The U.S. Environmental Protection Agency (EPA) published its long-awaited, final solvent-contaminated wipes rule on July 31, 2013 (78 Fed. Reg. 46,448). The rule, which was proposed nearly ten years ago in November 2003, excludes reusable solvent-contaminated wipes from solid waste regulation and excludes disposable solvent-contaminated industrial wipes from stringent hazardous waste regulation, provided certain conditions are met. These conditional exclusions reduce regulatory burdens. For example, solvent-contaminated wipes managed under the conditional exclusions no longer have to be manifested when being sent off-site and may be sent to non-hazardous waste handling facilities. The rule does not automatically take effect in West Virginia or other states with EPA-authorized hazardous waste programs, however.
Because solvent-contaminated industrial wipes, which include shop towels, rags, pads or swabs, are generated throughout business and industrial sectors of the U.S. economy and because the rule offers cost savings, the conditional exclusions should interest a wide group of businesses and industry. EPA estimates that solvent-contaminated wipes are generated by more than 90,000 facilities in 13 economic sectors, including printing, publishing, business services, chemical and allied product manufacturing, plastics and rubber, fabricated metal products, industrial machinery and equipment, furniture and fixtures, auto dealers, military bases, electronics and computer manufacturing, transportation equipment, and auto repair and maintenance. The rule also affects solid waste management facilities and industrial laundries and dry cleaners that dispose of or clean industrial wipes. According to EPA, these sectors generate and handle approximately 2.2 billion solvent-contaminated wipes annually. EPA estimates net savings between $21.7 million and $27.8 million annually (2011 dollars), including $18.0 million per year in avoided regulatory cost savings to these businesses.
To be excluded from solid waste and hazardous waste regulation, solvent-contaminated wipes must be managed in non-leaking, closed and labeled containers capable of containing any free liquids. When sent for cleaning or disposal, the wipes cannot contain free liquids. Free liquids removed from solvent-contaminated wipes or from containers holding the wipes are not excluded, must be characterized, and managed appropriately based on the hazardous waste characterization. Facilities that generate solvent-contaminated wipes may not accumulate wipes for longer than 180 days from the start date of accumulation for each container and must comply with new record-keeping requirements. Under the new record-keeping requirements, generators must maintain on site: (1) name and address of the laundry, dry cleaner, landfill, or combustor; (2) documentation that the 180-day limit is being met; and (3) description of the process that the generator is using to meet the “no free liquids” condition.. Reusable wipes must be sent to a laundry or dry cleaner whose discharge, if any, is regulated under the Clean Water Act, such as a Publicly Owned Treatment Works, and disposable wipes must be sent to combustors that are regulated under the Clean Air Act or municipal solid waste landfills or hazardous waste landfills that are regulated under the Resource Conservation and Recovery Act (RCRA). For a tabular summary of the conditions, see EPA’s Solvent-Contaminated Wipes Final Rule Summary Chart.
The rule does not apply to wipes contaminated with listed hazardous waste other than solvents or that exhibit the characteristic of toxicity, corrosivity, or reactivity due to contaminants other than solvents. Wipes that exhibit the toxicity characteristic because they are contaminated with RCRA metals, for example, are not excluded. Also, disposable wipes that are contaminated due to trichloroethylene are not eligible for the hazardous waste exclusion. For reusable wipes, however, the solid waste exclusion includes wipes contaminated with trichloroethylene. The reason for the distinction is that EPA’s risk analysis shows that wipes contaminated with trichloroethylene may pose a significant risk to human health and the environment when disposed in a lined landfill.
EPA’s final rule takes effect January 31, 2014; however, because the conditional exclusions are not Hazardous and Solid Waste Amendments regulations, they are not immediately effective in states with RCRA authorization like West Virginia. These states must adopt the rule. Further, because the rule contains requirements and conditions that are less stringent than those required under the base RCRA hazardous waste program, states are not required to adopt the conditional exclusions, unless a state is implementing a program for industrial wipes that is less stringent than the federal requirements in the final rule.
West Virginia has an industrial wipes guidance document, Guidance for Commercial Generators of Shop Towels and Shop Wipes, which follows EPA’s 2003 proposed solvent-contaminated wipes rule. 68 Fed. Reg. 65,586 (November 20, 2003). While EPA finalized the conditional exclusions largely as proposed in 2003, EPA made some changes, making the West Virginia guidance both more and less stringent than the final, federal conditional exclusions, depending upon the provision at issue. For example, West Virginia’s guidance does not include any accumulation time limit or record-keeping requirements. West Virginia’s guidance also allows solvent-contaminated wipes to be managed in covered containers as opposed to closed containers. To determine whether solvent-contaminated wipes contain “no free liquids,” the West Virginia guidance uses a “one drop” standard, whereas EPA’s final rule uses the Paint Filter Liquids Test (Method 9095B). Further, West Virginia’s guidance provides that wipes contaminated with 11 different solvents are ineligible for the exclusions, whereas EPA’s final rule expands the list of solvent-contaminated wipes so that only one solvent, trichloroethylene, is ineligible for the hazardous waste exclusion.
This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.