883 F.3d 918
D.C. Cir.2018Background
- In 2015 EPA revised its Definition of Solid Waste rule (originally promulgated in 2008 under RCRA) changing legitimacy factors, the "contained" standard, allowing spent petroleum catalysts to qualify for certain exclusions, and replacing the Transfer-Based Exclusion with the Verified Recycler Exclusion.
- Industry and environmental petitioners challenged portions of the 2015 rule; this court in 2017 (API v. EPA) upheld some parts and vacated others, reinstating the Transfer-Based Exclusion and vacating Factor 4 in part.
- The court invited briefing on whether the spent-catalyst disqualifier should be severed and affirmed; parties sought panel rehearing addressing that and other matters.
- The court now: (1) severs and affirms EPA’s removal of the spent petroleum catalyst disqualifier (so spent catalysts may qualify under exclusions subject to containment/emergency requirements); (2) vacates the 2015 version of Factor 4 in its entirety; and (3) clarifies that other 2015 legitimacy-factor changes remain (Factor 3 stays mandatory; legitimacy factors apply to all exclusions), with the 2008 version of Factor 4 reinstated (i.e., Factor 4 is only to be "considered").
- The court found EPA’s rulemaking record supports treating spent catalysts under the revised containment and emergency-preparedness standards rather than by a catalyst-specific exclusion; the containment standard applies to both generators and third-party recyclers via §260.10 and the revived Transfer-Based Exclusion.
Issues
| Issue | Petitioners' Argument | EPA's Argument | Held |
|---|---|---|---|
| Whether the spent-petroleum-catalyst disqualifier should be reinstated | API argued the disqualifier should be removed so catalysts can qualify under exclusions | EPA agreed removal is supportable because containment and emergency requirements address pyrophoric risks | Court severed and affirmed EPA’s removal of the spent-catalyst disqualifier |
| Whether Factor 4 (2015 "comparable to or lower than" standard) is valid | Industry argued Factor 4 improperly swept in non-discarded materials and was flawed | EPA initially defended Factor 4 but later agreed vacatur of its full scope was appropriate | Court vacated the 2015 version of Factor 4 in its entirety |
| Scope of vacatur: Does vacating Factor 4 as applied via §261.2(g) leave its applications within specific exclusions intact? | Industry contended they had challenged Factor 4 in full and sought full vacatur | EPA acknowledged broader challenge and did not oppose full vacatur | Court agreed industry challenged Factor 4 broadly and vacated it entirely, including where incorporated into specific exclusions |
| Regulatory effect after vacatur: What replaces the vacated Factor 4 and which 2015 legitimacy-factor changes survive? | Petitioners sought clarity on which standards apply post-vacatur | EPA requested clarification and explained surviving provisions (Factor 3 mandatory; legitimacy factors apply to all exclusions) | Court clarified: 2015 Factor 4 vacated; legitimacy factors still apply to all exclusions; Factor 3 remains mandatory; the 2008 (consideration-only) version of Factor 4 is reinstated |
Key Cases Cited
- API v. EPA, [citation="862 F.3d 50"] (D.C. Cir. 2017) (prior panel decision reviewing 2015 Definition of Solid Waste rule)
- Verizon v. FCC, [citation="740 F.3d 623"] (D.C. Cir. 2014) (court may rely on agency positions stated on rehearing)
- Davis Cnty. Solid Waste Mgmt. v. EPA, [citation="108 F.3d 1454"] (D.C. Cir. 1997) (treatment of agency positions on rehearing)