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American Mining Congress v. EPA

Citation: 17 ELR 21064
No. Nos. 85-1206, -1208, 824 F.2d 1177/26 ERC 1345/(D.C. Cir., 07/31/1987)

The court holds that the Environmental Protection Agency (EPA) exceeded its authority by amending its definition of "solid waste" under the Resource Conservation and Recovery Act (RCRA) to include secondary materials destined for reuse within an industry's ongoing production process. The court initially holds, in a footnote, that the challenged regulations are ripe for review because certain recycling practices are subject to the regulations, and that petitioner's challenges to the applicability of the regulations to activities that are currently exempt from regulation are also ripe. The court notes that EPA's interpretation is entitled to less deference because the agency has changed its position. EPA's interpretation is contrary to RCRA's plain language, which the court gives considerable weight. RCRA §1004(5) defines solid waste to include "discarded material." EPA's inclusion of materials retained for immediate use as discarded material strains the everyday usage of that term. An examination of Congress' objectives in passing RCRA supports the conclusion that Congress was using the term "discarded" in its ordinary sense. Congress enacted RCRA to deal with solid waste disposal; EPA need not regulate material that is destined for reuse by its generators to fulfull this purpose.

Other provisions of RCRA also do not support EPA's broad reading of "discarded." RCRA §3004(r)(2), which exempts from a general labeling requirement certain fuels that are "generated and reinserted on-site into the refining process," does not implicitly authorize EPA to regulate recycled secondary materials. Since this section was probably directed at material that has already becomehazardous waste, which is a subset of solid waste under RCRA, EPA's argument under this section to extend the reach of the definition of solid waste is circular. EPA's reliance on §3004(q)(1), which is also directed at hazardous waste treatment facilities, presents the same circularity problem. Further, this section was probably intended to apply only to the specific problem of the burning of commercial chemicals as fuels contrary to their original, intended use. The court concludes that the statutory definition of solid waste unambiguously indicates Congress' intent to limit EPA's authority to materials that are discarded by being abandoned or thrown away. This conclusion is supported by the care Congress took in defining RCRA's key terms and in the specificity of the definition of solid waste. RCRA's legislative history confirms that Congress used the term "discarded" in its ordinary sense.

A dissenting judge would uphold the regulations because the agency has demonstrated that its interpretation is a reasonable construction of an ambiguous statutory term. Sections 3004(r)(2) and 3004(q)(2)(A), as well as the legislative history, provide sufficient support for EPA's interpretation.

Counsel for Petitioners
John D. Fognani
555 17th St., Suite 2900, Denver CO 80201
(303) 295-8000

Counsel for Respondent
George B. Henderson II
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2327

Before: STARR and MIKVA, Circuit Judges, and McGOWAN, Senior Circuit Judge.