disposed of the overarching problem here is that he is taking materials that have been thrown out and calling them not discarded there are two broad ways it's not just the first one i'll talk about is that it's simply deemed scrap tires used motor oil demolition debris and all thrown out by consumers before they make their way to the park in fact people usually pay to properly dispose of their tires and demolition the very people just abandon their used motor oil it service stations and people leave used cardboard at the curb like regular old garbage out is discarded and it's discarded all through that process and he agrees with this it says that it j one twenty four the problem here in this with these materials is it's just saying that the initial user honest was your argument turn on whether it's thrown out by a consumer versus versus waste is generated by the manufacturer and then there are reusing it we did not challenge that that exemption the exemption where manufacturer generates a by product and then we process is it into its manufacturing process we're challenging when somebody indisputably clearly and that's not consistent with the ordinary meaning of the work discarded which provision of the regulation are you focusing on right now we're focusing on which one is which it's the exemption for scrap tires it's parts of the traditional fuels definition where you said that clean demolition would waste and used motor oil are not waste and were so those are the ones we're focusing on and for some of these materials e p a and its lawyers that the concept is discarded is irrelevant and that argument just can't have any purchase under record the concept of discard isn't just relevant it's the key to the statute e p a says that discard irrelevant because clean demolition to preannounce affect the motor oil produced to be used as fuel but that's insupportable people you produce demolition debris when they build and tear down buildings they produce used motor oil when they change their  legitimacy criteria would protect when they would start it would protect in certain instances but we we've raised challenges to the legitimacy criteria in your briefs i know you don't like them but i couldn't this isn't discarded and even if it has some space some flexibility in it i mean legitimacy criteria once we do end on the discarded point i'd also point out that our argument also relies exclusion of tires and used oil from being wastes it all allows any unit to burn those materials without being considered a solid waste incineration unit and then they're not subject to the highly protected air mission standards that congress required congress recognize that waste could be burned and could be burned productively but it required that those that waste burning be subject to protect a very mission standards because the burning of waste releases armful toxins  simply said that it didn't think this part of the clean air act was relevant and it refused to consider it and that's awful because he has to interpret these related statutes together and that's especially the case because congress made close c case is already rejected exactly those lines of argument i'd like to move on to the second question or the second broadway that this is illegal which is the processing exemption which allows discarded things to become not discarded so long as they're physically or chemically processed and then eventually get burned if you this processing exemption also violates this court's case law and the clean air three times this court's made clear that a waste remains ways when it's processed or uses fuel used oil recyclers collect waste oil from service stations they process it and they sell it this court has held that the process used oil is ways under regret when it's sold for use as fuel it's  changed must still waste afterward when it's burned in energies that last recovered the clean air act confirms that the processing exemptions illegal congress excluded some certain units burning tires and used oil as i said from being a solid waste incineration have a big picture question for you are you are you basically questioning the statutes balancing of the disk of discord versus recycling i mean is it your position that the two shouldn't be recycling no certainly not but our position is that congress thought that there should be energy recovery from solid waste but when there is energy recovery from solid waste i did needs to be subject that however it's disposed of whether it's simply burned or whether it's used in fuel it should be subject to the same strict emissions thing that's how congress set up right around the clean air when you're recovering energy from waste you recover it by burning if you process the waste so that if firms that are you're not you haven't recovered the energy yet you only get the energy when you burn the ways so processing the waste is just a step in the overall recovery process this is just like what the court held three times in mc one a p i one and eighty are that when when waste motor oil is collected from service stations where it's been discarded this court is held and it's a process and then it's sold for use as fuel all through that process it remains discarded and subject  term discarded unambiguously has its plain meaning of thrown out abandoned or disposed of if a materialist thrown out abandoned or disposed of it has to be treated as ways and it has to be treated as waste from soup to nuts until energy  or a material product is recovered from it and if the court has no further questions no thank you determining which materials are not hazardous secondary materials or solid waste when burned as fuel and which are not and they use the same criteria that the court found reasonable in the state fertilizer c opposed to be managed as he's one of the content does it have legitimate fuel content or cereals content and thirty of the level of damage compatible with the use as a fuel in applying that criteria  the articulated legitimacy criteria stated that materials that met them under certain circumstances were used by the generator or their materials would need it or that you gave it made further determinations and made specific thrown away and that was well the petitioner's argument net them at least with respect to scrap tires and in use while there's a difference here because it's a of specifications of oil and on characteristics of content levels on specification oil for many years has been held not to be subject to further regulation and your response to mr johnson's argument about the statute is if these are not the material was no longer being used for its original purpose these were materials produced in the mineral processing industry and it's here eels that were produced a petroleum refineries he has said these materials are solid waste even though the main act indicating that the corps understanding was that this material used oil once it was processed was not looking at it was attempting to this was during the period when the energy more industry was being restructured that the purpose of these types of the syllabus had been authorized by the public utilities regulatory policies act and the a few years and the regulators and then the legitimacy criteria specifically say in our hazardous secondary material must be managed as a valuable commodity  it has value that would be disposable because it's still a valuable commodity and if someone is taking it off your