In 2014, EPA issued a revised definition of solid waste rule (“Final DSW Rule”). The Final DSW Rule revised certain RCRA recycling exemptions that were first promulgated as part of a 2008 rulemaking (“2008 DSW Rule”). One of the revisions mandates the use of all of the following four factors for determining whether a recycling activity is legitimate:
- Hazardous secondary material must provide a useful contribution to the recycling process or to a product or intermediate.
- Recycling must produce a valuable product or intermediate.
- Hazardous secondary material must be managed as valuable commodities.
- The product of recycling must be comparable to a legitimate product or intermediate.
The 2008 DSW Rule only required that factors 1 and 2 be met, while factors 3 and 4 were only required to be considered. Industry has filed a challenge to the Final DSW Rule. In briefs filed in the consolidated case American Petroleum Institute (API) v. EPA, industry argues that EPA is “dramatically” expanding its RCRA jurisdiction. Industry argued that revisions to the legitimacy factors restrict how industry may manage in-process materials and dictates acceptable chemical compositions. EPA responded that the legitimacy factors merely act as a test to determine if materials are really being recycled. The outcome of this “legitimacy determination” issue will impact both waste generators and recyclers. The case is currently before the U.S. Court of Appeals for the District of Columbia Circuit. Reply briefs were filed on May 19, 2016. Oral argument has not yet been scheduled.