Ohio EPA Releases Draft Beneficial Use Rules...Again

Over the last decade, Ohio EPA has attempted to promulgate beneficial reuse rules a number of times. Each time the rules have been released for public comment the proposals have been met with significant criticism and the proposals never moved forward.

The crux of the issue is that Ohio lacks a defined regulatory program for recycling or reuse of certain industrial byproducts such as: spent non-toxic sand, dredgings, fly ash, bottom ash, slag, etc.  Right now any person who wants to recycle or reuse these materials can either move forward and risk Ohio EPA enforcement or seek an adhoc regulatory approval from Ohio EPA.

In a prior post from 2012, I discussed the history behind the beneficial use rules.  This is a summary from my prior post:

From 1994 until the early 2000's, Ohio EPA regulated these materials under Policy 400.007 "Beneficial Use of Non-Toxic Bottom Ash, Fly Ash and Spent Foundry Sand, and Other Exempt Waste." The policy was revoked after legal challenge was raised to EPA's authority to regulate through policy. Since revocation of Policy 400.007, Ohio EPA has not had clear guidelines for reuse of these materials.

Revocation of the policy left a regulatory vacuum. Some industry representatives take the position that the industrial materials are unregulated because Ohio EPA has not established rules. Ohio EPA takes the legal position that this material is regulated as a waste under R.C. 6111 [or as a solid waste under R.C. 3734]. Ohio EPA asserts that companies need authorizations from the Division of Surface Water [or Division of Materials and Waste Management] in order to be deemed protective of water resources.

Currently, the Agency reviews beneficial use proposals either under its current Integrated Alternative Waste Management Program (IAWMP) or Land Application Management Program (LAMP)(click here for information on both programs).  Both amount to basically permits.  However, neither program has defined standards for sampling of material prior to reuse nor are there specific regulatory standards for approving uses.  More importantly, each proposed use requires its own separate IAWMP or LAMP approval.

Split Among Industries

One of the biggest challenges Ohio EPA has faced in promulgating beneficial use rules has been a split within industry groups as to the perceived need for rules.  Some industries, such as the Steel Industry, has taken the position that they do not need a regulatory approval from Ohio EPA for beneficial reuse projects involving byproducts such as slag.  These industries have strongly opposed rules for these materials.

Other industries, such as foundries, have been very supportive of rules in order to provide regulatory certainty.  These industries believe the reuse/recycle market will grow substantially if the threat of Ohio EPA enforcement is removed through rules and permits that approve uses.

Ohio EPA's latest rule package attempts to address this split within industry by specifying the rules would apply to only specific industrial byproducts and materials:  foundry sand, water treatment residuals, waste uses as a fuel, and dredged material (i.e. sediment).

Proposal Avoids the Issue of Standards

One of the biggest issues with developing a beneficial reuse program in Ohio has been the standards imposed for approving projects.  Ohio EPA has traditionally been much more conservative than industry in identifying standards for approvals.  Industry has been harshly critical of Ohio EPA's proposed standards as overly conservative leading to little use of the program. This debate has delayed the rules for a number of years.

In an attempt to avoid this controversy, Ohio EPA's latest proposal does not identify a specific standard that will be used in reviewing projects.  Rather, the proposal simply references various options the Agency could use to evaluate proposals, including:

Public Comment Period Open on Latest Proposal

On May 14th, Ohio EPA released its latest proposed draft rules for public comment.  The public comment period is open until June 22nd.  

A complete listing of the draft rules and the business impact analysis is provided on Ohio EPA's webpage (click here).  On June 10, 2015, Ohio EPA conducted an Early Stakeholder Outreach in which it made a formal presentation regarding the rules (click here for access to Ohio EPA's powerpoint presentation).  The presentation provided a simple comparison to Ohio EPA's previous proposed rule package with very little discussion of the substantive elements of the rules.

