Nine trade associations, including the American Chemistry Council, the American Petroleum Institute, and the American Forest & Paper Association, have filed a Petition for Review challenging the EPA’s Hazardous Waste Generator Improvements Rule.  The rule was developed by the Obama Administration and was not finalized until after the election, on November 28, 2016.  It is not scheduled to become effective anywhere in the country until May 30, 2017, at the earliest.

The primary purpose of the rule was to reorganize existing regulations applicable to hazardous waste generators to make them more user-friendly.  The rule also clarifies ambiguities in the existing regulations.  It will, however, have significant impacts on some hazardous waste generators.  For more information on substance of the Hazardous Waste Generator Improvements Rule, see our earlier post here.

The Petition for Review does not state which portions of the rule the associations seek to eliminate, nor does it articulate the substantive basis for their challenge. The petitioners did, however, submit comments on the proposed rule, which shed light on which requirements they find most concerning and the arguments they are likely to make before the Court.  In those comments, they listed as the most objectionable part of the rule EPA’s position that any violation of a condition for exemption subjects the generator to all of the applicable rules for non-exempt facilities.  As a result, a generator that runs afoul of a condition for exemption could as a result be subject to penalties for not complying with dozens of requirements that apply to the next higher level of generator, or even those that apply only to treatment, storage and disposal facilities.

The petitioners are also likely to focus their challenge on the portion of the rule that for the first time formally incorporates the requirement that hazardous waste determinations be made at the point of generation, before any dilution, mixing or other alteration of the waste occurs.

We will be following this petition and providing updates on Environmental Law Next as the challenge progresses.