The D.C. Circuit issued a 2-1 decision on August 6, 2010 that could expand the scope of what constitutes a “spent material” subject to regulation under the Resource Conservation and Recovery Act (RCRA), and thus could limit the re-use and sale of materials that companies have used in their processes. See Howmet Corp. v. Environmental Protection Agency, et al., __ F.3d __, No. 09-5360 (D.C. Cir.August 6, 2010), available at: http://pacer.cadc.uscourts.gov/docs/common/opinions/201008/09-5360- 1259333.pdf.
The Court upheld U.S. Environmental Protection Agency’s (EPA) position that a contaminated material is a “spent material” and thus a “solid waste” if it is no longer able to serve the initial purpose for which it was used. Re-using the material for different purposes, even if those different purposes are also normal uses of the material, can nonetheless trigger RCRA requirements.
Howmet Corporation, which manufactures precision equipment, used a solution of liquid potassium hydroxide (KOH) to clean metal castings. When the KOH became so contaminated that it could not be used as a cleanser,Howmet sent it to Royster- Clark, Inc., a fertilizer manufacturer, to be used as an ingredient to its fertilizer mixture. It was not disputed that KOH can and is purchased directly as a legitimate fertilizer ingredient.
EPA brought an enforcement action, alleging that the KOH Howmet sent to Royster was a “spent material” and thus a “solid waste” under the RCRA hazardous waste regulations (and that it was a hazardous waste because it was corrosive). EPA’s hazardous waste regulations define a “spent material” as “any material that has been used and as a result of contamination can no longer serve the purpose for which it was