Howmet Corp. v. Environmental Protection Agency

(albeit nothing one), This case is like Stark or its “niche” market a “lucrative” commodity progeny. The at issue here is Appellants’ presents Br. no such com- 10— Stark, in not milk—as Blair and Arkansas pelling necessity.6 Act Dairy almonds. And the confers —but reasons, foregoing For the I respectfully statutory right producer on a to receive dissent.7 almonds; any payment for its nor does it Secretary price, to fix their empower expressly milk. The Act

as it does for milk Secretary regulate

authorizes the Block,

prices alone. Pescosolido v. See (9th Cir.1985) (“Unlike 827,

F.2d prices

fixed minimum which must be es- ..., milk

tablished for see U.S.C. CORPORATION, Appellant HOWMET 608c(5)(A), Secretary § empow- is not prices any ered to fix other commodi- v. Instead, covered the Act. he ties ENVIRONMENTAL PROTECTION controls, only employ market see id. Jackson, AGENCY Lisa Perez Ad- 608c(6), § in an effort to ‘effectuate the ministrator, United States Environ- Act” policy (quoting declared Agency, Appellees. mental Protection 608c(4))) in (emphasis original). U.S.C. in generis respect Milk is sui this as in so No. 09-5360. observed, many others.5 As Block Appeals, United States Court of Stark, “judicial producers’ review of the District of Columbia Circuit. complaint necessary was ... to ensure achievement of the Act’s most fundamen- 7, Argued May 2010. wit, objectives' protection tal —to 6, Decided Aug. 2010. producers milk milk products.” 351, (emphasis U.S. at 104 S.Ct. 2450 add-

ed). Protecting the market for raw al- by the own appellants’ admission

monds— Benson, 723). extensively regulated 236 F.2d at 5. Benson court Milk is far more under distinguished the Act than the other covered had commodities. turn Stark on a similar 608c(5) Compare with id. ground: 608c(6). [A]ppellees standing claim to vindicate a 6. majority All of the extra-Circuit cases wrong” “legal language because of to be support position cites to involved milk found in v. Stark Wickard. But there the prices. Maj. Op. (citing See at 539 Farmers pointed every Court out: "It is because Yeutter, Marketing Coop. Union Milk v. produc- dollar of deduction comes from the (6th 1991); Dairy F.2d Veneman, Cir. Alto v. may challenge that he er the use of the (7th 567-69 Cir. petitioners’ complaint fund. The is not that 2003); Minn. Milk Producers Ass’n Madi low, price their blended is too but that the (8th 1992)). gan, 956 F.2d 817-18 Cir. price by misap- blended has been reduced only majority extra-Circuit case the cites plication money deducted from the oranges. as contra involved id. navel See price.” ducers' minimum We still come Pescosolido, 831-32.) (citing 765 F.2d at proposition, back to the as the Stark case out, points “justiciable that absent individu- majority's I concur in the affirmance of the (italics ours) rights," al the detriment com- produc- district court's dismissal of the three plained absque injuria. of is damnum er-retailers’ claims failure to exhaust ad- 236 F.2d at 723. ministrative remedies.

Bryan Moore argued J. cause and appellant. filed the briefs'for Patterson, Bethany Donald J. Jr. and S. French were on the brief for amicus curiae Alliance of Automobile Manufacturers support appellant. Pidot, Attorney, Depart-

Justin R. U.S. Justice, argued ap- the cause for ment him on the brief was Robert pellees. With Oakley, Attorney. H. SENTELLE, Judge,

Before: Chief KAVANAUGH, and Circuit BROWN Judges. by

Opinion for the Court filed Circuit Judge BROWN.

