ELR Citation: ELR 20211
No(s). 09-5360 (D.C. Cir. Aug 6, 2010)

The D.C. Circuit held that used potassium hydroxide (KOH) shipped for reuse to a fertilizer company is a "waste" under RCRA. EPA filed suit against an aerospace casings manufacturer under RCRA after it shipped used KOH to a fertilizer company. The manufacturer argued that the used KOH was not waste because it was not a "spent material." In determining whether a material is spent, EPA argued that the initial use of the material is determinative; the manufacturer contended the initial use is irrelevant. Although EPA's regulatory definition of "spent material" is ambiguous, the Agency's overall regulatory framework under RCRA, as well as the regulatory history of the definition, establish that EPA's interpretation is reasonable and consistent with prior interpretations. In addition, EPA's explanation of spent material in its Guidance Manual should have put the manufacturer on notice as to the Agency's interpretation.

[A prior decision in this litigation can be found at 39 ELR 20229.]