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United States v. Magnesium Corp. of Am.

Citation: 40 ELR 20223
No. No. 08-4185, (10th Cir., 08/17/2010)

The Tenth Circuit vacated a lower court decision granting summary judgment in favor of a magnesium company on claims that its handling of waste violated RCRA Subtitle C. The company argued that EPA exempted the five wastes at issue from Subtitle C’s strictures in a prior interpretation of its own regulation and that the Agency cannot change that interpretation without first complying with the notice and comment procedures of the APA. The lower court agreed and entered judgment in its favor. But the only prior EPA interpretation the company can point to is, at best, a tentative one. Because EPA never previously adopted a definitive interpretation, it remained free to change its mind and issue a new interpretation of its own regulations without assuming notice-and-comment obligations.