[00:00:02] Speaker 00: Case number 11-1189 at L, Echo Services Operations LLC Petitioner vs. Environmental Protection Agency. [00:00:09] Speaker 00: Issues raised in Final Opening Brief of Environmental Petitioners. [00:00:13] Speaker 00: Mr. Johnson for Environmental Petitioners. [00:00:15] Speaker 00: Mr. Ray for Respondent EPA. [00:00:17] Speaker 00: Mr. Green for Industry Intervener Respondents. [00:00:20] Speaker 00: issues raised in final joint brief of industry petitioners, Mr. Bell for industry petitioners, Mr. Knight for NACWA, Mr. Ray for respondent EPA, and Mr. Johnson for environmental and intervener respondents. [00:00:38] Speaker 04: Good morning. [00:00:39] Speaker 03: Good morning. [00:00:40] Speaker 04: May it please the Court, Seth Johnson, for environmental petitioners. [00:00:43] Speaker 04: The keyword and rigorous definition of solid waste is discarded, and this Court has already held and reaffirmed that the word discarded unambiguously has a plain meaning of thrown out, abandoned, or disposed of. [00:00:55] Speaker 04: The overarching problem here is that EPA is taking materials that have been thrown out and calling them not discarded. [00:01:01] Speaker 04: There are two broad ways it's done this. [00:01:03] Speaker 04: The first one I'll talk about is that it simply deemed scrap tires, used motor oil, demolition debris, and unrecyclable remnants of used cardboard non-waste. [00:01:12] Speaker 04: This violates the plain text of RCRA as this court's interpreted it. [00:01:16] Speaker 04: EPA agrees with the case law that a material is waste if it's initially discarded, but it claims these materials aren't discarded, even though they're all thrown out by consumers before they make their way to be burned. [00:01:27] Speaker 04: In fact, people usually pay to properly dispose of their tires and demolition debris. [00:01:32] Speaker 04: People just abandon their used motor oil at service stations, and people leave used cardboard at the curb like regular old garbage. [00:01:38] Speaker 04: They're all post-consumer wastes that are thrown out, disposed of, or abandoned. [00:01:43] Speaker 03: but eventually used in fuels. [00:01:46] Speaker 04: Eventually, some of them get burned productively. [00:01:48] Speaker 04: But the court's case law has held that a material, once it's been thrown out, is discarded. [00:01:56] Speaker 04: And it's discarded all through that process. [00:01:58] Speaker 04: And EPA agrees with this. [00:01:59] Speaker 04: It says that at JA 124. [00:02:02] Speaker 04: The problem here with these materials is it's just saying that the initial user [00:02:09] Speaker 04: did not discard them, and that's insupportable because the initial user threw them out in the ordinary sense of the term, which is controlling under AMC1 and AVR. [00:02:23] Speaker 03: Would that be true of, I mean, suppose it was indisputably true that this discarded material was in fact used as, would your view be the same? [00:02:37] Speaker 04: If it was thrown out by a consumer, yes. [00:02:42] Speaker 08: So does your argument turn on whether it's thrown out by a consumer versus waste that's generated by a manufacturer and then they're reusing it? [00:02:55] Speaker 04: We did not challenge that exemption, the exemption where a manufacturer generates a byproduct and then reprocesses it into its manufacturing process. [00:03:08] Speaker 04: We're challenging when somebody indisputably clearly throws it out in the ordinary sense of the term. [00:03:15] Speaker 02: Suppose you take your oil down to the Jiffy Lube and you say, I'm buying some new oil from you, but you take my old oil and make sure it gets put into the recycling stream for use as a fuel. [00:03:28] Speaker 02: That wouldn't be thrown out, would it? [00:03:30] Speaker 04: That would be. [00:03:31] Speaker 04: That's just like leaving... That's just like... [00:03:40] Speaker 02: Because in that case, you're not treating it like a valuable commodity. [00:03:48] Speaker 04: That's no different from taking paper and putting it in recycling. [00:04:00] Speaker 02: Now, you take it and do the right thing and get it into the use of the fuel. [00:04:07] Speaker 04: You're not getting anything in return. [00:04:09] Speaker 02: You're just filling it out. [00:04:10] Speaker 02: You said a while ago, my brother wouldn't be discouraged. [00:04:15] Speaker 04: If he's going to use it in a valuable way. [00:04:19] Speaker 02: Well, he's going to take it and use it as fuel. [00:04:22] Speaker 02: If he's going to take it and use it as a fuel? [00:04:36] Speaker 02: Yes. [00:04:37] Speaker 04: You would? [00:04:38] Speaker 02: That's no different. [00:04:38] Speaker 02: Do you think this is the ordinary use of the word? [00:04:42] Speaker 04: Certainly there are senses in which, sorry. [00:04:45] Speaker 02: Once there are senses in which, it's ambiguous in that meaning. [00:04:49] Speaker 04: This court has held that the word discarded unambiguously has its plain meaning. [00:04:53] Speaker 04: Your Honor, the examples you're giving me. [00:04:55] Speaker 02: We haven't necessarily held that these examples fall within that plain meaning, have we? [00:05:00] Speaker 04: No, but there's never been a case holding that post-consumer waste that goes from the consumer to another entity and then eventually winds up being burned. [00:05:09] Speaker 04: There's never been a case that holds that that's not waste. [00:05:12] Speaker 04: And that's not consistent with the ordinary meaning of the word discarded. [00:05:16] Speaker 03: Which provision of the regulation are you focusing on right now? [00:05:19] Speaker 04: We're focusing on... Which one is it? [00:05:22] Speaker 04: It's the exemption for scrap tires. [00:05:26] Speaker 04: It's parts of the traditional fuels definition where EPA said that clean demolition wood waste and used motor oil are not waste. [00:05:36] Speaker 04: And so those are the ones we're focusing on. [00:05:40] Speaker 04: And for some of these materials, EPA and its lawyers claim that the concept of discard is irrelevant. [00:05:45] Speaker 04: And that argument just can't have any purchase under RCRA. [00:05:49] Speaker 04: In RCRA, the concept of discard isn't just relevant. [00:05:53] Speaker 04: It's the key to the statute. [00:05:55] Speaker 04: EPA says that discard is irrelevant because clean demolition debris and on-spec motor oil are produced to be used as fuel. [00:06:03] Speaker 04: But that's insupportable. [00:06:05] Speaker 04: People produce demolition debris when they build and tear down buildings. [00:06:09] Speaker 04: They produce used motor oil when they change their oil. [00:06:12] Speaker 04: They're not being produced for use as fuel. [00:06:15] Speaker 03: For the wood and oil that you're talking about, doesn't it still have to meet the legitimacy criteria? [00:06:24] Speaker 04: It does. [00:06:25] Speaker 04: But the legitimacy criteria can't override the plain meaning of discard. [00:06:29] Speaker 03: Well, let's assume we're not convinced that discard is quite as clear as you think it is. [00:06:39] Speaker 03: Let's just assume we think that there's enough ambiguity in the term to accommodate the agency's view about this. [00:06:53] Speaker 03: Would you then [00:06:54] Speaker 03: Then what would you say? [00:06:56] Speaker 03: The legitimacy criteria would protect them, wouldn't they? [00:07:01] Speaker 04: It would protect in certain instances, but we've raised challenges to the legitimacy criteria. [00:07:09] Speaker 03: In your briefs? [00:07:09] Speaker 03: I know you don't like them, but I couldn't really find any specifics about that. [00:07:13] Speaker 04: We challenge them as arbitrary and capricious and unlawful. [00:07:16] Speaker 03: Yeah, but why? [00:07:17] Speaker 04: Well, for one, the contaminant criteria doesn't look at contaminants that are relevant to the concept of discard. [00:07:27] Speaker 04: And the containment criteria isn't related, doesn't do any work in showing that the material is more like a valuable commodity than a waste. [00:07:37] Speaker 03: OK, so you have a two-part argument, right? [00:07:39] Speaker 03: Well. [00:07:39] Speaker 03: Discard means discard. [00:07:41] Speaker 03: This isn't discarded. [00:07:43] Speaker 03: And even if it has some space, some flexibility in it, the legitimacy criteria aren't sufficient. [00:07:50] Speaker 04: We do. [00:07:50] Speaker 04: And on the discarded point, I'd also point out that our argument also relies on the Clean Air Act, because EPA's broad exclusion of tires and used oil unlawfully overrides text in the Clean Air Act. [00:08:04] Speaker 04: