Jump to Navigation
Jump to Content

Solvay USA Inc. v. Environmental Protection Agency

ELR Citation: 45 ELR 20107
Nos. 11-1189, (D.C. Cir., 06/03/2015)

The D.C. Circuit denied several petitions for review challenging aspects of an EPA rule that provides procedures for classifying non-hazardous secondary materials as RCRA "solid waste" for the purpose of CAA emission standards for incinerators and other combustion units. The rule classifies secondary material as solid waste, but it exempts certain non-hazardous secondary materials from stricter air pollution requirements when burned in solid waste incinerators or boilers. Petitioners generally challenge how the rule classifies some non-hazardous secondary materials as discarded and other materials as not discarded. Environmental petitioners argued that the rule impermissibly excludes materials that have been "discarded" within the ordinary meaning of that term. But neither the CAA nor RCRA, nor court precedent, prevents EPA from defining solid waste to exclude certain non-hazardous secondary materials combusted for energy or used as an ingredient for fuel. And the record reflects "that EPA engaged in reasoned decisionmaking to decide which characterization is appropriate" for different types of non-hazardous materials. Industry petitioners argued that EPA does not have jurisdiction over firm-to-firm transfers of alternative fuels that are not discarded. But their argument is foreclosed by RCRA's plain language, and EPA’s distinction between material burned by the generator and material transferred to a third party is consistent with RCRA and reasonable. EPA is well within its statutory authority to assume that transferred material is solid waste until an interested party demonstrates that the material “has not been discarded and is indistinguishable in all relevant aspects from a fuel product.”