United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 26, 1998 Decided April 3, 1998
No. 96-1234
Columbia Falls Aluminum Company, et al.,
Petitioners
v.
Environmental Protection Agency and
Carol M. Browner, Administrator,
Respondents
Reynolds Metals Company, et al.,
Intervenors
Consolidated with
Nos. 97-1044, 97-1558, 97-1724
On Petitions for Review of Orders of the
Environmental Protection Agency
----------
Lester Sotsky argued the cause for petitioners. With him
on the briefs was Jonathan S. Martel. Andrew S. Ratzkin
entered an appearance.
Steven E. Silverman, Attorney, Environmental Protection
Agency, argued the cause for respondents. With him on the
brief were Lois J. Schiffer, Assistant Attorney General, U.S.
Department of Justice, and Daniel R. Dertke, Attorney.
Michael W. Steinberg argued the cause for intervenors
Reynolds Metals Company, et al. With him on the brief were
Joshua D. Sarnoff, Loren R. Dunn and David R. Case.
Lowell F. Martin and Michael A. McCord entered appear-
ances.
Before: Ginsburg, Henderson, and Randolph, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: These consolidated petitions,
brought by small manufacturers of aluminum, challenge three
rules of the Environmental Protection Agency, promulgated
pursuant to s 3004 of the Resource Conservation and Recov-
ery Act of 1976 ("RCRA"), Pub. L. No. 94-580, 90 Stat. 2795.
The rules establish a treatment standard for "spent potlin-
er"--a byproduct of primary aluminum reduction--and pro-
hibit its land disposal if it is untreated. Because EPA's test
for determining compliance with its spent potliner treatment
standard is arbitrary and capricious, we vacate and remand.
In all other respects, we deny the petitions for review.
I. BACKGROUND
A. Statute and Regulations
Subtitle C of RCRA establishes a comprehensive regulato-
ry scheme governing the treatment, storage, and disposal of
hazardous wastes. Wastes are considered hazardous if they
possess one of four characteristics (ignitability, corrosivity,
reactivity, and toxicity) or if EPA lists them as hazardous
following a rulemaking. See 42 U.S.C. s 6921(a); 40 C.F.R.
pt. 261. Once a waste is listed or identified as hazardous,
every aspect of its existence is regulated under Subtitle C.
See Chemical Waste Management, Inc. v. EPA, 976 F.2d 2, 8
(D.C. Cir. 1992).
In 1984 Congress adopted the Hazardous and Solid Waste
Amendments ("Amendments"), Pub. L. No. 98-616, 98 Stat.
3221, shifting "the focus of hazardous waste management
away from land disposal to treatment alternatives." Ameri-
can Petroleum Inst. v. EPA, 906 F.2d 729, 733 (D.C. Cir.
1990). The Amendments prohibit land disposal of hazardous
wastes unless one of two conditions is satisfied: either the
waste is treated to comply with standards promulgated under
RCRA s 3004(m), or EPA determines that hazardous constit-
uents will not "migrate" from the disposal unit. RCRA
s 3004(g)(5), 42 U.S.C. s 6924(g)(5). Section 3004(m) pro-
vides that EPA must specify "those levels or methods of
treatment, if any, which substantially diminish the toxicity of
the waste or substantially reduce the likelihood of migration
of hazardous constituents from the waste so that short-term
and long-term threats to human health and the environment
are minimized." 42 U.S.C. s 6924(m)(1).1 If hazardous
wastes are treated to the level or by the method specified
under s 3004(m), they are not subject to the land disposal
prohibitions. 42 U.S.C. s 6924(m)(2).
The 1984 Amendments did not ban all land disposal out-
right. With the exception of two categories of hazardous
wastes for which Congress imposed earlier restrictions,2 EPA
had to implement the land disposal prohibition in three
phases for all wastes identified or listed as hazardous as of
the time of the 1984 Amendments. See generally Hazardous
__________
1 In its first rulemaking to implement the Amendments, EPA
considered both risk-based and technology-based treatment stan-
dards. Ultimately, EPA selected standards based on the perfor-
mance of the best demonstrated available technology ("BDAT").
See Hazardous Waste Treatment Council v. EPA, 886 F.2d 355
(D.C. Cir. 1989) (upholding BDAT as a reasonable interpretation of
s 3004(m) but remanding for fuller explanation).
2 These two categories are solvents and dioxins, see s 6924(e),
and the so-called California List wastes, see s 6924(d).
