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 The policy was revoked after legal challenge was raised to EPA’s authority to regulate through policy.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:
- U.S. EPA Regional Screening Levels
- Ohio EPA Voluntary Action Program Standards;
- Aquatic toxicity standards;
- Water quality criteria; and
- Sewage sludge program limits
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:
- 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.
- 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]
- 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.