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D.C. Court of Appeals Strikes Down Parts of EPA’s “Sham Recycling” Rule

The D.C. Court of Appeals vacated a factor in defining what constitutes "sham recycling."

The U.S. Court of Appeals for D.C. Circuit on Friday struck down portions of a 2015 EPA rule meant to cut down on “sham recycling.”

The American Chemistry Council and the American Petroleum Institute had challenged parts of the rule.

The issue stems back further—all the way to 1985—when the EPA was setting definitions of solid waste. Subsequent efforts to refine the definitions led to the 2015 rule.

According to blog Environmental Law Next:

Fast forwarding to 2015, EPA addressed head-on the sham recycling question and set forth four criteria to tell a sham from the real thing. Importantly, the fourth criterion effectively replaced the old “along for the ride” criterion. See 40 C.F.R. 260.43(a)(4); 80 Fed. Reg. at 1725-28. This new criterion requires that the “product of the recycling process must be comparable to a legitimate product or intermediate,” and gives a recycler three options for satisfying it.

Where there is an “analogous” product, the recycled product is comparable if (a) it does not exhibit a hazardous characteristic not exhibited by the “legitimate” product; and (b) the two products have comparable levels of hazardous constituents. Where there is no “analogous” product, the two products are comparable if the product of the recycling process meets “widely recognized commodity standards and specifications[.]” Last, even if the product has high levels of hazardous constituents as compared to the raw material, the recycling can still be legitimate if recycler carries out certain health and environmental studies to show the toxic constituents are not harmful. 40 C.F.R. 260.43(a)(4)(iii).

But Factor 4 is no longer part of EPA’s regulations. In the just-published case of American Petroleum Institute v. EPA, (No. 09-1038), the D.C. Court of Appeals vacated Factor 4, finding that EPA failed to articulate a concrete standard for determining at what contaminant level a recyclable material was “significant in terms of health and environmental risks.”

The full 54-page ruling can be read here.

TAGS: Recycling
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