On December 9, 2015, we were given a chance to more clearly understand the legal arguments being mounted by industry groups and environmentalists against EPA related to the definition of solid waste (“DSW”) rule that was promulgated nearly a year ago under the Resource Conservation and Recovery Act (“RCRA”). In their opening briefs filed in the consolidated lawsuit American Petroleum Institute v. EPA, both sets of parties are calling on the U.S. Court of Appeals for the D.C. Circuit to vacate certain aspects of the DSW rule, albeit for opposing reasons.
At issue in the litigation is the DSW rule, which EPA issued as final in January 2015. The long-awaited rule scales back certain RCRA recycling exemptions that were first promulgated as part of a contentious rulemaking in 2008. It also adds new regulatory factors that all recycling activities must meet to demonstrate that the recycling is legitimate, including long-standing exemptions that pre-date the 2008 DSW rule.
Industry petitioners, which include American Chemistry Council, American Petroleum Institute, National Association of Manufacturers, Utility Solid Waste Activities Group, and Freeport-McMoRan, argue that EPA has overstepped its authority by regulating material that has not yet been discarded. They point to the new mandatory four-factor legitimacy test, which now applies to all recycling activities, arguing that such broad application results in the regulation of non-discarded materials. Agency overreaching also forms the basis of the groups’ challenge to EPA’s decision to replace the 2008 DSW rule’s transfer-based exclusion with the verified recycler exclusion. In addition, the groups take issue with the application of the legitimacy factors to the numerous RCRA regulatory exclusions that pre-date the DSW rule (i.e., “pre-2008 exclusions”).
Similar themes are found in the environmental petitioners’ brief. Represented by Earthjustice, environmental petitioners include the Counsel for California Communities Against Toxics, Clean Air Council, Coalition for a Safe Environment, Louisiana Environmental Action Network and Sierra Club. They argue that the DSW rule exceeds EPA’s authority and should not be afforded deference because the verified recycler exclusion allows companies to avoid hazardous waste regulatory requirements even though paying for having the waste indicates that the material has been discarded. Environmental groups are also challenging the Agency’s decision to keep in place the pre-2008 exclusions, which the groups view to be outdated and lacking requirements necessary to prevent unlawful discard of hazardous wastes.
EPA’s reply brief is due March 8, 2016. For more information on the DSW rule, please see here.