United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 13, 2000 Decided May 5, 2000
No. 99-1048
Environmental Defense Fund, et al
Petitioners
v.
Environmental Protection Agency,
Respondent
Edison Electric Institute, et al.,
Intervenors
---------
Consolidated with
No. 99-1049
On Petitions for Review of an Order of the
Environmental Protection Agency
David R. Case argued the cause for petitioners. With him
on the briefs was Karen Florini.
Norman L. Rave, Jr., Attorney, U.S. Department of Jus-
tice, argued the cause for respondent. With him on the brief
were Lois J. Schiffer, Assistant Attorney General, and Alan
Carpien, Attorney, Environmental Protection Agency.
Christopher S. Vaden, Attorney, U.S. Department of Justice,
entered an appearance.
William K. Rawson, Claudia M. O'Brien, Douglas H.
Green, Steven J. Groseclose, David F. Zoll, Katheryn W.
Smith, Lynn L. Bergeson and Cara S. Jablon were on the
joint brief for intervenors Chemical Manufacturers Associa-
tion, et al.
Before: Silberman, Randolph and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: The Environmental Defense Fund
("EDF") and the Environmental Technology Council ("ETC")
petition for review of a final determination by the Environ-
mental Protection Agency ("EPA") not to add fourteen sol-
vent wastes to its list of hazardous wastes under Subtitle C of
the Resource Conservation and Recovery Act of 1976
("RCRA"), as amended, 42 U.S.C. s 6921-6939b. Petitioners
challenge two aspects of EPA's decision. First, petitioners
contend that EPA made the scope of its listing rulemaking
narrower than is permissible under the plain language of
EPA's regulation governing such listing determinations.
EPA analyzed whether the wastes produced when each of the
fourteen chemicals is used as a solvent is hazardous. Such
wastes usually consist of a number of constituent substances,
but EPA limited its inquiry to whether the presence of the
chemical solvent in the resulting waste was by itself a suffi-
cient reason to list the waste as hazardous. Petitioners
contend that EPA's regulation, 40 C.F.R. s 261.11(a)(3),
which refers to "any toxic constituent," imposed on EPA the
heavier burden of surveying the range of constituent sub-
stances comprising the waste before deciding not to list such
wastes. Second, under EPA's regulation, EPA is to gauge
the risks posed by a waste in part by considering plausible
mismanagement scenarios, and petitioners challenge EPA's
decision that wastes produced when one chemical, isophorone,
is used as a solvent could not plausibly be disposed of in a
landfill, maintaining that EPA lacked sufficient data to make
that decision, rendering it arbitrary.
We hold that because EPA's regulation is silent as to how
EPA must conduct its listing inquiry and because EPA
reasonably concluded that no wastes from the solvent use of
isophorone were, or were likely to be, disposed of in landfills,
EPA permissibly limited the scope of its rulemaking to the
toxicity of the solvents and conducted a reasonable evaluation
of plausible mismanagement scenarios for isophorone. Ac-
cordingly, we deny the petition for review.
I.
Congress enacted Subtitle C of RCRA, 42 U.S.C. ss 6921-
6939b, to establish a "cradle-to-grave" regulatory structure
providing for the safe treatment, storage, and disposal of
hazardous waste. Natural Resources Defense Council v.
EPA, 25 F.3d 1063, 1065 (D.C. Cir. 1994). Congress defined
"hazardous waste" broadly in RCRA,1 delegating to EPA the
__________
1 "Hazardous waste" is:
a solid waste, or combination of solid wastes, which because of
its quantity, concentration, or physical, chemical, or infectious
characteristics may-
(A) cause, or significantly contribute to an increase in mor-
tality or an increase in serious irreversible, or incapacitating
reversible, illness; or
(B) pose a substantial present or potential hazard to human
health or the environment when improperly treated, stored,
transported, or disposed of, or otherwise managed.
