In 2023, the Environmental Protection Agency (“EPA”) continued working towards the concept of creating a circular economy through the use of recycling and waste grants and publishing two more parts in its National Strategies Series on Building a Circular Economy for All. In general, the concept of a circular economy is to keep products in circulation for as long as possible, which thereby “reduces material use, redesigns materials and products to be less resource intensive, and recaptures ‘waste’ as a resource to manufacture new materials and products.” A major focus for the circular economy approach was the elimination of plastic pollution and the expansion of recycling infrastructure and waste collection and management systems. The focus on the elimination of plastic pollution was even an emphasis in Hollywood with the official launch of the “Green Council” in March and April 2023, which is a group intended to encourage and implement more sustainable practices throughout the entertainment industry.
In 2023, the EPA’s focus on recycling as a goal to build a circular economy continued through some of the largest investments made towards the expansion of recycling infrastructure and waste management systems in the last 30 years. These investments were derived from the $275,000,000 provided by the Bipartisan Infrastructure Law, which focused, in part, “on improving the effectiveness of residential and community recycling and composting programs through public education and outreach” and provided funding for programs “to improve post-consumer materials management and infrastructure, support improvements to local post-consumer materials management and recycling programs, and assist local authorities in making improvements to their waste management systems.” Much of the investments permitted funding to authorized grants under the Save Our Seas 2.0 Act, and the minimum and maximum award ceilings varied for each funding opportunity.
On September 13, 2023, the EPA announced that twenty-five communities had been selected to receive grants totaling more than $73,000,000 through its funding opportunity, “Solid Waste Infrastructure for Recycling Grants for Communities.” It also announced $32,000,000 in grants had been disbursed to states and territories through the funding opportunity, “Solid Waste Infrastructure for Recycling Grants for States and Territories.” These grants would assist states and territories in improving their data collection and implementation plans for solid waste management.
Then, on November 15, 2023, the EPA announced fifty-nine grants had been awarded for a total of over $60,000,000 to different Tribes and Intertribal Consortia through the funding opportunity, “Solid Waste Infrastructure for Recycling Grants for Tribes and Intertribal Consortia.” Included in this announcement, the EPA noted that twenty-five grants had also been awarded for a total of over $33,000,000 through the EPA’s funding opportunity, Consumer Recycling Education and Outreach Grants. These grants to are intended to expand education and infrastructure for recycling and waste management systems.
On December 5, 2023, the EPA published a notice of availability requesting public comment on its “Draft National Strategy for Reducing Food Loss and Waste and Recycling Organics” (“NSO”). The NSO is created in collaboration with the U.S. Department of Agriculture (“USDA”) and the U.S. Food and Drug Administration (“FDA”). It includes concrete objectives that will assist in the recycling and reduction of loss and waste for organics. It also assists these agencies in meeting goals set to be completed by 2030, such as the EPA and USDA’s joint goal to reduce waste and food loss by 50%.
Because yard, tree trimmings, and other organic materials (i.e., carbon-based materials) can be recycled on their own or with food, the NSO “addresses organic waste, defined as food, yard and tree trimmings, and other organic (carbon-based) materials in the waste stream,” and not just food and fiber. The NSO consists of the following four objectives: (1) “prevent the loss of food where possible;” (2) “prevent the waste of food where possible;” (3) “increase the recycling rate for all organic waste;” and (4) “support policies that incentivize and encourage food loss and waste prevention and organics recycling.” Of note, the strategic actions for each objective are similar to the overall purposes for the grants discussed above; however, these strategic actions are specifically focused on organics. For example, the fourth objective includes strategic actions to support and incentivize efforts, such as developing recycling infrastructure and waste collection and processing infrastructure for organics, while the second objective includes strategic actions to “[d]evelop, launch[,] and run a national consumer education and behavior change campaign.” The public comment period for the NSO was extended on December 13, 2023, and, as of writing this Chapter, was anticipated to close on February 3, 2024.
On May 2, 2023, the EPA published a notice of availability requesting public comment on its “Draft National Strategy to Prevent Plastic Pollution” (“NSPP”). The NSPP identifies objectives and actions that aim “to prevent plastic pollution through initiatives that reduce, reuse, collect, and capture plastic and other waste from land-based sources.” Its primary focus is on strategies related to the life-cycle of plastic products (i.e., the production, consumption, and end stages); however, it is also intended to address concerns with other solid waste materials. The NSPP will assist the EPA in building a more circular plastics economy, as well as meet its goal to reduce plastic waste from land-based sources by 50% by 2040.
