In re. Petition To Repeal, Pursuant to RCRA, ) Docket No.
40 C.F.R.. § 261.4(b)(9), a) the Arsenical-Treated Wood )
and Wood Products Exemption from Hazardous Waste )
Beyond Pesticides/NCAMP has already, on more than one occasion, petitioned EPA to repeal the treated wood exemption, and in response in May, 2001, EPA committed to a review of the issue. However, no action has been forthcoming since that time, nor has Beyond Pesticides/NCAMP been informed of any progress in reviewing the issue. Therefore, petitioners now file a formal petition under RCRA for repeal of the exemption, expanding upon the previous petitions and requests.
The exclusion from RCRA hazardous waste regulation permits disposal of arsenical-treated wood as ordinary trash in unlined landfills despite the fact that the treated wood fails EPA's test for leaching of toxic material. This test, the Toxicity Characteristic Leaching Procedure or "TCLP," is intended to simulate conditions in a landfill. In the absence of the special exemption, failure of the TCLP test would dictate disposal of CCA?treated wood in the same manner as other hazardous waste: in lined landfills designed to prevent infiltration of water and release of contaminated leachate into the environment. See 40 CFR 261.24.
Twenty-two years ago, EPA promulgated a "temporary" exclusion from RCRA regulation for arsenically-treated wood, expected to last 3 to 6 months while awaiting the development of information in the then-ongoing proceeding on wood preservatives under Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The rule was promulgated in "interim final" form, without notice and comment and with a bare bones justification that relied primarily on a request from the regulated industry. The rule was procedurally and substantively infirm even as the temporary exemption it then claimed to be. EPA lacked authority to exempt a characteristic waste that was not adequately regulated by other government programs, and in any event there was no rational basis for the exemption. The rule was promulgated in violation of the Administrative Procedure Act's notice and comment requirements. Even assuming that the rule was valid for a short-term temporary exemption from RCRA, it certainly cannot legally support the permanent exemption from RCRA regulation it has become.
Additionally, while arsenically treated wood merited hazardous waste treatment in accordance with RCRA's statutory standards from the start, in the years since the "temporary" exemption was instituted, evidence has accumulated concerning the environmental hazards posed by improper disposal of treated wood, and the amount of arsenical-treated wood entering the marketplace, and ultimately the waste stream, has dramatically increased. EPA has now proposed phasing out some consumer uses of arsenically-treated wood. However, even with such a phase-out, large quantities of arsenically-treated wood will reach the end of their useful lives and enter the waste stream for decades to come. EPA should immediately repeal the treated wood exemption so that discarded arsenically-treated wood will be appropriately regulated as a hazardous waste under RCRA.
I. Beyond Pesticides/NCAMP's Previous Requests to Repeal the Treated Wood Exemption
Beyond Pesticides/NCAMP has been seeking repeal of the exemption from RCRA for treated wood since 1997. In 1997, Beyond Pesticides/NCAMP submitted a report to EPA entitled "Poison Poles: Their Toxic Trail and the Safer Alternatives." In addition to calling for removal of hazardous wood preservatives from the market, the report called for changes in the EPA regulations such that "wood preservatives and treated wood ... no longer be exempted from regulation as hazardous waste." Poison Poles, at 4, Ex. A. The report discussed the current methods of disposal and re-use of treated wood and their hazards. Id. at 23-24. Additional correspondence with EPA followed in which Beyond Pesticides/NCAMP sought cancellation and suspension of the registrations for the wood preservatives chromated copper arsenic (CCA), pentachlorophenol and creosote under the FIFRA.
On April 19, 2001 Beyond Pesticides/NCAMP wrote to Administrator Whitman again seeking cancellation and suspension of these pesticides, and in addition expressed concern over the disposal of treated wood in unlined landfills, noting that the Florida Department of Environmental Protection had recently met with EPA officials asking them to reconsider the regulation that exempts CCA-treated wood from hazardous waste designation. Ex. B. In response to that letter, on May 16, 2001, Acting Assistant Administrator Stephen L. Johnson responded on the Administrator's behalf:
The Agency is also evaluating the disposal of CCA-treated lumber in unlined landfills. Currently, the disposal of CCA-treated lumber is regulated by the Resource Conservation and Recovery Act (RCRA), which allows CCA-treated wood to be disposed of with ordinary municipal trash as long as it has been used in a manner consistent with its intended use. Staff from the Pesticide and Solid Waste programs are working to coordinate a comprehensive review of this important issue.