Waste Treatment Council v. EPA, 886 F.2d 355, 357 & n.1
(D.C. Cir. 1989). To guarantee promptness, a statutory
"hard hammer" fell on May 8, 1990. 42 U.S.C.
s 6924(g)(6)(C). Hazardous wastes for which EPA failed to
issue regulations by that date were subject to an absolute ban
on land disposal. For newly identified or listed hazardous
wastes, the statute required EPA to promulgate prohibitions
and treatment standards within six months of the date of
listing or identification. RCRA s 3004(g)(4), 42 U.S.C.
s 6924(g)(4). EPA may delay the effective date of the land
disposal prohibition until the earliest date that "adequate
alternative treatment, recovery, or disposal capacity which
protects human health and the environment" is available, but
in any event no longer than two years. RCRA s 3004(h)(2),
42 U.S.C. s 6924(h)(2). This is known as a "national capacity
variance." Applicants may request an extension of the
effective date for up to one year, renewable once for no more
than one additional year. RCRA s 3004(h)(3), 42 U.S.C.
s 6924(h)(3).
B. Spent Potliner
All aluminum in the United States is produced by dissolv-
ing alumina (aluminum oxide) in a molten cryolite bath and
then introducing a direct electric current to reduce the alumi-
na to aluminum metal. The reduction takes place in electro-
lytic cells, called pots, consisting of a steel shell lined with
brick with an inner lining of carbon. The carbon lining is up
to 15 inches thick and serves as the cathode for the electroly-
sis process. During a service life of four to seven years, the
carbon lining absorbs the cryolite solution and degrades.
Once a liner cracks, the pot is emptied and cooled. The steel
shell is stripped away, leaving a large solid block of carbon--a
"spent potliner." 3 An estimated 100,000 to 125,000 metric
tons are produced each year. See 62 Fed. Reg. 1991, 1993
(1997).
The listing of spent potliner--assigned hazardous waste
code K088--has a tangled history. EPA originally listed
K088 in 1980 because it contained high concentrations of
__________
3 A more detailed description is found in 56 Fed. Reg. 32,993,
33,002 (1991).
cyanide. See 45 Fed. Reg. 47,832 (1980). Before the regula-
tions took effect, Congress enacted the Solid Waste Disposal
Act of 1980, Pub. L. No. 96-482, 94 Stat. 2334, which included
a provision named after its sponsor, Congressman Tom Bevill
of Alabama. The Bevill Amendment excluded mining wastes
from Subtitle C regulation until EPA had conducted a study
of the "adverse effects" of such wastes. See RCRA
s 8002(p), 42 U.S.C. s 6982(p). EPA interpreted the Bevill
Amendment to include "solid wastes generated during the
smelting and refining of ores and minerals" and suspended its
listing of spent potliner. See 46 Fed. Reg. 4614, 4615 (1981).
When litigation ensued, EPA announced a proposed rein-
terpretation narrowing the scope of the Bevill exclusion. See
50 Fed. Reg. 40,292 (1985). EPA then changed its mind,
withdrew its proposed reinterpretation, and was sued again.
In Environmental Defense Fund v. EPA, this court ordered
the Agency to relist spent potliner by August 31, 1988. 852
F.2d 1316, 1331 (D.C. Cir. 1988). The Agency complied, see
53 Fed. Reg. 35,412 (1988), but missed the six-month statuto-
ry deadline for promulgating land disposal restrictions and
treatment standards. As the result of another suit filed by
EDF, EPA signed a consent decree requiring it to promul-
gate a final rule establishing land disposal restrictions for
spent potliner by June 30, 1996. See EDF v. Reilly, No.
89-0598 (D.D.C.).
In April 1996, EPA promulgated the first of three rules
challenged here. The Rule prohibited land disposal of spent
potliner unless the waste satisfied the s 3004(m) treatment
standard established in the same rulemaking. See 61 Fed.
Reg. 15,566 (Apr. 8, 1996). The April 1996 Rule also granted
a nine-month national capacity variance pursuant to
s 3004(h)(2) "to allow facilities generating K088 adequate
time to work out logistics." 61 Fed. Reg. at 15,589.
At the time of the April 1996 rulemaking, only Reynolds
Metals Company was engaged in full-scale treatment of spent
potliner. Reynolds, an intervenor in this case, had begun
treating spent potliner at its facility in Gum Springs, Arkan-
sas several years before any rule was proposed. See Brief for
Intervenors at 4. The Reynolds treatment process involves
crushing spent potliner to particle size and adding roughly
equal parts limestone and brown sand.4 According to Reyn-
olds, the brown sand prevents the mixture from clogging in
the kiln and the limestone reacts with the fluoride in spent
potliner to transform it into relatively insoluble calcium fluor-
ide. See 56 Fed. Reg. 32,993, 33,003 (1991); see also 56 Fed.
Reg. 55,160, 55,180 (1991) (discussing potential for slagging or
clogging in thermal treatment of spent potliner). The mix-
ture is fed into a thermal rotary kiln that is 250 feet in length
and 9.5 feet in diameter. Natural gas heats the kiln to 1200
degrees Fahrenheit. When the material exits the kiln, it is
cooled and then deposited in an on-site monofill.
