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American Petroleum Institute v. EPA

ELR Citation: 47 ELR 20089
Nos. 09-01038, (D.C. Cir., 07/07/2017)

The D.C. Circuit held that EPA's verified recycler exclusion under RCRA was unreasonable. In 2015, EPA issued a final rule rule governing when certain hazardous materials qualify as “discarded,” subjecting them to the Agency's authority. The new rule required generators of waste to meet special emergency preparedness standards in its custody of the materials before shipment, and requires generators to send thier secondary materials to reclaimers who either have a RCRA permit or state-level permission to operate as a reclamation facility. Several interested parties challenged the verified recycler exclusion as exceeding EPA's authority and too permissive. EPA maintained that the verified recycler exclusion was necessary to ensure a facility's intent to recycle and reduce discarded materials that result from the shift in markets and the material no longer being as valuable. The court held that the exclusion was unreasonable and severed and retained the emergency preparedness provision of the rule while vacating the remainder of the rule.