As reported by the U.S.-based Waste Business Journal (www.wastebusinessjournal.com), EPA's recent rule defining materials as either solid waste or fuel, which determines which pollution control rules apply to facilities that use them, is being challenged by both industry and environmentalists.
The Resource Conservation & Recovery Act (RCRA) waste definition rule is part of a broad package of highly criticized EPA rules including a boiler maximum achievable control technology (MACT) air toxics rule, an emissions rule for commercial and industrial solid waste incinerators (CISWI) and a sewage sludge incinerator rule. Industry, environmentalists, localities and others have filed multiple suits over each of the rules in the package.
The Portland Cement Association (PCA), which already has a suit pending over the CISWI rule, is expected to file a lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit challenging the RCRA waste definition rule.
In a June 16, 2011 petition with EPA seeking reconsideration of the RCRA waste definition rule, PCA reiterates its concerns that the regulation could subject some of its members that burn tires to both the cement MACT and the CISWI rule.
EPA defined whole tires that come from landfills as waste unless they are fully processed, while whole tires that come through recycling programs will be considered fuel without the need for shredding.
PCA argues the definition in the final rule for facilities that burn tires "imposes barriers" to recycling used tires "in a manner that is environmentally counterproductive and legally unnecessary."
According to PCA, kilns that use old tires and other solid wastes as fuel "are not 'incinerating' these materials ... [rather] these kilns are manufacturing facilities."
PCA also claims the solid waste definition rule is "even more stringent than EPA's [RCRA] subtitle C regulations for hazardous materials."
In a related matter, Earthjustice and other environmentalists on June 16, 2011 filed suit challenging the RCRA waste definition in the DC Circuit over "loopholes" the groups say allow solid waste to be burned as fuel and subject to the boiler MACT rather than the more stringent CISWI.
Environmentalists worry that the rule will prompt more small facilities to burn for energy broad categories of industrial waste -- including whole tires, scrap plastics, spent solvents and chemicals, industrial sludge, asphalt and chemically treated wood waste.