Draft Rules- An Approval Process with Little Regulatory Certainty

It appears the Agency's latest attempt at rules main purpose is to set up a defined mechanism for regulatory approvals for recycling/reuse:

  1. Pre-Approved Uses- Certain uses that are allowed so long as they meet specifications and requirements set forth in rule.  There are very few pre-approved uses in the proposal.  These include: incorporation into construction materials such as concrete or use as a fuel.
  2. General Permits-  The next step would be for Ohio EPA to release general permits that would cover large categories of reuse.  [Two example beneficial reuse general permits are still on Ohio EPA's webpage- specific uses of foundry sand and alum sludge in topsoil]
  3. Individual Permits-  Any proposal that doesn't fall within either a pre-approved use or general permit would need an individual permit.  To obtain an individual permit the permittee would need to supply additional sampling and technical justification for its proposal.

While the regulatory approval process may be defined, the rules provide little certainty with regard to the more challenging issues such as:

  • How much sampling is requires to demonstrate the levels of contamination in the material;
  • How much sampling will be required once the project is completed;
  • What standards will be used to approve the proposed use (RSLs, VAP, etc.);
  • What conditions and/or limitations will be incorporated into general permits or individual permits

Ohio EPA asserts these main issues are left vague to provide regulatory flexibility.  However, the proposal sacrifices regulatory certainty for flexibility.  The proposal is simply delaying the bigger fights until after the rules are in place.

Ohio EPA Attempts Second Effort to Develop Beneficial Use Rules

In June 2012, Ohio EPA issued an Early Stakeholder Outreach for Beneficial Use of Industrial Byproducts. This is the Agency's second attempt at developing a comprehensive regulatory scheme for reuse of industrial materials such as fly ash, bottom ash, foundry sand, slag and other materials.

From 1994 until the early 2000's, Ohio EPA regulated these materials under Policy 400.007 "Beneficial Use of Non-Toxic Bottom Ash, Fly Ash and Spent Foundry Sand, and Other Exempt Waste."  The policy was revoked after legal challenge was raised to EPA's authority to regulate through policy.  Since revocation of Policy 400.007, Ohio EPA has not had clear guidelines for reuse of these materials.

Revocation of the policy left a regulatory vacuum. Some industry representatives take the position that the industrial materials are unregulated because Ohio EPA has not established rules.  Ohio EPA takes the legal position that this material is regulated as a waste under R.C. 6111.  Ohio EPA asserts that companies need authorizations from the Division of Surface Water in order to be deemed protective of water resources. 

Back in 2006, Ohio EPA first announced an effort to develop beneficial use rules. The Agency's 2006 effort provided highly controversial. After debating the issue for six years, the Agency is attempting a second run at rule development. Making matters worse, in recent years, Ohio EPA seems reluctant to issue authorizations for beneficial reuse without completion of its rulemaking effort.

Many Obstacles Remain to Ohio EPA's Development of Beneficial Reuse Rules

Policy 400.007 was very popular because of its flexibility and generous standards.  In essence, any material that was below thirty times (30 x) drinking water standards could be reused without obtaining a permit from Ohio EPA.  In addition, the agency required only limited sampling to verify material met applicable standards.

As part of the early stakeholder outreach, Ohio EPA released an three page concept paper which discussed the proposed structure of the rules.  While Ohio EPA would allow pre-approved uses in some cases, the majority of beneficial use projects will need coverage under either a general or individual permit from Ohio EPA.

What is missing from Ohio EPA's conceptual proposal is any discussion of proposed standards or discussion of the potential scope of sampling that would be required.  Back in 2006, the Agency stated it felt the 30 times drinking water standard was not protective.  In subsequent draft proposals, Ohio EPA  proposed standards orders of magnitude lower than the 30 x drinking water standards under Policy 400.07.  The Agency also proposed more extensive sampling.

As demonstrated by the 2006 proposal, the three biggest hurdles the Agency faces to development of a successful beneficial rule are:

  • Development of reasonable standards for "acceptable" levels of contamination in the material proposed for reuse:
  • Pragmatic sampling requirements (i.e. number of samples and frequency of sampling)
  • Overcoming industry objections that the rules expand Ohio EPA's regulatory authority beyond current requirements.

Historically, Ohio EPA has been unable to force through unpopular rules that weren't mandated by U.S. EPA.  There is no such U.S. EPA mandate in play with regard to beneficial reuse.  Unless Ohio EPA successfully engages with industry, it will likely be revisiting the issue again in another six years.