Update on U.S. EPA’s Priority Waste Rules

The U.S. Environmental Protection Agency (EPA) has identified three “priority” waste rulemakings on its new Regulatory Gateway web site. They are: (1) Identification of Non-Hazardous Materials That Are Solid Wastes; (2) Standards for the Management of Coal Combustion Residuals Generated by Commercial Electric Power Producers; and (3) Financial Responsibility under Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). EPA’s timelines for these rulemakings, each of which is in the pre-proposal stage, are as follows:

ü   The rulemaking for standards for the management of coal combustion residuals, formerly coal combustion waste, is expected to apply to the management of coal combustion residuals that are generated by coal-fired power plants. EPA has mentioned the following five regulatory options: (1) Subtitle C or hazardous waste; (2) Subtitle D or non-hazardous waste; (3) hybrid – except for beneficial reuse regulate as hazardous waste under Subtitle C; (4) regulate wet under Subtitle C and dry under Subtitle D; and (5) hybrid – Subtitle C for states that do not establish a permit program and Subtitle D for states that establish a permit program. West Virginia Governor Joe Manchin has asked EPA not to regulate coal combustion residuals as hazardous waste. The concern is that the hybrid approach of regulating coal combustion residuals as hazardous waste unless it is beneficially re-used will create a stigma resulting in killing the beneficial re-use of coal combustion residuals. EPA’s proposed rule was anticipated the end of 2009. According to Gateway, EPA is now projecting publication of the proposed rule in the Federal Register in April 2010. 

ü   EPA is proposing to define which non-hazardous secondary materials burned in combustion units are solid waste under Resource Conservation and Recovery Act (RCRA). If the secondary material is considered a “solid waste” then the unit that burns the secondary material would be subject to the requirements of Section 129 of the Clean Air Act. The meaning of “solid waste” as defined under RCRA is important because CAA § 129, which regulates emissions from sources that combust solid wastes, states that the term “solid waste” shall have the meaning “established by the administrator [pursuant to RCRA].” EPA published an advanced notice of proposed rulemaking in January 2009 (74 Fed. Reg. 41), and the comment period closed February 2009. EPA’s projected date for publication of the notice of proposed rulemaking, according to Gateway, is April 2010.   

ü   EPA has identified additional classes of facilities within three industries for which financial responsibility requirements under CERCLA §108(b) will be developed. The three industries are: (1) the chemical manufacturing industry; (2) petroleum and coal products manufacturing industry; (3) and the electric power generation, transmission, and distribution industry. EPA will undertake further study in order to decide whether to develop financial responsibility requirements for the following: (1) waste management and remediation services; (2) wood product manufacturing; (3) fabricated metal product manufacturing; (4) electronics and electrical equipment manufacturing; and (5) facilities engaged in the recycling of materials containing CERCLA hazardous substances. EPA developed its list of facilities by using information from the National Priorities List, Resource Conservation and Recovery Act Biennial Report and Toxic Release Inventory. EPA also highlights the costs associated with the cleanup of the coal ash spill at the Tennessee Valley Authority’s power plant in Kingston, Tennessee. EPA published an advanced notice of proposed rulemaking (ANPR) January 6, 2010 (75 Fed. Reg. 816), and the comment period, as extended, closes April 2010 (75 Fed. Reg. 5715). Gateway indicates that EPA projects publication of the proposed rulemaking in the Federal Register in April 2011. For further discussion of EPA’s January 6, 2010 ANPR, click here to read James R. Snyder’s article published February 8, 2010 on the Jackson Kelly Energy and Environment Monitor.   

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.