Onerous, far-reaching, expensive and unwarranted is the verdict by coatings manufacturers on a proposed federal rule that would increase requirements for recycling hazardous materials.
The American Coatings Association sees “no basis” for the Environmental Protection Agency to revise its 2008 Definition of Solid Waste (DSW) Rule, the manufacturers’ group contends in comments submitted in opposition to the plan.
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|The proposed rule requires solvent recyclers to meet certain conditions before qualifying for exclusions.|
EPA announced in July that it was revising the rule to comply with a settlement agreement with the Sierra Club stemming from a lawsuit in 2010.
The 2008 rule affected 5,600 facilities that annually handle 1.5 million tons of hazardous secondary materials—mainly, metals and solvents. The rule followed 20 years of court decisions and studies involving waste and reclamation, EPA said.
Waste Transfer Rules
The 2011 revisions would tighten up on exclusions previously granted for hazardous secondary materials that generators transfer to other parties for reclamation. The change requires recyclers to meet certain conditions before qualifying for the exclusion and lists 18 designated solvents that will fall under the new exclusion.
EPA also wants to add “legitimacy requirements” for companies that claim to recycle, to crack down on what the agency calls “sham recycling.”
The changes mean that most hazardous secondary materials transferred to another party for reclamation would be regulated under Subtitle C of the Resource Conservation and Recovery Act (RCRA) of 1976, which established a federal program to manage hazardous wastes from cradle to grave.
Notification and Reporting
In addition, although the revisions keep the 2008 exclusions for hazardous secondary materials legitimately reclaimed under the control of the generator, EPA is adding notification and reporting requirements for this exclusion.
EPA noted that more than half of the recycling damage cases it had examined involved a hazardous secondary material that had been excluded or exempted from the 2008 rule, indicating “serious gaps” in regulatory protection that posed a “significant risk” to human health and the environment.
The agency hosted public meetings on the proposal in September in Chicago and Philadelphia, and the comment period closed Oct. 20.
‘Expensive and Onerous’
ACA, which had secured a 30-day delay in the rule for comments, said EPA had not made its case for increasing oversight, narrowing exclusions and tightening standards.
“The proposed rule fails to demonstrate how the existing conditional DSW exclusions are insufficiently protective of human health and the environment and does not support revisions to the 2008 DSW Rule,” ACA said in comments posted on its website.
The revisions “will discourage beneficial recycling and reclamation and lead to increased off-site treatment and disposal” while imposing “further burdens on manufacturers by making recycling hazardous materials more expensive and onerous,” ACA argues.
Backfire and Overreach
Ultimately, ACA contends, the proposed rule will actually backfire in its intent to better manage waste disposal by creating “new regulatory hurdles, uncertainty and potential liability for companies wishing to use the DSW exclusions.”
If the changes impose more risks and burdens than benefits, “companies will likely choose to transfer hazardous secondary materials to third parties for treatment and landfill disposal,” rather than recycling, exacerbating “the waste disposal problem that RCRA was meant to mitigate,” ACA says.
Moreover, the manufacturers argue, the revisions exceed EPA’s regulatory authority.
EPA “strayed from the concept of ‘discard’ and exceeded its authority under RCRA with a host of new requirements and conditions,” ACA said. “In the 2008 DSW final rule, on the other hand, EPA worked to harmonize the exclusions with the concept of discard and remained within its authority. ”
ACA said it opposed “additional regulatory burdens that do not comport with the concept of discard and are unwarranted by the minimal risks associated with this type of reclamation. In particular, making notification a condition of recycling creates an unnecessary burden, and the additional recordkeeping requirements for speculative accumulation are not warranted. ”
“Finally, ACA opposes making all the legitimacy criteria mandatory and opposes requiring recyclers to provide documentation demonstrating how they meet the legitimacy requirements. ACA strongly believes that adding new requirements and provisions to the pre-2008 exclusions and exemptions is not appropriate for this rulemaking and would have far-reaching, unintended consequences.”