The D.C. Circuit Takes a Wrong Turn: Redefining Solid Waste Under RCRA
| Date | 01 June 2019 |
| Author |
6-2019 NEWS & ANALYSIS 49 ELR 10581
The D.C. Circuit
Takes a Wrong
Turn: Redefining
Solid Waste
Under RCRA
by Rachel Sullivan
Rachel Sullivan graduated from e George Washington
University Law School in May 2019.
Summary
Under RCRA, EPA must impose rules for the con-
trol, management, and disposal of “hazardous waste.”
e denition of solid waste (DSW) issue refers to a
set of complex rules for determining whether recycled
hazardous secondary materials are subject to RCRA
Subtitle C. e U.S. Court of Appeals for the District
of Columbia (D.C.) Circuit has issued several deci-
sions on the DSW issue; the most recent invalidated
two signicant provisions of EPA’s most recent DSW
rule, the “along for the ride” criterion and the veried
recycler exclusion. is Article argues that the D.C.
Circuit broke with DSW precedent and with the tra-
ditional deferential application of both Chevron and
“arbitrary and capricious” review, and that EPA’s rule
should have survived. It also discusses the potential
future of the DSW issue, and examines the likely
outcome of the D.C. Circuit’s “hard look” review as
applied to a new DSW challenge.
The issue of waste management is as old as human
society. Everyday activities like taking the subway
to work, buying a snack from a vending machine, or
ordering a product from Amazon all produce waste. Nea rly
every human activity results in some type of byproduct,
which must then be collected, managed, controlled, and
either discarded, recycled, or reused. Waste creation and
management presents risks to human health and the envi-
ronment through increasing rates of diseases, resource
contamination, and res and other disasters, but the gen-
eration and control of waste-containing hazardous sub-
stances presents distinct challenges. Under the Resource
Conservation and Recovery Act (RCRA), the U.S. Envi-
ronmental Protection Agency (EPA) has the authority to
regulate “solid waste” and its subset, “hazardous waste.”
Under RCRA, EPA must impose rules for the control,
management, and disposal of “hazardous waste.”1 e so-
called denition of solid waste (DSW ) issue refers to a set
of complex rules for determining whether recycled hazard-
ous secondary materials are subject to RCRA Subtitle C
mana gement rules.2 RCRA Subtitle C regulates hazardous
waste from cradle-to-grave with prescriptive rules of con-
duct for generators, transporters, and management (“treat-
ment, storage and disposal facilities”).3 Over the past 20
years, EPA has issued multiple versions of DSW rules.
e U.S. Court of Appeals for the District of Columbia
(D.C.) Circuit has also issued several decisions on the DSW
issue, sometimes nding EPA’s rules of conduct permissi-
ble and sometimes invalidating them as unreasonable. e
most recent judicial development is the D.C. Circuit’s 2017
decision in American Petroleum Institute v. Environmental
Protection Agency (API III),4 in which t he court invalidated
two signicant provisions of EPA’s most recent DSW rule,
the “along for the ride” criterion5 and the veried rec ycler
exclusion.6 When it promulgated a new DSW rule in 2018,
EPA ocially vacated these two provisions.7 Without the se
provisions, there are reasons to believe that EPA’s ru les gov-
erning the recycling process for hazardous materials leave
2. Id.
3. U.S. EPA, Resource Conservation and Recovery Act (RCRA) Overview, https://
www.epa.gov/rcra/resource-conservation-and-recovery-act-rcra-overview
(last updated Feb. 6, 2019).
5. See infra notes 126-42 and accompanying text.
6. See infra notes 143-58 and accompanying text.
7. Response to Vacatur of Certain Provisions of the Denition of Solid Waste
Rule, 83 Fed. Reg. 24664 (May 30, 2018).
Author’s Note: I would like to thank Prof. omas Mounteer,
Professional Lecturer in Law at e George Washington University
Law School, for his continued support and assistance in both
planning and revising this Article.
