United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 25, 1999 Decided April 21, 2000
No. 98-1368
Association of Battery Recyclers, Inc., et al.,
Petitioners
v.
U.S. Environmental Protection Agency and
Carol M. Browner, Administrator,
U.S. Environmental Protection Agency,
Respondents
Consolidated with
Nos. 98-1381, 98-1392 & 98-1394
On Petitions for Review of an Order of the
Environmental Protection Agency
Donald J. Patterson, Jr. argued the cause for petitioners
on the RCRA classification issues. With him on the joint
briefs were Harold P. Quinn, Jr., Roderick T. Dwyer, Karl S.
Bourdeau, Michael W. Steinberg, Joshua D. Sarnoff, David
F. Zoll, Ronald A. Shipley, William R. Weissman and Steven
J. Groseclose. Michael B. Wigmore and Robert N. Stein-
wurtzel entered appearances.
William R. Weissman argued the cause for petitioners on
the LDR treatment standards issues. With him on the briefs
was Steven J. Groseclose.
Michele L. Walter, Attorney, U.S. Department of Justice,
and Steven Silverman, Attorney, Office of General Counsel,
U.S. Environmental Protection Agency, argued the causes for
respondents. With them on the brief was Cecilia Kim, Attor-
ney, U.S. Department of Justice.
David R. Case argued the cause for intervenors Environ-
mental Defense Fund, Environmental Technology Council
and National Mining Association. With him on the brief were
Karen Florini, Donald J. Patterson, Jr., Harold P. Quinn,
Jr., and Roderick T. Dwyer.
Before: Silberman, Ginsburg, and Randolph, Circuit
Judges.
Opinion for the Court by Circuit Judge Randolph.
Opinion for the Court by Circuit Judge Ginsburg.
Opinion dissenting in part by Circuit Judge Randolph.
Randolph, Circuit Judge: These are consolidated petitions
for judicial review of Environmental Protection Agency regu-
lations promulgated on May 26, 1998, under the Resource
Conservation and Recovery Act of 1976 ("RCRA"), Pub. L.
No. 94-580, 90 Stat. 2795. The regulations--known collec-
tively as the "Land Disposal Restrictions Phase IV" Rule--
deal with residual or secondary materials generated in mining
and mineral processing operations and EPA's classification of
these materials as "solid waste"; with the treatment stan-
dards for a specific category of hazardous waste; and with
EPA's test for determining whether certain wastes are haz-
ardous. Our opinion is in three parts. The first part decides
whether EPA properly defined "solid waste." We are unani-
mous that it did not. The second part decides, again unani-
mously, that EPA's treatment standards for a particular
category of hazardous waste are lawful. The third part,
written by Judge Ginsburg and joined by Judge Silberman,
decides that EPA's test for determining toxicity is valid for
certain wastes but not for others. I disagree with their
conclusion for the reasons stated in my dissenting opinion.
I. Definition of Solid Waste
Two petitioners--the National Mining Association and the
American Iron and Steel Institute--and an intervenor-the
Chemical Manufacturers Association--challenge the portion
of EPA's Phase IV Rule defining a "solid waste" in terms of
how materials "generated and reclaimed within the primary
mineral processing industry" are stored. 40 C.F.R.
s 261.2(e)(iii). The question is of substantial importance to
these petitioners because, together, they represent most of
the nation's producers of coal, metals, and industrial and
agricultural minerals; two thirds of the nation's steel produc-
tion; and more than ninety percent of the nation's productive
capacity of basic industrial chemicals.
RCRA defines "solid waste" as "any garbage, refuse,
sludge from a waste treatment plant, water supply treatment
plant, or air pollution control facility and other discarded
material...." 42 U.S.C. s 6903(27). Solid wastes are "con-
sidered hazardous if they possess one of four characteristics
(ignitability, corrosivity, reactivity, and toxicity) or if EPA
lists them as hazardous following a rulemaking." Columbia
Falls Aluminum Co. v. EPA, 139 F.3d 914, 915 (D.C. Cir.
1998) (citing 42 U.S.C. s 6921(a), 40 C.F.R. pt. 261). Disposal
of hazardous waste is forbidden unless the waste is treated to
reduce its hazardous constituents or stored in a manner
ensuring that the hazardous constituents will not migrate
from the disposal unit. See id. (citing 42 U.S.C. s 6924(g)(5),
(m)).
