Twenty-one years after the decision in American Mining Congress and five years after the proposal, EPA has issued a final rule revising the definition of solid waste. 73 Fed. Reg. 64668 (Oct. 30, 2008). The stated purpose of the revision is to respond to a series of court decisions that “provided EPA with additional direction regarding the proper formulation of the RCRA regulatory definition of solid waste” and to clarify the concept of ‘legitimate recycling.’

The statutory definition of solid waste encompasses “other discarded material.” The regulatory definition of solid waste builds on the statutory definition by explaining the circumstances in which a material is discarded: “A solid waste is any discarded material” and a “discarded material is any material which is,” among other things, reclaimed. 40 CFR 261.2(a). EPA made it clear that the “concept of “discard” is the central organizing idea behind the revisions.” Id., at p. 64675. According to the long-line of cases which provided the ‘additional direction’ mentioned above, EPA simply has no jurisdiction over materials that are not discarded. Continue reading “Revisions to the Definition of Solid Waste” →