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Hazardous Wastes Bush Administration Opens the Door to Midnight Dumping and a New Generation of Superfund Sites By Proposing to Allow 3 Billion Pounds of Hazardous Waste to Escape Federal Protections On October 28, 2003, the Bush administration proposed a rule to change the definition of solid waste under the Resource Conservation and Recovery Act (RCRA). If the rule were adopted, an estimated three billion pounds of hazardous waste annually would no longer be regulated as waste if the material is reused or reclaimed within the same industrial category. By allowing large amounts of hazardous waste to escape the regulatory safeguards now in place, the proposal would: create economic incentives for "midnight dumping" of hazardous waste; spawn a new generation of waste sites, and; undermine Superfund's principle of polluter liability, leaving taxpayers with the cleanup bill. Extensive Safeguards Protect the Public and the Environment from Hazardous Wastes The Resource Conservation and Recovery Act has established a comprehensive program for managing hazardous waste from generation to ultimate disposal or reclamation. A manifest system tracks the movement of waste. Rules set procedures for handling and storing waste. Recordkeeping, employee training, and accident prevention plans are required. Facilities that treat, store and dispose of waste must obtain state or federal permits, and they must provide financial assurance so as not to saddle taxpayers with the burden if they close or have accidents. The Bush Administration Proposal Under the Bush administration proposal, generators would make a one-time declaration to the EPA describing the types of materials excluded from RCRA requirements. Then the generator could have the material transported to another facility within the same broad industrial category for recycling. (A second alternative under consideration would allow the generator to send the material for recycling to any recycling facility, regardless of its industrial category.) None of the RCRA safeguards described above would apply. There would be no tracking or recordkeeping system to ensure the material reaches the recycler, no permit required of the recycler, no employee training, no accident prevention, and no financial assurance requirement to ensure proper closure and cleanup of the recycling facility. According to the Federal Register notice, "Today's proposal is de-regulatory in nature, in that certain recyclable materials that have heretofore been subject to hazardous waste regulations would no longer be regulated under the hazardous waste regulatory system." (68 Federal Register 61560) The Pretext for the Proposed Rule The administration maintains that this proposed rule responds to a US Court of Appeals for the District of Columbia Circuit decision, Association of Battery Recyclers v. EPA 208 F.3d 1047 (2000). The Court held that materials destined for beneficial use or recycling in a continuous industrial process cannot be regulated as waste. These cases involved mining waste placed on the ground and then reused by the same company - very different circumstances than the Bush administration proposal. The EPA responded to the court ruling by withdrawing the offending provisions in March, 2002, and is under no obligation to take further action. The Court's key phrase is "in a continuous industrial process." Based on this phrase, the administration's proposed rule would enable one facility to ship its waste across the country to another facility in the same general industry for recycling. It could be stored for months before it is recycled. That is a completely unreasonable interpretation of "a continuous industrial process." If the Bush administration wanted to promote responsible recycling of hazardous materials, it could propose to allow on-site recycling without abandoning the safeguards of federal hazardous waste law. The Proposed Rule's Potential Environmental and Economic Effects Recycling hazardous waste rather than disposing of it is a laudable goal. The EPA argues that this proposal's goal is to encourage recycling rather than disposal. However, it is really a proposal to encourage unregulated recycling of toxic materials rather than regulated recycling. Dumping waste is cheaper than any form of responsible management. Why should a company spend $500 per ton to send waste elsewhere for recycling when it could spend $400 to have it dumped? The recordkeeping requirements currently in place provide protections against that, but this proposal would eliminate those safeguards. In practice, the process of recycling hazardous waste has created significant environmental problems. According to the proposal, "…EPA found that recycling operations have accounted for a number of notorious damage incidents. For example, materials destined for recycling were involved in one-third of the first 60 filings under RCRA's imminent