To understand the contentions of the parties, it will be
helpful to outline the current solid waste classification system
(most of which predates the Phase IV Rule and is not being
challenged). EPA's general regulation defining "solid waste"
begins by repeating a portion of the statutory definition: "a
solid waste is any discarded material." 40 C.F.R.
s 261.2(a)(1). It then defines "discarded material" to mean
"any material which is Abandoned ... or Recycled, as ex-
plained in paragraph (c) of this section...." Id.
s 261.2(a)(2). Paragraph (c) identifies four situations in
which "recycled" materials will be considered "solid waste":
when the materials are "used in a manner constituting dispos-
al"; when the materials are "burn[ed] for energy recovery";
when the materials are "reclaimed"; and when the materials
are "accumulated speculatively." 40 C.F.R. s 261.2(c)(1)-(4).
The Phase IV Rule revised only the reclamation provision.
Before the revision, EPA classified reclaimed spent materials
and scrap metal as solid waste. See 40 C.F.R. s 261.2(c)(3) &
tbl.1 (1996). Reclaimed sludges and by-products were classi-
fied as solid waste only if they had been specifically listed in
40 C.F.R. pt. 261 as a hazardous waste following an EPA
rulemaking. See 40 C.F.R. s 261.2(c)(3) & tbl.1 (1996). Re-
claimed sludges and by-products exhibiting a characteristic of
hazardous waste, but not specifically listed as hazardous
wastes, were not classified as solid waste. See id. This
classification system applied without regard to the industry
that produced the materials.
The Phase IV Rule purported to take materials reclaimed
by the mineral processing industry outside this framework
and to subject these secondary materials to a new test for
determining whether they constituted "solid waste." See 40
C.F.R. s 261.2(c)(3) & tbl.1. We say "purported" because it
is not clear to us that EPA accomplished its objective. The
relevant part of the new recycling-reclamation provision
reads:
Materials [listed in a table] are not solid wastes when
reclaimed (except as provided under 40 CFR
261.4(a)(17)).[1]
__________
1 The final rule published in the Federal Register incorrectly
cited s 261.4(a)(15). See 63 Fed. Reg. 28,556, 28,636 (1998). EPA
later corrected its mistake. See 64 Fed. Reg. 25,408, 25,408 (1999).
Id. The new s 261.4(a)(17) gave a so-called "conditional
exclusion": if the provision's criteria were met, reclaimed
mineral processing secondary materials would not be classi-
fied as solid waste. We have trouble making sense of these
two provisions. The first provision (s 261.2(c)(3)) broadly
describes what is not a solid waste, unless it complies with the
other provision. But the other provision--s 261.4(a)(17)--is
an exclusion, and the consequence of not complying with the
provision is, of course, loss of exclusion. In other words, read
together, the provisions seem to say that something is not a
solid waste unless it is not excluded from being a solid waste.
Lewis Carroll would be proud. But petitioners make nothing
of the point and we shall therefore assume that if secondary
material of this sort--derived from mineral processing--does
not meet the conditions specified in s 261.4(a)(17), EPA will
consider the material "solid waste" potentially subject to full
RCRA Subtitle C regulation.
As to the conditions set forth in s 261.4(a)(17), EPA's
dividing line between "waste" and nonwaste is the manner of
storage. If the mineral processor stores secondary material
destined for recycling in tanks, containers, buildings, or on
properly maintained pads, the materials are not considered
"solid waste." See id. s 261.4(a)(17)(iii), (iv). Given our
assumption (and that of the parties), if by-products and
sludges exhibiting a characteristic of hazardous waste are not
stored in such a manner prior to being recycled, they may be
regulated as hazardous "waste."
How long the materials are stored is of no consequence
according to the regulation. See Fed. Reg. 28,556, 28,582-83
(1998). They could be placed on the ground for only a few
minutes before being put back into the production process,
yet they would still be subject to RCRA if not stored in
accord with s 261.4(a)(17). Petitioners say this rule extends
EPA's authority far beyond the statute. They ask how
secondary material held for recycling in production could
possibly qualify as "waste" when the statute defines "waste"
as "discarded materials"? 42 U.S.C. s 6903(27).
The question is not a new one. It was asked and answered
in American Mining Congress v. EPA, 824 F.2d 1177 (D.C.
Cir. 1987) ("AMC I"). The court began by referring to the
"ordinary, plain-English meaning" of "discarded"--" 'disposed
of,' 'thrown away,' or 'abandoned.' " Id. at 1184. Secondary
materials destined for recycling are obviously not of that sort.