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
49 ELR 10582 ENVIRONMENTAL LAW REPORTER 6-2019
open the possibility of greater risks to human health and
the environment.8
is Article begins by discussing the political and envi-
ronmental climate surrounding the enactment of RCRA,
then provides an overview of the environmental risks
associated with management and recycling of hazardous
secondary materials. It then provides legal background on
RCRA, on EPA’s three most rec ent rules on the DSW issue,
and on API III and its aftermath. Legal standards, such as
the “arbitrary and capricious” standard and the Chevron
test are then laid out. I argue that the D.C. Circuit broke
with both DSW precedent and with the traditional defer-
ential application of both Chevron and the “arbitrary and
capricious” tests, and that EPA’s rule should have survived
such review. Finally, the Article discusses the potential
future of the DSW issue, and exa mines the likely outcome
of the D.C. Circuit’s “ hard look” review as applied to a new
DSW challenge.
e DSW issue, as reected in the three most recent
DSW rules promulgated by EPA, is tied to the political
leanings of whichever administration controls the White
House, with liberal administrations imposing stringent
standards on the regulated community and conservative
administrations relaxing these standards. e D.C. Cir-
cuit has historically deferred to the regulatory authority
and technological expertise of EPA in its judicial review
of DSW rules, but this precedent shifted in API III, where
the D.C. Circuit took an exceptionally “hard look” at the
Denition of Solid Waste Rule (2015 Rule).
If the D.C. Circuit applies this “hard look” review to
the recent Response to Vacatur of Certain Provisions of
the Denition of Solid Waste Rule (2018 Rule), the provi-
sions of that rule may meet the same fate as their predeces-
sors and be invalidated. Further, the D.C. Circuit’s “hard
look” at the 2015 Rule in API III may have implications for
all agency action, potentially leading to a new practice of
“rulemak ing from the bench.”
I. Statutory Framework
A. RCRA
From 1920 to 1962, the generation of municipal solid
waste in the United States rapidly increased,9 so that by the
1960s, concerns about waste disposal had become a perva-
sive and urgent problem.10 e widespread issue of pollu-
tion from waste disposal had consequences from the loss
of favorite “swimming holes” to contaminated drinking
water, res, and disease.11 At the same time, society began
to recognize the dan ger of improper haz ardous waste man-
8. See infra notes 79-82 and accompanying text.
9. Garrick E. Louis, A Historical Context of Municipal Solid Waste Management
in the United States, 22 W M. R. 306, 316 (2004).
10. U.S. EPA, 25 Y RCRA: B O P P O
F 1 (2002) [hereinafter 25 Y RCRA].
11. Id.
agement: in 1965, more than four million chemicals were
produced in the United States, while the production of
synthetic chemica ls increased.12
e production of these chemicals left behind “toxic
by-products,” but the disposal of these leftover substances
was generally unregulated.13 In 1965, President Lyndon
B. Johnson called for “better solutions to the disposal of
solid waste,” which directed federal attention toward the
problem of pollution from waste.14 As a result, the U.S.
Congress passed the Solid Waste Disposal Act (SWDA)
of 1965, which “formed the framework for states to bet-
ter control the disposal of trash from all sources” and “set
minimum safety requirements for local landlls.”15
However, the scope of the SWDA was limited. Its pri-
mary focus was on improving waste disposal methods,
rather than developing all facets of a solid waste manage-
ment system.16 Further, it failed to consider data about the
quantity of waste produced, contemporary waste manage-
ment technolog y, or t he amount of local resources avai lable
to manage solid waste.17
When EPA was formed in 1970, the federal government
began to play a more active role in waste management.18
e Agency found that the SW DA “wa s not strong enough
to address the dangers posed by the increasing volume of
solid and hazardous waste.”19 To remedy this, Congress
passed RCRA on October 21, 1976, as an amendment to
the SWDA.20 e main goals of RCRA are to
• ensure that wastes are m anaged in a manner that pro-
tects human health and the environment;
• reduce or eliminate, as expeditiously as possible, the
amount of waste generated, including hazardous
waste; and
• conserve energy and natural resources through waste
recycling and recovery.21
RCRA was designed as a “pollution prevention
meas ur e,” 22 and represented a shift in the approach to
waste management from earlier retrospective strategies to
“a direct implementation model.”23 e statute provided
for joint and federal and state implementation, requiring
EPA to promulgate baseline requirements, and allowing
states to implement their own waste management pro-
grams tailored to t their own economic capabilities and
waste needs.24 State implementation programs must be at
12. Id.
13. Id.
14. Louis, supra note 10.
15. 25 Y RCRA, supra note 11, at 1; Pub. L. No. 89-272, 79 Stat. 992.
16. Louis, supra note 10.
17. Id.
18. 25 Y RCRA, supra note 11, at 1.
19. Id. See also Congressional ndings, 42 U.S.C. §6901.
20. 25 Y RCRA, supra note 11, at 1.
21. Id. at 2.
22. Id.
23. Louis, supra note 10, at 317.
24. 25 Y RCRA, supra note 11, at 2. See also Louis, supra note 10, at
317.
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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