Beveridge & Diamond

EPA Plans to Revisit Two RCRA Rules that Currently Exclude Certain Materials from Hazardous Waste Regulation

Beveridge & Diamond, P.C., May 15, 2009

EPA recently announced plans to revisit two Resource Conservation and Recovery Act (“RCRA”) rules that were finalized during the Bush administration.  Both rules have come under scrutiny from stakeholders and, in particular, environmental groups.  First, the Agency will hold a public meeting in June 2009 to discuss possible revisions to the Definition of Solid Waste rule (“DSW Rule”), which became effective on December 29, 2008.  Second, EPA will propose a rule withdrawing the Emission Comparable Fuel rule (“ECF Rule”), which went into effect on January 20, 2009.

Definition of Solid Waste Rule

EPA recently announced that it will hold a public meeting on possible revisions to the October 30, 2008 final rule redefining “solid waste” under RCRA by providing a conditional exclusion for certain hazardous secondary materials destined for reclamation under certain circumstances.  73 Fed. Reg. 64,668 (2008).  According to the EPA website, the meeting will be held June 30, 2009.

The DSW Rule went into effect on December 29, 2008.  This rule is the most recent step in a lengthy rulemaking process, as previous EPA attempts were repeatedly struck down by the U.S. Court of Appeals for the D.C. Circuit.  More information about the rule is available here

On January 29, 2009, the Sierra Club filed a petition for administrative review of the rule.  Specifically, the Sierra Club asked EPA Administrator Lisa Jackson to “reconsider and repeal” the DSW Rule.  Both the Sierra Club and the American Petroleum Institute (“API”) have filed petitions for judicial review in the U.S. Court of Appeals for the D.C. Circuit in a now-consolidated case.  The case is currently stayed.  EPA and the Sierra Club have jointly moved to continue the stay for the duration of the administrative review process.  API, however, has moved to go forward with a briefing schedule and to dismiss Sierra Club’s petition on the grounds that its pending petition for administrative review deprives the D.C. Circuit of jurisdiction over the petition for judicial review.  The Court has not yet ruled on these motions. 

EPA is planning to publish in the coming weeks an agenda for the meeting that will include specific issues for which EPA is seeking stakeholder input before the Agency decides to reenter the rulemaking process.

Emission Comparable Fuel Rule

EPA also recently announced its intention to propose a rule withdrawing the ECF Rule and seeking public comment for further review of the exclusion.  The proposed rule would likely be issued November 2009.

EPA published a final rule on December 19, 2008, expanding the conditional exclusion from the definition of solid waste and, therefore, from regulation as hazardous wastes, for comparable fuels to emission comparable fuels.  73 Fed. Reg. 77,954.  Comparable fuels are hazardous secondary materials that would otherwise be hazardous wastes but for their fuel value and hazardous constituent load, which is comparable to concentrations of hazardous constituents found in fossil fuels.  See 40 C.F.R. 261.38. 

The new exclusion for emission comparable fuels requires similar conditions for hazardous constituent concentrations as well as conditions meant to ensure that emissions are comparable to emissions from burning fuel oil.  The ECF Rule also sets specific conditions under which emission comparable fuel can be stored so that the materials are not discarded.  The ECF Rule went into effect on January 20, 2009. 

The rule has drawn criticism both from environmental groups who see the ECF Rule as being too lax and from industry who has objected to the burdensome conditions on the exclusion.  In March 2009, two environmental groups, the Louisiana Environmental Action Network and the Sierra Club, filed a petition for judicial review of the ECF Rule in the D.C. Circuit.  On May 5, 2009, the Court agreed to stay the case pending completion of the administrative review process.

For more information about these and other RCRA developments, please contact Don Patterson at, (202) 789-6032, or Beth Richardson at, (202) 789-6066.