D.C. Circuit Court Strikes down Provisions of EPA’s 2015 Changes to the Definition of Solid Waste

Court Ruling on the EPA Final Rule on Solid Waste

On July 7, 2017, the U.S. Court of Appeals for the District of Columbia struck down parts of the EPA Final Rule on Solid Waste issued in 2015. This rule defines when certain hazardous materials are considered “discarded,” making them subject to EPA regulations. The court addressed industry concerns about the legitimacy criteria under 40 CFR 260.43(a)(1)-(4) and the Verified Recycler Exclusion.

Legitimacy Criteria Explained

The court struck down the fourth part of a four-part legitimacy test in the EPA Final Rule on Solid Waste. Under 40 CFR 260.43(a)(1)-(4), this test required that:

1. The hazardous secondary material must contribute to the recycling process.
2. The recycling process must create a valuable product or intermediate.
3. Those controlling the material must manage it as a valuable commodity.
4. The final product of recycling must be comparable to a legitimate product or intermediate.

Factors 1 and 3 focused on the process, while Factors 2 and 4 focused on the product.

The court upheld Factor 3, agreeing with the EPA’s authority to impose containment requirements. However, it ruled that Factor 4 was unreasonable. The court argued that failing to follow EPA procedures shouldn’t turn a legitimate product into waste. This decision vacated Factor 4.

The Verified Recycler Exclusion

The EPA Final Rule on Solid Waste also amended the definition of “reclamation,” a form of recycling that processes secondary materials into usable products. The EPA introduced two exclusions:

1. The “Generator-Controlled Exclusion” for reclamation under generator control
2. The “Verified Recycler Exclusion” for third-party recycling, replacing the earlier “Transfer-Based Exclusion.”

The Transfer-Based Exclusion required generators to evaluate reclamation companies based on five questions about legitimacy, notification, enforcement history, skills, and waste disposal processes. The new Verified Recycler Exclusion added requirements like EPA registration.

Opponents argued that the EPA had no basis for these additional requirements. The court agreed, striking down most of the Verified Recycler Exclusion, except for its emergency preparedness and containment provisions. As a result, the court reinstated the Transfer-Based Exclusion.

Conclusion

The court partially upheld and partially vacated the EPA Final Rule on Solid Waste. Factor 3 remained, while Factor 4 was vacated for all hazardous secondary materials. The Verified Recycler Exclusion was mostly vacated, and the Transfer-Based Exclusion was reinstated. This ruling clarified the boundaries of the EPA’s authority over hazardous secondary material recycling.

Altiras offers recycling services that comply with EPA and state regulations, ensuring alignment with the EPA Final Rule on Solid Waste.