United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 11-1189 September Term, 2014

EPA-76FR15456

EPA-78FR9112

Filed On: June 3, 2015

Solvay USA Inc.,

Petitioner

v.

Environmental Protection Agency,

Respondent

_______________

Metals Industries Recycling Coalition, et al.,

Intervenors

_______________

Consolidated with 11-1192, 11-1202,

11-1214, 11-1216, 11-1217, 11-1220,

11-1221, 11-1223, 11-1224, 11-1226,

11-1227, 11-1228, 11-1232, 11-1233,

11-1235, 11-1238, 13-1152, 13-1156,

13-1157, 13-1158, 13-1159, 13-1160,

13-1162, 13-1164, 13-1165

_______

On Petitions for Review of Orders of the

Environmental Protection Agency

Before: TATEL and WILKINS, Circuit Judges, and SENTELLE, Senior Circuit Judge.

J U D G M E N T

This case was considered on the record from the United States Environmental

Protection Agency and the briefs and arguments of the parties. The Court has accorded

the issues full consideration and has determined that they do not warrant a published

opinion. See D.C. Cir. R. 36(d). It is

ORDERED AND ADJUDGED that the petitions for review be denied for the reasons

stated below.

USCA Case #11-1189 Document #1555561 Filed: 06/03/2015 Page 1 of 4
Environmental and industry petitioners challenge aspects of EPA’s final action,

which provides procedures for classifying non-hazardous secondary materials as “solid

waste” for the purpose of regulating Clean Air Act emission standards for incinerators and

other combustion units. Identification of Non-Hazardous Secondary Materials That Are

Solid Waste, 76 Fed. Reg. 15,456 (Mar. 21, 2011), as amended by Commercial and

Industrial Solid Waste Incineration Units: Reconsideration and Final Amendments; NonHazardous Secondary Materials That Are Solid Waste, Final Rule, 78 Fed. Reg. 9,112

(Feb. 7, 2013) (collectively “the rule”), codified at 40 C.F.R. pt. 241. Whether a secondary

material is solid waste determines whether EPA regulates a facility burning the material

under 42 U.S.C. § 7429 or § 7412, and “EPA’s decision to regulate a source under one

section rather than the other has practical consequences.” Nat’l Ass’n of Clean Water

Agencies v. EPA, 734 F.3d 1115, 1119–20 (D.C. Cir. 2013).

 

To regulate emission standards under the Clean Air Act, Congress directed EPA to

define the term “solid waste” pursuant to the Resource Conservation and Recovery Act

(“RCRA”), 42 U.S.C. § 6901, et seq. See 42 U.S.C. § 7429(g)(6). RCRA defines “solid

waste” as 

any garbage, refuse, sludge from a waste treatment plant, water supply treatment

plant, or air pollution control facility and other discarded material, including solid,

liquid, semisolid, or contained gaseous material resulting from industrial,

commercial, mining, and agricultural operations, and from community activities, but

does not include solid or dissolved material in domestic sewage, or solid or

dissolved materials in irrigation return flows or industrial discharges . . . .

42 U.S.C. § 6903(27) (emphasis added). Petitioners challenge how the rule classifies

some non-hazardous secondary materials as discarded and other materials as not

discarded. 

By default, the rule classifies secondary material as solid waste unless otherwise

excluded. See 40 C.F.R. § 241.3(a). At issue here, the rule creates general exclusions

for: (1) material “within the control of the generator” that is combusted on site; (2) material

“used as an ingredient in a combustion unit;” and (3) discarded material that is “processed

to produce a non-waste fuel or ingredient.” Id. § 241.3(b). To qualify for these general

exclusions, the material must satisfy “legitimacy criteria” specified in the rule. Id. These

criteria consider the manner in which the material is managed, the heating value of the

material, and the level of contamination in the material. See 40 C.F.R. § 241.3(d). In

addition to the general exclusions, the definition of solid waste categorically excludes scrap

tires managed under a tire collection program, resinated wood, processed coal refuse, and

dewatered pulp and paper sludge that is burned on site. See id. § 241.4(a). 

We review EPA’s interpretation of RCRA and the Clean Air Act under the familiar

framework of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837 (1984). See Ethyl Corp. v. EPA, 51 F.3d 1053, 1058 (D.C. Cir. 1995). We review

EPA’s final rule under the arbitrary and capricious standard of the Administrative Procedure

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Act, and we must set aside any action “in excess of [EPA’s] statutory jurisdiction, authority,

or limitations,” 5 U.S.C. § 706(2)(A), (C). Under the arbitrary and capricious standard of

review, the agency must “‘set forth its reasons’ for decision,” Tourus Records, Inc. v. DEA,

259 F.3d 731, 737 (D.C. Cir. 2001) (quoting Roelofs v. Sec’y of the Air Force, 628 F.2d

594, 599 (D.C. Cir. 1980)), and “‘respond meaningfully’ to objections raised by a party,”

PPL Wallingford Energy LLC v. FERC, 419 F.3d 1194, 1198 (D.C. Cir. 2005) (quoting

Canadian Ass’n of Petroleum Producers v. FERC, 254 F.3d 289, 299 (D.C. Cir. 2001)). 

