On July 7, 2017, the D.C. Circuit Court of Appeals struck down portions of the US Environmental Protection Agency’s Definition of Solid Waste (DSW) Rule.  I previously blogged about this ruling (link here).  The impacted sections defined when certain “hazardous secondary materials” become “discarded”, meaning they are then treated as solid waste.  In its ruling, the DC Circuit Court ruled in favor of the industry petitioners on several issues, dismissing most of the challenges from environmental groups.  The result is that two key parts of the 2015 rule were vacated.  The first part involves one of the “legitimacy” criteria used to determine whether recycling is legitimate or “sham recycling”.  The second part of the ruling involves the “Verified Recycler” Exclusion under 40 CFR 261.4(a)(24) and related parts.  At the time, it was unclear whether the prior “Transfer-Based” exclusion from 2008 will be reinstated or whether EPA will make additional changes.

On May 30, 2018, EPA issued a revised final, reinstating the 2008 “Transfer-Based” exclusion and re-writing 40 CRF 261.4(a)(24).  The update retains the requirements for financial responsibility, containment, record keeping, and emergency preparedness of the 2015 update.

For more information on the impact of these rules, please contact Todd Pencarinha at 713-568-3651.

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