STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
IN RE: Petition for Rulemaking of
Florida Pulp & Paper Association
Environmental Affairs, Inc.
__________________________________/
OGC Case # 02-0101
DEP02-0194
FINAL ORDER DENYING PETITION TO INITIATE RULEMAKING
On January 18, 2002, the Department of Environmental Protection received a Petition to Initiate
Rulemaking, pursuant to Section 120.54(7), Florida Statutes (F.S.), from Terry Cole, Esquire,
representing the Florida Pulp & Paper Association Environmental Affairs, Inc. (FPPAEA). This petition
asked the Department to adopt a rule which would have the effect of regulating certain paint and paintrelated wastes as universal waste as provided for in Rule 62-730.185, Florida Administrative Code
(F.A.C.). The Department hereby denies this petition.
Pursuant to Section 120.54(7), F.S., any person regulated by an agency or having substantial
interest in an agency rule may petition an agency to adopt, amend, or repeal a rule. Within 30 days of
receipt of the petition, the Department is obligated to either initiate rulemaking proceedings or to deny the
petition with a written statement of its reasons for the denial.
The Petitioner, FPPAEA, is an association of pulp and paper companies operating mills that
produce hazardous waste regulated by the Department. These mills produce, among other things, paint
and paint-related wastes which are regulated as hazardous waste. The Petitioner has demonstrated that
it has substantial interest in the proposed agency rule, and thus has standing to file this Petition to Initiate
Rulemaking.
40 CFR 273.80, as adopted by reference in Rule 62-730.185, F.A.C., provides criteria for the
review and approval of petitions to include other wastes as universal wastes. A person filing such a
petition must demonstrate that regulation as a universal waste:
(a) is appropriate for the waste or category of waste;
(b) will improve management practices for the waste or category of waste; and
(c) will improve implementation of the hazardous waste program.
In addition, 40 CFR 273.81 lists seven other factors which must be considered when reviewing a
petition, if appropriate to the waste or waste category addressed in the petition. Those factors are
discussed in detail below.
The Department has reviewed the Petition to Initiate Rulemaking, and has determined that
regulation of paint and paint-related wastes under the universal waste rule would not be appropriate. It
has not been shown that such regulation would improve management practices for the waste or category
of waste or improve implementation of the hazardous waste program. The Department has evaluated the
petition using the following factors which are listed in 40 CFR 273.81.
(a) The waste or category of waste is regulated as hazardous waste.
The Petitioner has asserted, and the Department agrees, that some paint and paint-related
wastes may exhibit the hazardous characteristics of ignitability and toxicity, or may be listed hazardous
wastes.
(b) The waste or category of waste is not exclusive to a specific industry or group of industries,
but is commonly generated by a wide variety of types of establishments.
The Petitioner has asserted, and the Department agrees, that paint and paint-related wastes are
commonly generated by a wide variety of types of establishments.
(c) The waste or category of waste is generated by a large number of generators and is
frequently generated in relatively small quantities by each generator.
The Petitioner has asserted, and the Department agrees, that paint and paint-related wastes are
generated by a large number of generators. The Petitioner has demonstrated that these wastes are
generated in relatively small quantities by some members of the FPPAEA, but has not attempted to
quantify generation rates of any other generators.
(d) Systems to be used for collecting the waste or category of waste (including packaging,
marking, and labeling practices) would ensure close stewardship of the waste.
The Petitioner has suggested that management standards comparable to those already in place
for other universal wastes should be adopted for paint and paint-related wastes, and has submitted a
proposed rule governing management of these wastes. The Petitioner has also agreed that it would
conduct universal waste awareness training for its members. This training is likely to have negligible
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effect on total management practices with respect to hazardous paint and paint-related waste in Florida,
since the pulp and paper industry generates only a very small portion of such waste. Furthermore, it is
not clear that there is or would be a system in place for the collection of these wastes, or a system of
“destination facilities” for recycling or disposal. There is no indication that a manufacturer "take back"
program or other similar system is or will be implemented to improve stewardship of the waste.
(e) The risk posed by the waste or category of waste during accumulation and transport is
relatively low compared to other hazardous wastes, and specific management standards proposed or
referenced by the petitioner would be protective of human health and the environment during
accumulation and transport.
The Petitioner has proposed some management standards for the accumulation and transport of
the paint and paint-related wastes, but has not demonstrated that the risk posed by these wastes is
relatively low compared to other hazardous wastes. This is particularly true because "paint-related waste"
is such a broad term which can include a variety of solvents posing a relatively high environmental risk. It
is the Department's experience that the improper management of paint-related waste has led to
significant soil and ground water contamination at a number of sites in the state, and there is no evidence
that subjecting such wastes to a less stringent level of regulatory control would lead to greater
environmental protection.