On December 21, 2001, Beyond Pesticides/NCAMP filed renewed petitions for the cancellation and suspension of the pesticide registrations for CCA and pentachlorophenol. The CCA petition (Ex. D) addressed the hazards associated with unregulated disposal of treated wood, citing studies showing that new CCA-treated wood routinely leaches enough arsenic and chromium to fail EPA's TCLP test, and that therefore "if a regulatory exemption were not in place, discarded CCA-treated wood would frequently require management as hazardous waste." Ex. D at 13. The petition sought the creation of "national standards for disposing of all used CCA-treated wood, including mandating that it be disposed of as a hazardous waste in lined landfills and banning the recycling, burning and mulching of used wood products containing CCA." Id. at 19.
Finally, on March 25, 2002, Beyond Pesticides/NCAMP, in comments on a proposed partial voluntary cancellation of CCA's registration, again sought repeal of the exemption from RCRA for treated wood. Ex. E.
II. History of the Treated Wood Exemption
On November 25, 1980, EPA issued an "Interim final amendment to rule and request for comments" in response to a petition by the American Wood Preservers Institute ("AWPI"). 45 Fed. Reg. 78530. AWPI had noted that some wood treated with arsenical based preservatives might exhibit the EPA toxicity characteristic which would subject it to treatment as a hazardous waste under EPA's regulations. AWPI requested a delay in the application to arsenical treated wood of the regulations implementing § 3001 RCRA, 42 U.S.C. § 6921, governing the identification and listing of hazardous wastes. AWPI argued that application of hazardous waste regulations to treated wood should await the outcome of the then-ongoing "Rebuttable Presumption Against Registration" (RPAR) review of arsenical wood preservatives under FIFRA by EPA's Office of Pesticide Programs. Id. In response, EPA stated that it "believe[d] that substantial differences in the statutory mandates of RCRA and FIFRA militate against deferring RCRA regulation until the completion of RPAR reviews." Id. However, EPA agreed that in that situation, the RPAR review "could provide meaningful information with respect to the risks presented by disposal of arsenical-treated wood and that it is appropriate for the Agency to defer temporarily the full impact of characterizing arsenical-treated wood as a hazardous waste until the pending RPAR has progressed further." Id. at 78531 (emphasis added.) EPA noted that analysis of the risks posed by ground-contact uses of arsenical-treated wood to be examined in the RPAR would be relevant to the risks of land burial of the wood. Id. EPA therefore determined "to defer, for an estimated three to six-month period" applying RCRA requirements to arsenical-treated wood. EPA made clear, however, that
The decision to await further progress of the RPAR review does not signify that discarded arsenical-treated wood and wood products will be excluded permanently from all Subtitle C requirements if the Agency's Office of Pesticide Programs determines that certain ground uses of arsenical wood preservatives do not present unreasonable risks. Such a determination under FIFRA does not necessarily mean that the pesticide is not hazardous; it may mean that the economic benefits of a pesticide are great enough that the risk should be tolerated. This conclusion - if it reached by the Agency's Office of Pesticide Programs - would not necessarily indicate that the disposal of arsenical-treated wood at the expiration of its useful life should not be subject to safeguards imposed under RCRA.
EPA promulgated the exclusion in interim final form, stating that "[t]he purpose of the temporary exclusion is to defer imposing the full [RCRA] Subtitle C requirements for only a few months to await further development of pertinent information." Id. The Agency justified its promulgation of the rule prior to notice and comment, pursuant to 5 U.S.C. § 553(b)(B), on the basis that "[s]ince it was public comment which prompted the Agency to promulgate this amendment, the policy underlying solicitation of comments prior to the effectiveness of regulations has been substantially satisfied," and "because delay in promulgating the temporary exclusion could cause significant harm to the regulated community." Id. EPA asserted that the rule was final for purposes of the 90-day petition deadline under Section 7006 of RCRA, but nevertheless solicited comments and asked a series of questions about disposal of arsenical treated wood. Id.