and substantial endangerment authority, and 20 of the first sites listed under CERCLA*." (A list of some of these sites, together with links to EPA's Superfund database, which provides brief descriptions, is attached.) Despite this information, which was originally published in the Federal Register on April 4, 1983, the EPA "…has not, however, compiled definitive data on damage cases associated with more recent recycling operations." (68 Federal Register 61562) Although the Agency acknowledges that some three billion pounds annually of what is now considered hazardous waste would no longer be subject to hazardous waste regulation under this proposal, it did not analyze the potential for public health and environmental consequences. "As part of today's proposal, EPA has not evaluated any potential for changes resulting in either higher or lower releases to the environment of hazardous constituents from different handling methods for affected secondary materials." (68 Federal Register 61592) The Agency has also failed to consider the financial impact on taxpayers who will have to pay the bill for closure of failed or bankrupt recyclers. Eliminating the training and permit requirements makes mismanagement and spills more likely. At this same time, you are eliminating the financial assurance mechanism so communities will be left with the next generation of Superfund sites. This proposal could undermine cost-recovery for cleaning up Superfund sites, thus imposing greater financial burdens on taxpayers. Under current law, if a generator sends a waste to a recycling facility that subsequently becomes a Superfund site, the government can seek to recover cleanup costs from both the recycling facility and the waste generator. But under this rule, the generator may be able to escape liability because the hazardous secondary material being recycled would be considered a commodity instead of a waste, leaving taxpayers on the hook for potentially millions of dollars in cleanup costs. In contrast to the lack of environmental analysis, the administration compiled detailed information regarding cost-savings to businesses whose wastes would no longer be subject to hazardous waste rules. Industries would save about $178 million annually, according to the proposal's analysis, by avoiding costs associated with testing and tracking wastes, training employees to handle spills, providing financial assurance and insurance, and in general, meeting the requirements of the current hazardous waste regulatory system. Who Would Benefit from the Rule Change? Industries that generate 70% of the waste that this proposal would deregulate include inorganic chemicals; plastic materials and resins; pharmaceutical preparations; cyclic crudes and intermediates; industrial organic chemicals; secondary smelting of nonferrous metals; plating and polishing; and printed circuit boards. The proposed rule identifies several industry "stakeholder" groups that provided comments on the rulemaking: the American Chemistry Council, the Synthetic Organic Chemical Manufacturers Association, American Petroleum Institute, Chevron-Texaco and the International Precious Metals Institute. Conclusion By increasing the likelihood that hazardous waste would be mismanaged, this proposed rule puts our land and water at greater risk. Taxpayers, rather than polluters, may be required to pay to clean up environmental problems this rule could create. Sierra Club urges the Bush administration to stop this proposed rulemaking and instead define "continuous industrial process" narrowly to include only materials recycled on-site, within an industrial facility. Recyclers that Became Superfund Sites Indiana - Seymour Indiana - Midco I Indiana - Ninth Avenue Dump Massachusetts - Silresim New Hampshire - Ottati & Goss Ohio - Laskin Ohio - Chem Dyne Ohio - E.H. Schilling Landfill South Carolina - SCRDI Bluff Road Source: (48 Federal Register 14773) Recycling/Reclamation Facilities that Became Superfund Sites Broward County, Florida - Florida Petroleum Reprocessors Broward County, Florida - Petroleum Products Corporation Orange County, Florida - City Industries, Inc. South Hope, Maine - Union Chemical Co., Inc. North Dartmouth, Massachusetts - Re-Solve, Inc. Kent County, Michigan - H. Brown Co., Inc. Muskegon County, Michigan - Thermo-Chem, Inc. Bergen County, New Jersey - Universal Oil Products Middlesex County, New Jersey - Chemsol, Inc. Monmouth County, New Jersey - Zschiegner Refining Camden County, New Jersey - Swope Oil and Chemical Co Chenango County, New York - Solvent Savers Portland, Oregon - Harbor Oil, Inc. Mifflin County, Pennsylvania - Jacks Creek/Sitkin Smelting and Refining, Inc. Berks County, Pennsylvania - Brown's Battery Breaking Chester County, Pennsylvania - Malvern TCE Taylor County, Wisconsin - Scrap Processing Co., Inc. Souce: U.S. EPA, National Prioity List Up to Top HOME | Email Signup | About Us | Contact Us | Terms of Use | © 2008 Sierra Club