Dissenting opinion filed Circuit Judge KAVANAUGH. treatment, storage the safe

BROWN, Judge: Circuit EPA, hazardous waste.” Sierra Club Agency Protection Environmental (D.C.Cir.2002). (EPA Corpo- says Howmet Agency) or the “hazardous waste” as a statute defines (Howmet) the Resource violated ration pose waste substan- [that] “solid Recovery Act and Conservation human present potential tial or hazard to Amendments and Solid Waste Hazardous improper- health or the environment (collec- stored, seq. treated, transported, disposed §§ 6901 et ly of, managed.” or otherwise U.S.C. RCRA), regu- implementing and its tively 6903(5). investiga- § EPA has broad says its actions were lations. Howmet authority under tory and enforcement by regulations. Whether permitted the Corp. Motors v. 363 RCRA. See Gen. EPA a ambiguity or syntactical viewed as a (D.C.Cir.2004). to F.3d Pursuant dispute focuses on squabble, semantic EPA nu- authority, imposed this longer a material no question: one when is requirements merous and restrictions on it serving purpose “the for which was transporters of hazard- generators and EPA the initial use of insists duced?” waste, requiring EPA including ous identi- determinative; Howmet the material is numbers, 262.12(c), § fication 40 C.F.R. the initial use is irrelevant. The contends of hazardous waste manifests iden- the use material” question “spent matters because contaminants, 262.20(a), § tifying id. and subject reg- to hazardous waste RCRA’s written notification of land restric- ulations, that has not but material been 268.7(a). tions, §id. that used spent is not. Howmet insisted a of Hazardous wastes are subset solid (liquid potassium hydroxide) sent to KOH 6903(5); § wastes. See U.S.C. a a fertilizer manufacturer for use as fertil- 261.3(a). § a substance can- C.F.R. Since ingredient “spent izer was not material” subject not be a “hazardous waste” or subject and thus not to RCRA hazardous waste un- the EPA’s argument Howmet this before After lost less it satisfies the threshold definition of waste,” (ALJ) analysis begins “solid our with the judge an administrative law and the definition of solid waste. “Solid waste” is (EAB), Appeals Board Environmental material, solid, including liquid, “discarded rejected district court Howmet’s Adminis- semisolid, gaseous or contained granted Act claim and trative Procedure industrial, commercial, min- resulting from summary judg- EPA’s cross-motion for ing, agricultural operations.” and ment, holding the EPA’s of 6903(27). § Discarded material in- U.S.C. material” was not ar- (materials cludes materials bitrary capricious Howmet and that “used, reused, reclaimed,” or have been Agency’s interpreta- fair notice had 261.1(c)(7)) § spent C.F.R. materials Corp. tion. See Howmet it (any material so contaminated (D.D.C.2009). affirm. F.Supp.2d 167 We longer can no serve “the processing,”