EPA concluded the
RPAR proceedings on the wood preservatives in 1984. 49 Fed. Reg. 28666
(July 13, 1984). EPA determined to maintain the registrations of the wood
preservatives with mitigation measures despite risks of cancer, birth
defects and other adverse effects, because of the purported high benefits
from their use and lack of economically viable alternatives. Despite EPA's
statement in the 1980 notice of the interim temporary exemption that differences
in the statutory mandates of FIFRA and RCRA prevented application of a
cost/benefit decision under FIFRA to treatment of wastes under RCRA, EPA
appears to have made a decision to continue the RCRA exemption in the
context of the RPAR proceeding. In response to a comment by the Secretary
of Agriculture objecting to EPA's proposal that wood wastes in excess
of 1,000 kilograms per site be disposed of in accordance with RCRA, EPA
stated that it had addressed this concern in the Consumer Information
Sheets to be required under FIFRA for treated wood, which provided for
disposal by ordinary trash collection or burial. Id. at 28688. See also,
55 Fed. Reg. 11798, 11839 (May 29, 1990)(stating that EPA decided in its
FIFRA review to allow disposal of treated wood by means of ordinary trash
collection, burial or incineration).
III. Factual background and evidence of harm.
Both arsenic and hexavalent chromium, two of the three primary ingredients in CCA-treated wood, are classified by EPA as known human carcinogens. Of the top 275 hazardous substances listed by the Agency for Toxic Substances and Disease Registry as being present at EPA Superfund sites in 1997 based on frequency, toxicity, and human exposure, arsenic and hexavalent chromium were ranked first and sixteenth respectively. Currently, 51 wood preservation sites are on the EPA Superfund National Priorities List because of contamination from CCA. Id. Scientific studies demonstrate that arsenic and chromium leach from treated wood into the environment, posing a threat to humans and other life forms. Because of the large quantities of arsenically-treated wood which have been and will be disposed of, the treated wood exemption from hazardous waste treatment results in a major public health and environmental threat.
According to American Wood Preserving Institute figures, 138 million pounds of CCA were used to treat approximately 5.4 billion board feet of lumber, timbers and other wood products in 1995. Since 1985, approximately 48 billion board feet of wood products have been treated with CCA. Researchers at the Forest Products Laboratory in Madison Wisconsin estimate that 2.5 million board feet of treated wood are entering the solid waste stream per year, and that levels will increase to 8 billion board feet per year by the year 2020. Id. This large increase is expected because the typical lifespan of this type of pressure-treated wood is 25-40 years, and most of it was produced in the late 1980's.
Figures available for the State of Florida show that discarded CCA will reach a peak of 32 million cubic feet by 2012 before beginning to taper off, even if the proposed phase-out of some consumer uses of CCA-treated wood is instituted. Of the 29,000 tons of CCA-treated wood that has been imported into Florida since 1975, less than 2 percent has been disposed of thus far. There is no reason to believe results elsewhere in the United States would differ significantly from these figures for Florida.
According to studies conducted by the Florida Center for Solid and Hazardous Waste Management (FCSHWM), results of standardized leaching tests show that new CCA-treated wood routinely leaches enough arsenic to fail EPA's TCLP test. The TCLP test is conducted using a simulated landfill acid and involves reducing the size of the tested material to less than 9.5 mm. Responding to the criticism that the TCLP test requirements are unrealistic when assessing various management scenarios, FCSHWM both conducted a number of alternative leaching tests and tested larger particle sizes. Nonetheless, in tests using the Synthetic Precipitation Leaching Procedure (SPLP), which simulates rainwater, both arsenic and chromium leached amounts similar to the one shown by the TCLP test. The highest arsenic level measured in any sample was 12.5 mg/L (TCLP), while the highest chromium level measured was 5.14 mg/L (SPLP). Given these results, if a regulatory exemption were not in place, discarded CCA-treated wood would frequently require management as hazardous waste.