And this matters because Congress... Which is what? [00:08:06] Speaker 03: Which provision is that? [00:08:07] Speaker 04: It's in Section 7429, G1B. [00:08:09] Speaker 04: Yeah. [00:08:11] Speaker 03: Which says what? [00:08:12] Speaker 04: Well, there, Congress established a narrow exclusion for a certain set of units that burn used oil and tires. [00:08:25] Speaker 04: exclusion of tires and used oil from being wastes at all allows any unit to burn those materials without being considered a solid waste incineration unit. [00:08:35] Speaker 04: And then they're not subject to the highly protective air emission standards that Congress required. [00:08:40] Speaker 04: Congress recognized that waste could be burned and could be burned productively, but it required that waste burning be subject to protective air emission standards because the burning of waste releases harmful toxins. [00:08:54] Speaker 04: And by allowing any unit to burn waste without being subject to those standards, EPA is overriding Congress's policy choice, and it's rendering the text of that exclusion superfluous. [00:09:07] Speaker 04: And when we raised this in comments, EPA simply said that it didn't think this part of the Clean Air Act was relevant, and it refused to consider it. [00:09:15] Speaker 04: And that's unlawful because EPA has to interpret these related statutes together. [00:09:20] Speaker 04: That's especially the case because Congress made close textual ties between them. [00:09:28] Speaker 04: EPA's lawyers tried to defend the tire and used oil exceptions by claiming EPA has authority to expand the statutory exclusion and by relying on legislative history, but the NRDC case has already rejected exactly those lines of argument. [00:09:43] Speaker 04: I'd like to move on to the second question, 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 as fuel. [00:10:01] Speaker 04: This processing exemption also violates this court's case law, RCRA, and the Clean Air. [00:10:06] Speaker 04: Three times this Court's made clear that a waste remains waste when it's processed for use as fuel. [00:10:12] Speaker 04: Used oil recyclers collect waste oil from service stations. [00:10:16] Speaker 04: They process it and they sell it. [00:10:18] Speaker 04: This Court has held that the processed used oil is waste under RCRA when it's sold for use as fuel. [00:10:24] Speaker 04: It's unchanged and must still waste afterward when it's burned and energy is at last recovered. [00:10:29] Speaker 04: The Clean Air Act confirms that the processing exemption is illegal. [00:10:32] Speaker 04: Congress excluded certain units burning tires and used oil, as I said, from being solid waste incineration units, but it expressly refused to extend that exclusion to units burning refuse-derived fuel. [00:10:45] Speaker 04: And EPA's lawyers claim that refuse-derived fuel is only fuel derived from municipal solid waste. [00:10:51] Speaker 04: We disagree with that. [00:10:52] Speaker 04: But even if they're right, the processing exemption is still lawful. [00:10:54] Speaker 03: I just have a big picture question for you. [00:10:57] Speaker 03: Are you basically questioning the statute's balancing of discard versus recycling? [00:11:08] Speaker 03: I mean, is it your position that there shouldn't be any recycling? [00:11:12] Speaker 04: No, certainly not. [00:11:14] Speaker 04: But our position is that Congress thought that there should be energy recovery from solid waste. [00:11:20] Speaker 04: But when there's energy recovery from solid waste, it needs to be subject to protective air emission standards. [00:11:31] Speaker 03: If in a situation where a material is used properly for fuel, isn't the burning of that fuel subject to emission standards? [00:11:44] Speaker 04: They're not nearly as protective emission standards. [00:11:47] Speaker 03: So your theory is then that it's okay to have – and I'm just asking the policy view here 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 emission standard. [00:12:03] Speaker 04: That's how Congress set up RCRA in the Clean Era. [00:12:07] Speaker 04: When you're recovering energy from waste, you recover it by burning it. [00:12:12] Speaker 04: If you process the waste so that it burns better, you haven't recovered the energy yet. [00:12:18] Speaker 04: You only get the energy when you burn the waste. [00:12:21] Speaker 04: So processing the waste is just a step in the overall recovery process. [00:12:26] Speaker 04: This is just like what the court held three times in AMC 1, API 1, [00:12:32] Speaker 04: and ABR, that when waste motor oil is collected from service stations, where it's been discarded, this court is held, and it's processed, and then it's sold for use as fuel, all through that process, it remains discarded and subject to EPA's jurisdiction to regulate as a discarded material. [00:13:00] Speaker 03: Of course, we did say in AMC, in one of these AMC cases, that the term discard was ambiguous. [00:13:11] Speaker 04: And in ABR, the Court said that that case couldn't overrule AMC 1's clear holding. [00:13:18] Speaker 04: And in API 2, the Court reiterated that [00:13:23] Speaker 04: the term discarded unambiguously has its plain meaning of thrown out, abandoned, or disposed of. [00:13:28] Speaker 04: If a material is thrown out, abandoned, or disposed of, it has to be treated as waste. [00:13:33] Speaker 04: And it has to be treated as waste from soup to nuts until energy or a material product is recovered from it. [00:13:43] Speaker 04: And if the court has no further questions? [00:13:50] Speaker 03: No. [00:13:51] Speaker 03: Thank you. [00:14:03] Speaker 05: Good morning, Your Honors. [00:14:04] Speaker 05: Norman May from the Department of Justice, representing EPA. [00:14:07] Speaker 05: With me at the Council table is Alan Karpian from EPA's Office of General Counsel. [00:14:13] Speaker 05: In this case, the court, the EPA defined criteria for determining which materials are non-hazardous secondary materials, are solid waste, when burned as fuel, and which are not. [00:14:26] Speaker 05: And they used the same criteria that the court found reasonable in the safe food and fertilizer case when the court found that a hazardous waste, KO61, could be utilized as zinc as a recycling. [00:14:39] Speaker 05: And the criteria it looked at, and the same criteria that this rule is based on, are how the material is managed, i.e. [00:14:46] Speaker 05: is it managed as a product as opposed to being managed as a waste. [00:14:49] Speaker 05: What is the content? [00:14:51] Speaker 05: Does it have legitimate fuel content or materials content? [00:14:55] Speaker 05: And third, are the level of contaminants compatible with the use as a fuel? [00:15:00] Speaker 05: And in applying that criteria, EPA in some cases simply articulated the legitimacy criteria and stated that materials that met them under certain circumstances, if they were used by the generator or if their materials were needed, or that EPA could make further determinations and made specific determinations, [00:15:18] Speaker 05: that a few materials, such as used tires, met legitimacy criteria when managed under the state tire program, and therefore were not solid waste. [00:15:29] Speaker 05: Now, petitioner's primary argument is that there's something, and this court has repeatedly recognized that materials can be recycled, and even in a hazardous waste context. [00:15:39] Speaker 05: Safe Foods is certainly one in the AMC [00:15:48] Speaker 05: In the Association of Battery Recycling case, the court stated that secondary materials destined for recycling are, quote, obviously not disposed of from the way API 2. [00:16:00] Speaker 05: The court held that oil removed from the primary treatment unit to be reused is not a solid waste. [00:16:09] Speaker 05: This court has recognized repeatedly that there is a distinction between materials that are in some kind of recycling process than materials that are being [00:16:18] Speaker 05: thrown away. [00:16:20] Speaker 08: What about the petitioner's argument that at least with respect to scrap tires and used oil, there's a difference here because it's a consumer that's essentially discarding those materials in the ordinary sense and it's very different from the cases that you're citing. [00:16:43] Speaker 05: Well, Your Honor, it's a false distinction. [00:16:45] Speaker 05: First of all, there's nothing in the statute that distinguishes between something that consumers handle versus something that an industrial process uses. [00:16:53] Speaker 05: And secondly, this distinction is what they've postulated as a two-step