American Petroleum Institute v. U.S. EPA

Jun 8: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1038. On Petition for Review of a Final Action of the United States Environmental Protection Agency. The Appeals Court indicates that American Petroleum Institute (API) petitions for review of a 2008 EPA regulation deregulating many "hazardous secondary materials" under the Resource Conservation and Recovery Act (RCRA). Petitioner contends that EPA erred in not including in the deregulation a category of hazardous secondary material called "spent refinery catalysts," which API's members generate during the petroleum refining process.

 

    The Appeals Court rules, "After the parties completed briefing, EPA issued a notice of proposed rulemaking that, if made final, would significantly amend EPA's 2008 decision. As a result, we deem this controversy unripe as a prudential matter and order the case held in abeyance, subject to regular reports on the status of the proposed rulemaking."

 

    The Appeals Court explains the history saying, "API filed a petition for review of the 2008 Rule on January 27, 2009. The Sierra Club also petitioned for review of the 2008 Rule. On September 10, 2010, EPA entered into a settlement agreement with the Sierra Club. EPA agreed to propose, by June 30, 2011, a new rule addressing certain issues raised by the Sierra Club and to take final action on that rule by December 31, 2012.

 

    "In July 2011, soon after the close of briefing in this case, EPA published a new notice of proposed rulemaking in accordance with the settlement agreement to address the issues raised by the Sierra Club. In the proposed rule, EPA effectively revised the 2008 Rule in two relevant ways. First, spent hydrotreating and hydrorefining catalysts would now also be eligible for the generator-controlled exclusion from the definition of solid waste. 76 Fed. Reg. 44,094, 44,152 (July 22, 2011). Second, EPA proposed to eliminate altogether the transfer-based exclusion for hazardous secondary materials; those materials would again be considered solid waste -- and thus hazardous waste -- even if transferred to third parties for recycling and would be subject to an alternative Subtitle C standard. 76 Fed. Reg. at 44,108-10, 44,151. If this proposed rule were to become final without revision, then, spent refinery catalysts would be treated the same as other hazardous secondary materials: eligible for the generator-controlled exclusion from the definition of solid waste, but not eligible for a transfer-based exclusion, which would cease to exist."

 

    Access the complete opinion (click here). [#Haz, #CADC]

 

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