March 14, 2018

Court Finalizes Partial Vacatur of DSW Rule

EPA’s 2015 definition of solid waste (DSW) rule was issued to resolve legal challenges to its 2008 DSW rule. Then, the 2015 rulemaking was challenged in court. Industry petitioners 1) argued that both the legitimacy factors and the verified recycler exclusion exceed EPA’s RCRA authority, and 2) challenged EPA’s treatment of spent catalysts and off-specification commercial chemical products. Environmental petitioners argued that 1) the verified recycler exclusion is too permissive, and 2) EPA should have added containment and notification conditions to the three pre-2008 recycling exclusions/exemptions.

On July 7, 2017, the U.S. Court of Appeals for the District of Columbia Circuit ruled on the petitions [API v. EPA; Docket No. 09-1038], upholding some aspects of the rule and vacating others. However, the court left the door open for a rehearing on one of the vacated components. In response, the parties filed petitions for rehearing that addressed that issue and a number of others. The DC Circuit Court reviewed the petitions and revised its 2017 decision in a March 6, 2018 opinion. Taken together, the 2017 and 2018 appellate court opinions result in the following:

“The product of the recycling process does not (i) Contain significant concentrations of any hazardous constituents found in Appendix VIII of part 261 that are not found in analogous products; or (ii) Contain concentrations of any hazardous constituents found in Appendix VIII of part 261 at levels that are significantly elevated from those found in analogous products; or (iii) Exhibit a hazardous characteristic (as defined in part 261 subpart C) that analogous products do not exhibit.”

In a separate March 6, 2018 order, the DC Circuit Court mandated that the items noted above will take effect on March 13, 2018.


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