it without id. produced 261.1(c)(1)). Under the EPA’s I tions, it recycled, when a material is §§ 6921- Subtitle C a waste. More- managed must be as solid ‘eradle-to- “stringent over, establishes if exhibits a hazard- the material also characteristic, corrosivity,1 overseeing ous such as see grave’ regulatory structure for aqueous pH equal less than or Corrosivity present if the waste is and has is deemed 261.20-.24, 261.3(a), castings, man- an aqueous §§ it must be uses KOH id. subject a hazardous waste aged as During cleaning process solution. Thus, the EAB requirements. as RCRA KOH is contaminated. Howmet uses the noted, when a hazardous KOH solution until it becomes so contami- “[ujsed products recycled, produce longer effectively nated it can no clean applied placed that are to or on the land or eastings. The used KOH is corrosive. in products otherwise contained are Thus, regulations, under the EPA’s land,” on the placed to or id. regulated used KOH would be as hazard- 261.2(c)(l)(i)(B), managed it must be ous waste. 261.22. See C.F.R. of this hazardous waste. The resolution Typically, Howmet accumulates the used on whether the materials in appeal rests storage KOH in tanks at an authorized question “spent” were and should be facility. hazardous waste disposal Howev- “spent materi- deemed solid waste. Since er, between August September 1999 and al” is material that has been used and as 2000, Howmet sent some the used KOH longer contamination can no serve result of Royster, an independent fertilizer man- for which was that, ufacturing company process- in without processing,” without the central issue it, phrase ing of the or reclaiming this case is the otherwise added the purpose produced.” for which it was pH KOH to its fertilizer to control and a provide potassium. source of succinctly syllabus The EAB’s summa- prepare any did not hazardous waste mani- dueling interpretations: “How- rizes Royster for shipments fest to or other- ‘purpose’ implies that a funda- argues met wise treat the KOH as a hazardous waste purpose. mental Howmet’s §§ under 6901-91. product, would allow a multi-use such as KOH, a cleaning agent to be used first as the EPA brought enforcement ingredient without and then as a fertilizer Howmet, against alleging actions the used allegedly being ‘spent,’ because both uses Royster sent to a KOH solid and are consistent with KOH’s broad funda- waste, characteristic hazardous in that it a concentrated source mental potentially corrosive and contaminated hydroxide and of potassium. [The ions chromium, subject with and therefore Agency argues] product’s purpose that a jurisdiction. The EPA alleged RCRA (ie., production for ‘the imple- Howmet violated RCRA and its produced’) it was must be related to its (1) regulations by haz- menting shipping use, a a first used as [so] ardous waste to facilities did not have cleaning agent ‘spent material’ becomes (2) number; sending an EPA identification it contaminated for that becomes too using transporters hazardous waste offsite sent to a fertilizer manu- and then is (3) numbers; without identification fundamentally facturer in a be used failing prepare hazardous waste mani- manner.” different Royster; for shipments fests the KOH II (4) failing and to send and maintain on file appropriate land restriction notifi- The facts in this case are not dis- shipments informing cations for the KOH in- pute. precision Howmet manufactures Royster whether the KOH was too con- castings aerospace vestment and in- application pri- taminated land without To gas applications. dustrial turbine clean ceramic core from the metal or treatment. 261.22(a). greater equal