42 U.S.C. s 6903(5). "Solid waste" is "any garbage, refuse, sludge
from a waste treatment plant, water supply treatment plant, or air
pollution control facility or other discarded material, including solid,
liquid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural operations, and
from community activities...." Id. s 6903(27).
task of promulgating regulations identifying the characteris-
tics of hazardous waste and listing specific wastes as hazard-
ous. Id. Pursuant to this authority, EPA has promulgated
listing criteria to determine whether solid wastes are hazard-
ous. 40 C.F.R. s 261.11. Once listed as "hazardous," a
waste is subject to significant regulation. See Columbia
Falls Aluminum Co. v. EPA, 139 F.3d 914, 915 (D.C. Cir.
1998); American Petroleum Institute v. EPA, 906 F.2d 729,
733 (D.C. Cir. 1990) (citing 42 U.S.C. ss 6922-6925).
In 1984, Congress amended RCRA to require EPA to
decide by February 1986 whether to list "solvents" as haz-
ardous wastes. 42 U.S.C. s 6921(e)(2). When EPA did not
act promptly, EDF filed suit seeking an order directing EPA
to make a listing determination as to the hazardous nature
of certain solvents. The result was a consent decree requir-
ing EPA to "promulgate a final listing determination for
solvent wastes on or before May 31, 1997."2 The consent
decree specified that the "listing determination [was to] in-
clude the following spent solvent wastes, still bottoms from
the recovery of the following solvents, and spent solvent
mixtures: cumene, phenol, isophorone, acetonitrile, furfural,
epicholorohydrin, methyl chloride, ethylene dibromide, ben-
zyl chloride, ... p-dichlorobenzene, ... 2-methoxyethanol,
2-methoxyethanol acetate, 2-ethoxyethanol acetate, and cy-
clohexanol."3
The rulemaking under review is one of a series in which
EPA has considered whether wastes from the use of specified
chemicals as solvents should be listed as hazardous. See 51
Fed. Reg. 6537 (1986); 45 Fed. Reg. 74,884 (1980). To date,
EPA has listed wastes from solvent use of approximately 30
chemicals. See 40 C.F.R. s 261.31, waste codes F001-F005.
EPA determined that it could rely on the methodology it had
used in the prior solvent rulemakings consistent with its
__________
2 The deadline was advanced one year on stipulation of EDF
and EPA.
3 EPA asserts in its brief that the chemicals at issue are not
general use solvents, but are used, if at all, in a variety of specialty
applications because of price and other characteristics.
obligations under the consent decree. See 63 Fed. Reg.
64372, 64373 (1998).
After conducting its preliminary analysis, EPA issued a
proposed rule on August 14, 1996, not to amend the solvent
waste listing in 40 C.F.R. s 261.31 to include the fourteen
solvent wastes. 61 Fed. Reg. 42,318, 42,138 (1996). Relying
on its longstanding methodology, EPA stated that it was
examining the toxicity of the spent solvents only, as opposed
to any additional chemicals that might mix with the solvent to
form a larger waste stream. See id. at 42,319-20. EPA
explained that many of these solvent wastes are already
regulated as hazardous waste because they either exhibit a
hazardous waste characteristic or are mixed with other sol-
vent wastes that are listed as hazardous. Id. at 42,319. EPA
further explained that in limiting the scope of its proposed
rule to "a determination only regarding the need for adding
these specific wastes to the RCRA hazardous waste listings
based on the specific criteria in the listing regulations," id.
(emphasis added), it was exercising its broad discretion under
RCRA and the consent decree "to reasonably define the
scope of the listing determination." Id. at 42,320. This
approach also was necessary as a practical matter, in EPA's
view, because of the ubiquity of "solvents" in general. Id. 03
The proposed rule also identified the research and data
gathered by EPA to determine "plausible mismanagement
scenarios" for the solvents. Id. at 42,320-49.
Petitioners filed comments objecting to the limited scope of
the proposed rule in view of the regulatory requirement to
consider "any" hazardous constituents listed in Appendix VIII
to 40 C.F.R. Part 261.4 Petitioners also argued that EPA had
failed to consider all plausible mismanagement scenarios.
