ELR Citation: ELR 20229
No(s). 07-1306 (D.D.C. Sep 23, 2009)

A district court held that used potassium hydroxide (KOH) shipped for reuse to a fertilizer company is a "waste" under RCRA. An aerospace casings manufacturer argued that the used KOH it shipped to the fertilizer company was not waste because it was not a "spent material." But EPA's interpretation that the proper reading of the regulation at issue centers on the initial use of a material was not arbitrary, capricious, or an abuse of discretion. Although used KOH may not be "spent material" if it is later used for a similar purpose (in this case, as a cleanser), the used KOH was a "spent material" when later used for a different purpose as a fertilizer ingredient applied to land. Further, the manufacturer could have reasonably ascertained that EPA would treat the used KOH as spent material. The manufacturer, therefore, violated RCRA. As stipulated by the parties, it must pay a $309,091 penalty.