DC Circuit Strikes Parts of EPA’s “Solid Waste” Rule

The U.S. Court of Appeals for the District of Columbia Circuit (“DC Circuit”) eased restrictions on recyclers and generators of recyclable materials by striking parts of the EPA’s latest rule relating to the definition of “solid waste”.  The DC Circuit (with one judge dissenting), issued American Petroleum Institute v EPA, the most recent development in a long battle.  The dissent would have deferred to the EPA.

The definition of “solid waste” is very important.  Materials must be solid waste in order to be subject to many Resource Conservation and Recovery Act (“RCRA”) regulations.

Ruling Makes It Easier to Demonstrate Legitimate Recycling

Materials subject to legitimate recycling are not solid waste.  The EPA’s rule required that four factors must be present in order to show legitimate recycling.  The DC Circuit upheld the first three factors, but struck Factor Four.  This factor purported to address the “along for the ride” concern; that is, that recyclers would put hazardous substances into products for no legitimate reason, but just as a way to get rid of what is actually waste.  The DC Circuit acknowledged that the EPA’s concern was legitimate, but determined that the EPA could not justify the “draconian” procedures required by Factor Four, and declared Factor Four to be “unreasonable.”

More Options for Off-Site Recycling

The DC Circuit also struck the requirement that generators could only send materials to off-site recycling facilities that had obtained a permit or a variance from the EPA (or the state for delegated RCRA programs).  Industry challengers had argued that the program in the rule promulgated in 2008, where the generator investigated and affirmed that the recycling operation was legitimate, was in keeping with RCRA, and the DC Circuit agreed.  The DC Circuit reinstated the generator investigation/affirmation approach, known as the “Transfer-Based Exclusion,” from the 2008 rule.

Long Battle, Three Administrations

The DC Circuit traced the relevant history back to 2007, when the George W. Bush EPA proposed a rule deregulating many recyclable materials.  In 2008, that rule became final, and several industry and environmental groups filed challenges in the DC Circuit.  While that case was pending, the EPA (by then under an Obama appointee) settled with one of the environmental groups.  As part of the settlement, the EPA agreed to propose a new solid waste rule, which the EPA did in 2011.  In 2012, the DC Circuit stated that it would not conduct further review, until the newly proposed rule became final.  That proposed rule became final in 2015 and is the subject of this DC Circuit opinion.

Subsequent EPA actions as a result of this decision, including guidance and consideration of supplemental rules, will now be done by an EPA headed by Trump appointee Scott Pruitt.  The current EPA will probably support ongoing elimination of Factor Four, and support the investigation/ affirmation approach for offsite recycling facilities.

For a copy of the DC Circuit’s opinion click here.

 

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