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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 24, 2003 Decided August 8, 2003
No. 01-1216
AMERICAN CHEMISTRY COUNCIL,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
On Petition for Review of a Final Rule of the
Environmental Protection Agency
Michael W. Steinberg argued the cause for petitioner.
With him on the briefs were David F. Zoll and Leslie A.
Hulse.
Thomas Sayre Llewellyn argued the cause for amicus
curiae American Petroleum Institute in support of petitioner.
With him on the brief were G. William Frick and Ralph J.
Colleli, Jr.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Jon M. Lipshultz, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief was
Steven E. Silverman, Attorney, U.S. Environmental Protec-
tion Agency. John C. Cruden, Assistant Attorney General,
U.S. Department of Justice, entered an appearance.
Before: GINSBURG, Chief Judge, and SENTELLE and
RANDOLPH, Circuit Judges.
Opinion for the court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: The American Chemistry Council
(ACC) petitions for review of a rule promulgated by the
Environmental Protection Agency pursuant to the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901–
6992(k), treating as a ‘‘hazardous waste’’ any substance that is
either mixed with or derived from a listed hazardous waste.
The effect is to render such mixtures and derivatives subject
to the stringent standards for the management of hazardous
waste. We reject the ACC’s argument that the EPA lacked
authority for the rule under the RCRA and hence we deny
the petition for review.
I. Background
The RCRA ‘‘is a comprehensive environmental statute that
empowers EPA to regulate hazardous wastes from cradle to
grave, in accordance with TTT rigorous safeguards and waste
management procedures.’’ Chicago v. Environmental De-
fense Fund, 511 U.S. 328, 331 (1994); see Environmental
Defense Fund v. EPA, 210 F.3d 396, 397–98 (D.C. Cir. 2000);
United Technologies Corp. v. EPA, 821 F.2d 714, 716 (D.C.
Cir. 1987). The Act requires the EPA to regulate the identi-
fication, disposal, and treatment of ‘‘hazardous waste,’’ which
is defined as:
a solid waste, or combination of solid wastes, which
because of its quantity, concentration, or physical, chemi-
cal, or infectious characteristics may –
(A) cause, or significantly contribute to an increase in
mortality or an increase in serious irreversible, or
incapacitating reversible, illness; or
3
(B) pose a substantial present or potential hazard to
human health or the environment when improperly
treated, stored, transported, or disposed of, or other-
wise managed.
42 U.S.C. § 6903(5). ‘‘Solid waste’’ is in turn defined (in part)
as any ‘‘discarded material, including solid, liquid, semisolid,
or contained gaseous material resulting from industrial [or]
commercial TTT operations.’’ Id. § 6903(27).
The Act requires the Administrator to:
develop and promulgate criteria for identifying the char-
acteristics of hazardous waste, and for listing hazardous
waste TTT taking into account toxicity, persistence, and
degradability in nature, potential for accumulation in
tissue, and other related factors such as flammability,
corrosiveness, and other hazardous characteristics.TTT
42 U.S.C. § 6921(a). The Administrator must ‘‘promulgate
regulations identifying the characteristics of hazardous waste,
and listing particular hazardous wastes (within the meaning
of section 6903(5) of this title), which shall be subject to the
provisions of this subchapter.’’ Id. § 6921(b)(1). Pursuant to
§ 6921, the EPA may deem wastes hazardous
in one of two ways: They possess one of the four
hazardous characteristics identified by the EPA in 40
C.F.R. Part 261, Subpart C (‘‘characteristic wastes’’), see
id. § 261.3(a)(2)(i) (1991), or have been found to be
hazardous as a result of an EPA rulemaking. See id.
Part 261, Subpart D (‘‘listed wastes’’).
Chemical Waste Management, Inc. v. EPA, 976 F.2d 2, 7–8
(D.C. Cir. 1992).