process that the consumer disposes of something and then it gets used is false. [00:17:03] Speaker 05: That's not the way it works. [00:17:05] Speaker 05: It's actually a single process. [00:17:08] Speaker 05: If you go to take your car in to get new tires, they take the tires off, and it immediately goes into this system for reuse of the tires. [00:17:17] Speaker 05: It's a state-of-the-art system that are run by states. [00:17:20] Speaker 05: And the termination is limited to tires that are recycled under state tire reuse programs. [00:17:28] Speaker 05: The same with used oil. [00:17:29] Speaker 05: If you go and have your oil removed, [00:17:31] Speaker 05: It changed. [00:17:32] Speaker 05: It goes directly into the recycling program. [00:17:34] Speaker 05: It's not a two-step process. [00:17:36] Speaker 05: It's a single process. [00:17:38] Speaker 05: The material never stops being a product. [00:17:40] Speaker 08: What about tires that, you know, on Earth Day are fished out at the Anacostia River or other places and stacked up and then, you know, sent someplace for recycling? [00:17:53] Speaker 05: Those tires are not included within the determination. [00:17:57] Speaker 05: Tires removed from tire piles, tires that are pulled out of the river. [00:18:00] Speaker 05: Tires that have undeniably been previously discarded by being laying in the river are actually not included. [00:18:07] Speaker 05: They can be processed, and if they meet the requirements for processing, then meet the criteria, which is the way many of the enormous tire piles that we used to have that have been gradually whittled down through state programs have been eliminated. [00:18:22] Speaker 05: then they can be used as fuel. [00:18:23] Speaker 05: But the tires, the exemption, or the, excuse me, the determination in the rule that used tires, managed under state tire recycling programs doesn't apply to those kind of tires. [00:18:34] Speaker 05: It only applies to tires that certainly never leave the realm of commerce, but they go immediately from being used on a vehicle to being put into the chain to be produced into fuel. [00:18:46] Speaker 05: And the same is true of the same is true of used oil. [00:18:48] Speaker 05: The statute has a specific [00:18:51] Speaker 05: program for regulating used oil. [00:18:54] Speaker 05: EPA used oil has a specific definition in the statute and in the regulations. [00:18:59] Speaker 05: And under those regulations, EPA developed criteria for distinguishing between on specification and off specification used oil, depending upon the characteristics and the contaminant levels. [00:19:09] Speaker 05: And on specification oil for many years has been held not to be subject to further regulation. [00:19:15] Speaker 03: And your response to Mr. Johnson's argument about the statute is that these are not discarded. [00:19:21] Speaker 03: I'm sorry, Your Honor? [00:19:22] Speaker 03: Your response to the petitioner's argument about the plain language of the statute is that these are not discarded. [00:19:28] Speaker 05: That's right, Your Honor, they are. [00:19:29] Speaker 03: And they're not discarded because it's a continuous process. [00:19:35] Speaker 05: That's right, Your Honor. [00:19:37] Speaker 05: It's not exactly the same as the situation in AMC 1 where the court was looking at a continuous manufacturing process, but it's the same idea. [00:19:45] Speaker 05: These materials, from the point, they're never thrown away. [00:19:50] Speaker 05: They're never discarded. [00:19:51] Speaker 05: They go right from one use to another use. [00:19:54] Speaker 05: So they never become a solid waste. [00:19:56] Speaker 05: If they became a solid waste in the middle, these particular provisions that we're talking about don't apply. [00:20:02] Speaker 05: And let me briefly address AMC 1 and the discussion there about used oil. [00:20:06] Speaker 05: The court there was not considering whether used oil was a solid waste, and particularly was not considering whether used oil that is found to be on specification by used oil recyclers was a product. [00:20:19] Speaker 05: It simply was citing to use the oil. [00:20:21] Speaker 05: to reference to an argument that EPA had made that these oil provisions in AMC-1, EPA had argued that materials, essentially an argument much like what petitioners are making here, that once the material was no longer being used for its original purpose, and these were materials produced in the mineral processing industry and [00:20:41] Speaker 05: materials that were produced at petroleum refineries. [00:20:45] Speaker 05: EPA had said these materials are solid waste even though the manufacturer was putting them back into the refining process and the court said no that's taking it too far that we're not quite sure what else the statute might mean but it clearly [00:20:58] Speaker 05: These materials, which are clearly still in process, still being used, even if they're being used for something different, are not solid waste. [00:21:06] Speaker 05: And EPA made a number of arguments to argue that pointing to different parts. [00:21:09] Speaker 05: The statute in one was used oil. [00:21:11] Speaker 05: And all the courts said it assumed that the used oil was a waste, and briefly described the used oil process, and then said they're burned and boiled, indicating that the court's understanding was that this material used oil once it was processed was not in fact a solid waste. [00:21:30] Speaker 05: On processing, again, Your Honor, the court in the safe food case, the court held that hazardous waste KO61 could be processed into a product as long as the product met the proper criteria. [00:21:43] Speaker 05: And there's no reason why that does not apply directly here to non-hazardous waste in this case. [00:21:50] Speaker 05: The petitioner's argument concerning specific exclusions in 7429 is also not on point. [00:21:57] Speaker 05: The court there was. [00:21:58] Speaker 05: Congress there was concerned about [00:22:02] Speaker 05: the units, the type of units, it was alternative energy producers, cogeneration units, that even included air curtain incinerators, which is something that Bernard Wood, and it was looking at, and it was tempting to, this was during the period when the energy industry was being restructured, that the purpose of these types of facilities had been authorized by the Public Utilities Regulatory Policies Act, 78 a few years earlier, and Congress was clearly focused on [00:22:30] Speaker 05: not impeding the development of these alternative energy sources. [00:22:34] Speaker 05: And the exclusion that's in the statute is actually in some ways broader than the determination that EPA has made. [00:22:41] Speaker 05: For instance, the tires that are pulled out of the river or that are extracted from these tire piles [00:22:48] Speaker 05: or be included in that exclusion, whereas they're not included in the EPA's determination, while it accompanies perhaps a broader range of units, is a smaller range of hires. [00:23:01] Speaker 05: The legitimacy criteria do address the issues. [00:23:05] Speaker 05: The contaminants are those that are regulated under the Clean Air Act, which is consistent with the purpose of this rule, which is to determine what materials are solid waste when burned. [00:23:14] Speaker 05: And the rationale is, [00:23:16] Speaker 05: are they the same as fuels? [00:23:19] Speaker 05: So in other words, is this the same as coal or the same as oil in terms of its contaminations? [00:23:24] Speaker 05: And that's why it makes sense to focus on it. [00:23:27] Speaker 05: And the regulation does address the management, the legitimacy criteria, [00:23:35] Speaker 05: specifically say the non-hazardous secondary material must be managed as a valuable commodity. [00:23:41] Speaker 05: And it issues several specific examples and discussions depending upon whether there is analogous fuel or not. [00:23:48] Speaker 05: As was explained in the preamble, what it means there is that it has to be stored and managed in a way that preserves its fuel value as well as protecting the environment. [00:23:59] Speaker 08: Is it a valuable commodity if you have to pay someone to take it off your hands? [00:24:04] Speaker 05: It may be, Your Honor, it's a valuable person to the, it may be valuable to them. [00:24:08] Speaker 05: It may be cheaper to you to pay to somebody who's going to use it as fuel so it has value than it would be to dispose of because it's still a valuable commodity. [00:24:17] Speaker 05: And if someone is taking it off your hands, [00:24:18] Speaker 08: How is something