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Pesticide Container Recycling
Proposed Rule OMB Concludes EO 12866 Review by Returning Proposal to EPA for Reconsideration

Current as of October 23, 2008

On April 1, 2008, EPA submitted to the Office of Management and Budget (OMB) for review under Executive Order 12866 a draft rule titled "Pesticide Container Recycling". The proposal would invite public comment on a proposed requirement that pesticide registrants that sell agricultural or professional specialty pesticides in nonrefillable high density polyethylene (HDPE) containers participate in a recycling program.

Under the Executive Order, OMB has 90 days to review the proposed action. Unless that review is extended by up to 30 days as permitted under the Executive Order, one of three actions must occur by day 90:

  1. OMB concludes review, and the Agency proceeds to issue it.
  2. OMB returns the rule package to the Agency for reconsideration.
  3. EPA withdraws the rule package.

On July 3, 2008, OMB returned the draft proposed rule to the Agency pursuant to section 6(b)(3) of the Executive Order for further consideration and analysis. As indicated in the OMB "Return Letter," a copy of which is posted on the OMB website, OMB concluded that the proposed rule did not meet several of the provisions in Executive Order 12866. Specifically,

"EPA's stated regulatory objective is to reduce the improper disposal of unrinsed or poorly rinsed pesticide containers. We recognize that illegal and improper disposal of these pesticide containers may create hazards. However, it remains unclear whether providing the proposed recycling program will result in a meaningful reduction in the improper disposal of these containers."
"In addition, EPA's analysis of the proposed program indicates that the quantified costs imposed by the proposed recycling program will exceed the quantified benefits by more than two orders of magnitude. Further, EPA has not analyzed other alternatives, including alternatives that may increase net benefits and potentially reduce burdens on small businesses. Consistent with Section l(b)(6) and l(b)(II) of Executive Order No. 12866, EPA should determine whether alternatives exist that would impose the least burden on society and ensure that the benefits of the intended regulation justify its costs".

Since July, the Agency has received additional information intended to help address the OMB concerns. However, the new information does not address the fundamental issues raised by OMB, and therefore, in the absence of the data that specifically addresses the concern of OMB, EPA is suspending work on the proposed container recycling regulation at this time.

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