The Court of Appeals for the D.C. Circuit Invalidates Two Key Provisions of the 2015 Amendments to the Definition of Solid Waste

On July 7, 2017, the U.S. Court of Appeals for the D.C. Circuit issued a decision invalidating two key provisions of the 2015 amendments to the definition of solid waste under the Resource Conservation and Recovery Act (RCRA). American Petroleum Institute v. EPA (D.C. Cir. No. 09-1038). The Court invalidated Factor 4 of the legitimacy determination need for recycling hazardous materials. The Court also found the Verified Recycler Exclusion was unreasonable and reinstated the old Transfer Based Exclusion.

There are four legitimacy factors that must be met to determine when a material is being legitimately recycled, and therefore the material might be excluded from the definition of solid waste. The Court struck down Factor 4, which stated that for recycling to be legitimate, the product of the recycling process must be comparable to a legitimate product or intermediate, that is the material must have comparable hazardous properties as the final product being made with the recycled material. The Court concluded that this factor imposed “draconian” procedures for demonstrating the absence of significant environmental risk. The Court vacated Factor 4, insofar as it applies to all hazardous material under 40 CFR § 261.2(g), but it did not strike down Factor 4 as it applies to specific exclusions, such as the generator-controlled exclusion at 40 CFR § 261.4(a)(23), because the Petitioners did not challenge Factor 4 as it applies to those exclusions.

The Court also struck down the Verified Recycler Exclusion and reinstated the Transfer Based Exclusion, an earlier exclusion that the Agency issued in 2008, except it kept two provisions of the Verified Recycler Exclusion: (1) the requirement that the generator meet certain emergency preparedness standards, and (2) the expanded requirement for the materials to be properly contained.

EPA Finalizes Hazardous Waste Improvements Rule

The Resource Conservation and Recovery Act (RCRA) regulates the generation, treatment, storage, and disposal of hazardous waste. The requirements under RCRA and regulations implementing RCRA can apply to companies that generate hazardous waste during the manufacture of certain products, or, can apply to companies and/or retailers that are ultimately discarding unused, expired, recalled, or damaged products that are considered hazardous upon disposal.

Recent developments under RCRA have the potential to affect both product manufacturers as well as retailers. On October 28, 2016, the EPA Administrator signed the final Hazardous Waste Generator Improvements Rule (Rule), and it was published in the Federal Register on November 28, 2016. This Rule attempts to reorganize the RCRA regulations to make them more user-friendly, address gaps in the current regulations, provide greater flexibility for hazardous waste generators to manage their hazardous waste, and provide the regulated community a better understanding of how the hazardous waste generator regulatory program works.

Some changes to the final Rule include:

  • Replacing the phrase “conditionally exempt small quantity generator” with the phrase “very small quantity generator” (VSQG).
  • Allowing VSQGs to send hazardous waste to a large quantity generator (LQG) that is under the control of the same person and consolidate it there before sending it on to management at a RCRA-designated facility, provided certain conditions are met.
  • Allowing a VSQG or a small quantity generator (SQG) to maintain its existing generator category in the case of an episodic event in which the VSQG or SQG generates a quantity of hazardous waste in a calendar month that would otherwise bump the generator into a more stringent generator regulatory category. Under this provision, generators that satisfy the listed conditions do not have to comply with the more stringent generator standards.
  • Requiring periodic re-notification for SQGs every four years starting in 2021.
  • Revising the regulations for labeling and marking of containers and tanks.
  • The regulations were also reorganized and renumbered.

The regulation of hazardous waste generation by the retail sector has historically presented a challenge because retailers are not “traditional” hazardous waste generators. EPA highlighted the new flexibility for episodic generators of hazardous waste and the consolidation of VSQG waste at LQGs facilities as two approaches for addressing a number of issues facing the retail sector in complying with RCRA. Indeed, once the new Rule becomes effective, if a VSQG retailer must recall and discard certain products that are classified as hazardous waste when discarded, the retailer can send the hazardous waste to a LQG facility that is considered the same “person,” i.e., the manufacturing facility that owns and operates the retail facility. This allows the consolidation and decision-making process of how to discard the hazardous waste at one (or a few) centralized facilities instead of at multiple (sometimes hundreds) of retail facilities.

There were specific provisions that EPA chose not to include in its final Rule, based on comments received. Some of these include:

  • EPA is not requiring generators to document all determinations that a waste is not a hazardous waste and maintain that documentation in their records.
  • EPA is not requiring that generators label containers and tanks of hazardous waste with a description of the contents of the container. A generator must include the words “Hazardous Waste,” a description of the hazards of the container, and the date accumulation started.
  • EPA is extending the time frame for an episodic event from the proposed 45 days to 60 days.

The rule will be effective at the federal level six months after promulgation. For those states and territories that are not authorized for the RCRA program (Alaska, Iowa, and the Indian Nations, and the territories Puerto Rico, American Samoa, N. Mariana, and US Virgin Islands), the rule will go into effect on that day. Authorized states will be required to adopt those provisions that are more stringent than the current RCRA generator regulations in order to retain their authorized status. However, these provisions of the rule will not become effective in states authorized for the RCRA program until states have adopted the rule and become authorized for the new provisions. Authorized states will not be required to adopt those provisions of the rule that are less stringent or equal to the current hazardous waste regulations.