2 or than or to 12.5. See 40 C.F.R. allegations guage regulation^] Howmet contested and and serves a (cid:127) requested hearing. An ALJ found How- permissible regulatory function.” Gen. RCRA, concluding met liable under the Elec., 53 F.3d at Exportal, 1327. But see Royster was a used KOH sent to hazard- at (explaining F.2d deference is due ous material” and therefore a solid “only plain when the meaning of the rule managed waste that must be as a hazard- ambiguous” itself is doubtful and thus ous waste and that Howmet had failed to an agency’s interpretation deference to “is manage the in accordance with EPA KOH not order if the rule’s meaning is clear regulations. The ALJ also concluded face”). Moreover, on its policy fa- “[t]he proved Howmet had not it was denied due voring deference is particularly important process because had received fair where ... a technically complex statutory notice of the EPA’s scheme is backed an even more com- regulation. The ALJ as- plex comprehensive set of $309,091 against sessed civil fine of How- Elec., tions.” Gen. (noting 53 F.3d at 1327 EAB, met. Howmet appealed circumstances, such argu- “[i]n ‘the which upheld finding the ALJ’s in a ments for deference to administrative ex- lengthy detailing decision RCRA’s statuto- ”). pertise at strongest’ their ry and regulatory framework. Howmet complaint filed a in the district court A. definition of claiming arbitrary the EAB’s decision was ambiguous capricious, but the district court summary judgment awarded in favor of parties Both agree seem to our EPA, the holding reasonably the in- analysis should begin with determining terpreted “spent its material” regulation regulatory whether the text of the EPA’s and that Howmet fair had notice of the definition, spent material as to interpretation. EPA’s Corp., Howmet 656 shipments Howmet’s KOH Royster, is F.Supp.2d appeal 167. This followed. clear on its face. argues Howmet the EPA’s definition is unambiguous. It Ill claims both the dictionary definition of We grant review the district court’s (“the “purpose” object ... for which some summary novo, of judgment de see Steele exists”), thing as well as the context of the (D.C.Cir. Schafer, 689, 535 F.3d regulation, are relevant support its 2008), and must set aside the EPA’s final position. Howmet the plain insists lan “arbitrary, determination if capricious, an guage of the purpose definition—“the discretion, abuse of or otherwise not in which it retrospec ”—looks 706(2)(A). law,” accordance with tively ato material’s purpose intended at agency’s accord an interpretation We the time it produced, prospectively not regulations own a “high level of defer to the first use made of the material fol ence,” accepting it “unless it plainly is lowing production its and therefore does EPA, wrong.” Gen. Elec. Co. v. 53 F.3d permit adopted by 1324, (D.C.Cir.1995); see Expor also EPA, hand, EPA. The on the other States, 45, tal Ltda. v. United argues “purpose” the word ambiguous, is (D.C.Cir.1990) (“It is well established context, both taken alone and in and that a reviewing court owes deference to an phrase “the purpose for which it was agency’s construction of its regula own tions.”). produced” use, relate standard, could to a material’s Under this we must where, here, especially defer to the as long producer EPA’s as “logically as it is consistent with the lan- put the material does not itself the materi- with the Agen- reasonable and consistent use, creates the but rather al to cy’s prior interpretations. EPA. agree with the sale. We “purpose” nor the word Neither History the EPA’s Regulatory pro- it was for which purpose phrase “Spent Material” Definition in the EPA’s are defined duced” current hazardous tions, dictionary definition relied promulgated waste were help little deter- by provides on clarify “which primarily materials the word or meaning of either mining the they are solid and hazardous wastes when in 40 C.F.R. they are used phrase, as recycled.” Mgmt. Hazardous Waste everyday meanings of 261.1. Waste, any Sys.; Definition of Solid 50 Fed. provide also do not phrase term and (Jan. 1985) (to the initial use of be codified clarity Reg. to whether 266). determining 260, 261, 264, 265, pts. relevant at 40 C.F.R. the material was original regulations imple The EPA’s sum, the text of the EPA’s menting of RCRA did not in duced. Subtitle C ambiguous respect with simply material” or a definition clude reference Howmet’s adopt we should “purpose.” to whether material’s Hazardous Waste original purposes” approach “multiple, Mgmt. Sys.: Listing Identification and “spent,” Waste, a material is determining Fed.Reg. Hazardous should, instead, 1980) (to adopt at 40 (May whether be codified C.F.R. 261). Instead, test advanced “original pt. use”-based a material was consid when, EPA. among waste” other ered “solid it had “used” and “sometimes things, been B. The EPA’s 33,119. 