The NSPP’s three objectives are to: (1) “reduce pollution during plastic production;” (2) “improve post-use materials management;” and (3) “prevent trash and micro/nanoplastics from entering waterways and remove escaped trash from the environment.” These objectives too are similar to the purposes behind the grants above because the strategies further comply with Congress’ directions provided to the EPA under the Save Our Seas 2.0 Act. Further, objective three incorporates actions intended to increase public awareness and educate consumers on the impacts of plastic pollution on our water ways and systems. Objective two incorporates actions related to waste collection and management, while objective one incorporates actions intended to reduce the use of single-use plastics. The public comment period for the NSPP concluded on June 16, 2023.
While initiatives and funding are being provided to prevent plastic pollution as part of the circular economy approach, litigation on plastics is also rising. Since 2021, most cases related to plastic and recycling have involved false advertising and/or consumer protection claims. Two cases following this trend were pursued in 2023 in California’s federal courts.
In Swartz v. Coca-Cola Co., the plaintiffs brought claims against Coca-Cola, Blue Triton Brands, and Niagara Bottling (the defendants), alleging that the defendants misled consumers through the labeling of their plastic bottles as “100% recyclable.” The plaintiffs’ initial complaint was dismissed for failure to plausibly allege that reasonable consumers would interpret “‘100% recyclable’ to mean that the [plastic] bottle will always be recycled or is part of a circular plastics economy in which all bottles are recycled into new bottles to be used again.” In making this determination, the court defined the word “recyclable” as either an adjective that describes a product as capable of being recycled (e.g., this napkin is composed of recyclable paper), or a noun identifying an object that is either recycled or can be recycled (e.g., the recyclables were placed outside for collection). However, the court held that recyclable did “not mean a promise that an object will actually be recycled.”
Nonetheless, in reviewing the plaintiffs’ amended complaint, the court again determined the plausibility standards had not been met. The court held that the plaintiffs’ focus on bottle caps and labels as not being recycled by a majority of facilities in California was not sufficient because federal regulations considered bottle caps and labels as minor, incidental components. Further, the court found that the plaintiffs’ allegations were not sufficient because they did not allege that recycling bottle caps and labels were impossible or that no component of the defendants’ bottles could be identified and otherwise recovered from California’s waste stream. The court ultimately provided the plaintiffs with one more opportunity to amend their complaint, and the plaintiffs filed their second amended complaint on August 17, 2023.
In Peterson v. Glad Products Co., the court determined that the plaintiff had pleaded sufficient allegations to withstand the defendant’s motion to dismiss, and, therefore, was able to move forward on his request for injunctive relief. In this case, the plaintiff alleged that the defendant, The Glad Products Company, was attempting to defraud environmentally conscious consumers through its labeling, which included the word “recycling” and the phrase “designed for municipal use” on its packaging. The plaintiff alleges that the labeling is misleading because the plastic the trash bag is made from is virtually non-recyclable. The court held that because the plaintiff could not rely on the products’ labeling in the future and would purchase the product again if he believed he could trust the label, the plaintiff had pled sufficient facts to withstand the defendant’s motion to dismiss.
Last year, this Chapter provided an overview and discussion of different promulgations and litigation related to the EPA’s regulation of CCRs. To build upon that discussion, the EPA published a proposed rule on May 18, 2023, intended to expand the CCR regulatory framework to include “Legacy CCR Surface Impoundments” (“LCCRSIs”) and “CCR Management Units” (“CCRMUs”). LCCRSIs are defined as “inactive surface impoundments at inactive electric utilities.” CCRMUs are defined as the different areas the EPA found “at regulated CCR facilities where CCR was disposed of or managed on land outside of regulated units at CCR facilities.” The proposed rule is intended to incorporate both LCCRSIs and CCRMUs to be regulated under the criteria and provisions already governing active CCR surface impoundments, with a few minor exceptions. Specifically, the EPA proposes adding definitions for both LCCRSIs and CCRMUs. “It also proposes [the] require[ment] that [LCCRSIs] comply with certain existing CCR regulations with tailored compliances,” and that it “extend a subset of the existing requirements in part 257, subpart D to [CCRMUs].” Lastly, the rule proposes technical corrections to other existing regulations, so as to correct citations, typographical errors, and harmonize definitions.
The proposed rule is in direct response to the U.S. Court of Appeals for the D.C. Circuit’s holding arising in Utility Solid Waste Activities Group v. Environmental Protection Agency (the “USWAG Decision”). In this case, the court vacated and remanded the CCR provisions that permitted LCCRSIs to be exempt from the CCR regulations. A little over two years later, a group of environmental organizations filed another lawsuit against the EPA, alleging it failed to review and revise regulations concerning LCCRSIs, which resulted in the EPA entering into a consent decree.
