In American Petroleum Institute (“API”) v. Environmental Protection Agency (“EPA”), the D.C. Circuit upheld, severed, and vacated portions of a 2015 EPA final rule, Definition of SolidWaste (the “Final Rule”). As explained below, the court:

1.Upheld “Factor 3” of the “legitimate recycling” test defined in the rule; -

2.Vacated “Factor 4” of the legitimate recycling test; -

3.Vacated the Verified Recycler Exclusion (“VRE”), thereby reinstating the Transfer Based Exclusion (“TBE”) while retaining emergency preparedness requirements for generators and expanded containment requirements; and -

4.Held that the court did not have jurisdiction to review a deferred action by the EPA on containment and notification conditions for materials, products, or processes specifically excluded from the definition of “solid waste.

Originally published in the October 2017 edition of Pratt’s Energy Law Report (Vol. 17-9).