33,093, at discarded.” See id. Un is rea- regulations, a material that “ha[d] der the sonable intended use and some served lan times discarded” was a “solid waste.” plain [wa]s concluded the Having 261.2(b)(2) (1980) (emphasis § material” defi 40 C.F.R. of the EPA’s guage 33,119.2 added); Fed.Reg. also 45 at question the wheth see nition does answer Thus, a material used and Royster was a once had been er the used KOH sent to material, longer originally could no serve its intend examine whether the spent use, Notably, it was considered waste. of the definition is ed EPA’s NTSB, See, to the final 1980 preamble v. e.g., reasonable. Gorman (D.C.Cir.2009) pur intended 580, (explain phrase “original used the 589 558 F.3d ” ” “original rather than intended use uphold agency’s pose an ing this court must at Fed.Reg. “solid waste.” 45 ambiguous regulation of an to describe added). 33,093, 33,099 The reasonable); (emphasis Energy Corp. if Devon v. (D.C.Cir. 1030, binding, while not see Kennecott preamble, 1037 Kempthorne, 551 F.3d 2008). Copper Corp. Dep’t v. U.S. doing, In we look to the EPA’s Utah so of (D.C.Cir.1996) Interior, 1191, F.3d framework under regulatory overall in (explaining preamble “whether regulatory history [a] as well as the legal effect ... is a function of dependent material” definition. Agency’s “spent agency’s intention to bind either itself EPA’s Both establish the 261.2(c), (d) (1980); if, see among cled.” 40 C.F.R. other 2. A material was “discarded” 33,119. any land” things, “placed Fed.Reg. it was into or on also 45 at “re-used, recy- reclaimed or without “any tion itself material” as see also Nat’l Res. defined regulated parties”); 561, 565 material used and has has been Council EPA Def. (D.C.Cir.2009), 14,508 respect informative with at original purpose.” served Id. 261.2(b)(1)) how intended determine (empha- the EPA (proposed C.F.R. fact EPA added). The “purpose.” material’s synonymous sis the EPA’s Again, for “purpose” term “use” substituted the “original use of the term use” singular is consistent with in the final term “original purpose” reveals the that a used position current EPA’s Agency concepts as closely viewed the two “purpose” should be de- material’s connected and interrelated. looking to how material termined EPA proposed The finalized the being pur- after initially deployed was tions in Hazardous 1985. See Waste the material’s i.e., chased as a — Waste, Sys.; Mgmt. Definition of Solid “original intended use.” 1985). (Jan. 4, Fed.Reg. Although the 1983, proposed the rule continuing EPA stated it “was to define current hazardous containing the waste those which have materials as been Mgmt. Hazardous Waste See longer used and fit for use without no 4, Sys., (proposed Apr. Fed.Reg. reclaimed, being regenerated, or otherwise 1983) (to 260, at 40 pts. codified C.F.R. be 624, reprocessed,” at the EPA id. acknowl- 266). Agency proposed The edged original purpose its “reference to [in changes several definition important proposed regulations] the 1983 was ambig- importantly, waste.” Most “solid uous when where situations longer EPA’s definition would no proposed material can without being be used further base a status as solid on material’s waste reclaimed, but the further use is not identi- it “sometimes discarded.” whether cal to the Agency initial use.” Id. The 14,475. Instead, id. ma- See at “clarifying therefore it what stated was [it] regulatory terial’s status depend would materials,” id., and, by spent ac- mean[t] “upon both what the material [was] cordingly, wording of the revised the defi- actually managed.” how Id. [was] today: ‘spent “A nition read as it does revised of “solid waste” stated definition any material’ is that has been activities, types recycling in- five used and as a result of contamination can constituting cluding “[u]se longer serve the for which it placement which involves the direct processing,” without land,” wastes onto the would be within (1985). 261.1(c)(1) pream- In the C.F.R. 14,476. at jurisdiction. Id. ble, provided example the EPA an of a five categories were further divided ac- purpose used subsequent for a cording type of waste involved. One original identical to use that would not material,” type such of waste was spent be considered a material: which in the preamble the EPA described clean solvents used to circuit [W]here as that have been are “materials used and enough are longer pure boards for no[ ] no longer being regen- use without fit use, pure that are still continued but erated, reclaimed, or re-pro- otherwise enough degreasers. metal use as added). (emphasis cessed.” Id. The spent These solvents are not materials explained using “processes spent that ma- degreasing. when used for metal The may logical terials more be candidates for practice simply continued of a regulation spent (having because materials (This use) using/reus- analogous solvent already fulfilled their an ing secondary a material as effective inherently more waste-like.” Id. at added). (emphasis products.). proposed regula- The substitute for commercial material, clarifies this of a its clarification The reworded of situations spent that materials are those where “the further stating use is not identical to used, a that have been and as result of initial superflu- use” would have been by physi- that use become contaminated ous. can impurities,