hands how is something valuable if i'm going to pay someone to get rid of it it's valuable not very valuable to  me well it may not be valuable to you but it certainly would be and this is again the transfer situation is one in which the e p a does make a case by case determinations this is not that's the we'll talk about the second part of the argument but that's where e p a does make that determination on a case by case basis but it's valuable to the person that you're the selling are paying to take it away because it's a fuel but again that's a determination he gave made on a case by case basis it may be a valuable fuel product  value it is obviously depends on the price and who pays whom but doesn't change the fact that it's valuable in the sense of it as fuel that that's the point the congress and the statue is called the resource conservation and recovery of the main purposes of the statute was as this court advised in a can see want the term discard must be determined by the purposes of the particular legislation and therefore the term discard in this case as in that case should not be construed in a manner that is inconsistent with reckless goal of promoting the conversion of solid waste to usable injured energy e p a s rule is faithful to that objective now the agent what the agency has done scrapped tires are collected in comprehensive state higher collection programs to ensure one that materials are in fact handled like commodities to do they in fact have heating value and three are they in fact comparable to diversion fuels that they're going to replacing are those materials part of the solid waste problem and the answer is obvious in the p s u and we agreed no discard is not occurring in those circumstances if these materials are collected in programs outside of these type of qualified conditions then discover may in fact be going on but not in these circumstances and as you correctly argues this really isn't different then this court's decision in say food and fertilizer were which involved a hazard a secondary material are concerned with is that it really will reverse years of successful recycling programs that is e p a just explain have actually been solving the problem scrapped higher collection programs used the recycling programs are programs that have taken secondary materials that historically were part of the solid waste or the problem were being disposed of and have converted consistent with the statute subject of these materials from the waste management world to the products world again provided that they are collected and managed in accordance with a us defined set of circumstances the practical effect of a petition has already made that all of that discarded if when burned under in the political clean air act regulations petitioners have concerns with those regulations that's where they ought to be looking not under record where the agency's authority is to determine whether discard has occurred our concern is that what will happen here is that these recycling programs will be reversed the bottom line is even e p a s record shows is that if these materials are all of a sudden if we wave a magic wand over these collection but household waste is collected just like tires are collected just like used oil is collected you pays his arguments would apply to regular household waste and make that one discarded and that's just not a tenable reading this is going to just focus on his going on the last argument both lawyers made with respect to the purpose of market and what effect on the recovery aspect of regret that would occur if you were to prevail is what is your response to that the general purposes of rick after yield in face of the text of the statutes in the text of the two statutes taken together says that if a material is discarded in its unambiguous sense of the word if it's been thrown out abandoned or disposed of then it must be subject to these protective very mission managers and e p a is letting source's burn these materials without being subject to be these materials when they've been thrown out without being subject to these protective era mission standards bilko i want to jump back to the collection and continuous process argument the oco case from the eleventh circuit which this court cited approvingly and a p i to and which also relied on this court case law pointed out that previously discarded material remains ways even though it may be recycled e p a relies on safe food but safe food was a very different circumstance that was a firm to firm transfer where people actually bought and sold for money people who held the hazardous secondary material there actually sold it for money to the reprocess or so that's just not good ones no good money for  matter in the circumstances at issue here where people actually have to pay to properly dispose of their tires that's a discard if you give a tire is a gift that would not be a discard but i think it's clear that in the circumstances of this case there are certain that there's not a discard any case exemption brought exemption wraps those circumstance wraps those tires into being not discarded and as a admitted that it is expanding the exclusion in section seventy four twenty nine g one b beyond what congress provided this court's already held and n r d c that that's not her message ok thank you ok good morning may please the court my name is chris bell and i'm speaking for the industry petitioners on the third party transfer issue and let me begin with how we believe the rule should be changed looking at the regulatory language of the two wheels are nice you need to start with a statute and why the current rule is not faith to and you may have a much better view of other discarded material in the statute and i think all the parties agree to that and e p a asserts that transfers of secondary materials that meet the legitimacy criteria know type of a stream and i burn it on site in my boiler as a fuel and i need for legitimacy criteria you are a valuable commodity and all that that is not a discard if part of that same material i pipe over to my neighbor's facility for the exact same use that the soul leave the act of the transfer transforms that exact same activity into a discard i thought good point your honor and i think you is are you looking at the regulation right but if you had point if it is if it is processed in then transferred in that situation the material is already considered discarded so for that part of the rule e p a has said if you discard something then in the process it then transfer it then that is not a discard on the other hand if i have something that meets all of the legitimacy criteria but does not need processing which by the way he's frequently the case in sort of be interconnected petrochemical type facilities where you have pipes connecting various kinds of production units if there is no prior processing  a petro chemical facilities when they're processing those kinds of materials they get a wide variety of what are called hydrocarbon streams right that are not the primary product but can have a variety of values they can have a value is an ingredient into some other production unit or will if that if that's in the generators production unit then you'll have a problem right correct it's only it's transferred ask for an example of a situation where a generator produces a hydrocarbon that's what you're talking about right right that hydrocarbon is transferred to