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Safe Food & Fertilizer v. EPA

ELR Citation: 34 ELR 20006
Nos. No. 02-1326, (D.C. Cir., 12/09/2003)

The court largely upholds the U.S. Environmental Protection Agency's (EPA's) determination that Subtitle C of the Resource Conservation and Recovery Act (RCRA) does not apply to recycled materials used to make zinc fertilizers, or to the resulting fertilizers themselves, so long as they meet certain handling, storage, and reporting conditions and, in the case of the fertilizers themselves, have concentration levels for arsenic, cadmium, chromium, dioxins, lead, and mercury that fall below specified thresholds. EPA's determination that so long as these materials meet the specified conditions they should not be seen as "discarded" within the meaning of RCRA's definition of "solid waste" is entitled to deference. RCRA does not compel the conclusion that material destined for recycling in another industry is necessarily "discarded." Although ordinary language seems inconsistent with treating immediate reuse within an industry's ongoing industrial process as a "discard," the converse is not true. And EPA's view that the RCRA phrase "other discarded materials" should be read to mean that the listed materials are solid waste only if they are also "discarded" is reasonable. The court, however, remanded EPA's selection of an exemption level for chromium for further explanation.

Counsel for Plaintiffs
Melissa Powers
Western Environmental Law Center
1216 Lincoln St., Eugene OR 97401
(541) 485-2471

Counsel for Respondent
Martin F. McDermott
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000