The D.C. Circuit Court of Appeals has ruled that a challenge to the U.S. Environmental Protection Agency’s (EPA’s) Definition of Solid Waste rule, which excluded from regulation under the Resource Conservation and Recovery Act (RCR A) about 1.5 million tons of various kinds of spent materials, sludges and by-products, is not ripe for review because EPA has proposed amending the rule. Am. Petroleum Inst. v. EPA, No. 09-1038 (D.C. Cir. 6/8/12).

The American Petroleum Institute challenged the rule for its failure to include spent refinery catalysts, a by-product of petroleum refining, among the excluded categories. According to the court, EPA should have a chance to finalize its policy before it is subjected to judicial review. EPA’s proposed rule would eliminate a provision of a 2008 regulation that kept spent petroleum catalysts under RCR A’s hazardous waste rules. 76 Fed. Reg. 44,094 (7/7/11). The court therefore ordered the matter held in abeyance until EPA takes final action on the proposed rule and ordered EPA to submit status updates on its progress every 60 days.