DC Circuit Court Strikes Down Parts of 2015 RCRA Update

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.  The impacted sections define when certain “hazardous secondary materials” become “discarded”, meaning they are then treated as solid waste.  The impacted rule was part of EPA’s updates to the definition of Solid Waste in 2015 under the Resource Conservation and Recovery Act (RCRA).  The rule was challenged by the American Petroleum Institute (“API”) and the Sierra Club.

In its ruling, the DC Circuit Court ruled in favor of the API and other industry petitioners on several issues, dismissing the Sierra Club’s challenges.  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.  As a result, it is currently unclear whether the prior “Transfer-Based” exclusion from 2008 will be reinstated or whether EPA will make additional changes.

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