EPA Carve-Out for Recycling Called Out as Hazardous

WASHINGTON (CN) – Since 2008, hazardous materials that can be recycled have been excluded from federal waste-disposal rules. An Earthjustice attorney fought Tuesday to vacate this exemption.

“These wastes are toxic and can poison people and the environment,” said Khushi Desai, addressing a three-judge panel of the D.C. Circuit. “They can even spontaneously combust simply when exposed to the air.”

It is undisputed that these materials are toxic. Ahead of this morning’s hearing, Desai pointed the court to a 2007 study where the Environmental Protection Agency probed 200 cases where hazardous-waste recycling involved environmental damage. 

Sometimes there were fires and explosions; others ended in air, water and soil contamination.

In one case, roughly 5,000 residents near a magnesium recycling facility in Indiana were evacuated in 2005 after 300,000 pounds of magnesium ignited and burned for two days.

U.S. Circuit Judge David Sentelle focused much of his questioning this morning on the groups Desai represents.

“Is concern enough to give you standing,” asked Sentelle, who was appointed to the bench by former President Ronald Reagan.

Eight environmental groups led by California Communities Against Toxics brought the challenge here. Desai urged Sentelle to consider how their concerns affect everyday activities.

But Sentelle was not so easily swayed. “What makes this an imminent injury,” he asked.

U.S. Circuit Judge Judith Rogers pushed back meanwhile when Justice Department attorney Perry Rosen accused the challengers of failing to show any injury.’

“Well they do claim injury,” said Rogers, who was appointed to the bench by President Bill Clinton. “You disagree as to whether it’s sufficient injury.”

Rogers continued: “They say they live there, they breathe there, they can’t go to the park. They can’t use the river or the creeks. Their dogs drink the water that’s exposed to these hazardous materials.”

“But they never explain why they can’t,” Rosen responded.

Desai’s clients say Congress provided a “cradle-to-grave” system for managing hazardous waste in 1976 with the passage of the Resource Conservation and Recovery Act.

That statutory scheme changed, however, when the EPA redefined solid waste in 2008 to exclude hazardous waste transported to third-party recyclers. That exclusion is even broader in the latest iteration of the rule, which the EPA issued in 2018.

Represented by attorney Thomas Llewellyn, 12 companies intervened on behalf of the EPA before the D.C. Circuit.

Llewellyn cautioned the panel Tuesday that vacating the rule could spur a cascade of challenges that would restore older rules, resetting the statute of limitations each time.

“It seems to us, unimaginable that Congress intended such a result when they created the statute of limitations in RFRA,” Llewellyn said.

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