Recently, the United States Court of Appeals for the District of Columbia Circuit ruled on the EPA’s 2015 Final Rule relating to the definition of solid waste. I previously blogged about the outcome of that case, where the court vacated two of the provisions of the new rules. However, buried within the text is a very clear commentary by the court regarding a prior ruling that was basically ignored by EPA. Read for yourself the commentary by the court and decide for yourself.
“In the 1980s, EPA adopted a rule manifesting its belief that certain hazardous secondary materials are so “waste-like” that reclaiming them is equivalent to discard….Because processing something is hardly akin to throwing it away, we [the court] held that this reclamation rule improperly regulated materials that were neither disposed of nor abandoned, but [were] passing in a continuous stream or flow from one production process to another….EPA nonetheless kept the reclamation-equals-discard rule, apparently on the reasoning that [the court] merely “granted the petition for review” without ordering vacatur.”
Instead of re-writing the rules, EPA instead tried to address some of the highlighted concerns raised by the court, but the above commentary does not appear to bode well for EPA. No doubt, new challenges will come on this issue.