Under its "derived from" rule, EPA listed the kiln residue
as hazardous because it was generated from the treatment of
a hazardous waste. See 40 C.F.R. s 261.3(c)(2)(i). In August
1989, Reynolds petitioned EPA to "delist" its kiln residue--
exempt it from the list of hazardous wastes--maintaining that
the treated residue was no longer hazardous. EPA granted
Reynolds' delisting petition pursuant to RCRA s 3001(f), 42
U.S.C. s 6921(f). See 56 Fed. Reg. 67,197 (1991). The
delisting allowed Reynolds to dispose of treated spent potlin-
er in non-Subtitle C units. EPA recognized that although it
was not specifying a particular technology, as a practical
matter Reynolds would wind up treating most spent potliner
because Reynolds provided "virtually all existing treatment
capacity." 62 Fed. Reg. at 1993.
The April 1996 Rule for spent potliner established a treat-
ment standard expressed as numerical concentration limits
for various constituents in the waste. The constituents in-
cluded cyanide, toxic metals, a group of organic compounds
called polycyclic aromatic hydrocarbons (PAHs), and fluor-
__________
4 Brown sand is an alkaline mud generated in the process of
extracting alumina from bauxite. Reynolds had previously operat-
ed a bauxite mine and had stockpiled large quantities of brown
sand. See 56 Fed. Reg. at 33,003.
ide.5 EPA explained that most of these limits were equiva-
lent to universal treatment standards, which it developed "by
evaluating all existing Agency data from various technolo-
gies." 6 April 1996 Rule, 61 Fed. Reg. at 15,585; see also 40
C.F.R. s 268.48 ("Universal Treatment Standards" Table).
The exception was fluoride, for which the concentration limit
was based on data submitted in Reynolds' delisting petition.
The standards for cyanide and the organic constituents were
based on a "total composition concentration analysis." 61
Fed. Reg. at 15,584. For fluoride and the metals, including
arsenic, treatment standards were expressed in terms of the
Toxicity Characteristic Leaching Procedure or TCLP. Id.
Because EPA's use of the TCLP is pivotal to the case, it
will be helpful to examine the test in some depth. EPA
developed the TCLP in response to a congressional directive
in the 1984 Amendments to improve its then-existing toxicity
characteristic test by making changes "necessary to insure
that it accurately predicts the leaching potential of wastes
which pose a threat to human health and the environment
__________
5 Key treatment standards for non-wastewater forms of K088
were established as follows:
arsenic 5.0 mg/l TCLP
cyanide (total) 590 mg/kg
cyanide (amenable) 30 mg/kg
fluoride 48 mg/l TCLP
See 40 C.F.R. s 268.40, "Treatment Standards for Hazardous
Wastes" Table. Fluoride itself is not a hazardous constituent, but
EPA decided to regulate it because it "is capable of causing
substantial harm in the form of groundwater degradation, adverse
ecological effects and potential adverse human health effects. The
Agency's view thus is that, unless fluoride in this waste is treated,
the legal standard in section 3004(m) would not be satisfied." 61
Fed. Reg. 15,566, 15,585 (1996).
6 "A universal standard is a single concentration limit estab-
lished for a specific constituent regardless of the waste matrix in
which it is present, i.e., the same treatment standard applies to a
particular constituent in each waste code in which it is regulated."
Proposed Best Demonstrated Available Technology (BDAT) Back-
ground Document for Spent Potliners From Primary Aluminum
Reduction--K088 (Jan. 13, 1995).
when mismanaged." 42 U.S.C. s 6921(g). See generally
Edison Electric Inst. v. EPA, 2 F.3d 438, 442 (D.C. Cir. 1993)
(discussing EPA's promulgation of revised toxicity character-
istic test). The TCLP is designed to simulate the mobility or
leachability of toxic constituents into groundwater following
disposal of a hazardous waste in a municipal solid waste
landfill.7 In 1990 EPA adopted the TCLP as the required
test for measuring the mobility of toxic metals in all solid
wastes. See 55 Fed. Reg. 11,798 (1990).
For solid wastes, the TCLP involves reducing a sample of
the waste to particle size and mixing it with an extraction
fluid. One of two extraction fluids is used depending on the
alkalinity of the waste being tested. See 51 Fed. Reg. 21,648,
21,655-56 (1986). Any solid is then discarded and the re-
maining liquid, called the TCLP extract, is analyzed for toxic
contaminants. A solid waste exhibits the characteristic of
toxicity if it contains any one of a number of contaminants
specified by EPA at a concentration equal to or greater than
the regulatory level. See 40 C.F.R. s 261.24 & Table 1
(Maximum Concentration of Contaminants for the Toxicity
Characteristic). For example, the regulatory level for arsenic
is 5.0 mg/l. A waste would be considered toxic--and thus
hazardous--if, when measured by the TCLP, it revealed a
concentration of arsenic equal to or greater than 5.0 mg/l.