valuable if I've got to pay someone to get rid of it? [00:24:23] Speaker 05: It's not very valuable to me. [00:24:26] Speaker 05: Well, it may not be valuable to you, but it certainly would be. [00:24:29] Speaker 05: And again, the transfer situation is one in which EPA does make the case-by-case determinations. [00:24:36] Speaker 05: We'll talk about it in the second part of the argument, but that's where EPA does make that determination on a case-by-case basis. [00:24:42] Speaker 05: But it's valuable to the person that you're [00:24:46] Speaker 05: you're selling or paying to take it away because it's a fuel. [00:24:49] Speaker 05: But again, that's a determination that EPA makes on a case-by-case basis. [00:24:53] Speaker 05: It may be a valuable fuel product, and it may be a lot cheaper for you to pay someone to take it as a fuel. [00:24:58] Speaker 05: And the reason it's cheaper to you than as opposed to disposing of it in an incinerator or through some other process. [00:25:05] Speaker 05: And the reason that it costs you less is because it has value to the person taking it as a fuel. [00:25:10] Speaker 05: How much value it is obviously depends on the price and who pays whom. [00:25:13] Speaker 05: But it doesn't change the fact that it's valuable in the sense that it has fuel value. [00:25:17] Speaker 05: And that's the point that Congress, now this statute is called the Resource Conservation and Recovery Act. [00:25:23] Speaker 05: And the main purposes of the statute was to encourage the reuse and recovery of materials. [00:25:29] Speaker 05: And the types of programs, particularly the types of programs that petitioners are challenging, used oil collection programs, [00:25:36] Speaker 05: Tire programs, the use of clean wood as a fuel, are not part of the solid waste problem. [00:25:43] Speaker 05: If you go back to AMC 1, what the court said was something only becomes a waste when it becomes part of the solid waste problem. [00:25:51] Speaker 05: These programs are part of the solid waste solution. [00:25:53] Speaker 05: They take tires, for instance. [00:25:55] Speaker 05: They used to pile in enormous piles that could catch fire and burn for days. [00:25:59] Speaker 05: or used oil that we put down the drain and turn it into a usable product. [00:26:04] Speaker 05: And that's the value, and that's what EPA is trying to address here, is that use of recycling. [00:26:10] Speaker 03: Okay, anything else? [00:26:11] Speaker 05: Any further questions, John? [00:26:12] Speaker 03: Thank you. [00:26:17] Speaker 03: Mr. Green? [00:26:24] Speaker 01: Good morning, may it please the court. [00:26:25] Speaker 01: I'm Douglas Green, counsel for industry intervenors on behalf of EPA. [00:26:34] Speaker 01: The petitioner's argument is flawed because, as I think as Judge Santel just suggested, it basically doesn't consider and is directly at odds with one of RECRA's key policy objectives, which is avoiding the needless land disposal, [00:26:51] Speaker 01: of waste which can otherwise be used for their energy value. [00:26:55] Speaker 01: Now, as this court advised in AMC 1, the term discard must be determined by the purposes of a particular legislation. [00:27:05] Speaker 01: And therefore, the term discard in this case, as in that case, should not be construed in a manner that is inconsistent with Rector's goal of promoting the conversion of solid waste to usable energy. [00:27:19] Speaker 01: EPA's rule is faithful to that objective. [00:27:22] Speaker 01: Now, what the agency has done here with qualified secondary, non-hazardous secondary materials is that it can't discern what the intent of million consumers are with post-consumer products, with used oil or scrapped tires. [00:27:38] Speaker 01: What the agency has done, however, is that it has stepped back and asked, in these qualified circumstances, [00:27:46] Speaker 01: where used oil is managed pursuant to the agency's long-standing used oil recycling program, and where scrap tires are collected in comprehensive state tire collection programs to ensure, one, that the materials are in fact handled like commodities [00:28:05] Speaker 01: Two, do they in fact have heating value? [00:28:09] Speaker 01: And three, are they in fact comparable to the virgin fuels that they're going to be replacing? [00:28:16] Speaker 01: Are those materials part of the solid waste problem? [00:28:19] Speaker 01: And the answer is obvious in EPA's view, and we agree, no. [00:28:23] Speaker 01: discard is not occurring in those circumstances. [00:28:26] Speaker 01: If these materials are collected in programs outside of these type of qualified conditions, then discard may in fact be going on, but not in these circumstances. [00:28:39] Speaker 01: And as EPA correctly argues, this really isn't different than this Court's decision in, say, food and fertilizer, which involved a hazardous secondary material. [00:28:51] Speaker 01: Our concern with petitioners' position is that it really will reverse. [00:28:57] Speaker 01: Years of successful recycling programs that, as EPA just explained, have actually been solving the problem. [00:29:05] Speaker 01: Scrap tire collection programs, used oil recycling programs, are programs that have taken secondary materials that historically were part of the solid waste disposal problem, were being disposed of, and have converted consistent with the statute's objective [00:29:22] Speaker 01: these materials from the waste management world to the products world, again, provided that they are collected and managed in accordance with a defined set of circumstances. [00:29:35] Speaker 03: The practical effect of... What about petitioners' argument that all of that occurs pursuant to inadequate emission standards? [00:29:42] Speaker 01: Excuse me, Your Honor? [00:29:43] Speaker 03: Their argument is that all of that occurs pursuant to what they view as inadequate protective emission standards. [00:29:51] Speaker 01: Well, if that's their argument, then that's something that has to be addressed under the Clean Air Act. [00:29:57] Speaker 01: This issue, the issue here is whether these materials, when collected and managed in the specified set of conditions as set forth by EPA, are discarded. [00:30:08] Speaker 01: And EPA has correctly determined, consistent with checking human health and the environment, but also promoting the statute's policy objective of avoiding the needless land disposal of secondary materials that can be used for their energy value, has said in this case these aren't discarded. [00:30:25] Speaker 01: If, when burned, under any applicable Clean Air Act regulations, petitioners have concerns with those regulations, [00:30:33] Speaker 01: That's where they ought to be looking, not on direct route where the agency's authority is to determine whether discard has occurred. [00:30:43] Speaker 01: Our concern is that what will happen here is that these recycling programs will be reversed. [00:30:51] Speaker 01: The bottom line is, as even EPA's record shows, is that if these materials are all of a sudden, if we wave a magic wand over these fuel products and call them the solid waste and you can only combust those in an incinerator, guess what's going to happen? [00:31:04] Speaker 01: They aren't going to be combusted for energy recovery. [00:31:07] Speaker 01: EPA's own record shows that once a unit is called in an incinerator, [00:31:12] Speaker 01: For a host of reasons, those units stop burning the material that caused them to become incinerators and look to alternative, basically virgin fuels. [00:31:22] Speaker 01: And that would be inconsistent. [00:31:24] Speaker 01: We submit to the policy objectives of RECRA. [00:31:28] Speaker 01: I see my time is up. [00:31:29] Speaker 03: OK, thank you. [00:31:30] Speaker 03: Did Mr. Johnson have any time left? [00:31:33] Speaker 03: You can take two minutes if you'd like it. [00:31:37] Speaker 04: I would. [00:31:39] Speaker 04: So first, EPA relies on collection, but household waste is collected just like tires are collected, just like used oil is collected. [00:31:53] Speaker 04: He pays arguments would apply to regular household waste and make that undiscarded. [00:31:57] Speaker 04: And that's just not a tenable reading of the statute. [00:31:59] Speaker 03: Just focus on the last argument both lawyers made with respect to the purpose of RCRA. [00:32:06] Speaker 03: And what effect on the recovery aspect of RCRA would occur if you were to prevail here? [00:32:13] Speaker 03: The general purpose is... What's your response to that? [00:32:16] Speaker 04: The general purposes of RCRA have to yield in face of the text