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.
