Posted by: Lawyer Sanders | May 5, 2009

Kentucky environmental attorney says US EPA to review newly promulgated definition of “solid waste” for purposes of RCRA and CERCLA.

 U.S. EPA is planning to hold a public meeting to discuss possible revisions to the Definition of Solid Waste (“DSW”) rule in response to an administrative petition asking the agency to reconsider and repeal the rule.  The rule became effective on December 29, 2008. The meeting is planned for the end of June, and a Federal Register notice with the details of the meeting will be published in May.

As promulgated, the DSW rule modified the regulations for recycling hazardous secondary materials to encourage the recycling of certain materials to help conserve resources. The rule includes conditions designed to ensure that the recycling of the materials is protective of human health and the environment.

The rule also takes into account a series of opinions in the U.S. Court of Appeals for the D.C. Circuit on the meaning of the term “discard,” which forms the basis of the definition of solid waste.

Since publication of the DSW rule, the Sierra Club has raised concerns about the effectiveness and protectiveness of the rule and has requested EPA stay the rule in an administrative petition. In addition, the Sierra Club and the American Petroleum Institute have filed judicial petitions for review in the U.S. Court of Appeals for the D.C. Circuit. Various industry groups have also filed letters opposing the Sierra Club’s administrative petition.

EPA expects that stakeholders’ input at the public meeting will assist the agency in deciding whether to make revisions to the rule and how such revisions would further ensure that the rule appropriately and safely encourages resource conservation for those hazardous secondary materials that are conditionally excluded.

The Federal Register notice announcing the meeting will raise specific questions for consideration, particularly related to reclamation that is not under the control of the generator. Any revisions to the rule would be made through the full public rulemaking process.

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