Petitioners contended that because the universe of possible
solvent uses is too large to capture all mismanagement sce-
narios through empirical study, EPA should have relied upon
__________
4 ETC noted a general objection that "the hazardous constitu-
ents that are typically found in these solvents were not identified,
nor were the risks posed by multiple hazardous constituents evalu-
ated."
such "standard" mismanagement scenarios as those involving
land disposal even if EPA's particular research did not sug-
gest the presence of such disposal methods.
In the final rule, EPA concluded that the solvents should
not be listed as hazardous wastes. 63 Fed. Reg. at 64,372.
EPA reiterated that it defined "spent solvent wastes" solely
in terms of the solvent constituents, and that in view of the
large number of potential solvent waste combinations, prac-
tical necessity dictated this manner of proceeding. Id. at
64,373-74, 64,383. EPA defended its methodology for deter-
mining plausible waste mismanagement scenarios, and
deemed implausible those management scenarios EDF as-
serted to be "plausible." Id. at 64,377-82, 64,383-85. EDF
and ETC petition for review.
II.
Petitioners contend that EPA acted inconsistently with its
regulation by limiting the scope of its rulemaking to solvents
only, and that EPA acted arbitrarily and capriciously by
relying on an industry-wide survey to identify plausible mis-
management scenarios for solvent wastes.5 The first con-
tention turns on petitioners' interpretation of EPA's listing
regulation; the second is limited by petitioners' focus on
mismanagement scenarios for the solvent isophorone.
__________
5 The court has jurisdiction to review EPA's determination not
to amend 40 C.F.R. s 261.31 to include any of the fourteen solvent
wastes under RCRA, 42 U.S.C. s 6976(a)(1), as a denial of a
petition. The relevant petition is EDF's complaint in the district
court that led to the consent decree upon which EPA acted. While
the court in American Portland Cement Alliance v. EPA, 101 F.3d
772 (D.C. Cir. 1996), rejected the view that comments submitted
during an agency initiated rulemaking constituted a petition for
purposes of s 7006(a) review of the agency's deferral of rulemaking,
id. 778-79, EDF's complaint in the district court led to the rulemak-
ing proceeding in which EPA reached a non-listing decision, and
thus served the function of a petition that EPA denied, thereby
completing the regulatory process. See id. 779.
A.
EPA's listing regulation provides in pertinent part:
(a) The Administrator shall list a solid waste as a haz-
ardous waste only upon determining that the solid waste
meets one of the following criteria:
(1) It exhibits any of the characteristics of hazardous
waste identified in subpart C.
(2) It has been found to be fatal to humans in low
doses or.... [has been shown through laboratory studies
or otherwise to be capable of causing severe illness or
death].
(3) It contains any of the toxic constituents listed in
appendix VIII and, after considering [certain enumerat-
ed] factors, the Administrator concludes that the waste is
capable of posing a substantial present or potential haz-
ard to human health or the environment when improper-
ly treated, stored, transported or disposed of, or other-
wise managed....
40 C.F.R. s 261.11 (emphasis added).6 Petitioners focus on
the italicized language of subsection (3) as requiring EPA to
__________
6 EPA identified "enumerated factors" to be considered after
determining the presence of a toxic constituent in the waste as:
(i) The nature of the toxicity presented by the constituent.
(ii) The concentration of the constituent in the waste.
(iii) The potential of the constituent or any toxic degradation
product of the constituent to migrate from the waste into the
environment under the types of improper management consid-
ered in paragraph (a)(3)(vii) of this section.
(iv) The persistence of the constituent or any toxic degrada-
tion product of the constituent.
(v) The potential for the constituent or any toxic degradation
product of the constituent to degrade into non-harmful constit-
uents and the rate of degradation.
