At Long Last . . . EPA Announces Rule on Industrial Solvent-Contaminated Wipes

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

On July 22, 2013, the U.S. Environmental Protection Agency (EPA) announced that it had finalized a rule revising

  1. the definition of solid waste to conditionally exclude solvent-contaminated wipes that are cleaned and reused, and
  2. the definition of hazardous waste to conditionally exclude disposable solvent-contaminated wipes.

The problem of managing solvent-contaminated wipes is an old one. Contaminated wipes that are disposed of are “solid waste” under the Resource Conservation and Recovery Act (RCRA), and may be “hazardous waste” if they contain a listed hazardous waste or exhibit a characteristic of hazardous waste (ignitability, corrosivity, reactivity, or toxicity). Contaminated wipes that are laundered may present risks for laundry facilities if excessive amounts of solvent are present. Companies have long complained that the RCRA’s extensive cradle-to-grave management scheme was unduly burdensome for the minimal risk presented by solvent-contaminated industrial wipes.

EPA began receiving inquiries about the perceived “overregulation” of contaminated wipes shortly after the RCRA regulations were promulgated in 1980, and in 1985 and 1987 EPA received rulemaking petitions requesting that disposable wipes be excluded from hazardous waste regulation. In the early 1990s, EPA developed a policy of deferring questions about the regulatory status of solvent-contaminated wipes to states and EPA regions, noting that EPA intended to develop a consistent rule at some point. The rule announced on July 22, 2013, is the agency’s final response to the 1985 and 1987 petitions. It revises and finalizes the Solvent-Contaminated Industrial Wipes rule proposed by EPA in 2003, which was followed by years of public comment and risk analysis.

Under the new rule, solvent-contaminated wipes that are sent for cleaning and reuse are not solid wastes, provided the conditions of the exclusion are met. Solvent-contaminated wipes that are sent for disposal are solid wastes, but not hazardous wastes, provided the conditions of the exclusion are met.

Solvent-contaminated wipes are used wipes that:

  1. contain one or more of the F001 through F005 listed solvents or the corresponding P- or U-listed solvents;
  2. exhibit a characteristic of hazardous waste because of the presence of a solvent listed in the U.S. Code of Federal Regulations, 40 CFR Part 261; and/or
  3. exhibit the hazardous waste characteristic of ignitability because of the presence of one or more non-listed solvents.

This definition does not include wipes that contain listed hazardous wastes other than solvents, or wipes that exhibit the characteristic of toxicity, corrosivity, or reactivity because of non-listed solvents or contaminants other than solvents. Also, wipes that are hazardous waste because of the presence of trichloroethylene (TCE) are not eligible for the exclusion from the definition of hazardous waste if they are disposed of. (TCE-contaminated wipes may be excluded from the definition of solid waste if cleaned and reused.)

To be eligible for the exclusion from the definition of solid waste or hazardous wastes, generators and handling facilities must meet certain conditions:

  • Wipes must be accumulated, stored, and transported in non-leaking, closed containers that can contain free liquids.
  • Containers must be labeled “Excluded Solvent-Contaminated Wipes.”
  • Generators may accumulate wipes up to 180 days from the start date of accumulation.
  • Wipes must contain no free liquids prior to being sent off-site, and there must be no free liquid in the container holding the wipes.
  • Free liquids removed from the wipes or the wipes container must be managed according to applicable hazardous waste regulations.
  • Wipes that are cleaned and reused must go to a laundry or dry cleaner whose discharge, if any, is regulated under the Clean Water Act, and disposed wipes must go to a regulated combustor, boiler or industrial furnace, or landfill.
  • Generators must maintain documentation that includes the name and address of the laundry, dry cleaner, landfill, or combustor, proof of the 180-day accumulation time, and description of the process that the generator uses to satisfy the “no free liquids” requirement.

EPA estimates that the final rule will affect more than 90,000 facilities and will result in net savings between $21.7 million and $27.8 million per year. The rule will become final six months after it is published in the Federal Register.

This rule is less stringent than the base RCRA program. States with authorized hazardous waste programs that operate in lieu of RCRA are not required to adopt corresponding rules, although many will do so.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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