of the statutes, and 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 error mission standards. [00:32:35] Speaker 04: EPA is letting sources [00:32:37] Speaker 04: burn these materials when they've been thrown out without being subject to these protective air emission standards. [00:32:47] Speaker 04: ILCO, I want to jump back to the collection and continuous process argument. [00:32:52] Speaker 04: The ILCO case from the 11th Circuit, which this court cited approvingly in API 2 and which also relied on this court's case law, pointed out that previously discarded material remains waste, even though it may be recycled. [00:33:06] Speaker 04: EPA relies on safe food, but safe food was a very different circumstance. [00:33:10] Speaker 04: That was a firm-to-firm transfer where people actually bought and sold for money. [00:33:16] Speaker 04: People who held the hazardous secondary material there actually sold it for money to the reprocessors. [00:33:23] Speaker 04: So that's just not... [00:33:25] Speaker 02: If you don't get money for it, then it's discarded. [00:33:28] Speaker 04: If you don't get money for it, and you don't hold it like a valuable commodity? [00:33:33] Speaker 02: No, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, [00:33:53] Speaker 02: And it's discarded? [00:33:55] Speaker 04: That is a highly significant factor in the test. [00:33:58] Speaker 02: It's not necessarily dispositive, but if you're... So if it's not dispositive, then it would be possible for the transfer to occur without monetary consideration and still not be a discard. [00:34:10] Speaker 04: There may be circumstances where that's possible, but EPA's exemption of these materials sweeps in circumstances where it's not possible. [00:34:17] Speaker 02: If EPA can justify a narrower exemption... You would concede that it's possible to make [00:34:35] Speaker 02: You're taking the position that if you don't get money for it, it's a discard. [00:34:41] Speaker 02: But that's not your position? [00:34:43] Speaker 04: In the circumstances at issue here where people actually have to pay to properly dispose of their tires, that's a discard. [00:34:50] Speaker 04: If you give a tire as a gift, [00:34:53] Speaker 04: That would not be a discard. [00:34:55] Speaker 04: But I think it's clear that in the circumstances of this case, that there's not a discard. [00:35:02] Speaker 04: And EPA's exemption, EPA's broad exemption, wraps those tires into being not discarded. [00:35:10] Speaker 04: And as a result, the whole exemption has to fall under this court's case law. [00:35:14] Speaker 04: If EPA wants to try to justify a narrower exemption, it needs to try to do that on remand. [00:35:21] Speaker 04: If I can move quickly to the processing argument. [00:35:25] Speaker 03: One sense over your time. [00:35:27] Speaker 04: Okay. [00:35:29] Speaker 03: Just say what you want to say. [00:35:34] Speaker 04: EPA admits that it's expanding the exclusion to new units. [00:35:39] Speaker 04: Units that the Congress did not allow to be not, sorry. [00:35:48] Speaker 04: There's a lot of nots in that sentence. [00:35:52] Speaker 04: It's actually naughty. [00:35:53] Speaker 04: EPA admitted that it is expanding the exclusion in section 7429 G1B beyond what Congress provided. [00:36:07] Speaker 04: This court's already held in NRDC that that's not permissible. [00:36:10] Speaker 03: OK. [00:36:11] Speaker 04: Thank you. [00:36:13] Speaker 03: All right. [00:36:14] Speaker 03: So let's go on to the second, the industry challenge. [00:36:18] Speaker 03: Am I at the right point? [00:36:20] Speaker 03: OK, all right. [00:36:22] Speaker 03: And Mr. Bell and Mr. Knight are going to split this argument, right? [00:36:29] Speaker 03: OK, let's go. [00:36:40] Speaker 07: Good morning. [00:36:42] Speaker 07: May it please the court? [00:36:43] Speaker 07: My name is Chris Bell, and I'm speaking for the industry petitioners on the third-party transfer issue. [00:36:52] Speaker 07: And let me begin with how we believe the rule should be changed. [00:36:57] Speaker 03: Looking at the regulatory language on the... You know, to win your case, you need to start with the statute and why the current rule is not faithful to it. [00:37:09] Speaker 03: You may have a much better view about how it should be changed, but you're only going to win if you can convince us that the agency's interpretation of the statute is not acceptable. [00:37:20] Speaker 03: So maybe you want to start there. [00:37:21] Speaker 07: Certainly, Your Honor. [00:37:23] Speaker 07: This issue turns on the meaning of other discarded material in the statute, and I think all of the parties agree to that. [00:37:32] Speaker 07: And EPA asserts that transfers of secondary materials [00:37:37] Speaker 07: that meet the legitimacy criteria to be used as fuels are discards and in the context of their rule [00:37:46] Speaker 07: EPA has said that if I'm an on-site generator, say if I'm a facility and I have some kind of a hydrocarbon type of a stream, and I burn it on-site in my boiler as a fuel, and I meet the four legitimacy criteria, valuable commodity and all that, that is not a discard. [00:38:09] Speaker 07: If part of that same material I pipe over to my neighbor's facility for the exact same use, [00:38:15] Speaker 07: that solely the act of the transfer transforms that exact same activity into a discard. [00:38:25] Speaker 03: I thought it was not a discard if it was processed in accordance with the legitimacy criteria. [00:38:32] Speaker 03: Isn't that true? [00:38:33] Speaker 03: If it's processed in accordance with the legitimacy criteria. [00:38:39] Speaker 07: You raise a good point, Your Honor. [00:38:41] Speaker 03: I was just looking at the regulation. [00:38:44] Speaker 07: Right. [00:38:44] Speaker 07: But if it is processed and then transferred, [00:38:50] Speaker 07: In that situation, the material is already considered discarded. [00:38:55] Speaker 07: So for that part of the rule, EPA has said if you discard something, then process it, then transfer it, then that is not a discard. [00:39:05] Speaker 07: On the other hand, if I have something that meets all of the legitimacy criteria, [00:39:11] Speaker 07: but does not need processing, which by the way is frequently the case in sort of big interconnected petrochemical type facilities where you have pipes connecting various kinds of production units. [00:39:22] Speaker 07: If there is no prior processing required. [00:39:25] Speaker 03: Could you step back? [00:39:26] Speaker 03: Yes, sir. [00:39:26] Speaker 03: Could you just give us an example? [00:39:28] Speaker 03: Just a very specific example of the problem you're identifying. [00:39:35] Speaker 03: OK. [00:39:35] Speaker 03: Just one clear example. [00:39:36] Speaker 07: OK. [00:39:37] Speaker 07: One clear example is in petrochemical facilities, when they're processing those kinds of materials, they get a wide variety of what are called hydrocarbon streams that are not the primary product. [00:39:55] Speaker 07: but can have a variety of values. [00:39:57] Speaker 07: They can have a value as an ingredient into some other production unit, or... Well, if that's in the generator's production unit, then you don't have a problem, right? [00:40:07] Speaker 07: Correct. [00:40:07] Speaker 03: It's only if it's transferred. [00:40:08] Speaker 03: So I asked for an example of a situation where a generator produces a hydrocarbon. [00:40:17] Speaker 03: That's what you're talking about, right? [00:40:18] Speaker 03: Right. [00:40:18] Speaker 03: And that hydrocarbon is transferred to someone else, [00:40:22] Speaker 07: Right. [00:40:23] Speaker 03: And I'm sorry. [00:40:24] Speaker 03: And be used in a few, right? [00:40:26] Speaker 07: Correct. [00:40:26] Speaker 03: Okay, so that has to be consistent with the legitimacy criteria, right? [00:40:32] Speaker 07: Correct. [00:40:33] Speaker 03: And then it's not considered a discard. [00:40:35] Speaker 03: So what's your problem? [00:40:37] Speaker 07: If I have that hydrocarbon pipe go to my boiler, it's not a problem. [00:40:43] Speaker 07: If I have too much of that material, and so I sell it to my neighbor's petrochemical facility for burning in their boiler, and it's not processed, then it becomes a discard under EPA's rules. [00:40:57] Speaker 03: So what in the statute? [00:40:59] Speaker 03: I mean, the distinction the agency is making seems so intuitive. [00:41:03] Speaker 03: stricter standards if the transfer is to a third party. [00:41:09] Speaker 03: So you have to show us something in the statute that prohibits the agency from making