(vi) The degree to which the constituent or any degradation
product of the constituent bioaccumulates in ecosystems.
consider the presence of "any" hazardous constituents listed
in Appendix VIII to 40 CFR Part 261, not just the solvent
itself. Petitioners also maintain that to conclude otherwise
would render meaningless the distinction between the routes
to listing provided in subsections (1) and (2), which focus on
the toxicity of the waste to be listed, and subsection (3), which
focuses on the existence of toxic constituents in the waste and
the potential for the waste to pose a health or environmental
hazard when improperly managed. Further, because most of
the solvents at issue are not listed in Appendix VIII of Part
261, petitioners maintain that EPA cannot construe
s 261.11(a)(3), which refers to the presence of "toxic constitu-
ents listed in appendix VIII", to mean that the chemical
solvent is the toxic constituent to be examined. In addition,
petitioners contest EPA's view of the impracticality of exam-
ining other toxic constituents potentially present in the sol-
vent wastes.
The court is bound to accept " '[a]n agency's interpretation
of its own regulations ... unless it is plainly wrong.' " Chem-
ical Waste Management, Inc. v. EPA, 869 F.2d 1526, 1538-39
(D.C. Cir. 1989) (quoting General Carbon Co. v. Occupational
Safety and Health Review Comm'n, 860 F.2d 479, 483 (D.C.
Cir. 1988)). See also, e.g., Natural Resources Defense Coun-
cil v. EPA, 25 F.3d 1063, 1068-69 (D.C. Cir. 1994); Hazard-
ous Waste Treatment Council v. Reilly, 938 F.2d 1390, 1395
(D.C. Cir. 1991). Especially "on 'a highly technical question
__________
(vii) The plausible types of improper management to which
the waste could be subjected.
(viii) The quantities of the waste generated at individual
generation sites or on a regional or national basis.
(ix) The nature and severity of the human health and envi-
ronmental damage that has occurred as a result of the improp-
er management of wastes containing the constituent.
(x) Action taken by other governmental agencies or regula-
tory programs based on the health or environmental hazard
posed by the waste or waste constituent.
(xi) Such other factors as may be appropriate.
40 C.F.R. s 261.11(a)(3).
... courts necessarily must show considerable deference to
an agency's expertise.' " Chemical Waste Management, 869
F.2d at 1539 (quoting MCI Cellular Tel. Co. v. FCC, 738 F.2d
1322, 1333 (D.C. Cir. 1984)). We hold that EPA did not
clearly err in interpreting its listing regulation to require only
that it analyze the toxicity of the solvents, rather than other
constituents with which the solvents might be combined.
Petitioners' "plain language" and supporting contentions
are unpersuasive. Subsection (3), on which petitioners rely,
merely provides a threshold that must be met before a listing
determination may be made on the basis of constituent con-
tent: that is, that "any" Appendix VIII constituent be present
in the waste. 40 C.F.R. s 261.11(a)(3). And the distinction
relied on by petitioners between the three major listing
criteria in s 261(a) demonstrates only that EPA has given
itself the option of evaluating either toxic characteristics of
the waste as a whole, s 261(a)(1) and (2), or of specific
constituents within the waste, s 261(a)(3), and does not pre-
clude the possibility that a waste may consist of one constitu-
ent, much less that in a particular rulemaking EPA will focus,
pursuant to s 261(a)(3), on one constituent.7 That all of the
solvents are not listed in Appendix VIII does not demonstrate
error; EPA points out that it is routine to add a waste to
Appendix VIII and simultaneously to list a waste as hazard-
ous based on that constituent. See Dithiocarbamate Task
Force v. EPA, 98 F.3d 1394, 1398 (D.C. Cir. 1996).8
__________
7 Indeed, the consent decree defines the relevant "spent sol-
vent" wastes as the solvents, mandating that EPA evaluate "the
following spent solvent wastes", and then listing the solvents alone.
8 Contrary to EPA's contention, petitioners' reference to the
legislative history of 1984 delisting legislation, 42 U.S.C. s 6921(f),
was properly raised in its reply brief in response to the statement in
EPA's brief that in amending RCRA in 1984 Congress was aware of
EPA's practice of making solvent listing determinations based
solely on the toxicity of the solvent. Petitioners' legislative history
argument fails substantively, however, because delisting is different
from the imposition of reasonable restrictions on the scope of a
listing determination.
