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Sierra Club v. Environmental Protection Agency

ELR Citation: 44 ELR 20142
Nos. 08-1145, 12-1295, (D.C. Cir., 06/27/2014)

The D.C. Circuit vacated EPA's gasification exclusion rule, which exempts from RCRA certain hazardous residuals left over from the petroleum refining process. Under the exclusion, oil-bearing hazardous secondary materials that are otherwise hazardous wastes under RCRA §3001 are exempted from RCRA regulation if they are eventually inserted into a gasification unit located at some petroleum refinery and used to produce synthesis gas. The exclusion, however, is clearly contrary to the plain language of RCRA §3004(q), which requires EPA to regulate facilities that produce a fuel from any hazardous waste identified or listed under §3001, burn such a fuel, or distribute or market such a fuel. EPA cannot carve out of RCRA one of the very activities that Congress commanded it to regulate. Accordingly, EPA lacks authority to remove oil-bearing secondary hazardous wastes from RCRA’s reach when, through gasification, those materials are used to produce a fuel.