cal or chemical 2. RCRA’s overall they longer serve the produced. were In to being addition inconsistent with regulatory history Fed.Reg. at 624. definition, po- we find Howmet’s above, an recognize agen- As noted incompatible sition to be with the overall cy’s preamble guidance generally does not of implementing reg- thrust RCRA and its binding agency’s have the force of the ulations. Congress described the national Nonetheless, is at regulations. least policy objective as, of RCRA wherever example informative. The the EPA feasible, reducing or eliminating gen- type vided is illustrative of the of subse- eration of hazardous waste.” 42 U.S.C. quent sought regu- use of a material it 6902(b). “Waste is nevertheless example suggested late under RCRA. treated, generated stored, should be certain “continued of material use[s]” disposed of so as to minimize present sufficiently similar to or consistent with and future threat to human health and the the material’s initial use would be consid- environment.” Congress Id. recognized “a purpose ered for which [the material] “disposal of solid waste and hazardous produced” permitted and thus under waste in or on the land without careful Agency’s “spent material” definition. planning management can present a Thus, example makes clear the EPA danger to human health and the environ- was, in both 1983and associating the 6901(b)(2). Moreover, ment.” Id. Con- of concept “purpose” with “initial use.” gress acknowledged that materials accompanying explanation The EPA’s fur- reused and “can indeed be solid Agency ther indicates the intended to and hazardous wastes and that vari- these place types limits on the of reuse allowable recycling ous activities constitute haz- Agency’s under its ac- treatment, ardous waste storage, or dis- knowledgement that its material def- H.R.Rep. 98-198(1), posal.” ambiguous inition was at 46 to sit- No. (1983), reprinted in 1984 uations where material’s “further use is U.S.C.C.A.N. 5576, 5605. implies Congress not identical to initial use” thus conceded that [its] Agency certain recycled regulat- intended to create a distinction materials must be types fact, between certain ed in order goal reuse.3 to further its overall intended, insists, had the EPA “protecting] human health and the envi- any to allow reuse that is a “normal use” ronment.” Id. Howmet, ever, support argument ignores key Amicus Curiae in Alli- part Amicus' Manufacturers, argues holding ance of Automobile the EAB’s in General Motors. In Gen- that, Motors, under the EAB's decision in In Re: Gen. eral the EAB clarified its "continued Am., policy by holding subsequent Motors Auto.-N. No. RCRA 05-2004- use” a use must (3008) (EAB Appeal satisfy primary No. RCRA 06-02 two conditions in order to be 20, 2008), year June handed down a the after considered "a for materi- [the which Howmet, Motors, a produced.” slip EAB's decision in material is not was In re: Gen. al] "spent” subsequently "legitimate op. if used for a at 2. The first condition is that the contin- purpose,” even if that use is different ued "in use “must be similar to or consistent with deployment application some sense” from how it was used in its the initial or deployment. initial Amicus Br. at 5-7. How- material.” Id. material such as used KOH to be used Congress’s guidance, sive with

