The EPA on Wednesday announced a public meeting regarding the agency's recent regulation on the definition of solid waste under Subtitle C of the Resource Conservation and Recovery Act (RCRA). Specifically, EPA is currently reviewing a petition filed with the EPA Administrator under RCRA section 7004(a) requesting that the agency reconsider and repeal the recently promulgated revisions to the definition of solid waste for hazardous secondary materials being reclaimed, and is soliciting comments and information to assist the agency in evaluating the petition.

The agency said it does not plan to repeal the rule, but is interested in receiving comments on possible revisions to the rule. The public meeting will be held on June 30, 2009, from 9 a.m. to 4:30 p.m. The closing date for advance registration is June 23, 2009. Persons may also submit written or electronic comments by July 14, 2009. The administrative record of the meeting will remain open for submissions until July 14, 2009.

Definition of Solid Waste Final Rule

On Oct. 30, 2008, the EPA promulgated a final rule under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901, et seq., regarding regulation of hazardous secondary materials when they are recycled via reclamation (73 FR 64668). The rule excludes from the RCRA definition of solid waste for materials that are:

Generated and legitimately reclaimed under the control of the generator ("generator-controlled exclusion");
• Generated and transferred to another company for legitimate reclamation under specific conditions ("transfer-based exclusion");
• Determined by EPA or an authorized State to be non-wastes on a case-by-case basis via a petition process.

The rule also contains a provision to determine whether recycling activities are legitimate under the new exclusions and non-waste determinations. In order to be excluded under the revised definition of solid waste, hazardous secondary materials must be legitimately reclaimed and must meet the conditions of the exclusions.

Petition submitted by Sierra Club

On Jan. 29, 2009, the Sierra Club submitted a petition under RCRA section 7004(a), 42 U.S.C. 6974(a), to the EPA requesting that the agency repeal the October 2008 revisions to the definition of solid waste (DSW) rule and stay the implementation of the rule. A copy of the petition is in the docket to this notice. The petition argues that the revised regulations are unlawful and that they increase threats to public health and the environment without producing compensatory benefits, and therefore, should be repealed. Among other things, the petition singles out the lack of a regulatory definition of "contained" and "significant release" and disagrees with the agency's findings that the rule would have no adverse environmental impacts, including no adverse impact to environmental justice communities or to children's health.

Industry coalition response to petition

On March 6, 2009, a coalition of industry associations submitted a letter to the EPA in response to the Sierra Club petition. This letter requested that the EPA deny Sierra Club's petition on the grounds that the DSW final rule comports with court cases construing the scope of the agency's jurisdiction to regulate solid waste under RCRA, and that the DSW final rule achieves significant economic and conservation benefits, while imposing significant controls on the hazardous secondary material recycling industry that are fully protective of the environment. The letter also responds to each of the specific points raised by the Sierra Club in its petition.

Purpose and Scope of the Public Meeting

After meeting with representatives from both the Sierra Club and the industry coalition, the EPA has decided that it would be advisable to hear from a broader range of stakeholders before making a decision on how to best respond to Sierra Club's petition. The agency has determined that a public meeting, with opportunities to provide comments both verbally and in writing, is an efficient and transparent method for obtaining public input. The EPA also noted that a number of other letters were submitted to the agency by various members of the public after the agency held the meetings with Sierra Club and the industry coalition. These letters are also in the docket to this notice.

The scope of possible changes to the definition of solid waste is governed by the concept of "discard." As discussed in the preamble to the DSW final rule, EPA used the concept of discard as the central organizing idea behind the October 2008 revisions to the definition of solid waste. As stated in RCRA section 1004(27), "solid waste" is defined as "any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material resulting from industrial, commercial, mining and agricultural activities." Therefore, in the context of the DSW final rule, a key issue relates to the circumstances under which a hazardous secondary material that is recycled by reclamation is or is not discarded (73 FR 64675). In exercising its discretion in the DSW final rule to define what constitutes "discard" for hazardous secondary materials reclamation, the EPA included an explanation of how each provision of the final rule relates to discard (73 FR 64676-64679).

For example, in the DSW final rule, the EPA determined that if the generator maintains control over the recycled hazardous secondary material and if the material is legitimately recycled under the standards established in the final rule and not speculatively accumulated within the meaning of the EPA's regulations, then the hazardous secondary material is not discarded. This is because the hazardous secondary material is being treated as a valuable commodity rather than as a waste. By maintaining control over, and potential liability for, the reclamation process, the generator ensures that the hazardous secondary materials are not discarded. See 73 FR 64676.

Because the final revisions to the definition of solid waste are closely tied to the EPA's interpretation of the concept of "discard," the agency does not plan to repeal the rule in whole or stay its implementation. Such an action could result in hazardous secondary materials that are not discarded being regulated as hazardous waste. In particular, the EPA does not expect to repeal either the exclusion for hazardous secondary materials reclaimed under the control of the generator or the non-waste determination petition process.

However, the EPA believes that there may be opportunities to revise or clarify the definition of solid waste rule, particularly with respect to the definition of legitimacy and the transfer-based exclusion, in ways that could improve implementation and enforcement of the provisions, thus increasing environmental protection, while still appropriately defining when a hazardous secondary material being reclaimed is a solid waste and subject to hazardous waste regulation.

Issues for discussion will include the Definition of "Contained", Notification, the Definition of Legitimacy and the Transfer-Based Exclusion.