Court Tosses RCRA Verified Recycler Exclusion but Retains Balance of Definition of Solid Waste Rule

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Source: Bergeson & Campbell, P.C.

On July 7, 2017, the U.S. Court of Appeals for the D.C. Circuit found “unreasonable,” and thus threw out, the “verified recycler” exclusion promulgated by the U.S. Environmental Protection Agency (EPA) in its 2015 revisions to the definition of solid waste under the Resource Conservation and Recovery Act (RCRA).  The court reinstated the “transfer-based” exclusion promulgated by EPA under the Bush Administration.  In the case, American Petroleum Institute v. EPA (D.C. Cir. No. 09-1038), the court also removed one of the provisions of the legitimacy criteria.  The court upheld all other portions of the 2015 rule and rejected the environmental groups’ challenges to it.
 
To RCRA aficionados, the court’s ruling is yet another in a seemingly endless progression of cases.  EPA has revised the RCRA definition of solid waste dozens of times since its original promulgation in 1980.  EPA similarly has been sued over those revisions throughout the lifespan of the regulation.  This case arises from EPA’s 2015 effort to delineate when certain recycled items are solid waste under RCRA.  On January 13, 2015, EPA promulgated a final rule governing when certain hazardous materials qualify as “discarded” and hence are subject to RCRA.  80 Fed. Reg. 1694.  Environmental and industry groups challenged several aspects of the rule.  The court in this case ruled in favor of industry petitioners on one aspect of EPA’s legitimate recycling criteria and also found the “Verified Recycler Exclusion” to be unreasonable.  All other aspects of the 2015 rule withstood the legal challenges to them.

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