it. [00:41:14] Speaker 03: I know you don't like it, but to win you have to show us what in the word discard prohibits the agency from doing it. [00:41:24] Speaker 07: Well, this court has held that the plain meaning of the word discard is abandon, throw away, or dispose. [00:41:32] Speaker 07: And our position is that, particularly in a market economy, transferring or selling something in plain language is not throwing away, disposing. [00:41:43] Speaker 03: But the agency says it's not a discard if it's reprocessed in some form in accordance with the legitimacy criteria. [00:41:53] Speaker 03: If it isn't, then they're going to treat it as discarded. [00:41:55] Speaker 03: I just don't see [00:41:57] Speaker 03: A, I don't see where you find anything in the language that prohibits that, and B, it just seems such an intuitive position to me. [00:42:05] Speaker 07: I guess our position is that, as this court said in Safe Food and Fertilizer, where it said that firm-to-firm transfers are hardly a good indicia of a discard, as that term is ordinarily understood. [00:42:18] Speaker 07: And we don't think that EPA has backed up its intuition with anything in the record. [00:42:24] Speaker 07: Because the way EPA has written the legitimacy criteria, the legitimacy criteria do not require processing. [00:42:31] Speaker 07: The legitimacy requirements are a completely separate issue from the issue of processing. [00:42:37] Speaker 03: Are you challenging the legitimacy criteria also? [00:42:40] Speaker 07: No, sir, we're not. [00:42:41] Speaker 03: We're saying that if you transfer something that meets the legitimacy. [00:42:46] Speaker 03: You have to make this argument through the lens that we have to look at the case. [00:42:51] Speaker 03: And either you're arguing that this violates the statute, which you are, or if, my question was, if we don't think this does violate the statute, [00:43:01] Speaker 03: Are you challenging the legitimacy criteria? [00:43:04] Speaker 03: And you just said no. [00:43:06] Speaker 03: So, do you see my point? [00:43:09] Speaker 03: You moved your argument to a challenge to the legitimacy criteria. [00:43:16] Speaker 03: I didn't see that in your brief. [00:43:17] Speaker 07: No, we are not challenging the legitimacy criteria. [00:43:20] Speaker 03: So your whole case hangs on disgust, right? [00:43:23] Speaker 07: Correct. [00:43:24] Speaker 07: And we believe that the legitimacy criteria do not require reprocessing or processing a material. [00:43:32] Speaker 07: If a material meets the legitimacy criteria, and it is, for example, burned on site without processing, that's not a discard. [00:43:41] Speaker 07: And so if I have a material that's perfectly useful as a fuel, [00:43:46] Speaker 07: is a valuable commodity, does not have unusual contaminants, has a meaningful heating value, in other words, it doesn't need to be reprocessed, then it meets the legitimacy criteria. [00:43:58] Speaker 07: Then at that point, EPA's position is that it meets the legitimacy criteria. [00:44:03] Speaker 07: The only thing that's different is the transfer. [00:44:06] Speaker 02: Would it be possible for you at that point to seek petition from the EPA for a determination that this is not in fact distorted? [00:44:15] Speaker 07: Yes, it would be possible, but we don't think that EPA has the authority under RCRA to require the regulated community to petition EPA regarding materials that are not discarded in the first instance. [00:44:28] Speaker 02: Well, at that point, you would be asking them to determine that it should not be treated as a discarded material, correct? [00:44:37] Speaker 02: If you petition. [00:44:38] Speaker 02: Correct. [00:44:38] Speaker 02: But that, I'm sorry. [00:44:40] Speaker 02: If it were being processed, they would have additional [00:44:50] Speaker 02: reasonable or in violation of any of the statutes for them to say, well, you'll have to petition this for treatment as a non-discard if you want to use one, a transfer that isn't paid. [00:45:03] Speaker 02: Why is that unreasonable? [00:45:05] Speaker 07: Well, first, of course, if the material is processed, then you wouldn't have to go to EPA at all. [00:45:10] Speaker 02: That's right. [00:45:11] Speaker 02: That's what I said. [00:45:12] Speaker 02: Correct. [00:45:12] Speaker 02: Okay. [00:45:12] Speaker 02: Well, I don't think you're understanding me by your [00:45:20] Speaker 02: If they don't have the evidence to process, why is it unreasonable for you to have to petition to establish that it's not discouraged? [00:45:30] Speaker 07: Because we don't believe that a transfer by itself, as this Court said in safe food and fertilizers, that [00:45:39] Speaker 07: We know where the court said firm-to-firm transfers are hardly good indicia of discard. [00:45:44] Speaker 07: And when we talk about the plain language of the word discard, throw away, dispose of, abandon, we don't think that the word transfer, which are the economic transactions upon which the whole nation's economy is based, that those transfers by themselves are [00:46:07] Speaker 07: discards, and we don't think the record supports that as well. [00:46:11] Speaker 07: And EPA cannot base a rule simply based on, well, we believe that those might be a discard. [00:46:19] Speaker 07: They have to have a record that supports that, which is what this court said in the API case, and they don't have that record. [00:46:27] Speaker 03: Okay. [00:46:29] Speaker ?: Anything else? [00:46:29] Speaker 03: No. [00:46:30] Speaker 03: Okay, thank you. [00:46:32] Speaker 03: Mr. Knight? [00:46:37] Speaker 06: Good morning. [00:46:37] Speaker 06: May it please the court? [00:46:38] Speaker 06: My name is Jeff Knight, and I will be addressing the sewage sludge exclusion on behalf of NACWA and the other municipal petitioners. [00:46:46] Speaker 06: Your Honors, RECRA excludes sewage sludge from solid waste regulation, and the statute does not give EPA any authority to alter that exclusion. [00:46:55] Speaker 06: Section 1004-27. [00:46:56] Speaker 03: Could you just start with the statute with me? [00:46:58] Speaker 03: It says, it says, it says, [00:47:03] Speaker 03: The term solid waste, this is the one we're looking at, right? [00:47:05] Speaker 03: The term solid waste means sludge from a waste treatment plant. [00:47:12] Speaker 06: Isn't that what it says? [00:47:14] Speaker 06: Yeah, so the definition of sewage sludge, I'm sorry, the definition of solid waste. [00:47:18] Speaker 03: Are we looking at the same statute? [00:47:20] Speaker 03: It says the term solid waste means any garbage, refuge, [00:47:26] Speaker 03: sludge from a waste treatment plant, right? [00:47:30] Speaker 06: Yes. [00:47:31] Speaker 03: OK, so I read that and I say, that's solid waste. [00:47:36] Speaker 06: It includes all of those things except the following. [00:47:40] Speaker 06: And then it reads, but does not include solid or dissolved material in domestic sewage. [00:47:45] Speaker 03: Yeah, right. [00:47:45] Speaker 03: So we have to make sense of both of those, right? [00:47:48] Speaker 06: Correct. [00:47:49] Speaker 03: OK, so why isn't it? [00:47:51] Speaker 03: So when it comes out of your house, [00:47:54] Speaker 03: It's sewage. [00:47:56] Speaker 03: When it comes out of the treatment plant, it's sludge. [00:47:59] Speaker 03: Isn't that what this statute means? [00:48:01] Speaker 06: No, we don't think so. [00:48:02] Speaker 03: Tell me why. [00:48:03] Speaker 06: So the definition of sludge in the statute is in 100426A. [00:48:08] Speaker 06: And that definition includes all types of sludge, including specifically sludge at the municipal wastewater treatment plant. [00:48:17] Speaker 03: So under your theory, what happens to the words sludge from a waste treatment plant? [00:48:23] Speaker 06: It is included if it's a different type of wastewater treatment plant, an industrial plant or a commercial plant. [00:48:29] Speaker 06: But the same definition excludes certain wastewater flows, including all solid or dissolved material in domestic sewage. [00:48:40] Speaker 06: So this is a definitional exclusion from what is initially a broad inclusion of sludge from wastewater treatment plants generally. [00:48:50] Speaker 06: There are many types, industrial, commercial, and municipal. [00:48:53] Speaker 06: But then the definition expressly excludes. [00:48:56] Speaker 03: Just tell me in very simple terms, what sludge from a waste treatment plant, under your theory, would be included in the term solid waste? [00:49:08] Speaker 06: An industrial plant wastewater treatment plant at a... Hold