On March 6 2018 the DC Circuit modified its July 2017 API v EPA ruling, which upheld in part and vacated in part the Environmental Protection Agency's (EPA's) 2015 definition of solid waste (DSW) rule.

The DSW rule provided a definition for when certain hazardous materials should be deemed discarded as opposed to recycled. In 2017 the court vacated the 2015 DSW rule's "verified recycler exclusion" and reinstated a more flexible 2008 provision, which exempted third-party recyclers of hazardous secondary material from solid or hazardous waste regulation. The court also partly vacated Factor 4, one of the EPA's four revised legitimacy criteria, which determined whether the recycling of hazardous materials was legitimate. In addition, the court ruled that spent catalysts were ineligible for transfer-based exclusion, a 2008 DSW exemption for third-party recyclers.

The EPA, industry groups and environmentalists filed petitions for reconsideration. On reconsideration the court:

  • reversed its holding that spent petroleum catalysts qualify for transfer-based exclusion from hazardous waste requirements;
  • vacated Factor 4 in its entirety; and
  • clarified that vacating Factor 4 in its entirety means that:
    • the other legitimacy factors in the 2015 DSW rule remain in effect;
    • Factor 3 remains a mandatory factor; and
    • the 2008 version of Factor 4 has replaced the vacated 2015 version.

For further information on this topic please contact Samuel B Boxerman or Jim Wedeking at Sidley Austin LLP by telephone (+1 202 736 8000) or email (sboxerman@sidley.com or jwedeking@sidley.com). The Sidley Austin LLP website can be accessed at www.sidley.com.

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