Consistent recognize that re- type fertilizer to be the produce appears materials, managed proper- if not cyclable activity sought regulate the EPA public significant risks to ly, may present under RCRA. Congress health and the environment. Having Agency’s determined the EPA have also indicated their and the reasonable, interpretation is we need not heightened when materials concerns are evaluate the reasonableness of Howmet’s land applications applied proposed interpretation. Once it is estab (ex- at Fed.Reg. See 48

involved. agency adopted lished that an has a rea recy- for plaining that “wastes destined ambiguous sonable of an same cling present potential can regulation, agency’s interpretation for treatment and harm as wastes destined “using reusing by or wastes disposal,” regulated entity pro that even if a stands directly on the land placing them posed might an com as actu- present the same sorts hazards statutory with port equally scheme them,” ally incinerating disposing well or even better. recycle noting hazardous “[facilities wastes have caused serious health and en- IV by problems directly placing vironmental turn briefly We to Howmet’s alter that “[[Im- the wastes on land” and that, argument native if even we conclude proper storage, overaccumulation of inven- the EPA’s ma tory, transport recycling and unsafe before reasonable, terial” recurring problems”). have also been should nonetheless reverse the district regulations, Under the EPA’s cer court because not fair given Howmet was tain materials are not treated as interpretation. notice of the EPA’s How- solid wastes when or reused as “[u]sed argument met’s second fares no better ingredients process in an industrial than its first. product, provided make a the materials are reclaimed” or or reused “[u]sed concepts “Traditional of due pro as effective substitutes for commercial incorporated cess into administrative law (ii). 261.2(e)(l)(i), products.” 40 C.F.R. preclude agency penalizing pri an from a However, used in a manner “[m]aterials party for a violating vate rule without first constituting disposal, produce or used to adequate providing notice of the substance land,” products that are to the id. Co., rule.” Satellite Broad. Inc. v. 261.2(e)(2)(i), wastes, are treated as solid (D.C.Cir.1987). FCC, regardless, recycling “even if the involves determining party provided whether use, reuse, original pro or return to the notice, regu fair we ask first “whether the . 261.2(e)(2) cess,” Accordingly, id. received, party lated or should have re contaminated, a material has become and a ceived, agency’s interpreta notice of the party seeks to use the contaminated mate way by tion in the most obvious of all: substantially rial a purpose different Elec., reading regulations.” Gen. by from its applying “If, by reviewing regula F.3d at 1329. land, party seeking to reuse the mate tions and other public statements issued obligation rial has an to examine the mate agency, regulated party acting rial, characteristics, disclose its hazardous identify, faith good would be able to with and treat it as a waste. Fertil hazardous certainty,’ ‘ascertainable the standards indisputably izer is product “applied Thus, agency expects parties which the to shipment the land.” of a corro- with conform, agency fairly then the noti- Id. at 1-7. The EPA announced the avail- petitioner agency’s interpreta- fied ability of the Guidance Manual in the published tion.” Id. This court has held Register. 26,892, Federal See 51 Fed.Reg. agency guidance may provide fair notice of 1986) (July (noting guidance interpretation an of its own agency’s regu- “designed document is to assist ... Wireless, FCC, lations. See Star LLC v. regulated community in applying the defi- (D.C.Cir.2008). 522 F.3d nition of solid waste to determine which materials are year EPA solid promulgated One after the wastes”); and hazardous material,” final see also defining “spent rule Perales Reno, (2d Cir.1995) 261.1(c)(1), published guid- 40 C.F.R. it (“Due describing process ance manual cases long recognized have adopted respect with publication Howmet’s KOH that in the Register Federal shipments. See Office constitutes an adequate means of inform- Waste, of Solid EPA, action.”). RCRA ing public of agency U.S. Guidance Manual on Regulation Recycled Hazardous explanation EPA’s of the definition (1986) (Guidance Manual). Wastes spent material in the Guidance Manual 1986 Guidance Manual states: put should have Howmet on notice of the spent any material is material [A] EPA’s of its materi- has been used and as a result of contam- definition, al” and Howmet should have can longer ination serve the that, been able to determine based on the which it was without interpretation, the used KOH it EPA cessing. interprets Royster transferred to spent was a materi- produced” for which a material was al. as a ingredient Use fertilizer is not a include all uses of the that are use “similar to” use anas industrial clean- original particu- similar to the use of the ing Thus, agent. even assuming the question. lar batch of material For EPA’s 1985 Final Rule and its accompany- example, EPA cites the case materials ing regulations enough clarity, lacked on printed used as solvents to clean circuit own, provide their fair notice If boards.... become too solvents of the EPA’s spent contaminated for this use but are still definition, Manual, the Guidance pure enough for similar applications made available to year Howmet one after (e.g., use degreasers), they as metal promulgated and thir- spent materials. of slightly Use years teen before the conduct at issue way contaminated solvents in this is sim- here, was sufficient to do so.

ply continued use of the materi- al rather than recycling spent of a mate- V However, rial. the solvents would be reasons, For the foregoing judgment spent they materials if had to be re- of the district court is claimed before reuse or if the manner they which were used was not similar Affirmed. original application....

their [an] As ex- KAVANAUGH, Judge, Circuit ample, plating used baths reused direct- dissenting: ly in plating processes other would not The Resource Conservation and Recov- spent be materials. If used for a pur- however, ery grants Act of 1976 pose plating, authority other than plating regulate generation, used storage, baths would be trans- treatment, material. port, of “hazard-

