A federal appeals court on Friday rejected challenges from environmentalists to a 2015 rule governing recycling and reclamation of solid hazardous waste, restoring a prior rule that gives manufacturers and other companies more leeway to choose the firm that will recycle their waste.
A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld most of the U.S. Environmental Protection Agency鈥檚 2015 final rule on the Definition of Solid Waste (DSW), but agreed with industry group the American Petroleum Institute that two of the rule鈥檚 provisions represented regulatory overreach.
The ruled laid out requirements for when certain hazardous materials are disposed of, and expanded the EPA鈥檚 regulatory authority in some instances. Both the Sierra Club and the American Petroleum Institute challenged the EPA鈥檚 disposal rules but for different reasons.
The Sierra Club argued the waste rules didn鈥檛 do enough to safeguard the environment and API dubbed them as arbitrary and capricious. Under the Resource Conservation and Recovery Act, the EPA manages all solid and hazardous waste falling under the definition of 鈥済arbage, refuse, sludge 鈥� and other discarded material.鈥�
In 2008, the EPA finalized a rule deregulating hazardous materials generated in the industrial process but excluded garbage, refuse and sludge from the 鈥渟olid waste鈥� definitions save for two exemptions. Those exemptions asked if the waste was controlled by the entity that generated it and asked whether or not was the waste 鈥渢ransfer-based?鈥�
In other words, did the group who created the waste, also send it to a previously audited off-site recycler or reclaimer?
鈥淯nder the transfer-based exclusion, a generator could send materials to any reclaimer it chose, provided that after making a reasonable investigation, it affirmatively answered five questions about the reclaimer,鈥� the ruling explained.
Those questions asked if waste generators had a legitimate recycling process in effect; if they had notified regulators of their own operations and financial stability; if they remained free of any recent enforcement action; if they acquired the adequate skill and equipment to recycle products and finally, if the entity would be able to adequately dispose of residual waste generated during recycling.
By setting up generator and transfer exemptions, the EPA argued, 鈥渓egitimacy factors鈥� were created and distinguished 鈥渢rue recycling鈥� from 鈥渟ham recycling.鈥�
To test that legitimacy, the EPA also demanded that waste-creators meet four additional factors. First does the hazardous secondary material provide a useful contribution to the recycling process? Second, does the recycling process produce a valuable product? Third, do those controlling the waste manage it as a valuable commodity and fourth, is product of the recycling process comparable to a legitimate reusable product?
API specifically challenged the validity of the third factor, demanding that companies in charge of waste treat the byproduct as a 鈥渧aluable commodity.鈥�
鈥淲here there is an analogous raw material, the firm can meet this standard by handling the secondary material 鈥渋n an equally protective manner,鈥� the ruling stated, 鈥淚f there is no raw analogue for comparison, EPA requires that the聽
secondary material be 鈥渃ontained.鈥�
Contained, according to the EPA meant waste is held in a unit that鈥檚 appropriately labeled or that a log is put in place identifying any secondary hazardous materials which may be present.
The Sierra Club argued that since the EPA鈥檚 waste disposal regulations are sometimes very costly, there lies an incentive for some entities to claim they are recycling when, in fact, they are just directly disposing of waste.
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