On February 3, 2023, the EPA published notice of its intent to enter into the proposed consent decree that would establish deadlines requiring the EPA to sign a proposed rule by May 5, 2023, and issue a final rule by May 6, 2024. That is, these deadlines would only be required if the EPA determined that it was necessary for it to revise regulations regarding LCCRSIs in the existing CCR regulations under RCRA. Thus, in compliance with the consent decree and the USWAG Decision, the EPA published its proposed rule in May 2023.
On October 19, 2023, the EPA published a notice of proposed rulemaking, entitled “Phasedown of Hydrofluorocabons: Management of Certain Hydrofluorocarbons and Substitutes Under Subsection (h) of the American Innovation and Manufacturing Act of 2020.” Of relevance, the EPA is proposing to create RCRA standards, as an alternative to establishing a hydrofluorocarbons management program, that will regulate spent ignitable refrigerants recycled for reuse. The EPA intends to create the program through its authority provided under the American Innovation and Manufacturing Act (“AIM Act”). It is additionally proposing RCRA standards as an alternative because, in part, the terms “reclaim” and “recycle” have different definitions and purposes from those in the AIM Act or the Clean Air Act. The comment period for this notice ended on December 18, 2023.
On October 18, 2023, the EPA published a final rule that consisted of two parts: (1) the revision of the definition of paper recycling residuals and (2) the denial of further rulemaking amendments previously requested by petition. In 2018, the EPA received requests for amendments to RCRA’s Non-Hazardous Secondary materials regulations. The Non-Hazardous Secondary Materials regulations consist of standards and procedures that identify when non-hazardous secondary materials, used as ingredients in combustion units and/or fuels, are to be considered solid wastes per RCRA. The amendment requests were for the EPA to:
[1] Change the legitimacy criterion for comparison of contaminants in the non-hazardous secondary material against those in the traditional fuel the unit is designed to burn from mandatory to ‘should consider[;]’ [2] remove associated designed to burn, and other limitations for creosote-treated railroad ties; and [3] revise the definition of ‘paper recycling residuals.’
While the EPA denied the first two requests, it granted the third, resulting in its revision to the definition of paper recycling residuals to limit their categorization as a non-waste fuel, which could previously occur because of non-fiber material’s impact on the heat value of paper recycling residuals. The revision to the definition went into effect on December 18, 2023.
On August 11, 2023, the EPA published an advance notice of proposed rulemaking to obtain information and comments on a potential development for regulations that would address the cleaning and handling of used containers that previously held hazardous waste and/or chemicals. These regulations could include procedural requirements and conditions placed on the drum reconditioning process or revisions to RCRA regulations. In 2022, the EPA published a report that defined its understanding of the drum reconditioning process and its examination of the present RCRA regulations applicable to the process. The EPA is now proposing to create new regulations, such as defining what it means for these drums to be “emptied,” how non-emptied drums should be transferred, and so forth. Comments were due to the EPA by November 22, 2023, following the EPA’s extension of the comment deadline on September 5, 2023.
On August 9, 2023, the EPA published a proposed rule making corrections to RCRA regulations in order to provide clarification and eliminate confusion in any applicably regulated communities. The corrections were for overlooked typographical errors made during previous updates to the regulations following the promulgations of these three rules: (1) the Hazardous Waste Generator Improvements Rule; (2) the Hazardous Waste Pharmaceuticals Rule; and (3) the Definition of Solid Waste Rule. Included in these corrections were updates to other typographical errors that had not been triggered by the promulgations but were corrections to regulations in the same sections. Anticipating no adverse comments because the EPA viewed the corrections as noncontroversial actions, it published its final rule alongside its proposed rule. However, the EPA received some adverse comments, resulting in its publication of a partial withdrawal of eight amended corrections. The corrections withdrawn included, but were not limited to, subtle changes, such as the removal of introductory text from specific sections within part 262 and the removal of the addition of “RCRA-” to “designated facility.” The corrections not subject to the withdrawal went into effect on December 7, 2023.
In Center for Biological Diversity v. United States Forest Service, the Ninth Circuit Court of Appeals held that passive conduct and land ownership were not sufficient to establish liability under RCRA’s citizen-suit provisions. The Center for Biological Diversity (“CBD”) brought claims against the United States Forest Service (“USFS”), alleging that it was liable under RCRA for contributing to the disposal of solid or hazardous waste through its alleged failure to regulate lead ammunition from hunters in the Kaibab National Forest. The CBD alleged that the USFS’s passive conduct in refusing to regulate the use of lead ammunition or stop the disposal of lead in the form of spent ammunition constituted “contribution” as required for a finding of liability under RCRA.
