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Polsinelli - Environmental and Natural Resources
         
 

August 2013

 

Solvent Wipes Regulation: Good News, Bad News

 
 
             
 
 

Environmental and Natural Resources Attorneys:

 

Lucas J. Narducci

Practice Area Chair

 

Tiffany J. Andersen
John D. Burnside
Marissa L. Curran
William J. Curtis
Barton D. Day
Christopher E. Erker
Michael C. Ford
Troy B. Froderman
Maribeth M. Klein
Mitchell J. Klein
Margaret B. LaBianca
Anna "Anya" P.B. Mallett
Anthony W. Merrill
John D. Petersen
Frances R. Sjoberg
Megan H. Tracy
Adam R. Troutwine
Andy Wright
Scott A Young

 

Learn more about our Environmental and Natural Resources practice, or to contact one of our Environmental attorneys, click here.

 
 

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Acting on a decade-old proposed rule, EPA has issued a new final rule concerning the RCRA regulation of solvent wipes. The final rule was published at 78 Fed. Reg. 46448 (July 31, 2013).

The final rule creates two new "conditional exclusions":

  1. A conditional exclusion from the definition of solid waste for reusable solvent wipes that are laundered for re-use. Under this exclusion, reusable solvent wipes managed in compliance with various handling, labeling and recordkeeping requirements will not be considered discarded material and thus would not be considered solid waste.

  2. A conditional exclusion from the definition of hazardous waste for solvent wipes that are disposed of. Under this exclusion, solvent wipes managed in compliance with various handling, labeling and recordkeeping requirements would not be considered hazardous waste and could be disposed of in a municipal solid waste landfill or combustion facility.

An outline of these "conditional exclusions" can be found here.

Impact in Arizona

Because Arizona is an authorized state and the new Federal rule amends the base RCRA program, the new Federal regulations will only apply directly on Indian lands for which EPA Region 9 implements the RCRA program.

EPA views the new conditional exclusion for disposable solvent wipes as an amendment making its base RCRA regulations less stringent. States are not required to adopt "less-stringent" Federal rules, though ADEQ typically does. In fact, ADEQ has generally exercised its discretion to allow compliance with new, less-stringent Federal requirements even before they are formally incorporated in the State regulations. Accordingly, the new conditional exclusion for disposable solvent wipes could become available to the regulated community in Arizona as early as January 31, 2014, the date the new Federal regulations are scheduled to take effect.

Unfortunately, the "conditional exclusion" for reusable solvent wipes is a more stringent requirement, because ADEQ has historically taken the position that reusable solvent wipes being laundered for re-use are not "discarded material" and thus are not solid or hazardous waste to begin with. By providing only a "conditional" exclusion for such wipes, EPA has asserted RCRA jurisdiction over these admittedly non-discarded materials and has subjected them to new handling, labeling, and recordkeeping requirements. Although these Federal requirements will not apply directly, EPA will require ADEQ to amend the State regulations to include them, at which point reusable solvent wipes that have never been subject to RCRA regulation in Arizona will become subject to the new requirements.

Related Questions and Issues

In adopting its "conditional exclusions," EPA appears to have expanded the range of materials subject to its RCRA jurisdiction in at least two respects. First, as already indicated, EPA has announced that it can regulate solvent wipes being laundered for re-use as "discarded material" (i.e., as solid and potentially hazardous waste); as a result, the requirements imposed as "conditions" for "exclusion" will apply with respect to many solvent-containing wipes that have never previously been considered solid waste. In addition, EPA appears to suggest that it will apply the "contained-in" principle more broadly than it has in the past, in which case more solvent-containing wipes would be considered "hazardous waste" than has historically been the case. As a result, there may now be uncertainties with respect to some previously-resolved waste determination issues, and the requirements imposed as "conditions" for "exclusion" may apply to solvent-containing wipes that have never previously been considered hazardous waste.

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