Capitol Comments

INDA Attempts to Advance Wiper Rule

By Jessica Franken, INDAu2008Director of Government Affairs | April 7, 2011

Agency hopes interest in regulatory reform will even the playing field for industrial wipes.

On January 18, President Obama used the Wall Street Journal to announce he had signed an executive order requiring a government-wide review of federal regulations to ensure they aren't hampering U.S. businesses and economic growth. As part of that assessment, the President instructed all government agencies to look at existing rules to streamline, modify or repeal those that are deemed "outmoded, ineffective, insufficient or excessively burdensome." Accordingly, the U.S. Environmental Protection Agency announced in late February it is accepting public input on environmental regulations.

Although the initiative itself isn't ground­breaking —every White House since Ford has offered some sort of bureaucratic —that it comes at the same time newly-empowered Congressional Republicans are conducting a full-scale assault on big gov­­ernment, specifically targeting the EPA, creates new opportunities to advance the decades-old"industrial wiper rule."As readers certainly recall, that EPA initiative, which has ridiculously been in the works for more than a quarter of a century, would create new opportunities for nonwoven industrial wipes by modifying overly burdensome waste management require­ments currently in place. Moreover, finalizing this rule-making will give regulatory reformers the chance to put our money where their mouth is.

Background: Hundreds of thousands of industrial and commercial facilities use wiping products such as nonwovens, rags and laundered shop towels for cleaning and degreasing their equipment. When discarded, spent wipers are considered hazardous waste if they exhibit certain characteristicsor if they contain solvents identified as hazardous under the Resource Conservation and Recovery Act (RCRA). Such wastes are subject to overly-stringent and expensive handling and disposal obligations.

Federal regulators, however, generally have not regarded laundered wipes as waste since they are re-used after washing and instead they have relied on the states to establish the frameworks for their handling. The end result is that nonwoven wipes and non-laundered rags have faced consistent federal regulations while laundered shop towels have been subject to a hodgepodge of often conflicting state rules. This has created a confusing regulatory environment for facilities that use wipes and an unwarranted market advantage for shop towels over non-laundered varieties.

Arguing that disposables do not pose a threat to human health and the environment because the amount of solvent in the wipes is insignificant, industry petitioned the agency in 1985 to conditionally exclude them from the RCRA definition of hazardous waste. Agreeing these products were over-regulated, the agency included a conditional exemption for wipers in several rulemaking proposals in the early 1990s.Unfortunately, none of these efforts survived the bureaucratic process and resulted in the sought-after conditional exclusion for these products.

The resultant years of study and broad stakeholder engagement caused the agency in 2003 to release another proposed rule. This one looked to establish a conditional exclusion from the RCRA definition of hazardous waste for non-laundered wipes and an exclusion from the definition of solid waste for shop towels.Much to INDA's frustration, the EPA had included far more onerous conditions for non-laundered wipes versus shop towels. For example, they required spent non-laundered wipes destined for a municipal or non-hazardous waste landfills to be "dry" (i.e., contain less than five grams of solvent) and not contain any amount of 11 solvents the agency had tentatively deemed too risky for landfills. Meanwhile, laundered shop towels needed only to show they contained "no free liquids"prior to washing to be exempt from the definition of solid waste.Scores of stakeholders, including INDA, formally weighed in on the 2003 proposal with many objecting to these and other discrepancies.After digesting some of this input, the agency announced it had decided to redo the proposed rule's risk analysis to ensure it adequately addressed the impact of whether the landfills that receive solvent-contaminated wipes and laundry sludge would be lined.

As I reported last spring, EPA spent the next several years on this analysis, finally publishing the more robust revised version in October 2009. They proposed two new regulatory options for managing wipes and laundry sludge that seemingly eliminate some of the more onerous handling requirements included in the 2003 proposal and allow virtually all spent wipes and sludge to go to either lined or unlined non-hazardous waste landfills. Once again, INDA and other stakeholders weighed-in.After observing that most of the input the agency received had been generally supportive, I expressed cautious optimism that the agency might finally move forward with this never-ending rulemaking.
Big mistake. According to the most recent EPA semi-annual agenda, the agency is projecting finalization in July 2012.Even worse, that timetable appears overly optimistic based on feedback from EPA staff, who recently admitted to INDA the process could be further delayed by an agency lack of focus and resources.

But Finalizing the Wiper Rule Would Achieve so Many Laudable Objectives!: Frustrated by this general sense of apathy, INDA has taken to the streets and has been telling EPA officials and Capitol Hill lawmakers that finalizing the rulemaking would achieve so many of the objectives those calling for regulatory reform claim to be all about. To begin with, we argue that establishing a clear, uniform national policy would deliver long sought flexibility and simplicity for thousands of domestic small businesses that use these wiping products, and enhance compliance.

Moreover, finalizing the wiper rule would correct needless and harmful over-regulation of non-laundered wipes.They further agree that reams of agency and industry data have shown time and again that these wiping products can be handled, managed and disposed of safely without the current onerous requirements. Additionally, this over-regulation has hindered those who make and distribute these products, INDA argues, pointing to statistics showing that finalizing the wiper rule would create new market opportunities in the range of $1 to $3 billion annually.
That's $1 to $3 billion in jobs creation, and $1 to $3 billion in U.S. economic growth that is lost each year.

Finally, although once identified as an issue on the EPA "fast-track" (no, I'm not kidding), this rulemaking has been under development for more than 25 years, a fact that I like to highlight by pointing out to officials that I was in grammar school when EPA first began considering the matter. At a time when public and government officials alike are expecting rational expenditures and claim to be holding agencies accountable for their spending, this would be a good time to demonstrate a commitment to using taxpayer resources wisely by completing action on this rulemaking in our lifetime.

Conclusion:By the time this article is published, we will have made these arguments in a formal submission to the EPA and during an agency"town hall meeting." Beyond this, we plan to continue the strategy of meeting with Capitol Hill lawmakers likely to be receptive to our concerns.However, even if our arguments are well-taken, there are still several potential roadblocks. For one, Congressional Republicans have said they will attack what they perceive as EPA overreach by defunding the agency's activities. This injects great uncertainty into an issue like the wiper rule, which is already being constrained by "lack of resources." In the same vein, the failure of Capitol Hill Republicans and Democrats to agree on a long term federal spending package is slowing the already glacial pace of work at ALL agencies.

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