Use of the TCLP is widespread in EPA's regulations imple-
menting land disposal restrictions. For all wastes covered by
waste extract standards, the TCLP is used to measure com-
pliance. See 40 C.F.R. s 268.40(b).
Without any formal notice and comment, EPA promulgated
the second spent potliner rule in January 1997, just as the
first national capacity variance was due to expire. See 62
__________
7 Leaching is the process whereby constituents in the waste
become suspended or dissolved in liquids, such as rainwater, that
percolate through the waste. Leachate is a fluid containing these
components drawn from the original waste. In some cases, solubili-
ty--the degree to which a chemical dissolves in water--depends on
the pH of the medium. Some compounds are more soluble in
highly alkaline conditions and others are more soluble in highly
acidic conditions.
Fed. Reg. 1992 (Jan. 14, 1997) ("January Rule"). Entitled
"Emergency Extension of the K088 Capacity Variance," the
January Rule stated that "unanticipated performance prob-
lems" were causing the Agency to postpone implementing the
land disposal prohibition for an additional six months. EPA
explained that "notwithstanding that the wastes as tested by
the TCLP would have complied with the land disposal restric-
tion treatment standards for the non-wastewater forms of
K088, actual sampling data shows potentially high concentra-
tions of hazardous constituents in the leachate" from Reyn-
olds' landfill. 62 Fed. Reg. at 1993.8 The length of the
extension was based on EPA's estimate of the time it would
take to "modify, evaluate, and correct the current deficiencies
in treatment performance." Id. at 1992. EPA admitted that
it "was not aware of these data until recently, and in particu-
lar was not aware of these data during the rulemaking which
established the K088 treatment standard." Id. at 1993 n.6.
In July 1997, EPA announced that "Reynolds' treatment
(albeit imperfect) does reduce the overall toxicity associated
with the waste" and consequently was an improvement over
the disposal of untreated spent potliner. 62 Fed. Reg. at
37,696. Because Reynolds agreed to give up its delisting and
manage the treated waste in a landfill subject to Subtitle C
safeguards, the Agency decided that "protective disposal ca-
pacity exists." Id. at 37,697. It authorized a three-month
extension of the national capacity variance to give generators
time to make arrangements with Reynolds. Id. On October
8, 1997, the extension ended and the prohibition on land
disposal of untreated spent potliner took effect.
__________
8 EPA reported the following levels in actual leachate as mea-
sured in September 1996:
total cyanide 46.5 mg/l
arsenic 6.55 mg/l
fluoride 45 mg/l
Id.
II. JURISDICTIONAL AND PROCEDURAL ISSUES
Before we get to the merits two issues must be resolved.
The first is whether requests petitioners filed with EPA for
reconsideration deprive this court of jurisdiction. The second
is whether petitioners' challenges to the treatment standard
are confined to the record before EPA at the time of the
April 1996 rulemaking.
A. The Effect of Pending Requests
Timely petitions for judicial review of the April 1996,
January 1997, and July 1997 Rules were respectively filed on
July 6, 1996, January 21, 1997, and September 15, 1997. See
42 U.S.C. s 6976(a)(1) (establishing 90-day filing window).
While these petitions for judicial review were pending, peti-
tioners submitted to EPA a "Petition for Amendment of Land
Disposal Restrictions Phase III--Spent Potliner" on July 9,
1996, and a "Petition for Amendment of RCRA Rule Regard-
ing Spent Potliner" on April 11, 1997.
A party's pending request for agency reconsideration ren-
ders "the underlying action nonfinal, regardless of the order
of filing" with respect to that party. Wade v. FCC, 986 F.2d
1433, 1434 (D.C. Cir. 1993); see also TeleSTAR, Inc. v. FCC,
888 F.2d 132 (D.C. Cir. 1989); United Transp. Union v. ICC,
871 F.2d 1114 (D.C. Cir. 1989). Thus, if petitioners' filings at
EPA sought agency reconsideration, they would operate to
deprive this court of jurisdiction over the July 6, 1996, and
January 21, 1997, petitions for judicial review. They would
not affect the September 15, 1997, petition for judicial review,
which challenged EPA's July Rule, because the filings dealt
solely with the rules promulgated earlier.
A request for a new rulemaking, however, would not pose
any problem for our subject matter jurisdiction. See Ameri-
can Mining Congress v. EPA, 907 F.2d 1179, 1185 (D.C. Cir.