on, what? [00:49:16] Speaker 03: A sludge from what? [00:49:18] Speaker 03: So if a factory has a waste treatment plant, that would be included? [00:49:26] Speaker 06: So a sludge from a waste treatment plant can include any type of waste treatment plant, whether it be municipal or it be commercial or industrial. [00:49:37] Speaker 06: But the same sentence, the definition of solid waste, then expressly excludes all solid or dissolved material in domestic sewage. [00:49:46] Speaker 03: In domestic sewage? [00:49:48] Speaker 06: It specifically then focuses on, yes, domestic sewage, but it focuses on the solid or dissolved materials. [00:49:56] Speaker 03: I still don't understand what's left of this phrase under your theory. [00:50:00] Speaker 06: Well, the ordinary meaning of the word material includes everything of which something is composed. [00:50:07] Speaker 03: Just give me an example. [00:50:09] Speaker 03: What sludge from a waste treatment plant? [00:50:13] Speaker 03: Give me an example of sludge from a waste treatment plant that would, under your theory, be considered solid waste. [00:50:20] Speaker 06: That's all I want. [00:50:20] Speaker 06: Sludge from a factory. [00:50:22] Speaker 03: You just told me that waste treatment plants from [00:50:27] Speaker 03: Sludge from what? [00:50:29] Speaker 06: Sludge from a factory, for example, or an industrial facility, but not sludge from a municipal. [00:50:37] Speaker 03: Well, where does it say that in the statute? [00:50:40] Speaker 03: It says sludge from a waste treatment plant. [00:50:44] Speaker 03: It doesn't say sludge from a factory's waste treatment plant. [00:50:48] Speaker 06: But waste treatment plant is a broad category, which includes multiple types. [00:50:53] Speaker 06: and 26A, the term sludge under 26A means... And you think this is a chevron one issue? [00:50:59] Speaker 03: It is. [00:50:59] Speaker 03: You think the statute's crystal clear? [00:51:01] Speaker 06: The statute is clear on this point. [00:51:03] Speaker 03: Really? [00:51:04] Speaker 06: This court's precedent in cases like Goldstein v. SEC says even if Congress uses a term that is susceptible to multiple [00:51:15] Speaker 06: dictionary meanings does not mean that term is that EPA may choose any of those terms in interpreting the statute. [00:51:25] Speaker 06: This court and the agency still looks to the context and what EPA has done here is said that the exclusion only applies for the water that comes into a treatment plant and that the materials in that water are no longer excluded unless they are located in that water. [00:51:47] Speaker 02: The domestic sewage exclusion is at one thousand four twenty seven, which is the given you the full. [00:52:03] Speaker 06: I'm sorry, I have the public law here. [00:52:07] Speaker 02: Sorry. [00:52:08] Speaker 06: Yeah, sorry. [00:52:14] Speaker 06: I do not in front of me, but I will I will get that for you when I step up for response. [00:52:20] Speaker 06: Sorry. [00:52:21] Speaker 06: All right. [00:52:22] Speaker 03: Do you have anything else you want to cover? [00:52:24] Speaker 06: Your time is up. [00:52:25] Speaker 06: So EPA tells us that the exclusion doesn't apply for two reasons. [00:52:30] Speaker 06: One, that the exclusion only applies to the water that comes into the treatment plant. [00:52:37] Speaker 06: And that is not the case factually. [00:52:40] Speaker 06: First, it isn't factually correct that sewage sludge does not contain water that comes to the treatment plant. [00:52:46] Speaker 03: Mr., I need to wind up your argument. [00:52:48] Speaker 06: OK. [00:52:48] Speaker 06: OK. [00:52:49] Speaker 06: Thank you, Your Honor. [00:52:51] Speaker 06: I mean, as a plain language inter... OK. [00:52:55] Speaker 06: We got that. [00:52:55] Speaker 06: OK. [00:52:55] Speaker 06: Thank you, Your Honor. [00:52:57] Speaker 03: All right. [00:52:58] Speaker 03: You and your colleagues decided to split your time, so you know. [00:53:04] Speaker 03: Let's see. [00:53:05] Speaker 03: EPA, Mr. Rafe? [00:53:08] Speaker 05: Good morning once again, Your Honors. [00:53:10] Speaker 05: Let me just quickly, because I think we can address this sludge issue extremely quickly by looking at another statutory provision. [00:53:17] Speaker 03: Why do you have to go beyond the one I was quoting? [00:53:19] Speaker 05: Well, because there's one that makes it even clearer. [00:53:22] Speaker 03: Oh, really? [00:53:23] Speaker 05: Excellent. [00:53:25] Speaker 05: Which I think we did cite in our brief. [00:53:27] Speaker 05: Code cite to this one is 42 USC 6903 26A. [00:53:33] Speaker 05: And this says, the term sludge means any solid, semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant. [00:53:43] Speaker 05: So the statute clearly includes sludge from a municipal wastewater treatment plant, which is a sewage plant, within the term sludge. [00:53:54] Speaker 05: And therefore, yes, the statute is certainly clear. [00:53:56] Speaker 05: But what is clear is that sludge from a municipal wastewater treatment plant is a solid waste by definition. [00:54:04] Speaker 05: And it's not the same material as what's [00:54:07] Speaker 05: It's not material that's suspended or dissolved in waste water. [00:54:12] Speaker 05: It's a separate newly generated material that is produced in the process of treating the solid waste. [00:54:19] Speaker 05: And it's by definition in the statute of the solid waste. [00:54:24] Speaker 08: What does that exemption mean that your colleague was referring to in his argument? [00:54:30] Speaker 05: It means that, for instance, if you have an industrial wastewater that contains some metal concentrations or something like that, RCRA does not regulate that wastewater. [00:54:41] Speaker 05: That wastewater is regulated under the clean water, which requires it to be treated to meet its treatment standards to then discharge the effluent. [00:54:49] Speaker 05: So it's to avoid double regulation of the wastewater itself, not to regulate the sludge, not to accept the sludge from regulation that results from that treatment. [00:55:00] Speaker 05: And that's, I think, the best way to reconcile the statute, which is trying to make absolutely clear that even though there may be constituents, perhaps even hazardous constituents, in wastewater, they would be regulated in the Water Act and not in the River Act. [00:55:14] Speaker 05: So it's a division of sort of authority between the two statutes. [00:55:19] Speaker 05: Any other questions on this ledge issue? [00:55:22] Speaker 05: OK. [00:55:23] Speaker 05: Let me turn then to the... [00:55:26] Speaker 05: the transfer issue. [00:55:30] Speaker 05: First of all, again, as in their breeze, petitioners have yet to identify a single waste that they claim is misclassified under this provision. [00:55:41] Speaker 05: In the breeze, they talk about waste managed at sulfur recovery facilities, but they don't identify any waste stream. [00:55:49] Speaker 05: It's not dispensed sulfuric acid, because that's an ingredient. [00:55:52] Speaker 05: That's not subject to this provision. [00:55:54] Speaker 05: So they haven't identified any injury and they haven't identified any way in which the regulation misregulates. [00:56:02] Speaker 05: Secondly, this provision applies to, as Judge Sintel was getting at in his questions, the only thing this provision that we're talking about does is that it requires that if you take a material [00:56:15] Speaker 05: and you transfer it to someone else's secondary material, you have to get a determination from EPA that it's not a waste. [00:56:23] Speaker 05: And that's a reasonable provision, and EPA has made such determinations. [00:56:26] Speaker 05: You can get them either on a case-by-case basis, or you can get them on a categorical basis. [00:56:30] Speaker 05: They made a couple of them in the rule. [00:56:32] Speaker 05: There are other rules pending. [00:56:35] Speaker 05: The record does show that many of the problems associated with recycling and management have to do with transfers and mismanagement during transfer, and there is less indicia of control. [00:56:48] Speaker 05: If a generator takes the material and reuses it itself, it seems clear there's high indicia that it's a valuable material. [00:56:56] Speaker 05: But if it's transferred to someone else, that's somewhat less. [00:56:59] Speaker 05: And EPA has taken the precaution, as just Sintel was noting in his questions, of requiring that the petitioners come, excuse me, the person wanting to combust the waste or the generator, whoever chooses to do so, comes to EPA and gets a determination. [00:57:17] Speaker 