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), which addressed significant Solid Waste Rule changes. The impacted sections are defined when certain “hazardous secondary materials” are considered “discarded” and thus 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. As a result, two key parts of the 2015 Solid Waste Rule changes were vacated.
The first part involves one of the “legitimacy” criteria used to determine whether recycling is legitimate or “sham recycling.” The second part involves the “Verified Recycler” Exclusion under 40 CFR 261.4(a)(24) and related sections. At the time, it was unclear whether the prior “Transfer-Based” exclusion from 2008 would be reinstated or if the EPA would implement additional changes.
On May 30, 2018, the EPA issued a revised final ruling, reinstating the 2008 “Transfer-Based” exclusion. The EPA also rewrote the 40 CFR 261.4(a)(24). This update retains the requirements for financial responsibility, containment, record keeping, and emergency preparedness outlined in the 2015 Solid Waste Rule changes.