555 here, flatly inconsistent with the text of its 1985 the statute relevant ous waste.” As me, begins case regulations. waste must be To this that hazardous provides 6903(5), simple point. material.” with that rather “discarded ends (27). that 1985, regulations In EPA issued “permit agency, must not Courts material” to include construe “discarded guise interpreting regula- under the material.” See 40 C.F.R. certain tion, regulation.” a new create de facto if it “spent” is is § 261.2. A material County, 529 Christensen v. Harris U.S. for which longer suitable for 576, 588, 1655, 146 L.Ed.2d 621 S.Ct. 261.1(c)(1). sep- A Id. produced.” it was (2000). EPA attempting That’s what is “pur- makes clear that arate seeking expand do here. EPA is can multi- singular, include pose,” though thereby material —and definition 260.3(b). ple purposes. See id. authority. may It enlarge regulatory its in this EPA enforcement key issue regulatory authority be that broader regulations’ the 1985 action concerns a policy this area would be wise as for which phrase “purpose[s] [a material] matter. But EPA not obtain that material at produced.” The issue was authority by distorting the terms of the potassium hydroxide liquid —is here— regulations. for, among other duced and marketed more, interpreta- What’s EPA’s current Yet EPA things, use in fertilizer. seeks explicit tion contravenes EPA’s statement shipping liq- fines on Howmet for impose regulations— in the preamble hydroxide for use in fertiliz- potassium uid namely, extending regu- that it was not its already simply er because Howmet had latory authority a ma- to “situations where potassium hydroxide as a metal used terial can be used further without cleaning agent. justifying In its enforce- reclaimed, the further use is not identi- but action, that the “purpose ment EPA claims cal to the initial use.” Hazardous Waste produced” in- [a material] Management System; Solid Definition of by the only cludes the material’s first 1985). Waste, (Jan. Fed.Reg. purchaser. regula- EPA now wants to read the 1985 my judgment, argument man- regulate precisely tions to it to what allow gles language of the 1985 preamble regulate. said it could not plain English, purposes As a matter of course, good Of there is reason the 1985 produced for which a material is are not regulations go far as EPA now did as initially to how the material is used limited Doing to. would violate the text wants so cogently ar- purchaser. As Howmet statute, which governing that gues, “the first use is made of authority to relevant here confines EPA’s material after the material is regulation of “discarded material.” We pur- simply change cannot define Congress have held that intended the term previously material pose for which the carry “ordinary, “discarded material” Br. at produced.” Reply 5. To be plain-English meaning” namely, to cover sure, here if the prevail EPA would — of, only “disposed material that is thrown regulation said away, Mining or abandoned.” American But the is re-used. EPA, 1177, 1184-85, Cong. v. 824 F.2d anything that. say tion does not like (D.C.Cir.1987); see also Ass’n Bat EPA’s current of the 1985 EPA, tery Recyclers, Inc. “pro- effect deletes the word (D.C.Cir.2000). EPA’s current exten duced” and substitutes the words “first jurisdiction to reach ma- used.” EPA’s current sion of its RCRA that, of, being disposed far from terials

abandoned, away, thrown disregards Congress’s anticipated

used as authority reg-

decision to restrict EPA’s material.” In our

ulation of “discarded

Court, challenge raised only regulations, not on

based on the 1985 fur- so there is basis here for exploring statutory

ther boundaries. decision, in light today’s

But

have to consider a future case whether expansion regulatory

EPA’s authori-

ty transgresses RCRA’s limits. reject

I would EPA’s regulations contrary

its 1985 language

clear Even

assuming are susceptible to range readings, of reasonable in-

terpretation range. is outside See Robbins, 452, 461,

Auer v. 519 U.S. (1997).

S.Ct. 137 L.Ed.2d 79 I re-

spectfully dissent. ALIOTTA, al., Appellants

Barbara et BAIR, Chairman,

Sheila C. Federal

Deposit Corporation, Insurance

Appellee.

No. 09-5234. Appeals,

United States Court of

District of Columbia Circuit.

Argued April 2010. Aug.

Decided

Case Details

Case Name: Howmet Corp. v. Environmental Protection Agency

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 6, 2010

Citation: 614 F.3d 544

Docket Number: 09-5360

Court Abbreviation: D.C. Cir.