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DC Circuit Court of Appeals Rules that Parts of EPA Recycling and Reclamation of Hazardous Secondary Materials Are Too Stringent

On July 7, 2017, the US Court of Appeals for the District of Columbia struck down two parts of EPA’s 2015 Final Rule on Recycling and Reclamation of hazardous secondary materials. The rule attempted to clarify the difference between “sham recycling” and legitimate recycling by codifying and requiring the use of four legitimacy factors for assessing when a hazardous material is actually being recycled so that it fell outside of the definition of “solid waste” and thus, subject to the stringent requirements of RCRA. The petitioners primarily challenged factors 3 and 4 of the test. In its decision the court upheld factor 3, but struck down factor 4. Factor 4 specifically stated “the product of the recycling process must be comparable to a legitimate product or intermediate.” Additionally, the rule also required documentation when “the hazardous constituents in the recycled products are not comparable or unable to be compared to those in analogous products (unless the recycled product meets widely recognized commodity specifications or the hazardous secondary material is returned to the production process).” The court’s reasoning for striking down factor 4 was that it lacked precision and could exclude hazardous secondary materials because they might have minor hazardous characteristics or concentrations of hazardous materials (in which case the failure to remove them poses no health or environmental risk) that their possible analogues do not. The court also reasoned that factor 4’s requirement for documentation placed an unreasonable burden on recyclers. The other part of the court’s decision concerned the Verified Recycler Exclusion for reclamation established by the 2015 Final Rule. Under the Verified Recycler Exclusion, a generator was allowed to ship its possible secondary hazardous material to a RCRA permitted, interim, or variance-awarded facility that reclaims the waste into a useful product or regenerates it. In order to do this, the generator must meet special “emergency preparedness” standards in its custody of the materials before shipment. The court upheld the reasonableness of the “emergency preparedness” standards, but found to be unreasonable the strict requirement that the reclaiming facility be RCRA permitted, interim, or one, which obtained a variance. The court, thus, found that EPA should revert to its previous Transfer-Based Exclusion rule, which allowed generators to also send materials to a reclaimer that lacked a RCRA permit or status if the generator had made reasonable efforts to ensure the reclaimer intended to properly and legitimately reclaim the hazardous secondary material and not discard it. While this decision struck down the aforementioned parts of the 2015 Final Rule, the remaining parts of the rule remain in effect.


DC Circuit Court of Appeals Rules that Parts of EPA Recycling and Reclamation of Hazardous Secondary Materials is Too Stringent, Am. Petroleum Inst. v. EPA, No. 09-1038, slip op. (D.C. July 7, 2017).

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