August 1st, 2019
environmental
D.C. CIRCUIT UPHOLDS RCRA’S TRANSFER-BASED EXCLUSION FOR RECYCLED SOLID WASTE

The D.C. Circuit has upheld an EPA rule that classifies as "recycled" certain hazardous material sent to a third-party reclamation facility and thus exempt from the Resource Conservation and Recovery Act (RCRA) regulations governing discarded waste.  California Communities Against Toxics, et al., v. EPA, et al., No. 18-1163 (D.C. Cir., July 2, 2019).

In this case, environmental petitioners challenged the EPA rule treating material transferred from a waste generator to a third-party reclaimer as legitimately “recycled,” rather than “discarded” and subject to Subtitle C regulation, if several conditions were met (the Transfer-Based Exclusion, 40 CFR § 261.4(a)(27)).  Petitioners argued the Transfer-Based Exclusion is insufficiently protective of human health and the environment and brought two challenges:

First, they contended the Transfer-Based Exclusion exceeds EPA’s statutory authority under RCRA. In their view, a generator “discards” hazardous material whenever it pays a reclaimer to accept the material. Second, they contended the Transfer-Based Exclusion fails arbitrary and capricious review because EPA has not provided a reasoned explanation for treating hazardous material differently based on whether it is sent to a reclaimer (instead of a storage, treatment, or disposal facility) and because EPA has already identified deficiencies in the Transfer-Based Exclusion.

The D.C. Circuit denied the petition for review and held that the Transfer-Based Exclusion was not arbitrary or capricious.  The Court held that EPA did not act contrary to RCRA in adopting the Transfer-Based Exclusion because hazardous secondary materials are not necessarily “discarded” each time they are transferred from a generator to a reclaimer, along with payment.  The Court held that EPA had provided a reasoned explanation for applying different standards to materials that are not yet part of the waste disposal problem addressed by RCRA, so long as certain conditions were met providing for safe transfer and legitimate recycling of the waste.

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