It is also significant that EPA does not purport to have
made a non-listing determination for specific solvent waste
combinations without having evaluated the toxicity of those
combinations; to the contrary, EPA made clear that its
rulemaking concerns only the toxicity of the solvents. See,
e.g., 63 Fed. Reg. at 64,383. There is nothing to suggest that
EPA could not in the future examine specific solvent waste
combinations on the basis that the specific waste combina-
tions as a whole are toxic; many such wastes already are
listed due to the existence of toxic constituents other than the
solvent itself. 61 Fed. Reg. 42,319. EPA thus not only did
not misinterpret its regulation, but did not abuse its discre-
tion under its regulation.9
B.
To the extent that petitioners contend that EPA's risk
analysis was flawed insofar as its study of "plausible misman-
agement" scenarios was inadequate, petitioners focus only on
the solvent isophorone. EPA's approach, as illustrated by its
examination of isophorone, involved gathering data on those
industry categories (known as "standard industry classifica-
tions", or "SIC"s) that might include facilities that use isopho-
rone as a solvent, mailing preliminary questionnaires to facili-
ties within those SICs, and then mailing more detailed,
__________
9 Merely disputing EPA's evaluation of the impracticality of
examining what presently is an unknown number of solvent waste
combinations, as petitioners do, is not the same as demonstrating
that EPA abused its discretion to limit the scope of its rulemaking
under s 261.11(a)(3). Because we conclude that EPA did not abuse
its discretion in analyzing only the solvents, we need not be
detained by EPA's contention that petitioners failed in their initial
brief to make an "arbitrary and capricious" challenge but relied
instead on the broader contention that EPA had acted contrary to
its listing regulation.
"Section 3007"10 questionnaires to those facilities for whom
follow-up was warranted. Contending that EPA's initial liter-
ature search was insufficiently thorough to target all relevant
SICs, petitioners argue first, that a number of isophorone
users were discovered through "pure serendipity" when they
were mailed surveys for other reasons, and that there thus is
no way of knowing how many remaining isophorone users
exist, and second, that EPA has not accounted for all known
domestic and imported quantities of isophorone in the United
States. More fundamentally, petitioners assert that the at-
tempt to conduct a comprehensive industry survey was flawed
from the beginning, and that a "random sampling" would
have been a preferred approach, because the solvents are
potentially used by so many facilities in so many different
industries. As a result, petitioners conclude, EPA mistakenly
assumed that it had isolated all potential isophorone misman-
agement scenarios and improperly disregarded the "presump-
tive" mismanagement scenario of landfill disposal on the basis
that this scenario did not match EPA's empirical data.
Upon considering petitioners' challenge to EPA's methodol-
ogy, we hold that petitioners fail to show that EPA's action
was "arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law." 5 U.S.C. s 706(2)(A).
Rather, EPA's "reasons and policy choices ... conform to
'certain minimal standards of rationality'...." Small Refin-
er Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 520-
21 (D.C. Cir. 1983) (citation omitted). See also, e.g., Citizens
__________
10 The "RCRA s 3007 Solvent Use Questionnaire" was more
detailed than EPA's preliminary questionnaire, and concerned the
use of twenty-one chemicals as solvents, including the fourteen
chemicals at issue here. EPA sent the s 3007 questionnaire to
approximately 10% of the facilities to whom the preliminary ques-
tionnaire had been sent, given the responses from most facilities
indicating either a lack of use of the chemicals as solvents, or small
volume of use.
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
(1971). EPA has demonstrated that a landfilling "presump-
tion" did not necessarily apply in the case of isophorone.
