Bergeson & Campbell, P.C.

When is material ‘spent?

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Courtesy of Courtesy of Bergeson & Campbell, P.C.

The definition of solid waste has been frequently tested in the courts. A recent court decision provides new guidance on this meaning, and might have made things tougher for well-meaning enterprises. The definition of a hazardous waste under the Resource Conservation and Recovery Act (RCRA) is nearly impossible to understand. A recent court ruling has not helped eliminate confusion and, some would argue, has diminished the utility of the recovery part of the law. Here is what happened in Howmet Corp v. EPA, U.S. Court of Appeals, D.C. Circuit (Aug. 6, 2010).


RCRA Subtitle C established a regulatory structure for managing the treatment, storage and disposal of wastes considered hazardous. A 'hazardous waste' is as a 'solid waste' that may pose a present or potential hazard to human health or the environment when improperly managed. Under the statutory definition, hazardous wastes are a subset of solid wastes. The analysis thus begins with the definition of solid waste. Solid waste is discarded material, including solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations. Discarded material expressly include recycled materials (materials that have been used, reused or reclaimed) and spent materials, defined to include any material so contaminated by use it can no longer serve 'the purpose for which it was produced without processing.'

When a spent material is recycled, it must be managed as a solid waste. Moreover, if the material also exhibits any of four hazardous characteristics, it must be managed as a RCRA hazardous waste. Accordingly, when a hazardous spent material is recycled, or '[u]sed to produce products that are applied to or placed on the land or are otherwise contained in products that are applied to or placed on the land,' under EPA regulations, it must be managed as hazardous waste.

The Howmet decision

Howmet Corporation manufactures metal castings. To clean the ceramic core from metal castings, the company used an aqueous potassium hydroxide (KOH) solution. As a result of the cleaning process, the KOH becomes contaminated. Howmet used the solution until it became contaminated to the point it could no longer clean the castings. A few years ago, the company sent a portion of the KOH solution to a fertilizer manufacturing company that, without processing it or reclaiming it, added the mixture to its fertilizer process to control pH and provide a source of potassium. EPA brought an enforcement action and alleged various RCRA violations relating to the shipment and use of the contaminated KOH. Howmet challenged the assertions at the administrative, Environmental Appeals Board, and federal District Court levels, and lost. According to the court, the resolution of the appeal rested on whether the materials in question were 'spent' and should be deemed solid waste. Since 'spent material' is material that has been used and, as a result of contamination, can no longer serve 'the purpose for which it was produced without processing,' the central issue in the case was the interpretation of the phrase 'the purpose for which it was produced.'

Howmet argued that the term 'purpose' implies a fundamental purpose, and allows a multi-use product, such as KOH, to be used first as a cleaning agent and then as a fertilizer ingredient without being spent because both uses are consistent with KOH's fundamental purpose as a concentrated source of hydroxide ions and of potassium. EPA argued that a product's purpose for production, or 'the purpose for which it was produced,' must be related to its original use. A product first used as a cleaning agent becomes a spent material, according to the agency, when it becomes too contaminated for that use and is sent to a fertilizer manufacturer to be used in a fundamentally different manner.

The court concurred with EPA and found the agency's interpretation of spent material was reasonable.

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