1990). Once a rule is final, an agency can amend it only
through a new rulemaking. See American Petroleum, 906
F.2d at 739-40. In this case, EPA promulgated both a
treatment standard, which it treated as a final rule, and a
national capacity variance, which it extended twice. Since
petitioners' filings with the Agency not only attacked the
treatment standard but also requested an extension of the
existing national capacity variance, it is hard to characterize
them as solely requests for reconsideration, or for a new
rulemaking. RCRA's provision governing agency petitions
does not distinguish among requests for "promulgation,
amendment, or repeal." 42 U.S.C. s 6974(a). We shall
therefore assume, arguendo, that petitioners sought agency
reconsideration.
After the submission of briefs in this case but before oral
argument, petitioners informed EPA that they were "hereby
withdraw[ing] any and all such" requests then pending.9
Attachment to Petition for Review (Dec. 17, 1997). They
immediately filed a new petition for judicial review and a
motion to consolidate it with the earlier petitions, which we
granted. Petitioners' actions, although late in the day, have
cured the jurisdictional defect. See United Transp. Union,
871 F.2d at 1118; TeleSTAR, 888 F.2d at 134. Their new
petition, filed on December 17, 1997, is timely with respect to
the April 1996 and January 1997 Rules because the 90-day
statute of limitations was tolled by the pending administrative
requests for reconsideration. See Stone v. INS, 514 U.S. 386,
392 (1995); ICC v. Brotherhood of Locomotive Eng'rs, 482
U.S. 270, 284-85 (1987). Although neither Stone nor Locomo-
tive Engineers addressed the situation of a party withdrawing
a request for reconsideration, rather than the agency taking
final action on it, this court recently held that withdrawal had
the same effect on the time within which to appeal. "We see
no reason why the principles of the general tolling rule should
not be applied when an optional administrative petition to
reconsider is withdrawn rather than being acted upon by the
agency." Los Angeles SMSA Ltd. Partnership v. FCC, 70
F.3d 1358, 1359 (D.C. Cir. 1995).
__________
9 EPA conceded at oral argument that any jurisdictional defect
was cured by the withdrawal of the pending petitions. It is, of
course, this court's duty to satisfy itself of jurisdiction independent-
ly. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
(1986).
B. Record Under Review
The second preliminary issue relates to the record. EPA
objects that petitioners' claims are based on information not
available to it at the time the first spent potliner rule was
issued in April 1996. See Brief for Respondents at 23-28.
The Agency contends that petitioners waived their objections
to the treatment standard because they failed to raise them
during the original rulemaking, and that review is limited to
the administrative record compiled at that time. According
to EPA, it never reopened the issue of the treatment stan-
dard in the January or July 1997 rulemakings, and thus
review of evidence discovered after the April 1996 rule is
foreclosed. Id. at 27.
Undoubtedly, new information calling into question the
efficacy of the treatment standard and the Reynolds process
prompted many of petitioners' current challenges. Petition-
ers cannot be deemed to have waived these claims by failing
to present them in April 1996. While judicial review should
be based on the full administrative record before an agency at
the time of its decision, see Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402 (1971); Walter O. Boswell
Memorial Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir.
1984), there are at least two ways in which the record
developed after the April 1996 Rule is properly before us.
Although we are concerned not with the timeliness of the
petitions--each petition for judicial review was timely with
respect to the rule it challenged--but with the content of the
decisionmaking record, our analysis draws on the law regard-
ing the time limits for seeking review.
First we look to the doctrine of reopening. When "an
agency's actions show that it has not merely republished an
existing rule ... but has reconsidered the rule and decided to
keep it in effect, challenges to the rule are in order." Public
Citizen v. Nuclear Regulatory Comm'n, 901 F.2d 147, 150
(D.C. Cir. 1990). Reopening may be explicit, or it may be
implicit. See Kennecott Utah Copper Corp. v. United States
Dep't of Interior, 88 F.3d 1191 (D.C. Cir. 1996); State of Ohio
v. EPA, 838 F.2d 1325 (D.C. Cir. 1988).
Statements made in the January 1997 Rule, which the July
1997 Rule referred to as a "notice," 62 Fed. Reg. at 37,695,
indicate that EPA was considering whether environmental
performance was so dismal that the treatment standard
should be re-written. Given the new information about the
actual results at the Reynolds facility, it would have been
surprising if EPA had no second thoughts. "In almost all
cases," EPA stated in January 1997, "simply meeting the
treatment standards" suffices for s 3004(m), but "where
treatment is not operating so as to reduce environmental
availability of key hazardous constituents appreciably ... the
Agency must question the adequacy of the treatment." 62
Fed. Reg. at 1994. EPA cautioned that its action should not
be read "to vitiate a treatment standard whenever treatment
performance turns out in practice to be less than predicted by
analytic protocols such as the TCLP," id., thus implying that
in this particular case poor performance had undermined
EPA's confidence in its treatment standard.
