Brief Report On RCRA Developments

by Pillsbury - Gravel2Gavel Construction & Real Estate Law

Here’s a brief report on recent Resource Conservation and Recovery Act (RCRA) developments:

1.   On February 26, the Environmental Protection Agency published a Federal Register notice informing the public that it will submit to the Office of Management and Budget (OMB) an information collection request regarding the operation of four final 2015 revisions to the definition of solid waste regarding in particular the “generator-controlled exclusion”; the “verified recycler exclusion”; the manufacturing exclusion; and the revised speculative accumulation requirement.

According to EPA, these information requirements will help ensure that entities operating under these exclusions are held accountable to the applicable requirements, state inspectors can verify compliance, and hazardous secondary materials exports for recycling are actually handled as commodities abroad.

However, before submitting this request to collect information to OMB. EPA is soliciting public comments on this proposal, and these comments should be submitted to EPA on or before April 27, 2018.

2.   In a few days, EPA will publish in the Federal Register a notice of proposed rulemaking regarding the disposal of coal combustion residuals (CCR) from electric utilities. The pre-publication copy of this proposal states that comments must be received within 45 days of its official publication. The proposed rules will affect the rules located at 40 C.F.R. Part 257, Subpart D, which were promulgated on April 17, 2015.

The CCR rules establish minimum criteria for existing and new CCR landfills and surface impoundments. A critical decision EPA made in 2015 was its determination that these wastes should be regulated as non-hazardous waste, and as RCRA hazardous waste. These criteria consists of location restrictions, design and operating requirements, groundwater monitoring and corrective action, facility closure and post-closure care, recordkeeping, and notification requirements.

This rulemaking proceeding will allow the agency to resolve challenges to four of the 2015 rules that were remanded to EPA to settle a judicial challenge to these rules, including the addition of boron to the rule’s list of constituents whose presence can trigger corrective action.

In addition, the agency is proposing to promulgate six new provisions that stablish alternative performance standards for owners and operators of CCR units located in states that have approved CCR permit programs. In December 2016, the Water Infrastructure Improvements for the Nation Act broadened the scope of EPA’s non-hazardous waste authority under RCRA Part D.

3.   On March 6, the U.S. Court of Appeals for the DC Circuit, in American Petroleum Institute v. EPA, completed its review of the 2008 and 2015 revisions to the Definition of Solid Waste, which again defines when certain hazardous secondary materials can be recycled, and thus not treated and regulated as solid waste. On the other hand if they are deemed to be “discarded,” they would be subject to RCRA’s hazardous waste rules.

In August 2017, the Court of Appeal, in American Petroleum Institute v. EPA, upheld some aspects of these rules and vacated others. However, the Court of Appeal was uncertain of the effect of its ruling in some circumstances, and invited additional briefing.

Having the benefit of more information, the Court of Appeal has issued a Per Curiam opinion that revises its 2017 decision in some respects. Most importantly, spent petroleum catalysts sent for recycling are now entitled to the benefits of the regulatory recycling exclusions promulgated by EPA.


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.

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