Environmental -- 2017

American Petroleum Institute v. EPA   (D.C. Circuit)

Challenging EPA's new rules on definition of solid waste

This case again calls for clear statutory limits on EPA’s Resource Conservation and Recovery Act (RCRA) jurisdiction to regulate “solid waste,” a term Congress defined to mean “discarded” material. The statute defines “hazardous waste” as “solid waste” that may pose a danger to human health or the environment. Hazardous waste is subject to a range of stringent regulatory obligations, governing generation, treatment, storage, disposal, and permitting. Because by statute hazardous waste is a subset of solid waste, EPA’s jurisdiction is limited to those materials that constitute solid waste.

The NAM and the American Chemistry Council filed a petition in federal court 4/13/15 to review new rules that define hazardous solid waste. The definition is important to manufacturers that reuse materials in the manufacturing process, as well as for disposal and recycling procedures. Hazardous solid waste is regulated with stricter requirements, and EPA imposes new documentation and certification requirements on facilities that reclaim hazardous secondary materials for reuse.

Our suit was consolidated with one filed in 2009 by the American Petroleum Institute. On 5/11/15, we moved to intervene in a challenge to the solid waste rule by California Communities Against Toxics, which was also consolidated into this case.

The NAM filed its main brief on the merits in 2015. The rule exceeds the agency's authority, and our principal concerns relate to new affirmative duties and conditions on in-process materials that are not discarded. RCRA allows the EPA to regulate solid waste, but it is trying to regulate materials that are not yet waste; that is, they are not disposed of, abandoned, or thrown away. The rule affects the primary metals sector, recycling, petroleum production, chemicals and many other sectors.

On April 18, 2016, we filed a brief responding to a challenge by environmental groups to some of EPA's decisions. They argued that the Verified Recycler Exclusion (VRE) is unlawful because it was made without notice-and-comment and because it violates the RCRA and APA because it excludes certain materials from the definition of solid waste. We argued that the VRE fit the definition of a logical outgrowth of the earlier 2011 plan the EPA put out, the petitioners engaged in the notice-and-comment process at that time, and that any new challenges must be waived because they were not addressed to the EPA during rulemaking.

On July 7, 2017, the Court issued a split decision, but agreed with industry arguments that one of EPA's factors for determining whether a recycler is legitimate went too far by requring procedures for documentation and notification that went beyond its statutory authority. The Court ruled that recyclers must abide by EPA requirements for emergency preparedness, but that requiring that they have RCRA permits or waivers goes too far. The EPA rule improperly treated materials destined for reuse as discarded, and failed to justify tough standards for recyclers of low-value materials. The agency exceeded its authority by assuming that materials are discarded when paperwork requirements are not met.

The ruling is another significant example of the courts reining in EPA decisions that go beyond their statutory authority. For business that uses third parties to help them recycle certain materials, it provides a more workable and efficient solution while still protecting the environment from recognized hazards.

Related Documents:
NAM reply brief  (May 19, 2016)
Opening brief of industry petitioners  (December 9, 2015)


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