RCRA Rules in the Pipeline

The U.S. Environmental Protection Agency (U.S. EPA) is working on a number of waste-related regulations. For those trying to stay current on the on the status of various regulations under development, helpful information can be found in the Agency’s Semi-Annual Regulatory Agenda Online (e-Agenda) that was announced April 26, 2010 (75 Fed. Reg. 21872). In addition, U.S. EPA updates its e-Agenda on a monthly basis with its online Action Initiation List (AIL). The e-Agenda and AIL, as well as U.S. EPA’s Regulatory Gateway, which focuses on priority rulemakings, offer insight into the Agency’s plans for proposing and finalizing new regulations. This blog reviews the Resource Conservation and Recover Act (RCRA) rules currently under development.

 

Pre-Proposal Rules with a Scheduled Proposal Date: U.S. EPA has announced a number of RCRA rules that have not yet been proposed. According the e-Agenda, the Agency plans to propose two rules by September 2010: (1) RCRA requirements for hazardous carbon dioxide (CO₂) injectate in geological sequestration activities; and (2) revisions to the underground storage tank (UST) regulations. 

 

(1)     Hazardous CO₂ Injectate: U.S. EPA states in its e-Agenda that it is “considering a proposed rule…to explore…a conditional exemption from the RCRA requirements for hazardous CO₂ streams”. This is in response to comments U.S. EPA received on its July 25, 2008 proposed rule under the Safe Drinking Water Act Underground Injection Control Program to create a new class of injection well for geological sequestration of CO₂ (73 Fed. Reg. 43492) requesting clarification on how RCRA hazardous waste streams apply to CO₂ streams. According to U.S. EPA’s Regulatory Gateway, the Agency is projecting a proposed rule to be published in the Federal Register by December 2010. 

 

(2)     Revisions to the UST Regulations: The Agency is also working on a proposal to revise its UST regulations at 40 CFR Parts 280 and 281 to “update and revise [them] to make targeted changes to improve implementation and prevent UST releases”. In addition, U.S. EPA is proposing amendments to incorporate the provisions of the Energy Policy Act of 2005, which included amendments to RCRA. For states receiving federal UST funding, there are requirements for secondary containment, operator training, and delivery prohibition; however, these same requirements do not apply in Indian country. U.S. EPA states in the e-Agenda it “plans to develop regulations for secondary containment and operator training to apply in Indian country and in states that choose not to obtain State Program Approval from [U.S.] EPA in order to achieve more consistent program results in release prevention and compliance.” U.S. EPA further states it “plans to develop regulations for delivery prohibition that [U.S.] EPA may apply in its enforcement actions.”

 

Pre-Proposal Rules without a Scheduled Proposal Date: Other waste-related rules that have been announced by U.S. EPA but that are not yet proposed and do not have a scheduled proposal date include: (1) episodic generation rulemaking; (2) streamlining laboratory waste management in government research laboratories; (3) standards for the safe and environmentally protective placement of coal combustion residues as minefill in coal mines not regulated under the Surface Mining Control and Reclamation Act; (4) revisions to land disposal restrictions treatment standards and changes to recycling requirements for spent petroleum refining hydrotreating and hydrorefining catalysts; (5) revisions to RCRA Subtitle C financial test criteria; (6) revisions to reportable quantity values for F- and K-wastes under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA); and (7) RCRA smarter waste reporting. 

 

(1)     Episodic Generation: U.S. EPA’s rule that is under development and called “episodic generation” by the Agency refers to a specific regulation associated with entities that find themselves moving occasionally or “episodically” into a higher hazardous waste generator status. Examples of events identified by U.S. EPA that may temporarily affect a facility’s generator regulatory status include: construction and demolition debris; equipment maintenance during a plant shut down; removal of post-shelf life inventory; tank cleanouts; and process upsets.

 

(2)     Government Research Laboratories: The proposal for streamlining laboratory waste management in government research laboratories will seek comment on whether the data that U.S. EPA has on such laboratories is accurate, e.g., the universe of government research in laboratories, and on the number of students in such laboratories. Government research laboratories were not included in the Academic Laboratory Rule published December 1, 2008 (73 Fed. Reg. 72912).

 

(3)     Placement of Coal Combustion Residuals at Coal Mines: U.S. EPA is also considering performance standards for the placement of coal combustion residuals (CCRs) for filling surface or underground coal mines, referred to as minefilling, not regulated under SMCRA. U.S. EPA states in the e-Agenda that: “there is sufficient evidence that adequate controls may not be in place, and that regulations are warranted.” The Agency is considering this action in response to a 2006 recommendation by the National Research Council concerning the management of coal combustion residuals in coal mines. U.S. EPA’s action will be coordinated with a proposal by the Office of Surface Mining of the Department of the Interior to address minefilling at mines with SMCRA permits. The intent of the proposals, if finalized, is to prevent contamination or damage to groundwater and surface waters.   

 

(4)     Revisions to LDR Treatment Standards and Recycling Requirements for Petroleum Refining: Regarding the revisions to the land disposal restrictions, U.S. EPA is considering amending the treatment requirements for spent petroleum hydrorefining catalyst, Hazardous Waste Code K172, and petroleum refinery primary oil/water/solids separation sludges, Hazardous Waste Code F037. U.S. EPA is also considering a proposal to “encourage consistent levels of recycling” of spent petroleum hydrotreating and hydrorefining catalysts, Hazardous Waste Codes K171 and K172, respectively.

 

(5)     RCRA Subtitle C Financial Test: U.S. EPA has been analyzing whether the criteria for the RCRA Subtitle C financial test needs updating. The test is one of several methods available to the regulated community for demonstrating financial assurance for closure/post-closure of their facilities.   The test criteria were last updated in 1982. According to the e-Agenda, “some States are not allowing companies to use the test” and “some language in the financial test reporting requirements is no longer consistent with current professional standards under Generally Acceptable Accounting Principles.”