Rather than throwing these materials away, the producer
saves them; rather than abandoning them, the producer
reuses them. After examining the structure and history of
RCRA, see id. at 1184-92, the AMC I court concluded:
"Congress clearly and unambiguously expressed its intent
that 'solid waste' (and therefore EPA's regulatory authority)
be limited to materials that are 'discarded' by virtue of being
disposed of, abandoned, or thrown away." Id. at 1190. The
court therefore set aside an EPA rule regulating secondary
"materials reused within an ongoing industrial process," id. at
1182, because the materials were "neither disposed of nor
abandoned," id. at 1193.
The holding in AMC I thus appears to answer the question
we have before us. See Chevron U.S.A. Inc. vs. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). The
Supreme Court has a rule: "Once we have determined a
statute's clear meaning, we adhere to that determination
under the doctrine of stare decisis, and we judge an agency's
later interpretation of the statute against our prior determi-
nation of the statute's meaning." Maislin Indus., U.S., Inc.
v. Primary Steel, Inc., 497 U.S. 116, 131 (1990); see also
Lechmere, Inc. v. NLRB, 502 U.S. 527, 536-37 (1992). We
too follow stare decisis. The complication, for an administra-
tive agency, of conflicting interpretations of the same statute
from different circuits is not present. The D.C. Circuit is the
exclusive venue for pre-enforcement judicial review of RCRA
regulations. See 42 U.S.C. s 6976(a)(1). And so, our inter-
pretation of RCRA binds not only this court but also EPA.
EPA nevertheless insists that RCRA may be applied to
materials that are not disposed of, abandoned, or thrown
away, but are destined for reuse in an on-going industrial
process. The argument is that AMC I was a narrow decision,
and that "subsequent judicial opinions have sharply limited
the scope of AMC I." 63 Fed. Reg. at 28,580. These later
decisions, according to EPA, absolutely bar the agency from
treating secondary materials as "discarded" (42 U.S.C.
s 6903(27)) if and only if "reclamation is continuous in the
sense that there is no interdiction in time--i.e. materials
moving from one step of a recovery process to another
without a break in the process, as for storage." 63 Fed. Reg.
at 28,581. We believe EPA misapprehends the law of the
circuit.
As to AMC I, EPA supports its interpretation of the
decision on the basis that the court twice used the phrase
"immediate reuse":
Here, Congress defined "solid waste" as "discarded ma-
terial." The ordinary, plain-English meaning of the word
"discarded" is "disposed of," "thrown away" or "aban-
doned." Encompassing materials retained for immediate
reuse within the scope of "discarded" strains, to say the
least, the everyday usage of that term.
* * *
The question we face, then, is whether ... Congress was
using the term "discarded" in its ordinary sense--"dis-
posed of" or "abandoned"--or whether Congress was
using it in a much more open-ended way, so as to
encompass materials no longer useful in their original
capacity though destined for immediate reuse in another
phase of the industry's ongoing production process.
824 F.2d at 1183-84, 1185. EPA reads, or rather misreads,
these passages to mean that it may treat secondary materials
as "discarded" whenever they leave the production process
and are stored for any length of time.
For one thing, "the language of an opinion is not always to
be parsed as though we were dealing with language of a
statute," Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979)--
an admonition the AMC I court itself repeated. See 824 F.2d
at 1183 n.6 (quoting Reiter, 442 U.S. at 341); see also St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) ("[W]e
think it generally undesirable, where holdings of the Court
are not at issue, to dissect the sentences of the United States
Reports as though they were the United States Code."). Yet
EPA treats "immediate reuse" as if these were statutory
terms in need of a regulatory definition. See, e.g., 63 Fed.
Reg. at 28,582-83. EPA supplies the definition: immediate
reuse is "continuous recirculation of secondary materials back
into recovery processes without prior storage" unless the
storage for later recycling complies with the conditions EPA
sets forth in the new s 261.4(a)(17) of its regulations. 63
Fed. Reg. at 28,580-83. Of course, this thoroughly ignores
the AMC I court's holding that, under RCRA, material must
be thrown away or abandoned before EPA may consider it to
be "waste." As we have said, material stored for recycling is
plainly not in that category.
For another thing, in the two passages quoted above, the
word "immediate" cannot mean what EPA thinks. The court
wrote of secondary material "retained"--held for a time--and
"destined"--denoting the future--for "immediate reuse."
This more than suggests that the court had in mind materials
that were being held or stored for later recycling or reuse.