Both characteristic hazardous wastes and listed hazardous
wastes are subject to regulation under Subtitle C of the
RCRA, which applies stringent management standards to the
generation, transportation, treatment, storage, and disposal of
hazardous waste. See 42 U.S.C. §§ 6921–6925. Under the
‘‘delisting process’’ provided in the Act, a listed hazardous
waste will be deemed non-hazardous at a particular facility if
a petitioner demonstrates that the waste no longer meets any
4
of the criteria for which it was listed, and that it is not
hazardous because of any other factor reasonably identified
by the EPA. 42 U.S.C. § 6921(f), 40 C.F.R. § 260.22.
In the proceeding here under review, the EPA modified the
regulatory definition of ‘‘hazardous waste’’ to include, subject
to certain exceptions, ‘‘a mixture of solid waste and one or
more hazardous wastes,’’ 40 C.F.R. § 261.3(a)(2)(iv), and ‘‘any
solid waste generated from the treatment, storage, or dispos-
al of a hazardous waste, including any sludge, spill residue,
ash emission control dust, or leachate.’’ 40 C.F.R.
§ 261.3(c)(2)(i). The EPA’s new definition went into effect on
an interim basis in 1992.* 57 Fed. Reg. 7628 (Mar. 3). In
1999 the EPA proposed in substance to make permanent the
1992 rule, with some minor alterations not relevant to this
case. 64 Fed. Reg. 63,382 (Nov. 19). The EPA issued the
Final Rule so doing on May 16, 2001. 66 Fed. Reg. 27,266.
II. Analysis
We review the Agency’s interpretation of a statute it is
charged with administering under the two-step analysis of
Chevron U.S.A. Inc. v. Natural Resource Defense Council,
Inc., 467 U.S. 837 (1984). First we must determine ‘‘whether
Congress has directly spoken to the precise question at
issue,’’ id. at 842 – here, whether, as the ACC argues, the
statutory definition of ‘‘hazardous waste’’ excludes substances
mixed with or derived from such waste. If the Congress has
so spoken, then ‘‘the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.’’
Id. at 842–43. If, however, ‘‘the statute is silent or ambigu-
ous with respect to the specific issue,’’ then we must go on to
* The ACC also challenges the 1992 interim rule. The EPA
suggests this challenge is untimely and moot, and the ACC lacks
standing. We conclude that we have jurisdiction, see Columbia
Falls Aluminum Co. v. EPA, 139 F.3d 914, 921 (D.C. Cir. 1998)
(‘‘Once an agency reopens an issue TTT a new review period is
triggered’’), and we deny the petition for review of the 1992 rule for
the same reasons we deny the challenge to the Final Rule.
5
determine ‘‘whether the agency’s answer is based on a per-
missible construction of the statute.’’ Id. at 843.
A. Chevron step one
The ACC argues first that the EPA’s interpretation is
inconsistent with the statutory definition of hazardous waste,
42 U.S.C. § 6903(5), because the rule brings within that
definition substances that do not exhibit a harmful ‘‘character-
istic.’’ The ACC points to the ‘‘EPA[’s] acknowledge[ment]
that not all mixtures and derivatives pose hazards to human
health and the environment.’’ Final Rule, 66 Fed. Reg. at
27,276. According to the ACC, the Congress could not
possibly have meant to include in the definition of hazardous
waste solid wastes that do not pose a threat to human health
or the environment. See Natural Resources Defense Council,
Inc. v. United States EPA, 907 F.2d 1146, 1159 (D.C. Cir.
1990) (‘‘A hazardous waste TTT is such only if various factors,
including the concentration of hazardous constituents, actual-
ly make it hazardous to human health or the environment’’)
(internal citation omitted).
In our view, however, the Congress did not speak directly,
let alone clearly, to this issue. As the EPA points out, the
definition of ‘‘hazardous waste’’ in the statute has a broad
sweep. See Environmental Defense Fund, 210 F.3d at 397.
