EPA and Sierra Club Reach Agreement on Definition of Solid Waste Rule; New proposed rule expected by June 2011


Source: SOCMA
Related Topics: Resource Conservation and Recovery Act (RCRA) RCRA Haz waste US Environmental Protection Agency

On September 10, the Sierra Club and EPA filed a settlement agreement with the DC Circuit Court of Appeals  regarding the Definition of Solid Waste (DSW) rule.

Specifically, EPA has agreed to issue a notice of proposed rulemaking on or before June 30, 2011 and has agreed to take final action on the proposed rulemaking on or before December 31, 2012.  In return, Sierra Club has agreed to withdraw its pending administrative petition for reconsideration before EPA and to dismiss its case if EPA issues revised DSW rules as scheduled. 

In the meantime, Sierra Club has requested that the court sever Sierra Club's substantive challenge to the rulemaking and hold it in abeyance until EPA's final agency action (i.e. December 2012).  The American Petroleum Institute’s challenge to the rule continues. 

In this upcoming new rulemaking, EPA has agreed to seek comments on, among other issues:

  • The definition of "contained"
  • The need for prior notification by owner/operators intending to utilize exemption
  • Legitimacy criteria; and the
  • Transfer-based exclusion 

These are the primary issues that EPA had suggested that it might reopen, and that it sought comment on, in advance of the DSW public hearing in June 2009.

Significantly, it should be noted that the DSW rule as finalized remains in effect in the handful of states that, through different procedural grounds, have adopted it.  Nothing in these latest developments immediately alters this.

While the settlement agreement does not reference Environmental Justice, it is expected that EPA will get its EJ analysis peer reviewed and released to the public later this fall.  The agency will then use it to develop the proposed and final rules.

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