Sierra Club Takes U.S. EPA to Court on Its Revisions to the Definition of Solid Waste

            U.S. EPA is back in court defending its final Revisions to Definition of Solid Waste (DSW Rule or Rule) that the agency published on October 30, 2008 (73 Fed. Reg. 64668).  The final Rule took effect December 29, 2008.  Thirty days later, Sierra Club filed a petition for review in the United States Court of Appeals for District of Columbia Circuit styled Sierra Club v. EPA, No. 09-1041 (D.C. Cir.). The following day, January 29, 2009, Sierra Club petitioned U.S. EPA for reconsideration and requested that the agency stay implementation of the Rule.  Sierra Club’s petition for reconsideration provides insight into its likely arguments before the D.C. Circuit.

            In its petition for reconsideration, Sierra Club claims that U.S. EPA “rushed[ed] to publish” the DSW Rule, resulting in a vague and unenforceable Rule.  Further, Sierra Club asserts that U.S. EPA arbitrarily and capriciously ignored the significant adverse impacts to health and the environment that Sierra Club maintains will be caused by the Rule’s removal of fundamental protections required by the Resource Conservation and Recovery Act (RCRA).  In support of its claims, Sierra Club advances both policy and legal arguments.

            For its policy arguments, Sierra Club asserts that the DSW Rule substantially increases threats to public health and the environment without producing compensatory benefits.  To support this policy argument, Sierra Club relies heavily upon U.S. EPA’s January 11, 2007 Assessment of Environmental Problems Associated with Recycling of Hazardous Secondary Materials (2007 Environmental Assessment).  That study identifies 208 cases of damage at facilities that recycle hazardous waste or that store hazardous waste prior to recycling, including the Red Jacket Salvage Yard in West Virginia.  As evidence that U.S. EPA rushed to finalize the Rule, Sierra Club emphasizes that U.S. EPA’s search for damage cases was not “exhaustive” and that U.S. EPA admits that “there are likely to be a significant number of additional relevant cases that [U.S. EPA] did not identify.” To support its claims of increased threats, Sierra Club argues that only nine of the 208 cases involve damage that occurred at recycling facilities under RCRA Part B Permits and that U.S. EPA acknowledges that off-site recycling is inherently more dangerous than recycling on site.  Sierra Club uses statistics from U.S. EPA’s 2007 Environmental Assessment to argue that facilities operating without RCRA Permits are far more likely to cause damage, off-site hazardous waste recycling facilities constitute the great majority of the damage cases, and transfer facilities or “middlemen” represent another significant percentage of the contaminated sites.  As further illustration of its position, Sierra Club notes that the remedial response costs for the damage cases identified by U.S. EPA exceeded $200 million. 

            Sierra Club also argues that the DSW Rule does not account for the instability of recycling markets, and maintains that current financial conditions increase the risk of hazardous waste abandonment.  Sierra Club notes that a third of the damage cases identified by U.S. EPA in its 2007 Environmental Assessment resulted from abandonment of hazardous waste before recycling due to economic pressures. 

            According to Sierra Club, the DSW Rule will not substantially increase hazardous waste recycling.  Sierra Club point to U.S. EPA’s Regulatory Impact Analysis, which indicates that the Rule will result in only 23,000 tons per year in additional hazardous waste recycling or a 1.1% increase above 2005 levels.  Sierra Club further asserts that the economic benefits of the DSW Rule are small and accrue solely to deregulated industries.   Sierra Club asserts that the average economic benefit each such facility can expect, assuming the correctness of the high side of U.S. EPA’s economic benefit range, is less than $17,000 annually, which Sierra Club calls a “tiny fraction” of the revenue of “multi-million dollar companies”.  According to Sierra Club, good hazardous waste recycler jobs could be lost, too.

            In addition to its policy arguments, Sierra Club maintains that the DSW Rule is unlawful. Sierra Club maintains that the DSW Rule should be repealed under the Administrative Procedure Act (APA) for two primary reasons.  First, Sierra Club challenges the Rule for vagueness, asserting U.S. EPA failed to define “contained” and “significant release”.  Sierra Club emphasizes the comments of states and industry urging U.S. EPA to define the word “contained,” which is found in virtually every provision of the Rule that excludes hazardous secondary materials destined for recycling from the definition of solid waste.  Because the word “contained” is not defined in the Rule, Sierra Club argues that there is no intelligible standard that establishes compliance with the Rule.  Sierra Club says that U.S. EPA’s attempt to clarify the meaning of “contained” in the preamble by stating that the word means “placed in a unit that controls the movement of the material out of the unit into the environment,” 73 Fed. Reg. 64748, did not solve the problem because U.S. EPA set no standards for what counts as “control”.  Sierra Club also complains that the preamble does not provide any criteria for what counts as a “significant release” while providing that a “significant release” of hazardous secondary materials from a “containment unit” to the environment transforms the hazardous secondary materials, both the materials released and those still in the containment unit, into hazardous waste.  Id. at 64681.   

            For its second argument why the DSW Rule should be repealed under the APA, Sierra Club argues that the administrative record does not support U.S. EPA’s conclusion that the DSW Rule would have no environmental impact.  Sierra Club complains that U.S. EPA has not provided a “reasonable explanation why damage would not occur again and at greater frequency under the Rule.” Sierra Club also challenges U.S. EPA’s failure to conduct an environmental justice analysis based on its determination that there is no net environmental impact.

            For additional information concerning Sierra Club’s challenge to U.S. EPA revisions to the definition of solid waste, contact Gale Lea Rubrecht at 304-340-1200 or galelea@jacksonkelly.com.

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.