 

(6)     Revisions to CERCLA Hazardous Substances List and Reportable Quantity Values: U.S. EPA is considering a proposal for correction of error and “other adjustments” to 40 CFR § 302.4, which lists the hazardous substances and reportable quantities under CERCLA. According to the e-Agenda, the proposal may include: “the correction of entries for individual substances, entries for F-and K- waste streams and entries in Appendix A of 40 CFR 302.4.” U.S EPA further states that the “proposal may include additional substances as entries in Table 302.4, Appendix A to Section 302.4, and the table in Section 302.6(b)(iii); removal of other entries from these lists; and amendments to certain footnotes that explain entries in Table 302.4.” 

 

(7)     RCRA Biennial Reports: The “RCRA smarter waste reporting” is intended to decrease the regulatory burden on generators completing the RCRA Biennial Report by eliminating the form for waste shipped offsite.  Instead, U.S. EPA is proposing to: (1) substitute data from the e-Manifest system once legislation is enacted and the system is developed and operational; (2) present an option for facilities with static hazardous waste generation to report less frequently; and (3) improve the information the Agency receives from companies who manage their waste onsite.

 

Proposed Rules with a Scheduled Final Date: The regulatory agenda also contains U.S. EPA’s schedule for finalizing certain proposed rules. The e-Agenda gives dates for three proposed rules. First, in May 2010, U.S. EPA is scheduled to finalize the proposed withdrawal of expansion of the RCRA comparable fuels exclusion (74 Fed. Reg. 64643, Dec. 8, 2008). Emission comparable fuels are fuels produced from hazardous secondary materials which, when burned in industrial boilers under specified conditions, generate emissions that are comparable to emissions from burning fuel oil in those boilers. Second, in April 2011, U.S. EPA plans to finalize the proposed rule adding hazardous pharmaceutical waste to the federal universal waste program (73 Fed. Reg. 73520, Dec. 2, 2008). Because this rule is less stringent than RCRA hazardous waste regulations, authorized states would have to adopt the regulations, if finalized, before entities could opt-in to the universal waste regime. Third, in July 2011, U.S. EPA intends to finalize the proposed rule regulating solvent-contaminated rags and wipes (74 Fed. Reg. 66259, Dec. 15, 2009); 74 Fed. 55163, Oct. 27, 2009; 68 Fed. Reg. 65586, Nov. 20, 2003). If finalized, this rule will impact the management of the following types of solvent-contaminated wipes: (1) wipes disposed of in a landfill or by combustion after use, and (2) wipes that are laundered after use to remove the solvent and then used again. 

 

Proposed Rules without a Scheduled Final Date: Other proposed rules that are to be finalized but do not have a scheduled date include: (1) revisions to the comprehensive procurement guideline (CPG) for products containing recovered materials: (2) management of cement kiln dust; (3) standards and procedures for electronic hazardous waste manifests (e-Manifest); and (4) removal of saccharin and its salts from the lists of hazardous constituents, hazardous waste, and hazardous substances.

 

(1)     Revisions to the CPG for Products Containing Recovered Materials: Currently, U.S. EPA is considering how to proceed with the CPG for nylon carpet. U.S. EPA is required under RCRA § 6002 to prepare CPGs that designate items that are or can be made with recovered materials and to issue recommendations for government procurement of these items. Once designated, procuring agencies must purchase these items with the highest percentage of recovered materials practicable.

 

(2)     Management of Cement Kiln Dust: U.S. EPA continues to consider comments on the management of cement kiln dust. More than ten years ago, on August 20, 1999, U.S. EPA issued a proposed rule (64 Fed. Reg. 45632), proposing an exemption from hazardous waste listing for properly managed cement kiln dust and several optional approaches, including requirements solely under Subtitle D. More recently, on July 25, 2002, U.S. EPA published notice of the availability of data on cement kiln dust (67 Fed. Reg. 48648). 

 

(3)     e-Manifest System: While there may be a broad consensus in support of a single national e-Manifest system sponsored by U.S. EPA as a compliant voluntary alternative to the current paper manifest form, the likelihood of a final rule establishing such a system in the near term does not seem very likely. As U.S. EPA states in the e-Agenda, the Agency’s “ability to publish a final rule in 2010 that will recognize e-Manifests…and to pursue this centralized e-Manifest design and funding solution, will depend on the passing of authorizing legislation for e-Manifest.”

 

 (4)    Removal of Saccharin and Its Salts from the Lists of Hazardous Constituents, Hazardous Wastes, and Hazardous Substances: The proposal to remove saccharin and its salts from the list of RCRA hazardous waste and CERCLA hazardous substances, published April 22, 2010 (75 Fed. Reg. 20942), responds to a petition by the Calorie Control Council to remove saccharin and its salts from the list of hazardous constituents in 40 CFR 261, Appendix VIII, unused commercial chemical products (identified as U202 hazardous waste) in §261.33(f), and CERCLA hazardous substances in 40 CFR §302.4. Based on a scientific consensus that saccharin was a potential human carcinogen, U.S. EPA listed them. However, recent evaluations of available data for saccharin and its salts by the U.S. National Toxicology Program and the International Agency for Research on Cancer have concluded that the scientific evidence does not support a conclusion that saccharin and its salts are potential human carcinogens. In addition, U.S. EPA does not believe that saccharin and its salts meet any other criteria for remaining on the lists of RCRA hazardous waste and CERCLA hazardous substances. Comments are due June 21, 2010. 

 

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