(f) Regulation of the waste or category of waste as a Universal Waste will increase the likelihood
that the waste will be diverted from non-hazardous waste management systems (e.g., the municipal
waste stream, non-hazardous industrial or commercial waste stream, municipal sewer or stormwater
systems) to recycling, treatment, or disposal in compliance with Subtitle C of RCRA.
The Petitioner suggests that the adoption of the proposed paint and paint related waste universal
waste rule would draw substantial volumes of paint and paint-related waste from the municipal waste
stream into the universal waste program. There is, however, no evidence to support this suggestion. In
fact, conversations with regulators from Texas (the only other state to adopt a universal waste program
for paint and paint-related waste) indicate that the amount of these wastes entering the municipal solid
waste stream increased, either because many small businesses did not understand the new universal
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waste rules and equated “universal” waste as “exempt” waste, or because more businesses were able to
qualify as Conditionally Exempt Small Quantity Generators and send more wastes to landfills.
The Petitioner also suggests that many businesses will have incentives to consolidate all of their
paint and paint-related wastes and manage all of it as universal waste. Because paint and paint-related
wastes which are currently not regulated as hazardous waste can usually be disposed of as municipal
solid waste, managing these wastes as universal wastes would almost certainly increase the costs of
disposal, and there is no evidence to support the suggestion that economies of scale would promote the
consolidation of all paint wastes to be managed as universal waste.
(g) Regulation of the waste or category of waste as a Universal Waste will improve
implementation of and compliance with the hazardous waste regulatory program.
The Petitioner suggests that regulating paint and paint-related waste as universal waste will
increase recycling opportunities. However, the Petitioner offers no evidence or compelling argument to
support this contention. The Petitioner also suggests that the current regulatory scheme for management
of hazardous paint and paint-related waste is complex and difficult for small facilities and that therefore
many of them improperly dispose of this material in the solid waste stream. There is no evidence to
support this contention, and it is the Department's experience that most small generators do properly
manage and dispose of these hazardous materials.
Finally, the Petitioner notes that under the current regulatory structure, it is difficult to consolidate
large quantities of hazardous paint and paint-related wastes, and that adoption of the universal waste
program would make such consolidation more likely. The hazardous waste program is specifically
designed to ensure that hazardous wastes are not accumulated and consolidated in large quantities, and
the Petitioner has not demonstrated that a program which encourages such consolidation of large
amounts of ignitable and toxic waste will improve implementation of the hazardous waste regulatory
program.
(h) Such other factors as may be appropriate.
The Department deems it appropriate to consider that other wastes managed under 40 CFR Part
273 have well defined and consistent chemical and physical characteristics, which is not true of “paintrelated waste.” Paint waste can be 100% liquid to 0% liquid; 0% water to mostly water. In fact, one drum
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of “paint-related waste” can consist of different phases, from liquid to gel to solid. This factor greatly
increases the difficulty and improbability of establishing an appropriate recycling and disposal system that
will improve implementation of the hazardous waste regulatory program.
THEREFORE,
IT IS ORDERED THAT the Petition to Initiate Rulemaking filed by the Florida Pulp & Paper
Association Environmental Affairs, Inc. is denied.
Any party to this order has the right to seek judicial review of it under section 120.68 of the Florida
Statutes, by filing a notice of appeal under Rule 9.110 of the Florida Rules of Appellate Procedure with
the clerk of the Department of Environmental Protection in the Office of General Counsel, Mail Station 35,
3900 Commonwealth Boulevard, Tallahassee, Florida, 32399-3000, and by filing a copy of the notice of
appeal accompanied by the applicable filing fees with the appropriate district court of appeal. The notice
must be filed within thirty days after this order is filed with the clerk of the Department.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
David B. Struhs
Secretary
3900 Commonwealth Boulevard
Tallahassee, FL 32399-3000
FILING AND ACKNOWLEDGMENT:
FILED, on this date, pursuant to Section
120.52, Florida Statutes, with the
designated Department Clerk, receipt
of which is hereby acknowledged.
Clerk
Date
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been furnished via U.S. Mail this _____ day of
February, 2002, to:
Terry Cole, Esq.
Oertel, Hoffman, Fernandez & Cole, P.A.
Post Office Box 1110
Tallahassee, Florida 32302-1110
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STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
Chris McGuire
Assistant General Counsel
3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, FL 32399-3000
(SEE PDF VERSION FOR ATTACHMENTS)
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