It includes not only those solid wastes that do pose hazards to
human health or the environment, but also those that ‘‘may’’
do so. In addition, the definition includes those wastes in
which the ‘‘potential hazard’’ becomes an actual hazard only if
the waste is ‘‘improperly treated, stored, transported, or
disposed of, or otherwise managed.’’ 42 U.S.C. § 6903(5)(B).
This provision does not make mixtures and derivatives clearly
hazardous wastes or clearly non-hazardous wastes. The ele-
ment of judgment imported into the definition of hazardous
waste by the use of ‘‘may’’ and the inclusion of waste that
may be hazardous only if mismanaged necessarily makes the
statute ambiguous on this score.
The ACC argues nonetheless that the Final Rule simply
cannot be squared with the Act because it allows the EPA to
classify a substance as hazardous without ‘‘taking into account
6
toxicity, persistence, and degradability in nature, potential for
accumulation in tissue, and other related factors,’’ as required
by § 6921(a). Amicus American Petroleum Institute adds
that the legislative history of § 6921 indicates the EPA must
follow a two-step process in order to regulate a solid waste as
hazardous: it must first determine the characteristics of a
hazardous waste and then show that a particular solid waste
has at least one such characteristic. See H.R. Rep. No. 1491,
94th Cong., 2d Sess. 25, reprinted in 1976 U.S.C.C.A.N. 6238,
6263 (‘‘Only after the criteria for determining what is hazard-
ous has [sic] been developed can the Administrator determine
which specific wastes are hazardous’’).
According to the EPA, however, when it lists a waste as
hazardous it could, in principle, automatically list its mixtures
and derivatives as well. That is, the mixture rule and the
derived-from rule are consistent with § 6921 because mix-
tures and derivatives are ‘‘a second generation of the listed
hazardous wastes from which they originate, [and] it is rea-
sonable to presume, until demonstrated otherwise, that these
wastes are also hazardous.’’
We think the EPA’s response is sufficient, at the least, to
demonstrate that the statute does not directly answer the
issue before us. For the reason just quoted, § 6921 cannot
be understood to preclude the EPA from regulating mixtures
and derivatives until such time as they may be shown to be
non-hazardous. Some – perhaps most – mixtures and deriva-
tives maintain the characteristics of their parent hazardous
waste. See Final Rule, 66 Fed. Reg. at 27,274–75 (citing
Mark Eads, Office of Solid Waste, EPA, Analysis of RCRA
‘‘Mixtures and Derived-From’’ Hazardous Waste Constituent
Data, which analyzed the EPA’s National Hazardous Waste
Constituent Survey Database); Chemical Waste Manage-
ment, Inc. v. EPA, 869 F.2d 1526, 1539 (D.C. Cir. 1989) (‘‘a
hazardous waste does not lose its hazardous character simply
because it changes form or is combined with other sub-
stances’’). Any mixture or derivative that does not remain
hazardous may be exonerated either by an explicit exclusion
in the initial listing or through the delisting process of
§ 6921(f).
7
In sum, neither the definition of ‘‘hazardous waste’’ nor
§ 6921 answers the question whether that definition or any
other provision of the RCRA authorizes the EPA to regulate
a mixture or derivative that may be, but has not yet been
shown to be, a hazardous waste. We must go on to deter-
mine, therefore, whether the EPA’s interpretation of 42
U.S.C. § 6903(5) is reasonable.
B. Chevron step two
The EPA persuasively argues that it reasonably interpret-
ed the term ‘‘hazardous waste’’ presumptively to include
mixtures and derivatives: ‘‘[The Final Rule] assure[s] that
hazardous mixtures and derivatives do not imprudently es-
cape Subtitle C requirements.’’ We agree. The Final Rule
fulfills the purpose for which the Congress passed the RCRA,
namely to subject hazardous waste to ‘‘cradle-to-grave’’ regu-
lation in order to protect public health and the environment.
United Technologies, 821 F.2d at 716. To that end, too, the
Congress ‘‘requir[ed] that hazardous waste be properly man-
aged in the first instance thereby reducing the need for
corrective action at a future date.’’ 42 U.S.C. § 6902(a)(5).
