On July 7, 2017, the U.S. District Court vacated two pieces of the 2015 Definition of Solid Waste rule.
- The court ruled that EPA's fourth legitimacy criteria (an exempt recycled product must be comparable to an existing product) reaches beyond USEPA's authority. This does not affect the other three legitimacy criteria and has limited practical impact on most generators.
- The court vacated the "verified recycler" exclusion in 40 CFR 261.4(a)(24), although kept the new "contained" definition and the emergency preparedness requirements. This effectively reinstates the former "transfer-based" exclusion, formerly 40 CFR 261.4(a)(24) and (25), with a few additional requirements.
With an August deadline for responding to the court, the USEPA is still evaluating how to proceed at this point. If the court decision stands as currently issued, USEPA will have to issue a direct final rule to change their regulations.
Note that Illinois adopted the entire 2015 rule by reference into the state hazardous waste regulations, effective August 9, 2016. Illinois and other states will have to decide how to proceed as the USEPA moves forward. The schedule for USEPA and Illinois EPA to take action on these issues is unclear at this point.