EPA Revises its RCRA Rules to Accord with DC Circuit Rulings Vacating Two Solid Waste Regulatory Exclusions

Following two adverse rulings by the DC Circuit, issued in 2014 and reported at Sierra Club v. EPA, 755 F.3d 968 (D.C. Cir. 2014) and Natural Resources Defense Council v. EPA, 755 F.3d 1010 (D.C. Cir. 2014), EPA has removed two exclusions from the list of regulatory exclusions located at 40 C.F.R. Section 261.4(a). This action was made effective on April 8, 2015.

The “gasification rule” was promulgated by EPA in 2008, and excluded from Resource Conservation and Recovery Act’s (RCRA) hazardous waste permitting and other regulatory requirement residual materials left over from the petroleum refining process that are inserted into a refinery’s gasification unit to produce synthesis gas, which is a type of fuel that can be used to recover energy. EPA determined that this exclusion was permissible under a number of decisions by the DC Circuit construing RCRA’s definition of “solid waste”, principally American Mining Congress v. EPA, 824 F. 2d 1177 (1987), and it also served another RCRA goal of recovering and reclaiming industrial materials. In the Sierra Club decision, the DC Circuit held that a 1984 amendment to the law, RCRA Section 6924 (q), required that such material be regulated as a hazardous waste, and that EPA misconstrued the scope of the American Mining Congress (AMC) decision. Consequently, EPA has removed the “gasification” exclusion from 40 C.F.R. Section 261.4(a)(12)(i). In the Natural Resources Defense Council (NRDC) case, the District Court held that the “comparable fuels” exclusion, adopted in 1998, was also subject to the strictures of RCRA Section 6924(q).

As a result, EPA’s determination that it had the discretion under NRDC and AMC decisions to classify as a fuel product and not as a solid waste, hazardous-derived fuels that also met the management requirements of 40 C.F.R. Section 261.38 was erroneous. EPA has now removed the specific regulatory exclusion, formerly located at 40 C.F.R. Section 261.4(a)(16) as well as 40 C.F.R. Section 261.38.

Additional Source: EPA Final Rule re Response to Vacaturs of the Comparable Fuels Rules and Gasification Rule