Court Strikes Down Part of the 2015 DSW Rule

Last week, in a 2-1 decision, the U.S. Court of Appeals for the District of Columbia Circuit struck down parts of the 2015 U.S. Environmental Protection Agency (EPA) Definition of Solid Waste (DSW) rule. IPC opposed the 2015 rule because it inappropriately regulates secondary materials that have been sent for recycling as hazardous wastes.

EPA’s original Definition of Solid Waste Rule, finalized in 2008, had the potential to provide regulatory relief by providing two conditional exclusions for secondary materials when recycled according to certain conditions. The EPA’s 2015 revisions undercut the 2008 rule by introducing many onerous and unnecessary requirements.

The court vacated the fourth factor of the “legitimacy test” codified in the 2015 rule, which would have required that the product of the recycling process be comparable to a legitimate product unless a recycler can show its product is legitimate by documenting that any incremental risk it presents is not significant to health and the environment.

The court also vacated significant parts of the 2015 Verified Recycler Exclusion which excludes reclamation of materials transferred to and reclaimed by a third-party from the definition of solid waste only if the third-party reclaimer possesses a Resource Conservation and Recovery Act (RCRA) permit (or interim status) or a RCRA variance. Instead, the court reinstated the Transfer-Based Exclusion contained in the 2008 rule, which allows for transfer of hazardous secondary materials to third parties so long as “reasonable efforts” are made to ensure that the materials will be properly handled.

The D.C. Circuit’s decision is just one step toward vacating the requirements of the 2015 rule. In states where EPA has delegated the RCRA program, the states had adopted laws implementing the 2015 DSW rule in order to comply with the requirement that their laws be no less stringent, than the federal requirements. These states may now remove or rescind the state laws, but because authorized states are allowed to have more stringent requirements than EPA, the D.C. Circuit’s decision will not automatically change the state laws.

The IPC Environmental, Health and Safety Committee will review the Court Decision and discuss additional advocacy efforts.

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