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Association of Battery Recyclers, Inc. v. EPA

ELR Citation: 30 ELR 20512
Nos. No. 98-1368, 208 F.3d 1047/50 ERC 1385/(D.C. Cir., 04/21/2000)

The court upheld in part and vacated in part U.S. Environmental Protection Agency (EPA) Resource Conservation and Recovery Act (RCRA) regulations, known collectively as the Land Disposal Restrictions (LDR) Phase IV rule, addressing residual or secondary materials generated in mining and mineral processing operations. Under EPA's rule, materials are not considered solid waste if a secondary processor stores material destined for recycling in tanks, containers, buildings, or on properly maintained pads. A mining association and a steel association challenged the rule because of their assumption that materials exhibiting a characteristic of hazardous waste that are not stored in the manner required by the EPA rule prior to recycling may be regulated as hazardous waste.

The court first holds EPA improperly classified secondary and residual mineral processing materials destined for reuse as "solid waste." EPA misinterpreted case law and improperly concluded that secondary materials are discarded and, thus, "waste" whenever such materials leave the production process and are stored for any length of time. However, according to the same case law EPA misinterpreted, under RCRA, material must be thrown away or abandoned before EPA may consider it to be "waste." Material stored for recycling is plainly not in that category, and some of the secondary material at issue is destined for recycling in a continuous industrial process. Therefore, EPA's regulation of mineral processing secondary materials is set aside, and EPA must redefine "solid waste" accordingly.

The court next holds that the final rule's alternative LDR treatment standards for soils placed in a land disposal unit are lawful. Although the final rule departed from the proposed rule, which allegedly applied to any land disposal of soils, the final standards are the logical outgrowth of the proposed regulations. Thus, EPA did not need to comply with the Administrative Procedure Act's notice-and-comment requirements. The court also holds that EPA's alternative treatment standards for soils was not arbitrary and capricious. EPA engaged in reasoned decisionmaking in finding that contaminated soils placed on the ground as asphalt or cement pose greater environmental risks than similar soils placed in land disposal units.

The court then holds that although EPA has justified its use of the toxicity characteristic leaching procedure (TCLP) test alone as a proper way to determine the toxicity of mineral processing wastes generally, it failed to justify the application of the TCLP test to manufactured gas plant (MGP) waste. EPA collected sufficient evidence to support its application of the TCLP to mineral processing wastes. However, MGP waste is no longer produced, and EPA produced no evidence indicating that MGP waste from remediation sites has been or is likely to be disposed of in a municipal landfill.

Counsel for Petitioners
Donald J. Patterson Jr.
Beveridge & Diamond
1350 1 St. NW, Ste. 700, Washington DC 20005
(202) 789-6000

Counsel for Respondents
Michele L. Walter
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Silberman and Ginsburg, JJ., joining in a separate opinion, and Randolph, J., dissenting in part