United States Court of Appeals, District of Columbia Circuit
Petitions for Panel Rehearing
Before: Tatel and Kavanaugh, Circuit Judges, and Williams,
Senior Circuit Judge.
2015, the Environmental Protection Agency promulgated a final
rule that defined when certain hazardous materials were
deemed discarded-as opposed to legitimately recycled-and
therefore subject to EPA's oversight. Environmental and
Industry Petitioners challenged portions of the rule. In our
2017 decision, API v. EPA, 862 F.3d 50 (D.C. Cir.
2017), we upheld some aspects of the rule and vacated others.
In so doing, we invited the parties to consider briefing
whether one of the vacated components should instead be
severed and affirmed. Id. at 72. The parties
accepted that invitation, filing petitions for rehearing that
address that question and a number of others. Having reviewed
the petitions, we now modify our 2017 decision in three ways:
(1) we sever and affirm EPA's removal of the spent
catalyst bar from the vacated portions of the "Verified
Recycler Exclusion"; (2) we vacate Factor 4 in its
entirety; and (3) we clarify the regulatory regime that
replaces the now-vacated Factor 4. All other aspects of the
petitions for rehearing are denied.
* * *
2017 opinion provides the relevant statutory and regulatory
background. Id. at 55-57. We offer here only what is
necessary to make sense of our three modifications to that
2008, pursuant to the Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C. §§ 6901-6992k, EPA
promulgated a rule that excluded certain hazardous secondary
materials from the definition of solid waste-and therefore
beyond the reach of EPA's RCRA authority-in two
circumstances. Revisions to the Definition of Solid
Waste, 73 Fed. Reg. 64, 668, 64, 669/3-70/1-2 (Oct. 30,
2008). The exclusion applicable depended on the type of
entity undertaking the recycling: the
"Generator-Controlled Exclusion" applied when the
company producing the material performed the recycling itself
and the "Transfer-Based Exclusion" applied when the
generator sent the materials to an off-site recycler (which
the rules required the generator to audit to ensure that the
transferee had in place adequate recycling procedures).
Id. As a prerequisite for either exclusion, the
materials had to be recycled legitimately, as determined by a
set of "legitimacy factors" set by EPA.
Id. at 64, 700/2.
2015, while challenges to the 2008 rule were pending in this
court after having been held in abeyance in light of
EPA's issuance of a notice of proposed rulemaking on the
same subject, the agency issued revisions to the rule.
Definition of Solid Waste, 80 Fed. Reg. 1, 694 (Jan.
13, 2015). Four of those changes are pertinent to the
petitions for rehearing. First, EPA changed the content and
application of the four legitimacy factors. Id. at
1, 719/3-20/1. Second, EPA redefined and made more stringent
the "containment" standard, a preexisting
requirement recyclers had to satisfy to qualify for the
Generator-Controlled and Transfer-Based Exclusions.
Id. at 1, 704/1-3, 1, 738/1. Third, EPA allowed
spent petroleum refinery catalysts to qualify for these solid
waste exclusions. Id. at 1, 737/3-38/1. Fourth, EPA
replaced the Transfer-Based Exclusion with the Verified
Recycler Exclusion. Id. at 1, 695/2.
2017 decision vacated the Verified Recycler Exclusion and
reinstated the Transfer-Based Exclusion. API, 862
F.3d at 75. We explained that, as a result, spent catalysts
would once again be disqualified from that exclusion's
ambit "subject . . . to such arguments as parties may
raise supporting a different outcome." Id. We
also vacated the revised Factor 4 "insofar as it applies
to all hazardous secondary materials via §
* * *
We conclude that three aspects of the petitions for rehearing
warrant revision of our 2017 decision.
Spent Petroleum Catalysts.
response to our invitation, id. at 72, 75, API asks
us to undo the disqualifier for spent catalysts. We had been
persuaded by EPA's response to comments regarding the
proposed 2015 rule that, in removing the disqualification,
EPA relied in part on the Verified Recycler Exclusion. See
id. at 72; see also EPA, Revisions to the
Definition of Solid Waste Final Rule Response to Comments
Document (Dec. 10, 2014) ("Comments
Document"). In that document, EPA had said:
[U]nder the contained standard for both the
generator-controlled exclusion and the verified recycler
exclusion, any hazardous secondary material that poses a risk
of fire or explosion must have that risk addressed in order
to ensure that the material is legitimately recycled and not
Comments Document at 266. We then explained that we
accordingly harbored doubts that EPA would have altered its
treatment of spent catalysts absent the Verified Recycler
Exclusion. API, 862 F.3d at 72. Review of the
petitions for rehearing ...