IV. Legal Arguments
A. EPA Lacks Authority to Exempt Treated Wood from Subchapter C "Characteristic Waste" Regulation
EPA has established several exemptions from hazardous waste regulation at 40 C.F.R. ' 261.4(b). However, given EPA's mandatory duty to regulate wastes that are found hazardous, EPA's authority to establish such exemptions is very limited. The major exemptions were directed by Congress. EPA's original implementation of RCRA, which included the exemptions from hazardous waste designation for household wastes, agricultural wastes and mining overburden, stated that the exclusions were "based on expressed Congressional intent." 45 Fed. Reg. 33084, 33097 (May 19, 1980). The statute also provides for the exclusions of energy production wastes, 42 U.S.C. § 6921(b)(2)(A) and (B), and combustion wastes, mining wastes and cement kiln dust. 42 U.S.C. § 6921(b)(3)(A). The D.C. Circuit has upheld exclusions which were not specifically directed by Congress, but only where the exclusion was temporary and/or based on adequate regulation of the waste by other government programs. In Edison Electric Institute v. EPA, 2 F.3d at 451-53, the exclusion for petroleum contaminated wastes originating in underground storage tanks was upheld because it was only temporary, until EPA could work out an accommodation with regulation of those wastes under another subchapter of RCRA. The court stated, however, that NRDC's point that "the Agency may not exempt a hazardous waste from regulation under ... Subchapter [C] without express legislative authorization," "would have more force behind it had EPA purported permanently to exempt UST waste from Subchapter C regulation." 2 F.3d at 453. The D.C. Circuit has also upheld a conditional exemption with regard to military munitions, because the "waste might pose a hazard only under limited management scenarios, and other regulatory programs already address such scenarios." Military Toxics Project v. EPA, 146 F.3d 948, 958 (D.C. Cir. 1998). A permanent exclusion like that for treated wood, where the waste meets the toxicity characteristic and is not regulated by any other program, has never been approved.
In sum, RCRA's statutory scheme, which calls for automatic hazardous waste regulation of wastes found to exhibit the toxicity characteristic, leaves no room for EPA discretion to exempt such wastes, except possibly in the situation where the waste is adequately regulated under other government programs.
When EPA promulgated the military munitions rule, the Agency claimed that it had the authority to conditionally exempt a waste from RCRA hazardous waste regulation if regulatory controls were not necessary to protect human health and the environment, as for example, when other regulatory programs address potential problems. 62 Fed. Reg. 6622, 6636 (Feb. 12, 1997). Petitioners do not agree, if that is what the Federal Register notice implies, that EPA's authority to exempt wastes which would otherwise meet hazardous criteria extends beyond the circumstance present with regard to the military munitions rule, i.e., where other regulatory programs adequately address potential hazards. See Section I, supra. In any event, however, even measured by EPA's own stated standard for such exemptions, viewed most broadly, the treated wood exemption is arbitrary and capricious.
Nowhere in the interim final rule exempting treated wood does EPA analyze whether or not regulatory controls on treated wood are necessary to protect human health and the environment. In fact the only justifications given for the rule are the burden on the regulated community and the possibility that further progress in the RPAR on the wood preservatives would shed light on the need for regulation. Burden on the regulated community has nothing to do with protection of human health and the environment. And the RPAR was completed 18 years ago, and yet EPA never re-opened the interim RCRA rulemaking under appropriate notice and comment procedures to determine how the RPAR findings should affect the regulation of treated wood under RCRA.
Perhaps most important, all of the rationales for the exclusion of treated wood from RCRA regulation were predicated on the fact that the exclusion would only be in place for a few months, and thus cannot support a permanent exemption. As EPA stated,
[I]t is appropriate
for the Agency to defer temporarily the full impact of characterizing
arsenical-treated wood as a hazardous waste until the pending RPAR review
has progressed further.
The purpose of the temporary exclusion is to defer imposing the full Subtitle C requirements only for a few months to await further development of pertinent information. During this period, the most likely sources of hazard - entities such as sawmills - will be Subject to Subtitle C. Thus, the Agency believes that there will be sufficient protection of public health. Accordingly, good cause exists for adopting this regulation in interim final form (see 5 U.S.C. § 553(b)(B)).
45 Fed. Reg. 78530-31.
that certain ground uses of arsenical wood preservatives do not present unreasonable risks. . . . does not necessarily mean that the pesticide is not hazardous; it may mean that the economic benefits of a pesticide are great enough that the risk should be tolerated. This conclusion - if it reached by the Agency's Office of Pesticide Programs - would not necessarily indicate that the disposal of arsenical-treated wood at the expiration of its useful life should not be subject to safeguards imposed under RCRA.
45 Fed. Reg. at 78531. And in fact, the conclusion reached in the RPAR was not that arsenically treated wood was not hazardous, but that the risk should be tolerated because of the purported high benefits and lack of economically viable alternatives. Thus the "similar risks" posed by land disposal and ground contact use are in fact very significant risks, which though they might be tolerated under FIFRA's risk/benefit standard if in fact there are no viable alternatives, supply no basis for exclusion from RCRA.
