Recently, the United States Court of Appeals for the District of Columbia Circuit ruled on the EPA’s 2015 Final Rule regarding the definition of solid waste. I previously blogged about this case, where the court vacated two provisions of the new rules. However, within the court’s commentary lies a clear message about a prior ruling that the EPA largely ignored.
The commentary states, “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.”
This statement raises significant questions about how the EPA interprets the definition of solid waste. Instead of rewriting the rules to comply with the court’s earlier concerns, the EPA only made minimal adjustments. The commentary suggests that the EPA’s definition of solid waste may face further challenges.
As the debate continues, we must closely examine the EPA’s definition of solid waste. This issue will likely lead to new legal challenges in the future.