BE\lERUX:;E

&DIAlvK1NDi:

Karl S. Bourdeau

1350 I Street. NY'!,

SuÌIe 7()O

vVoshington, D.C 2OGì05-3311

Direct: (202) 789--6019

fox: (202) 789.6190

kbourdeou:§bdloyv,corn

June 12, 2007

Mary-Kay Lynch

Associate General Counsel

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, N. W.

Room 7313 ARN: MC 2366A

Washington, DC 20460

Re: RCR/\ Industrial Wiper Rule

Dear Mary-Kay:

I wanted to thank you, John Michaud, and Matt Hale f()r taking the time recently to

discuss with me and Peter Mayberry certain issues posed by the solvent-contaminated industrial

wiper rule proposed by the U.S. Environmental Protection Agency ("EPA" or "the Agency")

under the Resource Conservation and Recovery Act ("RCRA"). The purpose of this letter is to

follow up briefly on our discussion of the legal basis for the Agency's proposed exclusion from

the defìnition of solid waste under RCRA for solvent.contaminated industrial wipers that are to

be laundered.

When we spoke, EPA took the position that despite the reference to 40 C.F.R.

§ 260.31(c) in the portion of the proposed rule's prearnble setting forth the basis for the

Agency's proposed solid waste exclusion (see 68 Fed. Reg. 65593 (Nov. 20, 2003)), EPA never

intended to rely on the exclusion in 40 C.F.R. § 260.3l(c) as the basis tor its proposed exclusion

for laundered wipes. Instead, as I understand it, the Agency believes that it has considerable

discretion to invoke various tàctors in deciding whether to exclude "partially reclaimed" spent

material from the RCRi\ definition of solid \vaste and in this particular case chose to rely on

three "ad hoc" tàctors set forth in the above-referenced portion of the rulemaking preamble.

Furthermore, \vbile noting there that the Agency might not reach a similar conclusion for a

rnaterial that meets just one or two of those three factors, EPA appears to be of the view that the

rulemaking record demonstrates that all three such factors are met here, a conclusion that EP A

has described as "important" to the sustainabHity oftbe exclusion.

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BEVERfDGE & DIAlv1(1NDrc

Marv-Kav Lvnch " ..

June l2, 2007

Page 2

INDA/SMART addressed these Agency positions (among other issues) in a set of

supplemental comments it fied with EP A on November J 9, 2004 ("lNDA/SMART November

2004 Comments"). A copy of those comments, which are part of the administrative record for

this rulemaking, are enclosed with this letter Ú)r your convenience and review. INDA/StvlART

respectfully request that the Agency give these comments dose and careful consideration as it

moves fonvard to tìnalize this rulemaking.

Among other things, the referenced rNDA/SMARf comments reflect the following:

(i) EPA has previously stated that the criteria in 40 CF.R. § 260.3 J (c) are in IÌict

"the criteria EP A considers when evaluating whether a partially reclaimed solid

waste is commodity.lîke . . . and thus is appropriate to exclude from RCRA

Subtitle C jurisdiction. . .. EP A believes that these criteria are relevant in

determining whether a general exclusion ¡under 40 C.F.R. § 261.4(a), the

provision in which the proposed laundered wipe exclusion was placed) is

justified. See 40 CrR. § 260.31 (c) and 261.31(c). These criteria are La listing of

each and every criterion in 40 C.F.R. § 260.3 J (c))." 62 Fed. Reg. 26012

(May 12, 1997) (emphasis supplied). For EPA to take the position in the wiper

rule that the duly promulgated test in 40 C.F.R. § 260.31(c) (as well as the

Agency's longstanding uniform interpretation of the criteria that make up that

test) is no longer applicable when wipes that the Agency attests arc "partially

reclaimed" are involved would appear to be without a lmvIùl basis, especially

given the fact that EP A has unifÖm1lY applied that test tòr other partially

reclaimed materials being sent for further reclamation (see INDA/SMART

November 2004 Comments, at 6.7).

(ii) Even ifEP A chose not to apply strictly the 40 C.F.R. § 260.31 (c) test in this one

paiticular case involving partially reclaimed materials, all the criteria set forth in

40 C.F.R. § 260.31(c) are, at a minimum, clearly relevant by the Agency's own

admission to a consideration of whether a partially reclaimed secondary material

being sent for further reclamation is more "commodity. like" (i.e., not a solid

\vaste) or "waste-like," and should therefore be considered in any such exclusion

analysis in the wiper rule. See, e.g., 62 Fed. Reg. 26012 (May 12, 1997) (cited

above); 48 Fed. Reg. 14489 (Aprll4, J 983) and 50 Fed. Reg. 655 (Jan. 4, 1985)

(in establishing and justifying 40 CF.R. § 260.31(c), EPA noted that although

reclamation processes are generally not complete until the end product of the

process is recovered, such that "waste materials do not become products if they

are merely processed minimally (in:! operations that leave (the) materials unfit for

use without further processing," "there may be some exceptions where the initial

reclamation is so substantial that the resulting material is more commodity-like

than yvaste.like even though no end product has been recovered." (emphasis

supplied)).
BEVERIDGE & fJIAl./10NDr'(:

Mary-Kay Lynch

June 12, 2007

Page :)

Indeed. because the relevance of these criteria to EPA,' s proposed solid waste

exclusion, and the failure of EPA in either the rulemaking record or the conditions

of the proposed exclusion to demonstrate that they have been substantially met,

have been placed directly before the Agency in fNDA/SMART's rulemaking

comments, EP A is bound (in the absence of a reasoned, articulated determination

that they are not relevant) to consider aU those criteria. Since at least two of the

three criteria apparently employed by EPA are strikingly similar to two of the

criteria set forth in 40 C.F.R. § 260.31 (c), it is worth noting as wen that EPA has

not set forth a reasoned explanation for not applying the remaining criteria in this

case.

(Üi) Perhaps most importantly, however, the ruIemaking record amply demonstrates

that none of the three "ad hoc" fàctors EPA is arguing it has employed

independent of the criteria in 40 C.F.R. § 260.31 (c) have been met (see

IND¡VSMART November 2004 Comments, at 1-2,8-9, and 13-15; see also

INDA!SMART's April 9, 2004 rulemaking comments at 14-36). That lack of

record support is tellng, as EP A stated that it was proposing the exclusion

because all three had been meL

INDA!SMARJd appreciate EPA's thoughtful consideration of the points set forth in their

other ru1emaking comments and this letter, which INDA!SMART request be made a part of the

administrative record for this rulemaking.

Sincerely vours, ~ ,-"' ;- 6£ J /) t,/'

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Karl S. Bourdeau

KSB:rlm

cc: John Míchaud,EP A OHice of the General Counsel (\vith attachment)

Matt Hale ErA OfTice of Solid Waste (with attachment)