someone else right in if i have that hydrocarbon pipe go to my boiler it's not a problem if i have if i have too much of that material you know and so i sell it to my neighbors petro chemical facility for burning and their boiler and it's not process have to show us something in the statute that prohibits the agency from me i know you don't like it but to persist to when you have to show us what in the word discard prohibits the agency from doing well this court has held that the plain meaning of the word discard is a big one didn't throw away or dispose you know and our position is is that particularly in a market economy transferring or selling something in plain language is not throwing away the diskos the agency says it's not a discard if it's reprocessed in some form in accordance with the legitimacy criteria treat it as discarded i just don't see any i don't see where you find anything in the language that prohibits that and b it just seems such an to do position to me i guess our position is that as this court said in seafood and fertilizer where it said that from the front transfers are hardly a good in disha of a discarded as the term is or not ordinarily understood and we don't think the e p a has backed up its intuition with anything anything in the record because the way e p a has written the legitimacy criteria the legitimacy criteria do not require processing the legitimacy require a requirements are completely separate issue from the issue of process you challenging correct and we believe that the issue the legitimacy criteria do not require reprocessing or processing of material if a material meets the legitimacy criteria in it is for example burned on site without processing that's not a discard is so if i have material that's perfectly useful as a fuel is a valuable commodity does not have one usual contaminants has a meaningful heating value in other words  doesn't need to be reprocessed then it needs the legitimacy criteria then at that point e t s position is that it meets the legitimacy criteria the only thing that's different is the transfer  yes it would be possible but we don't think that e v g a has the authority under require to require the regulated community to petition e p a regarding materials that are not discarded in the first instance when you would be a  that we know where the court said firm the firm transfers are hardly good in dishes of this cart and when we when we talk about the plain language of the word discard throw away dispose of abandon you know we don't think that the word transfer which are of the economic transactions upon which the whole nation's economy is based that those transfers by themselves are  discards and we don't think the record supports that is while an e p a cannot be so will simply based on what we believe that those might be the discard they have to have a record that supports that which is what this court said in the  that's solid waste it includes all of those things except the following you know and then it reads but does not include the eyes all or dissolve material into mystic sewage you know right so we have to make sense of both of those right correct ok so why isn't it so there are we there come to your house it's sewage when it comes out of the treatment plant it's watch isn't that what this statute means no we don't think so tell us why the definition of happens to words sludge from a waste treatment plant it is included if it's a different type of wastewater treatment plant and industrial point or a commercial plant but the same that definition excludes certain waste it be commercial or industrial by the same sentence the definition of solid waste then expressly excludes all solid or dissolve material in domestic is the that e p a may choose any of those terms and interpret in the statute this court and the agency still looks to the context and what e p a has done here is said that the exclusion only applies for the given the the history of issues and problems associated with such transfers as wanting really clear that the da has not said that the mere fact of transfer costs suppose the question being asked here is good morning again made peace accords such onsen for environmental intervenors the issue here is whether discard has ever heard and there's actually an important point of agreement if a secondary materials been indisputable a discarded industry seems to agree one quick citation to what my colleague mr reeves said industry's claims that he can't even the stablish process for transferred second during the periods to avoid this current status but this court is already u those standards are two decades overdue and the reduce pollution for millions of people there based on what sources have actually achieved so they're strong but they're cheaper people have actually achieved these in real life and industry hasn't provided a reason to believe that waste burners when clean up their emissions enough in order to meet the standard and industry's policy argument is especially lacking because e p a has already drastically reduced the number of units that are subject to the most protective standards through throughout this room as a result many sources can be classified as areas sourced boilers and those standards only lead to an yes two percent reductions in overall emissions of particulate matter carbon monoxide hydrogen chloride and mercury and for mercury it's actually zero percent reductions for area sources and that's on for tons of mercury zero percent reduction  secondary material that meeks the legitimacy criteria that is transferred to a third party for the same use that the on site generator would would be putting it to use for and we don't think that there's a basis in the record or the law for e p a distinguishing between those two situations or the situation where if i'm a generator and i'm transferring secondary material to a third party for uses an ingredient and it meets the legitimacy criteria they are e p a seems to have no problem with that third party transfer that's allowed so there's a one situation that's highlighted and we don't think that in that situation the transfer alone where all of the legitimacy criteria are being met yes qualifies as the plain meaning of the word discard under the statute all right thank you right and sixty nine zero three twenty seven which to find solid waste expressly excludes you know way before you go there you were telling me that the distinction before when i was asking what's left of that language in the statu these are two different definitions that have different purposes within the record from twenty six a which defines sludgy clearly include sewage sludge because sewage sludge comes from the municipal waste water treatment plants however the defined term sludge is used for multiple purposes in the record framework it's actually more than twenty times throughout the statute so here's an example of where the use of the term sludge is relevant to domestic sewage into sewage sludge but it's not relevant to the definition of solid waste sixty nine eighty two gene directs the administrator to conduct studies of sound sludge landfilling practices and other alternative uses including energy recovery so it makes perfect sense for the congress to have included sewage sludge and municipal waste water treatment plants within the definition of sludge under twenty six and while at the same time excluding domestic sewage and sewage sludge from that