Industry Challenges to Hazardous Waste Generator Improvements Rule

On February 24, 2017, industry groups challenged the final Hazardous Waste Generator Improvements Rule (“Final Rule”) in the Court of Appeals for the D.C. Circuit. The long-anticipated Final Rule was published in the Federal Register on November 28, 2016 (81 Fed. Reg. 85732). Pursuant to Resource Conservation and Recovery Act (“RCRA”) section 7006, petitioners have ninety days from that date to challenge the rule in the D.C. Circuit. Because the ninety-day deadline to challenge the rule expired on Monday, February 27, 2017, no more challenges may be filed. A previous discussion of the Final Rule and its potential impacts can be found here.

The petition was filed by nine industry groups, including the American Chemistry Council, American Forest & Paper Association, American Iron and Steel Institute, American Petroleum Institute, American Wood Council, Association Connecting Electronics Industries, Motor & Equipment Manufacturers Association, National Oilseed Processors Association, and Society of Chemical Manufacturers & Affiliates. In their petition, the groups allege the Final Rule should be set aside “because it is unlawful, arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law.” A more detailed outline of Petitioners’ legal challenges will be presented to the court when their Statement of Issues is filed on April 3rd.

While the petition itself includes no detail as to the group’s specific concerns, the same industry groups’ comments on the draft rule could shed some light on what the main arguments in the Statement of Issues are likely to entail. In its comments on the draft rule for example, the American Chemistry Council (and several of the other named Petitioners) said it was particularly concerned about the provision which states that failure to meet any of EPA’s “conditions for exemption” could subject a generator to multiple RCRA violations and serious penalties. This argument, as well as some of the others raised in the organizations’ comments, is likely to be prominent in their Statement of Issues.

We are closely following developments on the challenge. For more information on the Final Rule and the pending challenge, please contact Karlie Webb or Laura Boorman.