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June 10, 2016

EPA Extends Comment Period On RCRA Corrosive Dust Petition For Six Months And Other Recent RCRA Developments

Bergeson & Campbell, P.C.

EPA Extends Comment Period On RCRA Corrosive Dust Petition For Six Months: The U.S. Environmental Protection Agency (EPA) on June 10, 2016, extended until December 7, 2016, the comment period on its April 11, 2016 (81 Fed. Reg. 21295) tentative denial of a petition by Public Employees for Environmental Responsibility (PEER) to amend regulations under 40 C.F.R. § 261.22 regarding the definition of corrosive hazardous wastes under the Resource Conservation and Recovery Act (RCRA). 81 Fed. Reg. 37565. The petition sought a revision of the pH regulatory value for defining waste as corrosive from pH 12.5 to pH 11.5 and the addition of nonaqueous waste to the RCRA corrosivity definition. PEER asserted that the pH 11.5 value is widely used as a threshold for identifying corrosive materials and that corrosive properties of inhaled dust caused injury to first responders and others at the World Trade Center (WTC) disaster of September 11, 2001. EPA concluded that use of the pH 11.5 value in other regulatory frameworks is either optional or a presumption that may be rebutted by other data and that such a use is inconsistent with the way pH is used in the RCRA corrosivity regulation. EPA also stated in the tentative denial that the dust to which 9/11 first responders and others were exposed was a complex mixture from which no single property of the dust can be reliably identified as the cause of the adverse health effects and that the injuries that were suffered by those exposed to the WTC dust did not appear to include corrosive injuries. In addition, EPA concluded that the petition failed to demonstrate that waste management activities resulted in the exposures of concern.

Environmental Groups Sue To Force Oil And Gas RCRA Regulations: On May 4, 2016, several environmental groups sued EPA to force it to promulgate regulations for oil and gas wastes under the RCRA. The Environmental Integrity Project, the Natural Resources Defense Council, Earthworks, the Center for Health, Environment, and Justice, the West Virginia Citizen Action Group, the Responsible Drilling Alliance, and the San Juan Citizens Alliance filed the suit in the U.S. District Court for the District of Columbia. They claim that EPA has missed nine successive statutory deadlines requiring it to assess whether to craft the regulations for oil and gas wastes under RCRA Subtitle D. The groups contend that RCRA requires EPA to review its regulations for the oil and gas wastes every three years, but EPA has not done so since 1988. In the 1988 regulatory determination EPA concluded that the oil and gas exploration and production (E&P) wastes should be excluded from RCRA hazardous waste regulation. EPA stated, however, that Subtitle D provisions “do not now fully address oil and gas waste concerns.” 53 Fed. Reg. 25456 (July 6, 1988). EPA also determined that it possessed the “authority under Subtitle D to tailor requirements appropriate for the disposal of oil and gas waste.” To rectify these issues, EPA proposed to implement a three-pronged approach toward filling the gaps in existing state and federal programs that regulate the management of wastes from the crude oil and natural gas industries. This approach included (1) working with the states to improve the strength and uniformity of their programs; (2) working with Congress to secure additional statutory authority; and (3) improving federal authorities under the Clean Water Act (CWA), the Safe Drinking Water Act (SDWA), and RCRA Subtitle D for oil and gas wastes. EPA further detailed a plan for how it would revise and tailor RCRA Subtitle D regulations at 40 C.F.R. Part 257 and provide examples of gaps it would address. EPA has not done so, and its failure to take no action in the 28 years since the regulatory determination sparked the suit filed by the environmental groups.