EPA's reopening of its fluoride concentration limit, which
had been based on the data in the Reynolds' delisting peti-
tion, was more explicit. In the January Rule, EPA noted that
it "may have to ultimately revise the treatment standard for
fluoride.... EPA will be seeking more information to more
fully characterize the treatment process for fluoride during
the extended national capacity variance period." 62 Fed.
Reg. at 1995 n.13.
That EPA reopened the entire spent potliner treatment
standard becomes all the more apparent when one considers
that the question whether to extend the national capacity
variance under s 3004(h)--which EPA insists was the sole
focus of its January and July 1997 rulemakings--is inextrica-
bly linked with the question whether the s 3004(m) treatment
standard worked. EPA now denies this, saying that the
"protective" standard of s 3004(h) alone controls the determi-
nation whether there is adequate disposal capacity. Brief for
Respondents at 38. But the Agency said something quite
different when these matters were before it. In its July
Rule, EPA described the issue confronting it not as one of
"adequate volume of treatment capacity," but as "environ-
mental adequacy, specifically whether treatment satisfies the
requirements of section 3004(m) which says that treatment is
to be sufficient to minimize threats to human health and the
environment posed by land disposal of the waste, and section
3004(h)(2) which says that to be adequate treatment and
disposal capacity must be protective of human health and the
environment." 62 Fed. Reg. at 37,695. EPA itself an-
nounced that its "January notice" was "premised on two
factors: 1) treatment performance that was less than predict-
ed through the use of models in the delisting proceeding and
(for constituents whose treatment is measured by the TCLP
protocol) the [land disposal restriction] treatment standard;
and 2) unsafe disposal.... The two rationales are linked and
influence one another." Responses to Major Comments for
Waste K088 (July 7, 1997).
Once an agency reopens an issue, whether by soliciting
comments or indicating a willingness to reconsider, "a new
review period is triggered." Kennecott, 88 F.3d at 1213. By
the same token, once an agency reopens, the record before
the agency at the time of reopening may be reviewed by the
court. Because EPA reopened the treatment standard, the
record developed at the time of the January and July rule-
makings is the record for the purpose of judicial review.
The same result may be reached by a different route.
RCRA provides that a petition for review may be filed after
the ninetieth day if "based solely on grounds arising after
such" date. 42 U.S.C. s 6976(a)(1). See Natural Resources
Defense Council, Inc. v. EPA, 907 F.2d 1146, 1165 (D.C. Cir.
1990). With respect to a similar provision in the Clean Air
Act, we said that the provision was designed to "assure that
standards were revised whenever necessary" on the basis of
new information. Oljato Chapter of Navajo Tribe v. Train,
515 F.2d 654, 660 (D.C. Cir. 1975). Oljato laid out, as a
precondition, "presentation to the Administrator of any new
information thought to justify revision of a standard of per-
formance." Id. at 666.
What occurred here satisfied the Oljato standard. After
issuing its April 1996 Rule, new data came to EPA's attention
by the fall of 1996. EPA published the data in its January
1997 Rule. 62 Fed. Reg. at 1993. Petitioners also submitted
to EPA numerous comments and petitions, now withdrawn,
discussing the implications of these developments. Although
EPA did not formally act on petitioners' submissions, it did
respond to comments, saying it was "considering these ques-
tions ... but not in the context of the present proceeding."
In Group Against Smog & Pollution, Inc. v. EPA, we held
that evidence "submitted in the form of comments ... rather
than in a formal petition" satisfied the procedural require-
ments because the agency "appear[ed] here to have taken
heed of petitioners' comments." 665 F.2d 1284, 1290 (D.C.
Cir. 1981). For the purpose of our inquiry, it is important
only that the information was presented to EPA at the time it
decided against altering the treatment standard. Whether
EPA's decision to stand pat represented a decision not to
reconsider the standard is, in light of the information known
to EPA at that time, a distinction having no bearing on our
review of the record.
III. MERITS
With one exception, petitioners' objections are not well-
taken. They charge EPA with having improperly adopted
Reynolds as the "best demonstrated available technology"
("BDAT") instead of superior vitrification technology. See
Brief for Petitioners at 19. Our review of the proposed spent
potliner rule and the background documents does not bear
this out. For everything other than fluoride, EPA did not
base its concentration limits on Reynolds' numbers. It used
universal treatment standards and made explicit its under-
standing that "any treatment technology (other than imper-
missible dilution) can be used to achieve those levels." April
1996 Rule, 61 Fed. Reg. at 15,585. EPA is correct that
petitioners have confused the treatment standard with the
performance of the Reynolds treatment process. See Brief
for Respondents at 28. We also find that comments submit-
ted to EPA in 1992 in response to its Advanced Notice of
Proposed Rulemaking did not sufficiently alert the Agency to
potential problems with the use of the TCLP for alkaline
wastes such as spent potliner. See Comalco On-Site Engi-
neering Report.
