As we previously reported, industry groups, including the American Chemistry Council, challenged the final Hazardous Waste Generator Improvements Rule (“Final Rule”) in the Court of Appeals for the D.C. Circuit on February 24, 2017.  The Final Rule was published in the Federal Register on November 28, 2016 (a discussion of the Final Rule and its potential impacts can be found here).  Since our previous post, some updates have occurred in the pending challenge.

On April 3, 2017, separate filings were made by the American Chemistry Council, together with other industry petitioners (“ACC”), and the EPA.  First, the ACC submitted a Statement of the Issues, which raises as the ACC’s sole concern that based on language used in the Final Rule, a “generator’s noncompliance with even a single requirement as identified as a ‘condition for exemption’ . . . means that the generator is operating unlawfully as a storage facility without a . . .  a [RCRA] permit . . . .”  While this was the only issue raised in the Statement of the Issues, the ACC is not limited to only raising this issue, and may challenge other aspects of the rule in its brief.  Also on April 3rd, EPA filed an Unopposed Motion for Extended Briefing, requesting that the Agency be given 60 days to file its brief on the merits.

The D.C. Circuit posted a briefing scheduled on April 25th, which specifies that the first brief, the ACC’s brief, is due June 5, 2017.  The briefing schedule indicates that final briefs are due September 8, 2017.  Even though the briefs will be filed past May 30th, the rule will still become effective on that date.  Given that all procedural motions were due on April 3rd, a party can no longer request for the Court to stay the rule.

We are closely following developments with the appeal and will continue to provide updates as they occur.  For more information on the Final Rule and the pending challenge, please contact Karlie Webb, Laura Boorman, or Rich Pepper of Troutman Sanders.