any solid fuel (biomass and coal are equivalent). http://www.epa.gov/epawaste/nonhaz/define/index.htm


Pitfall #3: What is “comparable?”

• The preamble to the NHSM Rule provides very little flexibility in determining what is comparable.

• EPA took comment on, but chose not to adopt, a standard that would require contaminants be at levels “not significantly higher” than contaminants in traditional fuels (the 2008 DSW Rule standard).

• EPA also refused to adopt a standard that looked at total environmental impacts or risks to human health and the environment.

• In a July 11, 2011, draft “concept paper” EPA is now saying that -- notwithstanding the preamble language to the contrary and the rule language defining contaminants as “any constituent” – a facility can compare classes of contaminants rather than individual constituents. Thus, all VOCs, or all metals may be able to be used for comparability determinations. http://www.epa.gov/epawaste/nonhaz/define/index.htm


Pitfall # 4: Gases

• The RCRA statutory definition of solid waste includes “contained gaseous material.” In the past, EPA has not considered gases in pipelines to be “contained gaseous material.”

• In the response to comments for the NHSM Rule, EPA states:

“In the first place, we are unable to find any Agency reasoning supporting previous EPA interpretations that only gases in containers may be considered “contained.” Based on the facts of this case, EPA cannot see how gaseous secondary material that is generated in any particular system and is somehow sent to a gas-fired boiler, even through a pipeline, can be considered an “uncontained gas.” NHSM, Response to Comments, at 212.

• In the CISWI Rule, EPA deleted the definition of “contained gaseous material.” 40 C.F.R. 60.2265; 76 Fed. Reg. at 15761. That definition formerly read as follows: “Contained gaseous material means gases that are in a container when that container is combusted.”

• In a letter dated May 13, 2011, EPA is now saying that it did not intend to change its position regarding contained gaseous material and nothing has changed. http://www.epa.gov/epawaste/nonhaz/define/index.htm


Concerns

• Industry has expressed its concerns to EPA that many more materials than intended will end up being classified as solid waste.

• Bipartisan bills have been introduced in the House and Senate to address the Boiler MACT, CISWI, and NHSM rules. H.R. 2250 (Griffith and Butterfield, et al. and S. 1392 (Collins and Wyden, et al.)


July 22, 2011 Definition of Solid Waste Proposal (comments due Sept. 20, 2011)

• Retains exemption for material recycled under the control of the generator, but places conditions on that exemption

• Repeals exemption for material recycled by third parties.

• Makes all 4 legitimacy criteria mandatory, but includes a petition process to waive the second two requirements.

• Requires all recycling, including recycling under pre-existing exemptions, to demonstrate legitimacy.


“Under Control of the Generator” Conditions

• Material must meet a regulatory “contained” standard. (managed in units that have no leaks and prevent releases, including releases through precipitation, groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures; precipitation run-off with hazardous constituents is ok if material itself is not released).

• Notice is a condition of the exemption.

• Labeling and recordkeeping conditions “for ease of enforcement.”


Third-party recycling

• Recycler must meet full subtitle C requirements.

• Storage and transportation must meet full subtitle C requirements.

• Accumulation up to one year allowed if generator develops a “reclamation plan.”

• EPA is seeking comment on whether new “contained” standard should apply instead of subtitle C storage requirements.


Re-Manufacturing Exclusion

• EPA is not proposing, but is seeking comment on a new exclusion for “re-manufacturing.” This exclusion would be an exemption to subtitle C requirements for off-site recycling where the recycling was conducted by another manufacturer, not a commercial recycling facility.

• The re-engineering exclusion would apply only to a specific list of solvents that are used by specific industries for specific purposes (which do not include cleaning).

• The solvents must have been used for reacting, extracting, purifying, or blending chemicals in the pharmaceutical, organic chemical, or plastics and resins manufacturing sectors, or the paint and coatings sector. After “remanufacturing” the solvents must be used for the same purpose by the same sectors.


Changes to the Legitimacy Criteria

• All recycling (even under existing regulatory exemptions) must demonstrate that the legitimacy criteria are met.

• All four factors are now mandatory:

• First three factors the same as in the 2008 Rule:

– Recycling must produce valuable product or intermediate– Materials must provide useful contribution to the recycling

process or to a product or intermediate.– Materials must be managed as valuable commodities


Changes to Legitimacy Criteria

• Fourth factor changed to use the same “comparable to or lower than” construction as the NHSM Rule (in lieu of “not significantly higher”):

– The product of the recycling process must contain concentrations of any hazardous constituents found in Appendix VIII of part 261 of this chapter at levels that are comparable to or lower than those found in analogous products.

• Hazardous characteristic test added to the fourth factor: – The product of the recycling process must not exhibit a

hazardous characteristic (as defined in part 261 subpart C) that analogous products do not exhibit.


Changes to Legitimacy Criteria

• A petition process is added to provide exemptions from the third (management) and fourth (toxics along for the ride) criteria.

• “As stated above, EPA believes it is critical that the legitimacy requirement have flexibility for those situations where a facility is recycling legitimately, but is not meeting factor 3 and/or factor 4.” 76 Fed. Reg. at 44122.

• As a result, Subtitle C DSW proposal is more flexible than the NHSM Rule.


Status

• October 2008 Definition of Solid Waste Rule -- in effect only in PA, NJ, IL, ID, IA, and AK. Proposed to be revised.

• March 2011 Non-Hazardous Secondary Material Rule – In effect as of May 20, 2011. 18 petitions for review filed in D.C. Circuit. 4 Petitions for Rulemaking. 1 petition for administrative stay. 1 petition for judicial stay.

• July 2011 Definition of Solid Waste Proposal. 76 Fed. Reg. 44094 (July 22, 2011). Comments due September 20, 2011. Final rule due December 31, 2012.


Questions?

Susan Parker BodineBarnes & Thornburg

[email protected]

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