Thus, EPA has never
presented any valid rationale for a permanent exclusion from RCRA regulation
for treated wood, much less subjected a proposed permanent exclusion to
legally required notice and comment procedures.
A regulation promulgated without proper notice and comment procedures has no "'force or effect of law' and therefor is void ab initio." United States v. Goodner Brothers, 966 F.2d 380, 384 (8th Cir. 1992), cert. denied, 506 U.S. 1049 (1993). See, Shell Oil Co. v. EPA, 950 F.2d 741, 752 (D.C. Cir. 1991)(RCRA rules which has been in effect for over a decade invalidated for violation of notice and comment requirements.)
Although EPA relied on 5 U.S.C. § 553(b)(B) as authority for issuing the treated wood exemption without providing for notice and comment, that exemption does not apply, and thus the regulation is void. This exemption from the Administrative Procedure Act's (APA) usual requirements for notice of proposed rules and the opportunity to comment before a rule is issued in final form is applicable when "the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary or contrary to the public interest." The exception is to be "narrowly construed and only reluctantly countenanced." Utility Solid Waste Activities Group v EPA, 236 F.3d 749, 754 (D.C. Cir. 2001), quoting, Tennessee Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C. Cir. 1992), quoting, New Jersey v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980). It should be limited to emergency situations. Id.; American Federation of Government Employees (AFGE) v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981). See also, Analysas Corp. v. Bowles, 827 F. Supp. 20, 23 (D.D.C. 1993)("Courts in this circuit take a dim view of rule-making which has not been preceded by notice and comment.")
EPA stated three reasons for invoking the "good cause" exemption, none of which meets the requirements of that provision. First, EPA stated that public comment had been submitted (by the industry organization that petitioned for the exemption), and because it was public comment which prompted promulgation of the rule, the "policy underlying solicitation of comments prior to the effectiveness of the regulations has been substantially satisfied." 45 Fed. Reg. at 78531. Second, EPA claimed that Adelay in promulgating the temporary exclusion could cause significant harm to the regulated community." Id. Third, EPA asserted that the exclusion would only last for a few months, during which "the most likely sources of possible hazard -- entities such as sawmills - will be subject to Subtitle C. Thus, the Agency believes that there will be sufficient protection of public health." Id.
The "unnecessary" prong of the exception is "confined to those situations in which the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and the public." Solid Waste Activities Group, 235 F.3d at 755, quoting, South Carolina v. Block, 558 F. Supp.1004, 1016 (D.S.C. 1983). The exemption of treated wood certainly does not fit this mold. It was justified on the basis of its significant impact on the regulated community, and has major impacts on the public, given the large volumes of treated wood which are disposed of all over the country on a continuing basis, and the clear evidence that highly toxic components of the wood then leach into the environment. See Section III, supra.
The Attorney 's Manual describes the "public interest" component of the exception as "'a situation in which the interest of the public would be defeated by any requirement of advance notice,' as when the announcement of a proposed rule would enable the sort of financial manipulation the rule sought to prevent." Solid Waste Activities Group, 235 F.3d at 755, quoting, Attorney General's Manual at 31. EPA did not advance any true public interest justification for its action. In the context of a statutory scheme intended to protect public health and the environment from hazardous materials, a justification which speaks only to the impact on the regulated community, and not at all to the impact on public health and the environment, cannot be justified by the "public interest" prong of the exception. Moreover, the standards of the exception cannot be met merely by a conclusory statement that harm to the regulated community would result absent emergency action; the Agency must have information supporting determinations of particular harm that would be occasioned "by the minimal delay necessary in establishing a rule properly supported by notice and comment." Analysas Corp. v. Bowles, 827 F. Supp. at 23-4.
Finally, when issuance of a rule prior to notice and comment is justified on the basis of its temporary status, final rules promulgated in accordance with proper notice and comment procedures must follow. AFGE v. Block, 655 F.2d at 1157. Courts have required agency assurances that they will act shortly to issue final rules in accordance with notice and comment procedures as a basis for approval of temporary rules issued without notice and comment. Mid-Tex Electric Co-op v. FERC, 822 F.2d 1123, 1132 (D.C. Cir. 1987), and cases cited therein. Certainly no such assurances were present here, and in fact the temporary rule remains in effect 22 years later.
For the foregoing reasons, EPA should immediately repeal the treated wood exemption so that discarded arsenically-treated wood will be appropriately regulated as a hazardous waste under RCRA.