U.S. Court of Appeals for the District of Columbia Circuit Issues Decision on Definition of Solid Waste

October 2017

Pratt’s Energy Law Report

The authors of this article discuss a recent decision by the U.S. Court of Appeals for the District of Columbia Circuit, which upheld, severed, and vacated portions of a 2015 Environmental Protection Agency final rule, Definition of Solid Waste.

In American Petroleum Institute (“API”) v. Environmental Protection Agency (“EPA”), the D.C. Circuit upheld, severed, and vacated portions of a 2015 EPA final rule, Definition of SolidWaste (the “Final Rule”). As explained below, the court:

  1. Upheld “Factor 3” of the “legitimate recycling” test defined in the rule;
  2. Vacated “Factor 4” of the legitimate recycling test;
  3. Vacated the Verified Recycler Exclusion (“VRE”), thereby reinstating the Transfer Based Exclusion (“TBE”) while retaining emergency preparedness requirements for generators and expanded containment requirements; and
  4. Held that the court did not have jurisdiction to review a deferred action by the EPA on containment and notification conditions for materials, products, or processes specifically excluded from the definition of “solid waste.

To read the full article, please click here.

“U.S. Court of Appeals for the District of Columbia Circuit Issues Decision on Definition of Solid Waste,” by Stephen C. Zumbrun and Frank L. Tamulonis was published in the October 2017 edition of Pratt’s Energy Law Report (Vol. 17-9),  an A.S. Pratt Publication, LexisNexis. Reprinted with permission.