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FOR IMMEDIATE RELEASE
May 2, 2000

COURT SETS ASIDE EPA MINERAL WASTE RULE

Washington--A final 1998 Environmental Protection Agency (EPA) rule defining recyclable mineral processing secondary materials as solid wastes under the Resource Conservation and Recovery Act (RCRA) was set aside April 21 by a federal appeals court. The D.C. Circuit Court of Appeals stated, "Once again, by regulating in-process secondary materials, EPA has acted in contravention of Congress' intent.'"

However, the court upheld EPA's application of the Toxicity Characteristic Leaching Procedure (TCLP) to mineral processing wastes.

NMA and other industry groups had challenged the May 26, 1998, EPA Phase IV Land Disposal Restriction Rule, which subjected mineral processing secondary materials held for recycling to regulation as solid and hazardous wastes unless those materials were managed pursuant to EPA "contingent management" requirements.

In the definition of solid waste, the court rejected the agency's "immediate reuse" standard, saying EPA "misapprehends" earlier D.C. Circuit Court decisions. The court reiterated that only secondary materials that are "thrown away" or "abandoned" are "discarded," and become solid wastes subject to RCRA jurisdiction. The court agreed with NMA that materials "stored for recycling" are not thrown away or abandoned, and are therefore not solid wastes. The court suggested that only a limited set of mineral processing secondary materials may not be directly recycled and thus may ultimately be subject to EPA's jurisdiction.

Regarding NMA's challenge to the application of the TCLP to mineral processing wastes, the court held that "We can agree that the evidence is not conclusive and nonetheless hold that it is sufficient to make application of the TCLP rational or plausible . . ."