We also agree that, because many mixtures of and derivatives
from hazardous wastes are themselves hazardous, it is rea-
sonable for the EPA to assume that all such mixtures and
derivatives are hazardous until shown otherwise. For that
reason we have already endorsed a similar action by the EPA
with respect to hazardous wastes that mix with soil and
groundwater. See Chemical Waste Management, 869 F.2d at
1540. Placing the burden upon the regulated entity to show
the lack of a hazardous characteristic in a mixture or deriva-
tive it manages avoids placing upon the EPA what the agency
persuasively describes as ‘‘the nearly impossible affirmative
burden of anticipating and analyzing, in a listing decision, the
hazardousness or non-hazardousness [of] every conceivable
mixture or derivative that a generator might create.’’ In
addition, the dozen or more exceptions already contained in
the rule – such as those for used oil, 40 C.F.R.
§ 261.3(a)(2)(v), certain laboratory wastewaters, id.
§ 261.3(a)(2)(iv)(E), and certain carbamate wastewaters, id.
8
§ 261.3(a)(2)(iv)(F)-(G) – prevent it from casting too wide a
net over nonhazardous mixtures and derivatives.
The ACC objects that the delisting mechanism does not
provide any realistic relief to the potential over-inclusiveness
of the rule because it is ‘‘slow, onerous, ineffective, and at
times controversial.’’ OFFICE OF SOLID WASTE AND EMERGENCY
RESPONSE, ENVIRONMENTAL PROTECTION AGENCY, THE NATION’S
HAZARDOUS WASTE MANAGEMENT PROGRAM AT A CROSSROADS: THE
RCRA IMPLEMENTATION STUDY 39 (1990). The cumbersome
nature of the delisting process, however, says nothing about
the reasonableness of the EPA’s interpretation of the statute.
And in any event, even if the delisting process were impossi-
bly cumbersome, a party could still head off the initial listing
of the mixture or derivative by proposing that the initial
listing of a particular waste as hazardous include the qualifi-
cation that certain specified mixtures and derivatives are not
included in the listing.
The ACC claims the EPA has available to it other ‘‘lawful
and adequate alternatives to the mixture rule and the de-
rived-from rule,’’ such as adopting broader listings or modify-
ing the current prohibition on dilution of hazardous waste.
See 40 C.F.R. § 268.3. We disagree because the EPA has
shown not only that the Final Rule prevents hazardous
mixtures and derivatives from evading proper treatment un-
der the RCRA but also that the alternatives proposed by the
ACC would not be as effective. For example, using broader
listings would place upon the EPA the very administrative
burden we deemed above to be impractical; the Agency
would have to identify not only the hazardous waste but also
to determine whether all second-generation wastes are haz-
ardous. The anti-dilution rule makes unlawful the expedient
of simply diluting hazardous waste in order to lower the
concentration of hazardous constituents and thereby circum-
vent regulation under the RCRA. The ACC does not explain
how modifying the anti-dilution rule would make it an effec-
tive substitute for the Final Rule.
Finally, the ACC argues that the Final Rule imposes a
significant cost upon industry without any showing of a
9
concomitant public benefit. The ACC, however, does not
identify any provision of the RCRA requiring the benefits of a
regulation to equal or exceed its costs. And the EPA has
submitted evidence that some mixtures and derivatives dis-
play the hazardous characteristics of their parent waste, see
Final Rule, 66 Fed. Reg. at 22,274–75, which suggests the
rule will provide at least some added protection of the envi-
ronment and public health.
We think the Congress wanted the EPA, in deciding which
substances to regulate as ‘‘hazardous’’ under the RCRA, to
err on the side of caution, see 42 U.S.C. § 6901(b)(6); the
Final Rule is a reasonable exercise of such caution. There-
fore, we cannot say the rule is an unreasonable interpretation
of the agency’s statutory mandate comprehensively to regu-
late hazardous waste.
III. Conclusion
For the foregoing reasons, the petition for review is
Denied.