05: And that's reasonable under the statute. [00:57:19] Speaker 05: given the history of issues and problems associated with such transfers. [00:57:24] Speaker 05: I just want to make it really clear that EPA has not said that the mere fact of transfer constitutes disposal. [00:57:32] Speaker 05: The question being asked here is when does combustion constitute disposal? [00:57:36] Speaker 05: These are materials that are going to be destroyed by combustion. [00:57:41] Speaker 05: In some cases, where it meets the legitimacy criteria, where the material has fuel value, where it's being managed in a proper way, where it's not contaminated, EPA has determined that that's recycling those products of fuels and that they should be managed as product fuels. [00:57:58] Speaker 05: In other cases, if something is transferred that doesn't meet those criteria, then combustion is disposal. [00:58:03] Speaker 05: So it's not the transfer itself that constitutes disposal. [00:58:07] Speaker 05: What constitutes disposal is the combustion if it is a solid waste. [00:58:16] Speaker 05: The Court has any questions, I think, do you think? [00:58:20] Speaker 05: No. [00:58:20] Speaker 05: All right. [00:58:20] Speaker 03: OK, thank you. [00:58:32] Speaker 04: Good morning again. [00:58:33] Speaker 04: May it please the Court, Seth Johnson, for environmental interveners. [00:58:38] Speaker 04: The issue here is whether discard has ever occurred, and there's actually an important point of agreement. [00:58:43] Speaker 04: If a secondary material has been indisputably discarded, industry seems to agree that transferring it from one firm to another doesn't make it not discarded. [00:58:52] Speaker 04: So the question here is whether EPA has set up a lawful and rational [00:58:59] Speaker 04: It may and it may not. [00:59:00] Speaker 04: EPA has set up a lawful approach to determining whether a firm-to-firm transfer here constitutes discard. [00:59:09] Speaker 04: And industry hasn't shown that there's any conflict between the scheme EPA established for those materials and RCRA or this court's case law. [00:59:16] Speaker 04: I just want to add one quick citation to what my colleague Mr. Rave said. [00:59:24] Speaker 04: The industry claims that EPA can't even establish a process for transferred secondary materials to avoid discard status, but this court has already upheld EPA's authority to establish an exemption process like this in the context of regulating potential hazardous waste. [00:59:39] Speaker 04: It did that in API 2, 216, F3rd, 50, at 58 to 59. [00:59:45] Speaker 04: And there, so long as the conditions EPA established were met, the material wouldn't be found to be discarded. [00:59:51] Speaker 04: here too, so long as the conditions EPA established are met, the material won't be found to be discarded. [00:59:57] Speaker 04: It's a flexible process, and industry doesn't like how it's set up, but it hasn't shown that it's unlawful or irrational. [01:00:05] Speaker 04: In its briefs, industry also makes a lot of policy arguments. [01:00:09] Speaker 04: They're not relevant, because Congress is the one that sets the policy, and it said it in RCRA and the Clean Air Act, if you burn waste for any purpose, you've got to meet protective air emission standards. [01:00:20] Speaker 04: Those standards are two decades overdue, and they'll reduce pollution for millions of people. [01:00:25] Speaker 04: They're based on what sources have actually achieved, so they're strong, but they're achievable. [01:00:31] Speaker 04: People have actually achieved these in real life, and the industry hasn't provided a reason to believe that waste burners wouldn't clean up their emissions enough in order to meet those standards. [01:00:40] Speaker 04: And industry's policy argument is especially lacking because EPA has already drastically reduced the number of units that are subject to the most protective standards through this rule. [01:00:53] Speaker 04: As a result, many sources can be classified as area source boilers, and those standards only lead to, at best, 2% reductions in overall emissions of particulate matter. [01:01:03] Speaker 04: carbon monoxide, hydrogen chloride, and mercury. [01:01:07] Speaker 04: And for mercury, it's actually 0% reductions for area sources. [01:01:11] Speaker 04: And that's on four tons of mercury, 0% reduction. [01:01:18] Speaker 04: So if the court has no questions. [01:01:21] Speaker 03: Thank you. [01:01:24] Speaker 03: Did Mr. Let's see. [01:01:27] Speaker 03: Petitioners have any time left? [01:01:30] Speaker 03: Okay, let's see. [01:01:31] Speaker 03: You can each take one minute if you'd like it. [01:01:41] Speaker 07: Thank you, Your Honor. [01:01:43] Speaker 07: Turning to the questions again that you were posing, [01:01:48] Speaker 07: The example that we want to focus on is a secondary material that meets the legitimacy criteria that is transferred to a third party for the same use that the onsite generator [01:02:05] Speaker 07: would be putting it to use for. [01:02:09] Speaker 07: And we don't think that there's a basis in the record or the law for EPA 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 use as an ingredient, [01:02:26] Speaker 07: and it meets the legitimacy criteria, their EPA seems to have no problem with that third-party transfer that's allowed. [01:02:34] Speaker 07: So there's that 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, qualifies as the plain meaning of the word discard under the statute. [01:02:52] Speaker 03: All right. [01:02:53] Speaker 03: Thank you. [01:02:53] Speaker 03: Mr. Knight? [01:02:55] Speaker 03: I actually have a question for you. [01:02:58] Speaker 03: Mr. Rave cited. [01:03:04] Speaker 03: Yeah. [01:03:05] Speaker 06: Oh, I apologize. [01:03:07] Speaker 03: Mr. Knight. [01:03:07] Speaker 03: Yes. [01:03:08] Speaker 03: Yeah. [01:03:09] Speaker 03: On sludge, right? [01:03:10] Speaker 03: Yes. [01:03:10] Speaker 03: You're sludge. [01:03:11] Speaker 03: Yes, I am. [01:03:13] Speaker 03: OK. [01:03:13] Speaker 03: Sorry about that. [01:03:16] Speaker 03: That's your issue, right? [01:03:17] Speaker 03: It is my issue. [01:03:17] Speaker 03: OK. [01:03:19] Speaker 03: Mr. Rave cited, I think he cited 690326A. [01:03:23] Speaker 03: That's correct. [01:03:26] Speaker 03: Sludge means any solid, semi-solid, et cetera, generated from municipal, commercial, or industrial wastewater treatment plant. [01:03:39] Speaker 06: That's correct. [01:03:40] Speaker 03: Right. [01:03:41] Speaker 06: And 6903-27, which defines solid waste, expressly excludes... No, wait. [01:03:48] Speaker 03: Before you go there, you were telling me that the distinction before, when I was asking what's left of that language in the statute about treatment plants, is that, well, if factory treatment plants would be considered not municipal ones. [01:04:05] Speaker 03: This says... [01:04:07] Speaker 03: municipal, commercial, or industrial wastewater treatment plants. [01:04:12] Speaker 06: Yes, these are two different definitions that are used for different purposes within the RECRA framework. [01:04:16] Speaker 03: Or any other such, or any other such waste treatment having such similar characteristics. [01:04:23] Speaker 03: So, okay, what's the difference? [01:04:24] Speaker 06: So these are two different definitions that have different purposes within the RECRA framework. [01:04:28] Speaker 06: 26A, which defines sludge, clearly includes sewage sludge because sewage sludge comes from a municipal wastewater treatment plant. [01:04:37] Speaker 06: However, the defined term sludge is used for multiple purposes in the RECRA framework. [01:04:42] Speaker 06: It's actually more than 20 times throughout the statute. [01:04:45] Speaker 06: So here's an example. [01:04:46] Speaker 06: of where the use of the term sludge is relevant to domestic sewage and to sewage sludge, but it's not relevant to the definition of solid waste. [01:04:55] Speaker 06: 6982G directs the administrator to conduct studies of sound sludge landfilling practices and other alternative uses, including energy recovery. [01:05:06] Speaker 06: So it makes perfect sense for the Congress to have included sewage sludge and municipal wastewater treatment plants within the definition of sludge under 26A, while at the same time excluding domestic sewage and sewage sludge from that definition of solid waste in 26. [01:05:26] Speaker 06: Thank you. [01:05:28] Speaker 03: Thank you. [01:05:28] Speaker 03: We're done, right? [01:05:32] Speaker 03: Yeah. [01:05:32] Speaker 03: Case is submitted. [01:05:33] Speaker 03: Thank you all.