We afford great deference to EPA’s determinations based on technical matters within its

area of expertise. See West Virginia v. EPA, 362 F.3d 861, 867–68 (D.C. Cir. 2004).

Environmental petitioners contend that the rule is an end-run around the statutory

scheme, and they ask us to vacate EPA’s definition of solid waste and remand for the

agency to promulgate a new definition consistent with the Clean Air Act and RCRA. In

their view, EPA’s definition of solid waste impermissibly excludes materials that have been

“discarded” within the ordinary meaning of that term—i.e., “disposed of, abandoned, or

thrown away.” Ass’n of Battery Recyclers, Inc. (“ABR”) v. EPA, 208 F.3d 1047, 1052 (D.C.

Cir. 2000). We reject environmental petitioners’ arguments because neither statute (the

Clean Air Act or RCRA) nor this Court’s precedents prevent EPA from defining solid waste

to exclude certain non-hazardous secondary materials combusted for energy or used as

an ingredient for fuel.

 

In the context of RCRA, we previously recognized that the term “discarded” is

“marked by the kind of ambiguity demanding resolution by the agency’s delegated

lawmaking powers.” Am. Mining Congress (“AMC II”) v. EPA, 907 F.2d 1179, 1186 (D.C.

Cir. 1990) (citing Am. Petroleum Inst. v. EPA, 906 F.2d 729, 740–41 (D.C. Cir. 1990)); see

also ABR, 208 F.3d at 1056 (explaining that the term discarded “may be ambiguous as

applied to some situations, but not as applied to others”). Thus, EPA’s characterization of

some types of non-hazardous secondary material “as discarded . . . is entitled to

deference” under Chevron. Am. Petroleum Inst. v. EPA, 216 F.3d 50, 57 (D.C. Cir. 2000)

(citing AMC II, 907 F.2d at 1186). 

The record reflects “that EPA engaged in reasoned decisionmaking to decide which

characterization is appropriate” for different types of non-hazardous materials. Id. The

exceptions constitute a reasonable interpretation of ambiguous language and strike an

appropriate balance between RCRA’s dual goals of “recovery and conservation.” 42

U.S.C. § 6901(c)(3). Because EPA “‘has considered the relevant factors and articulated

a rational connection between the facts found and the choice made,’” we uphold the rule. 

Nat’l Ass’n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. Cir. 2007) (quoting

Allied Local & Reg’l Mfrs. Caucus v. EPA, 215 F.3d 61, 68 (D.C. Cir. 2000)).

EPA also reasonably exercised its discretion when it developed legitimacy criteria

to distinguish non-hazardous secondary materials used as fuel or ingredients from those

that are solid waste. See 40 C.F.R. § 241.3(d). Environmental petitioners’ challenge to

EPA’s legitimacy criteria lacks merit because it is “eminently reasonable to treat materials

that are indistinguishable” from virgin materials as non-waste fuel. Safe Food & Fertilizer

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USCA Case #11-1189 Document #1555561 Filed: 06/03/2015 Page 3 of 4
v. EPA, 350 F.3d 1263, 1269 (D.C. Cir. 2003). Accordingly, we deny environmental

petitioners’ petition for review. 

Industry petitioners ask us to vacate EPA’s classification of sewage sludge and

suggest that EPA does not have jurisdiction over firm-to-firm transfers of alternative fuels

that are not discarded. We deny their petition because their argument regarding sewage

sludge 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.

RCRA defines solid waste as including “sludge from a waste treatment plant” while

excluding “solid or dissolved material in domestic sewage.” 42 U.S.C. § 6903(27). It

defines “sludge” as “waste generated from a municipal, commercial, or industrial

wastewater treatment plant.” Id. § 6903(26A). Although sludge is generated from the

treatment of domestic sewage, sludge is plainly not the same as “solid or dissolved

material in domestic sewage” under § 6903(27). We reject industry petitioners’ reading of

the statute because it would render the definition of sludge meaningless. 

Industry petitioners suggest that “EPA’s upside down view” of material transferred

firm-to-firm “is contrary to the law regarding EPA’s limited jurisdiction.” Industry Br. 12. We

disagree. In deciding which materials to regulate under RCRA, Congress wanted EPA “to

err on the side of caution.” Am. Chemistry Council v. EPA, 337 F.3d 1060, 1066 (D.C. Cir.

2003). Thus, EPA may place “the burden upon the regulated entity to show” that its

material should not be regulated; otherwise, EPA would be burdened with the “nearly

impossible” task of anticipating and analyzing every conceivable situation that might arise. 

Id. at 1065. 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.” 40 C.F.R.

§ 241.3(c)(1). We therefore deny industry petitioners’ petition for review.

Pursuant to Rule 36 of this Court, this disposition will not be published. The Clerk

is directed to withhold issuance of the mandate herein until seven days after the disposition

of any timely petition for rehearing or petition for rehearing en banc. See Fed R. App. P.

41(b); D.C. Cir. R. 41.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Ken Meadows

Deputy Clerk

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