In December 2008 the Bush Administration issued the emissions-comparable fuel rule, as noted in prior posts.  The final rule expanded 40 C.F.R., Part 261.38, and excluded from the definition of solid waste certain secondary materials (e.g., sludges, manufacturing byproducts) whose hazardous constituents and physical properties are comparable to those found in fossil fuels.  As noted previously, the rule would add 118,500 tons of hazardous secondary materials to the approximately 13,000 tons of materials (e.g., synthesis gas [see http://en.wikipedia.org/wiki/Synthesis_gas]) covered by the original 1998 rule.

Environmental groups filed a petition for review of the rule with the Court of Appeals, D.C. Circuit, in March 2009.  In April 2009 the Obama EPA asked the Court to hold review in abeyance since it was considering withdrawing the rule.  Because the rule was previously adopted, it has to be formally repealed.  As such, a notice must be published, comments received, and then a decision made.

EPA has noted that it will publish the requisite Federal Register notice in November 2009.  Inquiries by the press to EPA regarding why the notice is not to be published earlier have not been responded to.
Further information on the existing rule can be found at http://www.epa.gov/epawaste/hazard/tsd/td/combust/compfuels/exclusion.htm.

Definition of Solid Waste

In addition to the aforenoted rule and its impact on the definition of solid waste, the Bush Administration also published in Oct. 2008 and put into effect Dec. 29, 2008, a new rule which covers 40 C.F.R. Parts 260 and 261 and which revises the definition of solid waste.  As noted in prior posts, the rule removed 1.5 million tons of hazardous secondary material for RCRA regulation, and affected 5,600 facilities.

The wastes at issue included spent materials, listed sludges, and listed byproducts that are generated, legitimately reclaimed, and handled in non-land-based units (e.g., tanks, containers, and containment buildings).  Through the brief review process for the proposed rule, the rule was heavily criticized as putting at risk surrounding neighborhoods (e.g., neither effective nor protective).

EPA will hold a hearing on June 30, 2009 at the Potomac Yards Conference Center in Arlington, VA, on the issue of repeal.

Information on the rule and the public meeting can be found at http://www.epa.gov/epawaste/hazard/dsw/rulemaking.htm.