The Ninth Circuit disagreed, determining that the word “contribute” as used in RCRA requires active and actual control over the disposal of solid or hazardous waste. Passive conduct, such as the USFS’s lack of action to regulate or issue permits regarding the use and disposal of lead ammunition, was not active or actual control, and constituted “incidental” activity at best. Thus, it did not satisfy the requirements for RCRA liability. Finally, relying on other Circuit Court holdings, the Ninth Circuit concluded that mere ownership over the land was not sufficient to establish RCRA liability, as mere ownership was the equivalent to passive conduct, and like before, RCRA’s term “contribute” required affirmative/active action for a finding of liability.
In Housatonic River Initiative v. United States Environmental Protection Agency, the First Circuit Court of Appeals held, in part and of relevance here, that: (1) the EPA was not prohibited from using mediation to help determine a draft corrective action permit under RCRA, despite the mediation being held off the record and closed to the public; and (2) the resulting settlement had not rendered the notice-and-comment period a “façade.” The case arose from an objection made by the petitioners to a RCRA permit issued by the EPA to General Electric (“GE”). In October 2000, a consent decree was entered into by GE and other municipalities/agencies. The consent decree incorporated a draft RCRA permit, which was to be revised and finalized upon the selection of a remedy for the cleanup. However, the consent decree still required the permit to undergo the notice and comment process required by RCRA regulations.
The petitioners filed procedural and substantive challenges to the permit, primarily implicating RCRA on the grounds of RCRA’s notice and comment process. The petitioners contended that the mediation “improperly influenced the remedy selection process and rendered the notice-and-comment process a ‘façade’” because RCRA regulations require the EPA to “allow public access to the mediation and maintain an administrative record of the negotiations.” The court rejected this argument, reasoning that nothing in the consent decree required anything other than the draft permit to be subject to RCRA regulations, and therefore, the negotiations and mediation were not subject to the notice and comment process or required to occur on the record.
In Talarico Brothers Building Corp. v. Union Carbide Corp., the plaintiffs alleged that three chemical plant operators had disposed of radioactive slag (i.e., toxic byproducts) on their properties between the years of 1940-1970. The plaintiffs sought relief under RCRA, where the district court dismissed their claims, holding that “‘disposal of slag material recycled as asphalt base is not the discard of solid waste under RCRA because [s]uch reuse is not part ‘of the waste disposal problem’ that RCRA addresses.’” The plaintiffs appealed, leading the Second Circuit Court of Appeals to determine whether “some recycled waste can be ‘discarded material’ within the meaning of RCRA.” The court held that recycled waste can be considered “discarded material,” so as to be regulated under RCRA’s hazardous, solid waste regulations, when the circumstances are appropriate.
Relying on other Circuits, the court identified some considerations to determine if the circumstances were appropriate, which include: (1) “the manner in which the material was stored prior to recycling;” (2) “how long the material sat before being put to beneficial use;” (3) “whether the material was subject to a reclamation process;” and (4) “how market participants value the material.” During review, the court noted the plaintiffs’ following allegations: (1) the defendants had generated byproducts, which included slag; (2) studies had detected radioactivity attributable to contaminated slag; and (3) the defendants transported and disposed of said byproducts on the plaintiffs’ land. The court held these allegations were sufficient to meet plausibility standards that the radioactive slag constituted “discarded materials” and was subject to RCRA’s hazardous, solid waste regulations. The court then determined that the plaintiffs sufficiently alleged “imminent and substantial” harm and “contribution,” as required by RCRA.
In Public Employees for Environmental Responsibility v. Environmental Protection Agency, the petitioners sought a rule revision for the “corrosivity” characteristic used in the identification of “hazardous wastes” under RCRA’s Subtitle C regulation. The petitioners contended, in part, that the EPA should have amended the corrosivity characteristic regulation by “lowering the upper pH threshold and removing the requirement of ‘aqueousness.’” The petitioners argued that “non-aqueous high-pH substances” could cause serious health issues, and presented “anecdotal evidence” of studies related to cement kiln dust respiratory illnesses and respiratory illnesses in the wake of the 9/11 World Trade Center attacks, as well as a report that had not available in the 1980s when the characteristic was set. Providing deference to the EPA, the court held that the EPA had presented reasonable grounds for discounting the petitioners’ “anecdotal evidence” and acted within its discretion when it declined to revise the corrosivity characteristic to regulate “non-aqueous high-pH substances.”
This report was authored by Chayla A. Witherspoon and Sotheby M. Shedeck. This report was edited by Chayla A. Witherspoon with the assistance of the student editors at the University of Tulsa College of Law. This report summarizes developments, legislation, and decisions in waste and resource recovery from January 2023 through December 2023, but does not purport to summarize all developments, legislation, and decisions.