This brings us to petitioners' serious and substantial criti-
cism of the TCLP, a criticism based on evidence that came to
light after the April 1996 rulemaking. It was, petitioners
believe, arbitrary and capricious for EPA to continue using
the TCLP to measure compliance with the treatment stan-
dard once it knew that the test was not an accurate predictor
of the mobility of toxic constituents in the actual leachate.
As discussed above, the concentration limits for fluoride
and the toxic metals in spent potliner are expressed in terms
of the TCLP. See 40 C.F.R. s 268.40. Thus the TCLP cannot
be divorced from the standard itself. Because these constitu-
ents cannot be destroyed, the goal of treatment is to minimize
their mobility. The treatment standard is in fact a model
intended to predict the degree to which these constituents
will leach following disposal. The problem, as EPA has
admitted, is that the model does not work. The leachate
"generated from actual disposal of the treatment residues is
more hazardous than initially anticipated." 62 Fed. Reg. at
37,695. When tested by the TCLP, the treated spent potliner
exhibited numbers that were lower than the regulatory levels
for toxic constituents, but tests of the actual leachate revealed
numbers above the concentration limits. Arsenic, which has a
treatment standard of 5.0 mg/l TCLP, was present in the
leachate at 6.55 mg/l. Fluoride has a concentration limit of 48
mg/l TCLP, but a leachate concentration of 2228 mg/l. In its
proposal to revoke the delisting of Reynolds' treated spent
potliner, EPA described the "residue leachate concentrations"
as "orders of magnitude higher than the average predicted
TCLP leachate values." 62 Fed. Reg. 41,005, 41,008-09
(1997).
EPA attributes the failure of the TCLP to several factors.
It acknowledged in the January Rule that the "extreme
alkaline pH conditions that exist in the Gum Springs monofill
were not anticipated by the Agency and are not analogous to"
conditions simulated by the TCLP. 62 Fed. Reg. at 1994.
The TCLP is premised on a "generic mismanagement scenar-
io" in which hazardous waste is deposited in a municipal solid
waste landfill, where other wastes would act as buffer agents.
See 51 Fed. Reg. at 21,654-55; see also Edison Electric, 2
F.3d at 445 (describing mismanagement scenario for the
TCLP). Reynolds disposes of treated spent potliner in a
monofill--a landfill receiving only spent potliner--where the
high pH level remains undiluted. In the July 1997 Rule,
EPA stated:
In hindsight, it is now apparent that spent potliners are
themselves highly alkaline and contain cyanide, arsenic,
and fluoride--constituents which are most soluble under
alkaline pH.... EPA had failed to take into account the
effect of alkaline disposal conditions on potliners and
potliner treatment residues when promulgating ... the
treatment standard for K088 wastes....
62 Fed. Reg. at 37,695. Despite these flaws, the Agency
concluded: "Although it is now apparent that the TCLP is
not a good model for disposal conditions to which K088 would
be subject, the treatment standard still requires use of the
TCLP and any results so obtained that do not exceed the
treatment standard are in compliance." 62 Fed. Reg. at
37,696 n.12.
We cannot make sense of EPA's conclusion. Why should
the treatment standard for spent potliner be maintained when
that standard has no correlation to the actual fate of toxic
constituents upon disposal? Petitioners ask this question;
EPA gives no good answer. An agency's use of a model is
arbitrary if that model "bears no rational relationship to the
reality it purports to represent." American Iron & Steel
Inst. v. EPA, 115 F.3d 979, 1005 (D.C. Cir. 1997) (quotations
and citations omitted). Models need not fit every application
perfectly, nor need an agency "justify the model on an ad hoc
basis for every chemical to which the model is applied."
Chemical Mfrs. Ass'n v. EPA, 28 F.3d 1259, 1265 (D.C. Cir.
1994). If, however, "the model is challenged, the agency
must provide a full analytical defense." Eagle-Picher Indus.,
Inc. v. EPA, 759 F.2d 905, 921 (D.C. Cir. 1985); see also
Natural Resources Defense Council, Inc. v. Herrington, 768
F.2d 1355, 1385 (D.C. Cir. 1985). Furthermore, EPA "retains
a duty to examine key assumptions as part of its affirmative
burden of promulgating and explaining a non-arbitrary, non-
capricious rule." Small Refiner Lead Phase-Down Task
Force v. EPA, 705 F.2d 506, 534 (D.C. Cir. 1983). Here EPA
knows that "key assumptions" underlying the TCLP are
wrong and yet has offered no defense of its continued reliance
on it.
