Industrial Wiper Rule Update: July 2009

By Jessica Franken, Government Affairs Consultant

The November 2003 proposed wiper rule focuses on the management of disposable and laundered solvent contaminated industrial wiping products under the Resource Conservation and Recovery Act (RCRA), the principal federal law governing the handling and disposal of solid and hazardous wastes. That proposal, among other things, would establish "dueling exemptions" — one set of conditions that disposable wipes would have to meet to be excluded from the definition of hazardous waste, and a separate, less demanding set of conditions that laundered wipes would have to meet in order to be excluded from the definition of solid waste. The distinction matters because hazardous wastes are regulated much more heavily than solid wastes.

The INDA/SMART task force is presently waiting for the U.S. Environmental Protection Agency (EPA) to publish its notice of data availability outlining the details of its revised risk assessment connected to the proposed wiper rule. It was supposed to have been published in late May/early June, but without explanation, was sent back to the Office of Management and Budget (OMB) in early June for its third review. OMB has up to 90 days to review the NODA, meaning it could be as late as early September before it is finally published, although EPA staff contacts have expressed hope that it could be earlier. Given EPA’s previous track record, we should probably expect later rather than sooner.

For about as long as EPA has been working on the industrial wiper rule, it has also been working on a separate rulemaking that would revise the definition of solid waste (DSW). Under RCRA, in order for something to be defined as solid waste, it must be discarded. This concept of "discard," therefore, calls into question the appropriate regulatory treatment of hazardous secondary wastes that are destined for reclamation.

While EPA has always maintained that hazardous secondary materials are not exempt simply because someone claims they will be recycled, they acknowledge that there are certain scenarios or arrangements that would qualify as legitimate recycling activity. The December 2008 revised DSW looks to clarify what constitutes legitimate recycling activities, and provide those who are legitimately recycling hazardous secondary materials the opportunities to be exempt from the definition of solid waste provided they meet certain conditions.

To accomplish this, the revised DSW describes several different arrangements in which hazardous secondary waste would be excluded from the definition of solid waste. One of these scenarios is when the hazardous secondary materials are reclaimed under the control of the generator; another is when they are reclaimed by a subsidiary company.

The 2008 DSW rule also describes the "transfer-based exclusion" scenario in which hazardous secondary materials that are transferred from a generator to another person or company for reclamation may be excluded from the definition of solid waste provided certain conditions are met. These conditions include keeping records for several years, strict handling/containment requirements, and perhaps most notably, financial assurance obligations. On its face, it would seem that the transfer-based scenario describes the launderers’ arrangement, which is noteworthy because the conditions for meeting the transfer-based exclusion under the revised DSW are more burdensome than those spelled out in the proposed wiper rule.

The reason the launderers are not all that concerned is because EPA essentially said the revised DSW does not apply to them by stating in the preamble to the revised DSW that "all" exclusions existing at the time the "transfer-based exclusion" was finalized can be used in lieu of that exclusion even if they are less stringent, including the existing informal exclusions currently used by states to exempt laundered wipers from RCRA hazardous/solid waste requirements.

Some INDA/SMART task force members have argued that EPA’s decision to allow all existing exclusions to supersede the revised DSW demonstrates EPA’s questionable judgment at best, and arbitrary and capricious decision-making at worst.

In response to a still pending lawsuit filed by the Sierra Club earlier this year, EPA announced in May it is reopening the revised DSW to re-examine certain aspects of the rule. INDA/SMART are currently exploring whether this re-opening of the final DSW presents new opportunities for advancing the proposed wiper rule.