US EPA Revises RCRA Definition of Solid Waste Rule to Comport with D.C. Circuit Rulings | frESH

The Definition of Solid Waste (DSW) Rule defines under the Resource Conservation and Recovery Act (RCRA) what materials are subject to Subtitle C regulation as discarded solid waste materials, as opposed to those materials appropriate for beneficial reuse and recycling.  The regulations at issue have been the subject of several legal challenges by both industry and environmental groups and have undergone a number of administrative modifications since the 1980s.  In 2008, US EPA published a final rule revising the definition of solid waste to include two exclusions for hazardous secondary material recycled under the control of the generator (known as the “generator-controlled” exclusion), and for hazardous secondary material transferred to a third party for recycling (known as the “transfer-based” exclusion).  The 2008 rule also codified certain factors for determining when recycling is “legitimate.”

The 2015 version of the DSW Rule modified and restructured these exemptions by replacing the transfer-based exclusion with a “verified recycler” exclusion and by incorporating stronger provisions to ensure legitimate recycling (namely, by making mandatory one of the legitimacy factors that was previously only considered, defining containment of materials, and imposing emergency preparedness and response requirements).  However, a legal challenge resulted in portions of the 2015 Rule (including the verified recycler exclusion) being vacated by the U.S. Court of Appeals for the D.C. Circuit in 2017.  In March 2018, the Court further modified its decision upon a petition for reconsideration to clarify certain aspects, but left a number of aspects to be addressed by new rulemaking.  As a consequence, the 2015 Rule has been left somewhat battered by the removal, replacement and reinstatement of key provisions governing third-party recycling, with several aspects in need of further revision to address omissions or misplaced references.

The new rulemaking addresses these outstanding issues and brings the regulations in line with the Court’s 2017 decision and 2018 decision modification in a couple of key ways.  In particular, the final rule removes the verified recycler exclusion and reinstates the transfer-based exclusion, and also reverts the fourth legitimacy requirement to the 2008 revision.

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