In Edison Electric Institute v. EPA, petitioners challenged
the application of the TCLP to mineral wastes. We held that
the TCLP "must bear some rational relationship to mineral
wastes in order for the Agency to justify the application of
the toxicity test to those wastes." 2 F.3d at 446. Finding no
evidence "that mineral wastes were exposed to conditions
similar to those simulated by the TCLP," we ordered a
remand "to allow the Agency to provide a fuller and more
reasoned explanation for its decision." Id. at 447. Similarly,
in Chemical Manufacturers Ass'n, we vacated a rule prem-
ised on a "generic air dispersion model" when applied to a
chemical which evidence indicated was a solid, not a gas, at
the relevant temperature. 28 F.3d at 1264. "For want of a
rational relationship between the model and the molecule, we
hold that the rule ... is arbitrary and capricious." Id. at
1266.
In this case, there is not only no evidence that treated
spent potliner is exposed to the disposal conditions that the
TCLP simulates, but all available evidence indicates that the
treated residue is disposed of in quite different circumstances.
It is impossible to say at this point whether the TCLP would
be an inaccurate predictor for spent potliner's leachability
following all forms of treatment. Certain aspects of the
Reynolds treatment process--disposal in a dedicated monofill
and the additives it uses--increase alkalinity. The TCLP
may or may not work well for other spent potliner treatment
technologies.
EPA argues that it could have made a "per se finding that
because Reynolds' process met the treatment standard it
automatically provided protective capacity." Brief for Re-
spondents at 37. Instead it "examined the actual perfor-
mance ... and the actual disposal" and concluded that the
Reynolds process provides "substantial treatment" because it
destroys most of the cyanide and all of the PAHs. Id. at 37,
40. This does not amount to a justification of the use of the
TCLP. For a treatment standard to work, it must be reason-
ably accurate. It would be inefficient and unwise for EPA to
assume the burden of investigating environmental data, test-
ing actual leachate, and making ad hoc safety determinations
for each facility that treats spent potliner.
We therefore conclude that EPA's use of the TCLP is
arbitrary and capricious. As a result, we must vacate the
treatment standard itself because the concentration limits for
fluoride and the metals, including arsenic, are expressed only
in terms of the TCLP. Our decision today does not affect the
viability of the concentration limits established for other
constituents. Vacating the treatment standard for spent
potliner also requires us to vacate the prohibition on land
disposal.10 Contrary to EPA's arguments on appeal, see Brief
for Respondents at 50-51, we believe Congress intended
treatment standards and land disposal restrictions to operate
in tandem. The statutory language indicates as much.
__________
10 Due to EPA's interpretation of the Bevill Amendment, spent
potliner was not listed until 1988. It thus escapes the statutory
RCRA s 3004(m) requires that "simultaneously" with the
promulgation of prohibitions on land disposal, the Administra-
tor of the EPA shall "promulgate regulations specifying"
treatment standards. 42 U.S.C. s 6924(m)(1). These regula-
tions are to "become effective on the same date" as any land
disposal prohibition. Id. s 6924(m)(2).
Pragmatic considerations also strongly suggest that the
treatment standard and land disposal restriction are intended
to work together. Banning land disposal is a relatively
simple task, one that could be accomplished by administrative
fiat, but promulgating treatment standards is more complicat-
ed. To ensure that EPA would act promptly, Congress
enacted an absolute deadline of May 8, 1990--the so-called
"hard hammer"--for all hazardous wastes listed or identified
as of the time of the 1984 Amendments. This was a powerful
incentive for regulatory action because a ban on land disposal
without a means of treatment would threaten the closure of
entire industries. Under RCRA s 3004(j), generators of a
waste prohibited from land disposal are also barred from
storing it. See Steel Mfrs. Ass'n v. EPA, 27 F.3d 642, 647
(D.C. Cir. 1994) (holding that interim treatment standards
were justified where operation of hard hammer "effectively
would have halted the country's steel production"). If we
were to vacate the treatment standard for spent potliner
without vacating the prohibition on land disposal, aluminum
manufacturers might be forced to cease production.
EPA is of course aware of such consequences. It listed
spent potliner in 1988 but failed to meet the six-month
statutory deadline for promulgating a land disposal prohibi-
tion. The inference is that the Agency delayed banning land
disposal until it could develop a treatment standard.
__________
hard hammer. EPA has stated that it "believes that these previ-
ously excluded wastes are 'newly identified' for the purpose of
determining applicability of the land disposal prohibitions." 55 Fed.
Reg. 22,520, 22,667 (1990).
IV. CONCLUSION
EPA's continued reliance on the TCLP as a means of
determining compliance with the treatment standard is arbi-
trary and capricious. Because the Agency provided no justi-
fication for requiring a test it knew to be inaccurate, the
petitions for review are granted in this respect. The spent
potliner treatment standard and the prohibition on land dis-
posal are vacated and remanded.
Our decision leaves EPA without a regulation governing
spent potliner. If EPA wishes to promulgate an interim
treatment standard, the Agency may file a motion in this
court to delay issuance of this mandate in order to allow it a
reasonable time to develop such a standard.
So ordered.