EPA assumes, without saying why, that when the AMC I
court wrote "immediate" in these sentences it meant "at
once." But the word "immediate" has another common
meaning--"direct," as in "my immediate superior" or "the
immediate cause of the accident." It is clear to us that this is
what the AMC I court intended. It is clear because retaining
signifies holding onto, keeping, storing. And so retaining, on
the one hand, and reusing at once, on the other hand, sounds
like a physical impossibility. It is clear because the AMC I
court stressed, again and again, that it was interpreting
"discarded" to mean what it ordinarily means. To say that
when something is saved it is thrown away is an extraordi-
nary distortion of the English language. Yet that is where
EPA's definition leads. It is also clear that the AMC I court
intended "direct" when it wrote "immediate" because EPA
never even argued that materials sent back into the produc-
tion process, with no intermediate storage, were "waste."
EPA never made the argument because its rule at the time
did not consider such secondary materials to be discarded
(and thus "solid waste" under RCRA). EPA's AMC I brief
stated: "when secondary materials are recycled by being
returned directly (without undergoing significant reprocess-
ing) for use as feedstock to the process which generated
them, the activity often is like an on-going production process.
Secondary materials being recycled in this way--referred to
as a 'closed-loop' process--therefore are not defined as solid
wastes." Brief for Respondent at 11 (citing 40 C.F.R.
s 261.2(e)(iii)(1986)), AMC I.
That the "immediate reuse" phrase was not mentioned in
the critical portions of the AMC I opinion containing the
court's holding is still another reason for rejecting EPA's
position. The court stated: "In sum, our analysis of the
statute reveals clear Congressional intent to extend EPA's
authority only to materials that are truly discarded, disposed
of, thrown away, or abandoned," 824 F.2d at 1190; and
"[t]hese materials have not yet become part of the waste
disposal problem; rather, they are destined for beneficial
reuse or recycling in a continuous process by the generating
industry itself," id. at 1186 (italics in original); and "we are
persuaded that by regulating in-process secondary materials,
EPA has acted in contravention of Congress' intent," id. at
1193. Nothing here about saved materials being transformed
into discarded materials unless they are placed back into the
production process forthwith.
Still further, the AMC I court thought that EPA's final rule
illegally regulated the following: "valuable metal-bearing and
mineral-bearing dusts are often released in processing a
particular metal. The mining facility typically recaptures,
recycles, and reuses these dusts, frequently in production
processes different from the one from which the dusts were
originally emitted." Id. at 1181. The court must have been
referring to the following illustration provided in the mining
industry's brief:
If, for example, "an emission control dust from a primary
zinc smelting furnace" is not returned to the zinc produc-
tion process but instead to on-site "cadmium recovery
operations," it is classified as solid waste.
Brief for Petitioner American Mining Congress at 20 (citing
50 Fed. Reg. 614, 640 (1985)), AMC I. In this example, the
dust is not placed back into the production process at once,
and yet the AMC I court held that EPA had no authority to
regulate the dust as solid waste because it had not been
thrown away or otherwise discarded. To state the matter
more generally, the court in AMC I set aside EPA's rule
because secondary materials which are treated prior to recy-
cling cannot be considered discarded if they are "reused
within an ongoing industrial process." 824 F. 2d at 1182.2
We have written enough to explain why we disagree with
EPA's reading of AMC I and why the Phase IV Rule
contradicts that decision. Later cases in this court do not
limit AMC I, as EPA supposes. American Petroleum Insti-
tute v. EPA, 906 F.2d 729 (D.C. Cir. 1990) ("API"), was, as
__________
2 An example from the rulemaking record in this case illustrates
how temporary storage can be a necessary phase of reclaiming
mineral processing secondary material. The Cyprus Amax Miner-
als Company commented on EPA's proposed 48 hour rule, which
would have defined any such secondary material stored for more
than 48 hours as solid waste, see 62 Fed. Reg. 26,041, 26,051
(1997)--a more limited assertion of authority than the current rule,
which requires no minimum time period of storage. See Comments
of Cyprus Amax Minerals Company: Land Disposal Restrictions
Phase IV, at J.A. 839. At its Miami smelter, Cyprus recycles
reverts, a mixture of "converter slag and matte which has frozen to
the wall and bottom of a transfer ladle." Id. at 864. To accomplish
this, the reverts must be removed from the production process.
"This frozen layer of material (reverts) is physically knocked loose
from the ladle once it reaches a thickness that significantly reduces
the ladle transfer capacity. The freshly removed revert's tempera-
ture may still be as much as 1800-1900