There is a lot going on in the world of waste regulation, so for a quick update, I checked in with my colleague, 

Barton Day . . .

Mike: So, Barton, what is going on in the regulatory world at the state and federal levels that generators of solid and hazardous waste should know about?

Barton: There certainly has been a lot going on. On the Federal level, EPA published an October 30, 2008 final rule revising the RCRA "definition of solid waste" rules that define when hazardous secondary materials being recycled are subject to regulation as hazardous waste. Since then it published a December 1, 2008 final rule amending the RCRA rules for waste generated at academic laboratories, a December 2, 2008 proposal to add certain pharmaceuticals to the Universal Waste rule, a December 19, 2008 final rule expanding the RCRA "comparable fuels" exclusion, and a January 2, 2009 Advanced Notice of Proposed Rulemaking concerning the "definition of solid waste" as it applies to non-hazardous waste. ADEQ also got into the act, releasing a proposed rule overhauling Arizona’s solid waste regulations for publication in the February 6, 2009 edition of the Arizona Administrative Register. With the changes in Administration at the Federal and State levels, some of these rulemaking actions are likely to get another look; President Obama has already requested a review of rules pending at the time he took office, and it would not be surprising to see ADEQ’s proposed rule pulled back by the Brewer Administration or held up by bills already under consideration in the State Legislature.

Mike: Which of these has the greatest implications in terms of broad applicability to Arizona waste generators?

Barton: Of all these rulemaking actions, I think the first – EPA’s new RCRA Definition of Solid Waste Rule – may be of broadest interest to generators. While the rule itself is supposed to provide regulatory relief, it is important to recognize that it reflects extraordinary skepticism about the merits of recycling and presumes a need for surprisingly comprehensive and intrusive regulation of recycling activities. As a result, the new recycling exclusions provided by the rule are so narrow and heavily burdened that they are unlikely to provide very substantial regulatory relief for most generators of hazardous secondary materials. More importantly, the rule interprets the pre-existing recycling rules – particularly the application of EPA’s "sham recycling" or "legitimacy" policy – in ways that could create significant new risks and compliance burdens for generators that recycle hazardous secondary materials under the traditional RCRA recycling exclusions. While there are serious questions about the legal basis and enforceability of EPA’s approach, I think the rule presents some real problems and warrants careful attention by anyone involved in the recycling of hazardous secondary materials.

Mike: Thank you, Barton. I assume you will be covering these issues in more detail at the upcoming Gatekeeper Regulatory Roundup?

Barton: Absolutely - February 17 at 3:20 in the afternoon. I hope to see many Journal readers there.

A few quick notes on developments in water regulation. On January 12, 2009, the Supreme Court of the United States declined to review the Carlota Copper Co. v. Friends of Pinto Creek case, in which the 9th Circuit invalidated Carlota’s NPDES permit. While this chapter of the long-running saga is now closed, the 9th Circuit’s decision raises a number of new potential hurdles for facilities that may wish to obtain an AZDPES permit for discharges to impaired waters, which EPA, ADEQ and prospective permittees will now have to deal with. Also, on the same day, the Supreme Court heard arguments in another important Clean Water Act case out of the 9th Circuit, Coeur Alaska, Inc. vs. South East Alaska Conservation Council, which deals with the interplay between NPDES and § 404 permitting, and has enormous implications for the mining industry, among others. Finally, ADEQ is reportedly working on an Arizona version of the Federal MSGP for stormwater discharges. A stakeholder process should be getting underway soon. Facilities subject to MSGP requirements and interested in Arizona’s permit should stay tuned.