Rather, EPA concluded that the high organic content of
isophorone found in EPA's survey called for a presumption of
thermal treatment, such as incineration, combustion in a
boiler, or fuel blending, given the fuel value of organic waste
and the potential for liability arising from landfilling organic
matter.11 See 61 Fed. Reg. at 42,345; 63 Fed. Reg. at 64,384-
85; 59 Fed. Reg. 66,072, 66,074 (1994). EPA employed a
reasonable methodology in reaching this conclusion, both in
analyzing isophorone data to determine the high organic
content of the solvent, and in analyzing isophorone treatment
to compare the presumptive thermal treatment of organic
waste with the empirical reality of isophorone's disposal.
While petitioners maintain that EPA's literature search was
incomplete, EPA's decision to review the relevant literature
to identify uses of isophorone by SIC code, and to limit its
review of the publication Chemical Abstracts to a four-year
period, was well within its discretion. As EPA pointed out,
isophorone solvent use is extremely limited, and it is highly
unlikely that a process that is still in use today would not be
reported in recent publications. A four-year research limita-
tion thus was a reasonable choice for EPA to make. Similar-
ly, petitioners fail to show that EPA's methodology for com-
piling a facilities mailing list, which involved cross-referencing
the SIC codes relevant to isophorone with other EPA data
sources, was not reasonably designed to identify and contact
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11 The only wastes for which EPA's research indicated that
landfilling might be a plausible management scenario were sludge
from biological treatment and ash from combustion. 63 Fed. Reg.
at 64,384. Because biological treatment and combustion are effec-
tive in destroying solvents, EPA could reasonably conclude that
these residuals contained at most a de minimis amount of solvent,
and thus would not pose a sufficient solvent-based risk to warrant
listing. Id.
those facilities utilizing isophorone as a solvent. Such cross-
referencing between the relevant SIC codes and EPA's Toxic
Release Inventory ("TRI") for all facilities reporting the use
of other TRI chemicals marks a thorough approach to scan-
ning across facilities to determine possible isophorone users
that would not otherwise be located. While there may be
other ways to approach the task that EPA identified, EPA's
approach was not arbitrary.
Furthermore, regarding petitioners' contention that EPA
overlooked many isophorone-using facilities that were later
identified through "pure serendipity", EPA points out that all
of the facilities responding to its initial survey that claimed to
use isophorone as a solvent were either included in the
targeted SIC codes or mistakenly responded where their use
of isophorone did not meet the definition of solvent use.12
Similarly, a number of responses to the final survey mistak-
enly claimed non-solvent uses of isophorone, and hence the
final number of reported responses differs from the number
originally identified as potential survey recipients. More
fundamentally, petitioners have provided no basis on which
the court can conclude that "random sampling" would have
produced more accurate data. So far as we can tell from
petitioners' succinct statement, the advantage of random sam-
pling arises from the fact that it purports to do no more than
to gather representative facts from which to draw logical
presumptions as to management scenarios, whereas EPA's
"industry survey" risks analytical rigidity where the survey
falls short of its task. However, EPA did no more than draw
the logical conclusion of presumptive thermal treatment from
the high organic content of the isophorone wastes surveyed, a
conclusion confirmed by empirical waste treatment data and
__________
12 The mistaken responses of non-solvent isophorone use are
recorded in telephone logs and other background documents.
thus supporting the reasonableness of EPA's methodology.13
Accordingly, we deny the petition for review.
__________
13 For similar reasons, petitioners' argument that EPA might
not have accounted for all isophorone produced or imported into the
United States is a red herring. Even if EPA's survey did not
account for all isophorone used as a solvent in the United States, its
methodology provided a reliable approximation thereof, and thus a
sound basis on which to presume plausible mismanagement scenar-
ios from the high organic content of the isophorone surveyed, and to
check that presumption against empirical data. In any event,
petitioners concede EPA's point that the term "consumption" in the
Chemical Economics Handbook--the value of which EPA's analysis
was based on--includes imports to the United States. While peti-
tioners argue that EPA's consumption figure is unlikely, as it would
require United States import and export figures to match, it offers
no evidence to suggest that the figure is incorrect.